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Dillard v. Industrial Claim Appeals Office of the State of Colorado6/2/2005
ORDER AFFIRMED
Loeb and Russel, JJ., concur
Debra Dillard (claimant) seeks review of a final order of the Industrial Claim Appeals Office (Panel) determining that her claim for temporary and permanent partial disability payments against her employer, Pepsi Bottling Group, is subject to the $60,000 benefit cap in § 8-42-107.5, C.R.S. 2004. We affirm.
Claimant suffered an admitted work-related injury to her neck when she slipped and fell on ice in front of employer's building. She underwent two surgeries to her cervical spine and received treatment for depression resulting in part from the chronic pain she suffered after the injury. The treating physician rated claimant's permanent medical impairment at twenty percent of the whole person.
Claimant subsequently requested and underwent a division-sponsored independent medical examination (DIME). The DIME physician rated claimant's whole person impairment at twenty-three percent for the cervical spine and two percent for the left hip, which was damaged when a bone graft was taken from that location for the neck surgery. The DIME physician assigned a total whole person impairment rating of twenty-five percent to claimant's physical injuries.
The DIME physician also assigned a five-percent whole person mental impairment rating for claimant's depression. Combining the ratings for the physical and mental impairments, the DIME physician opined that claimant suffered a total permanent impairment rating of twenty-nine percent.
The administrative law judge (ALJ) concluded that employer had failed to overcome the DIME physician's rating. The ALJ further determined, however, that §§ 8-41-301(2)(b) and 8-42-107(7)(b), C.R.S. 2004, did not authorize combining the mental impairment rating with the physical impairment rating in determining the applicable benefits cap. Therefore, the ALJ concluded that claimant suffered no more than a total of twenty-five percent permanent impairment and, thus, was subject to the $60,000 benefit cap under § 8-42-107.5.
The Panel affirmed application of the $60,000 cap. It determined that a rating for mental impairment may not be joined or merged with a nonscheduled impairment rating but is, instead, a distinct type of impairment that must be compensated separately under § 8-41-301(2), C.R.S. 2004. The Panel also concluded that the plain language of § 8-42-107(7)(b)(III), C.R.S. 2004, precluded the ALJ from combining a mental impairment rating with a nonscheduled physical impairment rating in determining whether claimant's whole person impairment exceeded the twenty-five percent cap contained in § 8-42-107.5.
The Panel alternatively determined that even if the term "combined," employed in § 8-42-107(7)(b)(I) and (III), C.R.S. 2004, were ambiguous, the legislative history revealed that § 8-42-107.5 was designed to clarify that a mental impairment rating could not be combined with a physical impairment rating for purposes of exceeding the $60,000 benefit cap.
I.
Claimant asserts that the ALJ and Panel erred in ruling that the whole person permanent impairment rating that she received for her physical injuries could not be combined with the whole person permanent impairment rating for her mental impairment in determining the maximum benefits she can receive under § 8-42-107.5. Because, in her view, her combined whole person rating for physical and mental impairment is twenty-nine percent, claimant argues that the applicable statutory cap is $120,000, not $60,000. We disagree.
The primary goal in construing a statute is to determine and give effect to the intent of the General Assembly. McKinney v. Indus.
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