*1 Petitioner, DILLARD, Debra APPEALS OF CLAIM

INDUSTRIAL OF COLORADO the STATE

FICE OF Respondents. Bottling Group, Pepsi

No. 05SC494. Colorado,

Supreme Court of

En Banc.

May *2 may claimant combine a mental

rating physical impairment rating for purpose exceeding then-applicable of sixty thousand dollar in favor of the one twenty cap, hundred thousand dollar of both which are contained in section (2005), of Colorado’s Workers’ Com- pensation caps Act.2 This section disability pay- Killian, Jensen, P.C., & Joanna C. Guthro permanent partial disability pay- ments and Jensen, Davis, Butler, R. Damon Barbara No ments. claimant whose rat- Junction, Grand for Petitioner. ing twenty-five percent or less receive sixty than more thousand dollars from com- Cairns, Denver, Gregory Respon- B. for temporary disability payments bined Pepsi Bottling Group. dent permanent partial disability payments; those Suthers, General, Attorney Eric John W. impairment rating claimants who have an Rothaus, General, Attorney Assistant S. twenty-five percent above receive the benefit Section, Denver, Respon- State Services higher cap. of the Appeals dent Industrial of Claim Office Colo- rado. us, In division-spon- the case before (DIME) physician sored medical examination Sbarbaro, P.C., Law Office of O’Toole & person impairment rated claimant’s whole O’Toole, Denver, Frickey Neil D. Law a total of 29%: 23% for the claimant’s cervi- Firm, Frickey, Lakewood, Janet for Amicus spine, cal hip, 2% for the left and 5% for Curiae Workers Education Authority. Deutsch, McElroy, Mulvaney Carpenter, & rating, 5% mental LLP, Kanan, Q. Hosley, L. Thomas Alice physical impairments combined with the rat- Denver, for Amicus Curiae Colorado Civil ings person rating, and converted to a whole League. Justice produced 29%, rating pushing a DIME of Dillard’s above 25%. She Clisham, Biscan, L.L.C., Satriana & Patri- higher therefore asserts entitlement Clisham, Mottram, Denver, cia Keith E. Jean cap contained in section 8-42-107.5. We dis- for Amicus Curiae Colorado Self Insurer’s agree. Along with the administrative law Association.

judge, panel of Ap- the Industrial Claim Office, peals appeals, and the court of we dissents, Justice Chief MULLARKEY 8-42-107(7)(b)(III), hold that section joins Justice MARTINEZ in the dissent. (2005),precludes combining impair- a mental participate. EID Justice does not rating physical impairment ment rat- purpose obtaining for the of the benefit HOBBS, Justice. higher cap set forth section 8-42- granted We certiorari to review the court 107.5. appeals decision in Dillard v. Industrial (Colo. Appeals Office, Accordingly, uphold judgment Claim 121 P.3d 301 we App.2005).1 appeals. The issue this case is whether the court granted following impairment, 1. We deprive certiorari on the issue: ment or further appeals applying injured permanent disability Whether the court of erred in limit workers’ 8-42-107.5, C.R.S., section which is a section benefits. compensation ap- of the workers’ act which (Emphasis original). plies to the total amount of injured is available to severity workers based 1, 2006, January 2. Effective the General Assem- injuries, by using of their 8- bly revised section 8-42-107.5 to increase these C.R.S., 42-107(7)(b)(I) (III), which is the respective caps seventy-five thousand dollars type section of the act that determines the fifty and one hundred thousand dollars. impairment methodology computing pay- subject dispute. An cap is the of this

I. 25% would entitle her to above (“Dillard”) worked Dillard Debra higher cap tempo- have the benefit of the Pepsi Bot- assistant ‘for administrative as an rary disability disabili- Junction, (“Pepsi”), in Grand tling Group ty payments under section 8-42-107.5. year, she 19 of that On December Colorado. *3 workplace and in front of her slipped on ice record, According to the Dillard received the hit head on sidewalk. her $51,569.33 temporary disability in benefits and, $79,969.89 in gross, is entitled pain in immediately complained of Dillard partial disability There- permanent benefits. proceeded region. She head and cervical her fore, $60,000 cap, Dillard received under the an ambu- directly emergency room via $8,430.67dn permanent partial disability ben- diagnosed her hospital, doctors lance. At the $120,000 qualifies the efits. If she for inju- and a closed head scalp hematoma substantially she could receive more. ry. later, days pain and stiffness Several and she neck became unbearable II.

