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Kolar v. Industrial Claim Appeals Office of the State of Colorado9/8/2005
ORDER AFFIRMED
Rothenberg and Webb, JJ., concur
In this workers' compensation proceeding, Rebecca Kolar (claimant) seeks review of a final order of the Industrial Claim Appeals Office (Panel) determining that she is limited to a scheduled disability award for permanent disability benefits and is not entitled to a whole person disability award. We affirm.
I.
Claimant sustained admitted injuries to her right upper extremity in May 2001 and to her left upper extremity in January 2003. The claims were consolidated, and claimant underwent a division-sponsored independent medical examination (DIME). The DIME physician diagnosed both injuries as cumulative trauma disorder and rated the right upper extremity impairment at thirty-five percent and the left upper extremity at fourteen percent. In reliance on Department of Labor & Employment Rule XIX(G)(2), 7 Code Colo. Regs. 1101-3, which contains the cumulative trauma guidelines, the DIME physician then converted the impairment ratings to whole person ratings of twenty-one percent and eight percent respectively, which yielded a final combined whole person rating of twenty-six percent.
Reed Elsevier, Inc., and its insurer, Zurich American Insurance Company (collectively, employer), filed a final admission of liability based upon the DIME physician's impairment ratings of thirty-five percent and fourteen percent. Claimant objected and applied for a hearing, seeking, among other things, conversion to a whole person impairment rating.
Following an evidentiary hearing, the administrative law judge (ALJ) found that claimant had not suffered any loss or functional impairment beyond both upper extremities and that claimant's injuries were therefore scheduled injuries. Accordingly, under the applicable statutes, claimant was not entitled to a whole person permanent impairment rating. On review, the Panel affirmed.
II.
Claimant contends that the ALJ erred by disregarding the DIME physician's whole person rating and the provisions of Rule XIX(G)(2) to limit her to a scheduled disability award. We disagree.
Section 8-42-107(1)(a), C.R.S. 2004, limits a claimant to a scheduled disability award if the claimant suffers an "injury or injuries" described in § 8-42-107(2), C.R.S. 2004. Strauch v. PSL Swedish Healthcare System, 917 P.2d 366 (Colo. App. 1996). Thus, while a claimant who suffers an injury not enumerated in § 8-42-107(2) is entitled to whole person impairment benefits under § 8-42-107(8), C.R.S. 2004, see § 8-42-107(1)(b), C.R.S. 2004; Warthen v. Indus. Claim Appeals Office, 100 P.3d 581 (Colo. App. 2004), scheduled injuries may not be compensated with whole person medical impairment benefits. See United Airlines, Inc. v. Indus. Claim Appeals Office, 993 P.2d 1152, 1158 n.7 (Colo. 2000)(§ 8-42-107(7)(b)(I), C.R.S. 2004, legislatively overrules contrary rule recognized in Mountain City Meat Co. v. Oqueda, 919 P.2d 246 (Colo. 1996)).
The term "injury," as used in § 8-42-107(1)(a), refers to the situs of the functional impairment, meaning the part of the body that sustained the ultimate loss, and not necessarily the situs of the injury itself. Walker v. Jim Fuoco Motor Co., 942 P.2d 1390 (Colo. App. 1997).
The "loss of an arm above the hand including the wrist" is a scheduled injury. Section 8-42-107(2)(a.5), C.R.S. 2004.
Whether a claimant has suffered an impairment that can be fully compensated under the schedule of disabilities is a factual question for the ALJ, whose determination must be upheld if it is supported by substantial evidence. Walker v. Jim Fuoco Motor Co., supra. That determination is distinct fro
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