FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) which denied medical impairment benefits. We affirm.
In 1997, the claimant sustained a compensable injury and was diagnosed with a bilateral cumulative trauma disorder. The treating physician, Dr. Jenks placed the claimant at maximum medical improvement on March 23, 1998, and rated the claimant's permanent impairment as 19 percent of the right upper extremity, 10 percent of the left upper extremity and 13 percent of the cervical spine, which converts to 28 percent whole person impairment. Thereafter, the claimant underwent a Division-sponsored independent medical examination (IME) under the statutory provisions currently codified at § 8-42-107(8)(b) (c), C.R.S. 1999. Under that statute, the IME physician's medical impairment rating is binding unless overcome by "clear and convincing evidence." Dr. Larson, the Division IME physician opined the claimant sustained no permanent medical impairment as a result of the injury. The claimant was also examined by Dr. Hall, who issued a 35 percent whole person impairment rating based on 13 percent impairment of the cervical spine, 26 percent of the right upper extremity, and 18 percent of the left upper extremity.
The ALJ found the claimant failed to overcome the Division IME physician's medical impairment rating by "clear and convincing evidence." Therefore, the ALJ denied and dismissed the claim for permanent medical impairment benefits.
On review, the claimant concedes the ALJ correctly applied the "clear and convincing" standard to her claim for whole person impairment benefits. Further, the claimant does not dispute the denial of permanent partial disability benefits for whole person impairment. However, the claimant contends she suffered a scheduled disability, and points out that scheduled disabilities are not subject to the provisions of § 8-42-107(8)(c). Therefore, the claimant argues the ALJ applied the wrong legal standard in requiring her to overcome the IME physician's zero percent rating for scheduled impairment by "clear and convincing evidence." We reject this argument.
The General Assembly created two separate procedural paths for the determination of permanent medical impairment. See Langton v. Rocky Mountain Health Care Corp., 937 P.2d 883 (Colo.App. 1996). Section 8-42-107(1)(a), C.R.S. 1999, provides that when the claimant suffers an injury or injuries enumerated on the schedule set forth in § 8-42-107(2), the employee's permanent partial disability award shall be limited to the compensation set forth in the schedule. Section 8-42-107(1)(b), C.R.S. 1999, states that when the claimant suffers an injury or injuries not on the schedule, the claimant shall be entitled to the whole person medical impairment benefits specified in § 8-42-107(8).
As argued by the claimant, the courts have held that the IME procedures in § 8-42-107(8)(c) only apply to non-scheduled injuries. See Egan v. Industrial Claim Appeals Office, 971 P.2d 664 (Colo.App. 1998). Thus, the special weight afforded the IME physician's opinion under § 8-42-107(8)(c) is not applicable where the claimant has suffered impairment listed on the schedule of disabilities.
However, in Mountain City Meat Co. v. Industrial Claim Appeals Office, 919 P.2d 246 (Colo 1996), the supreme court held that where the claimant suffers an injury or injuries on the schedule, and an injury or injuries off the schedule as a result of the same industrial accident or occupational disease; the scheduled disability rating shall be converted to a whole person impairment rating, and all effects of the injury shall be compensated as impairment of the whole person. It follows that where the claimant's scheduled disability rating is converted to a whole person impairment rating and combined with the claimant's non-scheduled impairment rating, the entire rating is subject to the provisions of § 8-42-107(8), including the IME provisions of § 8-42-107(8)(c).
Insofar as the claimant is asserting that Mountain City Meat Co., is not applicable to this claim, the record reveals the claimant did not raise this argument before the ALJ. See Schlage Lock v. Lahr, 870 P.2d 615 (Colo.App. 1993) (counsel may not take one position before ALJ and argue a contrary position on appeal). Thus, the argument was not preserved for appellate review. See Kuziel v. Pet Fair, Inc., 931 P.2d 521 (Colo.App. 1996) (issue not raised to ALJ considered waived on appeal); compare Sneath v. Express Messenger Service, 931 P.2d 565 (Colo.App. 1996).
In her Application for Hearing dated February 9, 1999, the claimant endorsed the issue of permanent partial disability, and stated that the "claimant seeks to overcome Division IME rating of Dr. Larson." In her pre-trial Position Statement dated April 9, 1999, and Addendum dated May 6, 1999, the claimant argued that she has ratable impairment to her upper extremities and cervical spine and that the Division IME rating was incorrect under the "clear and convincing" evidence standard. Furthermore, the claimant has not provided a transcript of the hearings before the ALJ. Consequently, there is no evidence in the record that the claimant ever argued that § 8-42-107(8)(c) did not govern her claim for permanent disability benefits on account of upper extremity impairment. Under these circumstances, the ALJ correctly determined that the claimant's entitlement to medical impairment benefits for impairment of the left and right upper extremities was subject to the "clear and convincing" evidence standard.
In reaching this conclusion, we recognize that on April 14, 1999, the General Assembly enacted Senate Bill 99-1157, which created § 8-42-107(7)(b)(I). See 1999 Colo. Sess. Laws, ch. 103 at 298. That statute supersedes the holding in Mountain City Meat Co. v. Oqueda, supra. Specifically, under § 8-42-107(7)(b)(I), scheduled and non-scheduled impairments are not combined, and scheduled disability benefits are not compensated as whole person impairment. Instead, scheduled impairments and whole person impairments are compensated separately. However, § 8-42-107(7)(b)(I) applies only to injuries which occur on or after July 1, 1999. Thus, the statute is not applicable to this 1997 injury claim.
IT IS THEREFORE ORDERED that the ALJ's order dated June 18, 1999, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ Kathy E. Dean
___________________________________ Dona Halsey
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1999.
Copies of this decision were mailed January 6, 2000 to the following parties:
Patricia J. Meier, 12620 Halleluiah Terrace, Elbert, CO 80106
Gazette Telegraph Div., 30 S. Prospect St., Colorado Springs, CO 80903-3638
MCI Telecommunications Corp., 2424 Garden of the Gods Rd., Colorado Springs, CO 80919-3172
MCI Telecommunications Corp., c/o Gallagher Bassett Svcs., Inc., The Quorum West, 7935 E. Prentice Ave, Ste. 305, Englewood, CO 80111
Freedom Communications, c/o Sedgwick James, Ms. Wendy Stockfleet, P.O. Box 101268, Denver, CO 80250
Patrick C.H. Spencer, II, Esq., Spencer Spencer LLC, 403 S. Tejon St., Colorado Springs, CO 80903 (For Claimant)
Carol Finley, Esq., Ritsema Lyon, PC, 111 S. Tejon St., Ste. 700, Colorado Springs, CO 80903 (For Respondents)
Steve Sparr, Esq., White Steele, 950 17th St., 21st Fl., Denver, CO 80202-2804
BY: A. Pendroy