Dillard’s un- An MRI again sought medical advice. 8-42-107(7)(b)(III), hold that section We possibly and two damage to one covered (2005), combining a mental precludes spine. After con- in Dillard’s cervical discs rating physical impair- failed, doctors removed treatments servative rating purpose obtaining ment for the fused bones her cervi- her disc and C4-C5 higher forth benefit set plates screws. together with and spine cal (2005). 8^42-107.5, C.R.S. pain adequately not sub- Dillard’s did When side, her repeated operation for doctors A. disc.

C6-C7 time, pre- Dillard was Throughout this of Review Standard Xanax for depression for and scribed Serzone the correct con This case concerns could not anxiety complained and she 8^42-107(7)(b)(III) and struction of sections throughout night. sleep and often cried ques We review distress her blamed her emotional She statutory de novo. Peo tions of construction every- inability engage many physical Cross, 71, 73 ple v. recreational) (as activities, in- day well as as a pain, constant as well and tense construing Compen the Workers’ family. marriage and threat to her ceived Act, objective is to effectuate the sation our However, initially claim dis- did not Dillard Assembly; we construe of the General intent benefits for whole, statutory provisions as a reconcil reached maximum medical When Dillard conflicting provisions, pos ing potential physician improvement, attending her deter- Appeals v. Indus. Claim sible. Lobato Of body permanent mined that her total (Colo.2005); also 223 see fice, 105 P.3d person. of the whole rating was 20% Heiserman, Corp. v. Resolution Trust anxiety into account Dillard’s He did not take (“[I]f (Colo. 1995) courts can P.2d an inde- depression. Dillard received ordinary meaning of the give effect to indepen- pendent medical examination. body, by legislative the stat adopted words that Dil- examiner determined dent medical as written since should be construed ute impairment rating was whole lard’s that the General presumed 29%, impairment for Dil- upon combining said.”). clearly what it meant anxiety physi- depression and with her lard’s impairments. cal statute, we do we construe a When that renders words adopt a construction impairment rat- not not Dillard’s Whether or terms, that injects additional superfluous, or include the mental should intent. legislature’s obvious contravene rating as well as Cross, 127 P.3d at 8^42-107.5 of the section statute; B. strict schedule contained example, the loss of a hand below the wrist Impairment Mental Claims permanent entitles worker 104 weeks of Statutory Caps 8-42-107(2)(c). disability payments. temporary ease concerns The issue in this partial disability disability injury A nonseheduled is an Compen- Workers’ benefits under Colorado’s 8-42-107(2). listed on the schedule in section Temporary benefits sation Act.3 8-42-107(8) (describing in- nonseheduled compensate a worker for lost work while she juries compensation). their Permanent injuries. A recovers from work-related partial disability benefits nonseheduled until, worker receives according are calculated to a formula among possibilities, other she reaches maxi- includes worker’s “medical - *4 8-42-105, §§ improvement.4 mum medical § rating” “age and her factor.” 8-42- 106, (describing temporary C.R.S. to- 107(8)(d). benefits). disability temporary partial tal and impairment5 Claims for mental are de- fully Some workers never recover from (2005). 844-301(2)(a), fined C.R.S. cases, their such when a worker impairments physical inju- Mental involve no improvement reaches maximum medical but ry disabled, psychologically and stem from permanently traumatic still remains she then events, permanent disability workplace including receives benefits. See not stress or 8-42-107, §§ (describing permanent demotion, -111 promotion, trauma from termi- permanent disability partial and total bene- nation and other similar actions undertaken fits). employer good an faith. Id. Mental impairments may also arise when a worker only partially If a worker is disabled on a disability arising suffers a from an accidental basis, the amount of time for physical injury recognized leads to a eligible which she to receive benefits is differently permanent psychological disability. § type calculated based of 8-41- 301(2)(a.5). 8^1-301(2)(d) injury injury, sustained: a she scheduled provides Section injury, nonseheduled or a mental impairment the mental which is the (8). 42—107(l)(b)(2),(7)(b)(I), §See be, itself, basis of the claim must “in of 8— employee either sufficient to render tem- injuries injuries generally Scheduled are porarily permanently pursu- or disabled from 42—107(l)(b)(2) limbs, eyes, § or ears. See 8— ing occupation from which the claim (listing injuries compensation). require psychological arose or to medical They injuries are referred to as or “scheduled” they compensated according because are to a treatment.” dispute employer's improvement resulting 3. This does concern an of or deterioration from obligation pay passage finding medical bills under the Work of time shall not affect a of Compensation improvement. possi- ers' Act of Colorado. See Grover maximum medical bility Colo., 705, improvement of Indus. Comm'n 759 P.2d 709-12 or deterioration result- (Colo. 1988) passage (stating from the of time alone shall not that medical benefits are finding improve- affect a separate disability maximum medical benefits and be 8-42-101, ment. concurrently); § awarded see also .(2005) (describing employer's obligation Compensation aid). 5.In terms of Colorado's Workers' to furnish medical system, impairment benefits are rather Assemblypassed new. Colorado's General Colo- 8-40-201(11.5), According to section Compensation rado's first Workers’ Act in 1915. (2005): RE-1, See Martin v. Sch. Dist. Montezuma-Cortez improvement'' 237, "Maximum medical means a 841 P.2d The General medically point any in time when determinable Assembly did not add claims for "mental or or mental as a result of emotional stress” related until 1986. injury 8-52-102, has become stable and no further § See ch. sec. 1986 Colo. Sess. reasonably expected improve comprehensive history treatment Laws 520-21. For a nationwide, requirement the condition. The for future of mental claims see 3 Larson, signifi- medical maintenance which will not Arthur & Lex Larson K. Larson’s Work- (2005). cantly improve possibility Compensation § the condition or the ers’ Law 56.03 to 56.04

