Recent Appellate Decisions in Workers' Compensation Law-part Ii

• Publication year: 1997
• Pages: 103
• Citation: Vol. 26 No. 5 Pg. 103

26 Colo.Law. 103 Colorado Lawyer 1997.

1997, May, Pg. 103. Recent Appellate Decisions in Workers' Compensation Law-Part II

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103

Vol. 26, No. 5, Pg. 103

The Colorado Lawyer
May 1997
Vol. 26, No. 5 [Page 103]

Specialty Law Columns
Workers' Compensation Report
Recent Appellate Decisions in Workers' Compensation Law--Part II
by Ralph Ogden

Column Ed.: Ralph Ogden of Wil-cox & Ogden, Denver - (303) 399-5005

This article was written by column editor Ralph Ogden. The author represented the claimant in Sears v. Penrose Hospital which is discussed in Part I of this article, and in Zurich American Insurance Company v. Rael, which is cited in note 17 to Part I

This article is a continuation of a discussion of recent Colorado appellate court decisions regarding workers' compensation issues. Part I was published in the April 1997 issue at page 79. Other recent updates appeared in the November 1996 issue at page 119, the July 1996 issue at page 67, and the April 1996 issue at page 57

The Struggle to Get Off the Schedule

Morris v. Industrial Claim Appeals Office1 represents the latest in a series of cases - including Mountain City Meat Company v. Oqueda2 and Strauch v. PSL Swedish Healthcare System3 - involving claimants' efforts to get their impairments off of the schedule and into the area of whole person ratings. In Morris, the worker injured her left wrist and was given a 42 percent upper extremity rating. She also was treated for anxiety and depression caused by pain and the physical limitations of her injury.

Although she was given a 6 percent psychic impairment by one Level II physician, the IME doctor found no mental impairment and was found credible by the ALJ. However, "based on a reference to dysphoria in the IME report, the report of the Level II physician adopting a six percent rating, and a psychotherapist's report, the ALJ also found that claimant had suffered a 'functional psychiatric impairment' from the injury."4 Dysphoria is a form of generalized depression and anxiety.

Relying on Mountain City Meat Company, the ALJ reasoned that this functional psychiatric impairment and the extremity impairment must be combined and translated into a whole person impairment. The Court of Appeals disagreed, but only under the circumstances of this case. It did so because "an injury must be ratable under the AMA Guides before such is compensable under section 8-42-107(8). . . ."5 Thus, a functional impairment rated at 0 percent under the Guides is not compensable under § 8-42-107(8) and cannot be combined with an extremity impairment to take the extremity rating off the schedule and convert it into a whole person rating. Presumably, however, under this reasoning, a ratable mental impairment would suffice for that purpose.

Like the earlier Strauch case, Langton v. Rocky Mountain Health Care Corporation6 involved a claim that a shoulder injury should be given a whole person rather than a scheduled extremity impairment. The ALJ ruled that the loss of range of motion in the claimant's shoulder, impairment to her peripheral nervous system, and her loss of grip strength did not take her injury off the schedule. The court reiterated the rule, first stated in Strauch, that the question of whether an injury was scheduled was a factual one to be resolved by the ALJ, whose decision would be upheld as long as it was supported by substantial evidence in the record.

In Williams v. Industrial Claim Appeals Office,7 the claimant argued that because he was a minor and because CRS § 8-42-102(4) requires that permanent impairment benefits "shall be paid at the maximum rate of compensation payable under [the Workers' Compensation Act]," his scheduled injury should be compensated at the maximum temporary total disability ("TTD") rate, rather than the $150 per week set forth in CRS § 8-42-107(6) for scheduled injuries.

The Court of Appeals disagreed, citing with approval De Jiacomo v. Industrial Claim Appeals Office,8 which was decided under the pre-1991 schedule. De Jiacomo held that because scheduled benefits were computed using a standard fixed rate, there was no "maximum rate of compensation" that applied.

Termination of TTD Benefits

In Horton v. Industrial Claim Appeals Office,9 the Court of Appeals held that the claimant's TTD benefits were improperly suspended. The facts were undisputed. The claimant was injured in 1992, and the insurer filed a general admission of liability. In 1994, surgery was recommended Because the claimant sustained a non-work-related fall, however, surgery was delayed until...