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City of Boulder v. Dinsmore3/23/1995
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Petitioners, City of Boulder and Colorado Compensation Insurance Authority, seek review of the final order of the Industrial Claim Appeals Panel that awarded Eugene A. Dinsmore (claimant) medical impairment benefits for psychological impairment. The petitioners assert that the director of the Division of Workers' Compensation violated petitioners' right to procedural due process by failing to adopt "impairment rating guidelines" for psychological injuries as required by statute. We conclude that petitioners were not denied due process and, therefore, affirm.
Claimant worked as a heavy equipment operator for the City of Boulder. He suffered a nerve entrapment injury above his left elbow, and petitioners admitted liability for temporary total disability, medical benefits, and permanent partial disability for a scheduled award.
However, claimant also asserted that he sustained a psychological injury as a result of the admitted physical injury. The Administrative Law Judge (ALJ) determined that the reports of claimant's psychiatrist and social worker, which supported this additional finding, were credible and persuasive. Accordingly, the ALJ awarded claimant a 16% medical impairment rating for the psychological injury. On review, the Industrial Claim Appeals Panel affirmed.
Petitioners contend that they were denied procedural due process because the director failed to adopt rules and regulations as required by statute. We disagree.
I.
Both parties have attached to their briefs various documents, including what appears to be portions of the third edition of the American Medical Association Guides to the Evaluation of Permanent Impairment (AMA Guides) and a syllabus included in the Division of Workers' Compensation's accreditation training materials. These documents were relied upon by claimant's psychiatrist in formulating his opinion regarding the extent of medical impairment.
However, because these documents were not presented to the ALJ, they are not a part of the appellate record and they will not be considered in this appeal. See Subsequent Injury Fund v. Gallegos, 746 P.2d 71 (Colo. App. 1987).
II.
Section 8-42-101(3.5)(a)(II), C.R.S. (1994 Cum. Supp.) (applicable to injuries occurring on or after July 1, 1991), provides:
The director shall promulgate rules by January 1, 1992, establishing a system for the determination of . . . medical impairment rating guidelines for impairment ratings as a percent of the whole person . . . based on the revised third edition of the "American Medical Association Guides to the Evaluation of Permanent Impairment", [AMA Guides] in effect as of July 1, 1991.
Petitioners note that although a very specific rating system exists for other types of injuries, there is no rating system for psychological injuries in the AMA Guides and, furthermore, numerical ratings for such injuries are not recommended. Thus, petitioners assert that the absence of rules required by ยง 8-42-101(3.5)(a)(II) violated their right to due process. We are not persuaded.
Due process requires notice and the opportunity to be heard. Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076 (Colo. App. 1990). In determining the adequacy of procedural safeguards, a reviewing court must balance several factors, including the private interests that are affected by the official action and the probable value, if any, of additional or substitute procedural safeguards. Donn v. Industrial Claim Appeals Office, 865 P.2d 873 (Colo. App. 1993).
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