4H Meat, disability partial City benefits.” Mountain Permanent also lim- P.2d at 254. awarded for mental are a worker is for mental ited: As preroga- the General has the disability impairment with doing, City tive reaction to Mountain than twelve weeks un- benefits for no more Meat, precluded through its 1999 amend- victim of a violent crime at less she is the combining impairments injury “physical from a work or suffers physical impairments to reach a whole neurological occupational disease that causes 42—107(7)(b)(I) rating. son Subsection sets 8-41-301(2)(b). Tempo- § damage.” brain legislative policy. out the declaration It disability rary benefits awarded for mental states that “scheduled shall be com- impairment are not cut off after twelve pensated provided on the schedule and against permanent weeks but act as a set-off shall .nonseheduled disability a worker benefits once as medical benefits.” Id. improvement. reaches maximum medical 42—107(7)(b)(II) separates Subsection 8— Replogle, Thornton v. the calculation of benefits for (Colo.1995); Phillips R. Douglas & Susan injuries: scheduled and non-scheduled Phillips, D. Colorado Workers’ inju- Where an causes a [scheduled Practice & Procedure 3.12 ry], the loss set forth in the schedule found *5 us, arises, It in case often before (2) in compensated said subsection shall be that will more than one a worker sustain solely on the basis of such schedule and 1999, type injury. Prior to the act allowed (8) the loss set forth in said subsection [the workers who suffered both scheduled and injury] nonseheduled shall be injuries nonseheduled to combine their solely impair- on the basis for such medical injuries scheduled and nonseheduled into one specified ment benefits in said subsection City formula award. Mountain Meat Co. v. 246, Oqueda, 919 P.2d regard claims, In to mental 1999, in 8-42-107(7)(b)(III) Added subsections 8-42- provides subsection that 107(7)(b)(1) (III), (2005), to C.R.S. ended this “mental or compen- emotional stress shall be system 8-41-301(2) and mandated the calculation of pursuant to sated section permanent partial disability compen- benefit shall not he combined with scheduled or a injury type sation that each shall remain added). injury.” (Emphasis nonseheduled separate compensated solely and be on the 8-42-107.5, (2005), adopted Section C.R.S. applicable statutory schedule or basis ben- 1991,places cap upon total amount efit formula. The General added temporary permanent partial disability to the statute in this 1999 amendment a may benefits that a worker receive from all legislative provision declaration and the we 16, § of her ch. See sec. 8-42- (1) us, construe in the ease now before which 107.5,1991 1291,1311. Colo. Sess. Laws provides for mental and emotional distress version of section 8-42-107.5 effect at the provision under different injury caps time Dillard suffered her total (2) prohibits impairments of the act and such temporary permanent partial disability being from combined with a scheduled or a $60,000 $120,000 benefits at either based injury. § nonseheduled Ch. sec. 8- impairment rating: the worker’s 42-107,1999 Laws Colo. Sess. impairment rating No claimant whose permanent par- twenty-five percent may

These amendments to the or less receive disability provisions sixty tial of the statute re- more than thousand dollars spond City temporary disability payments to our Moimtain Meat decision. judgment, permanent partial disability In that payments. we held “the sched- impairment rating uled must be converted to a whole No claimant whose person rating greater twenty-five percent and combined with than re- injury’s person twenty im- the non-seheduled whole ceive more than one hundred thou- pairment rating in calculating dis- sand dollars from combined dis- prevent combining it to

ability payments and like scheduled and disability payments.6 into a whole impairment rating for the of section Impairment ratings are calculated ref- Thus, 8-42-107.5. the mental lan- Medical Association’s erence to the American guage, “shall not be combined with a sched- Permanent Im- Guides to the Evaluation of injury,” uled or a nonscheduled must have (3d ”), pairment ed. rev. Guides {“AMA meaning. meaning, applied That when (2005) 8-42-101(3.7), § impair- is that mental (“[A]ll impairment ratings un- used ments are not to be combined with scheduled Articles 40 to 47 of this title shall be der calculating or nonscheduled based on the revised third edition” of the applicability higher cap of the contained in Guides); 8-42-107(8)(b.5)(I)(A), section 8-42-107.5. (8)(c), (describing calculation of impairment ratings). Our Mountain Meat decision con- medical We conclude then-applicable provisions wording of the 1999 amendment strued the of the awarding compensation act as operates prevent combining the mental based on com- bining person rating into a physical impair- whole person rating calculating permanent disability into a whole benefits. Assembly’s higher cap The General 1999 amendment order to reach the level contained provided separate in section 8-42-107.5. awards based on calcu- inju-

lations for scheduled and nonscheduled addition, impairments. ries and mental C. singled prohibition out a on mental Application to This Case being physical injuries. ments combined with wording provi Comparing the higher Dillard’s case for the benefit giving sions at issue in this ease and each of combining rests on her mental other, meaning relationship them to each *6 physical impairments per- with into a whole 42—107(7)(b)(III), we find that section 8— rating, physi- son which is what the DIME (2005),unambiguously a bars claimant Contrary cian in this case did. to Dillard’s combining impairments mental with contention, legislature’s per- the treatment of injuries for scheduled or nonscheduled the partial disability manent mental purpose reaching higher cap the contained of plain. claims is The words “shall not be in section combined with a scheduled or a nonscheduled 8-42-107(7)(b)(III), 8-42-107(7)(b)(III) According to injury” section in section mean only impairments always literally they are mental com- say. what 8-42-301(2), pensated according to section claims, regard to mental the clearly specified the also that support legislature’s AMA Guides intent “[mjental or emotional stress ... shall not be prevent to the combination of mental or a physical impairment assigning ment with in a - injury.” phrase This second of 8-42- person rating. According whole to the AMA 107(7)(b)(III) key analysis is the to our be- Guides, “impairment rating” roughly rep- an cause Dillard would have us rule that percentage resents form the extent to merely phrase it: reiterates before person’s which health status is altered compen- “Mental or emotional stress shall be Association, injury. supra American Medical 8412-301(2).” pursuant sated to section Generally, physicians types at 1. all combine However, person” the “shall not be combined” lan- into a “whole assessment. added). guage unique (emphasis to 8-42- Id. at xviii The AMA section 107(7)(b)(III). subsection, preceding Guides even contain charts for the combina- 42—107(7)(b)(II), nothing types section contains tion of different Id. at 254- However, reaching improve up 6. Prior to medical workers who receive either maximum ment, cut-off. to or in excess of their allotted a worker's benefits are not Don Contractors, disability Murphy ald P. Inc. v. Indus. Claim benefits receive no Appeals Office, (Colo.App. 613 benefits. Id. at 614. 916 P.2d

413 test, par rational However, are not basis impairments Under unconstitutionality ty asserting the statute’s AMA Guides in these charts. The included lacks a le must show that the classification impairments regard to mental clearly state and, governmental purpose without gitimate empirical evidence “there is no available that basis, arbitrarily singles out a a rational any assigning percent- for support method to ” persons disparate treatment group of person .... of the whole age comparison persons to other who are similar clearly explain: at 240. The Guides Id. Garhart, (citing at ly situated. 95 P.3d 583 may support the di- Eventually research Culver, 646); 971 P.2d at accord Pace Mem findings and link medical rect between Axelson, bership 938 P.2d Warehouse impairment. Until centage of mental any If conceivable set profession must refine its time the medical that a facts would lead to the conclusion improve impairment, its concepts of mental purpose, legitimate classification serves a limitations, and continue to measure court must assume those facts exist. Christ judgments. to make clinical Co., Transp. 933 P.2d ie v. Coors Id. at 241. (Colo.1997); Culver, 971 P.2d at 651. 8-42- The rational basis of her entitlement

Dillard’s assertion 107(7)(b)(III) is to and section 8-42-107.5 in section 8-42- higher contained lower costs the Workers’ that the General 107.5 rests on the assertion govern- system. legitimate can impairments This Assembly for mental intended Culver, purpose. impairments in mental to be combined (listing “maintaining integrity fiscal calculating person rating. We con- a whole compensation system; allocat- Assembly clearly in- the workers’ clude the General among ing equitably fiscal fund- prevented combining burden It tended otherwise. sources, controlling employ- costs injuries with scheduled legislatively-intended providing ers while injuries to reach a whole and nonscheduled injured possible legit- Dil- workers” as physician DIME person rating. The Nevertheless, purposes). government in- imate legislature’s lard’s case contravened arbitrarily sin- the General cannot calculating whole tent in 29% 8-42-107(7)(b)(III). disparate treat- gle out certain individuals for her. of administrative

ment for the mere sake rights of one convenience or sacrifice D. money merely more in the group because *7 system .high- Compensation allows Workers’ Challenge Equal Protection everybody Indus. Claim for else. er benefits disagreed appeals with The court 68, Romero, 62, 69 Appeals v. 912 P.2d Office that sections 8- Dillard’s alternate contention 8-42-107(7)(b)(III), con so 42-107.5 Assembly’s treatment of men The General strued, equal and federal violate Colorado a ration impairment claims demonstrates tal Dillard, guarantees. 121 P.3d protection circumscribing approach to the conditions al agree ap the court of We 305-06. such claims. We payable and amounts for equal protection no violation arises peals that statutory that previously have held therefrom. partial only permanent disabil scheme limits impairment to ity paid for mental benefits Compensation Access Workers’ weeks, any temporary dis and offsets twelve right and Dil is not a fundamental benefits paid for mental benefits is a member does not contend that she lard any dis against award of apply a suspect a class. We therefore Re ability benefits for mental equal pro analysis to Dillard’s rational basis plogle, P.2d at 782-83. 888 v. tection claim. Garhart Columbia/Heal (Colo.2004); that thone, L.L.C., Replogle opinion we observed our 95 P.3d 583 (Colo. Assembly’s im- Elec., choice of mental the General P.2d 646 Culver v. Ace 971 containing was aimed at pairment provisions time, while, awarding same men- III. costs at the qualified claim- tal benefits to Accordingly, judgment we affirm the of the equal protection ants. Id. at 785. Dillard’s appeals. court of appeal legislature assumes because allows a claimant to combine scheduled and MULLARKEY, C.J., dissents, and physical impairments pur- MARTINEZ, J., joins in the dissent. poses determining impairment rating 8-42-107.5, it must the com- in section allow MULLARKEY, dissenting. Chief Justice physical impairments bination of mental with respectfully majority’s I dissent from the However, in the same calculation. opinion holding that the 1999 amendments to rationally into account can take permanent partial disability provision that mental or emotional distress claims are statute, compensation the workers’ subsec- analysis susceptible not as to numerical (II) 42—107(7)(b)(I), (III), tions physical injuries. (2005), prohibit physician including a appellate recognize court decisions Our disability in claimant’s mental the claimant’s impairments can be difficult to purposes of the on Ap ascertain. v. Indus. See Davison Claim imposed by benefits (Colo.2004) peals Office, 84 P.3d dissent, For of this Assembly (observing that the intend General I will refer to the first statute as “the 1999 impairment provisions ed mental amendments” and the second statute as “the Compensation help Act to in elimi Workers’ provision. cap” benefits acting nating frivolous claims while to evalu claims); pay AFL- Nothing express language, legisla- ate and bona fide Colo. in the Donlon, (Colo.App. history, surrounding CIO tive circumstances 1995) (stating Assembly requires by that General ration either statute the result reached ally promotes efficiency majority. Accordingly, cost Workers’ I would hold that system by circumscribing caps must be calculated on the basis that are neither of all benefits regard- received claimant physical workplace nor the result of vio less of the or mental character of lence). nature, imprecise Given their more the claimant’s rationally the General can create

system for mental claims FACTS by limiting seeks to contain costs the extent Petitioner Debra Dillard suffered serious to which mental can in head, spine, to her hip cervical crease worker’s benefits. During recovery when she fell at work. her Assembly’s In view of the General rational- accident, from the she was unable to work ly-based addressing choice and received total bene- claims, equal we hold that Dillard’s fits. After she reached maximum medical protection violation claim does not succeed. improvement, she was found to have a legislature’s drawing line need not be *8 partial disability. manent This case arises See, perfect. e.g., Membership Pace Ware- money because the total amount of Dillard house, (“Simply 938 P.2d at 507 because a may temporary perma- receive for both and statutory classification creates a harsh result by statutory cap nent benefits is limited in one instance does mean that the stat- impairment rating. based on her constitutionality require- ute fails to meet standard.”); ments under the rational basis conducting independent After an medical examination, Appeals Office, Duran v. Indus. Claim physician 883 that Dil- determined (Colo.1994) (“Given impairment P.2d the almost rating lard’s was 29%. The doc- array potential injuries assigned person impairment limitless and their tor a 23% whole work, impact any on the rating spine injury, line drawn for her cervical 2% for necessarily imper- injury, the hip will be her and 5% for her mental fect.”). percentages assigned hip ment. The to her benefits, impairment and con- ed as medical injuries reflect the doctor’s and that, injured when an worker sustains both injuries to a whole of those version injuries, scheduled and nonscheduled conversion was rating; no such impairment compensated shall on the sched- injury. Specifically, losses spinal for the required ule for scheduled and the non- rating was calculated us- the 5% shall be scheduled Department of Labor and ing the Colorado general impairment benefits. The medical Men- Employment Permanent Work-Related assembly further determines and declares di- Rating Sheet that Impairment Work tal that mental or emotional stress shall be a claimant’s physicians to determine rects compensated pursuant to section 8-41- per the American Medi- 301(2) and shall not be combined with to the Evaluation cal Association’s Guides (3d injury.... scheduled or nonscheduled Rev. Impairment 254-56 ed. Permanent (“AMA 1990) Guides”), the rat- and convert (Ill) Mental or emotional stress shall be in the ing according to a table contained 8^41-301(2) pursuant and figure. where he arrived at the 5% worksheet shall not be combined (2005); 12-5, § 8- 7 C.C.R. 1101-3 See Rule injury. 42-101(3)(a)(I), (explaining the (III). 8-42-107(7)(b)(I), The benefits to review director’s role provision states: on both the AMA Guides guidelines based rating claimant whose [n]o rules). department promulgated and twenty-five may percent or less receive three “combined” the The doctor then sixty more than thousand dollars from using Values Chart centages the Combined disability payments temporary figure of AMA to arrive at a from the Guides disability payments. permanent partial applica- used to determine 29% that was impairment rating is No claimant whose important recognize cap. It is ble benefits twenty-five greater percent than re- has a technical the word “combine” twenty thou- more than one hundred ceive meaning used in connection with temporary dis- sand dollars from combined Guides; simple it does not mean the ability payments percentages. If it addition of the arithmetic disability payments. were, Dil- physician would have fixed § 8-42-107.5. rather than at 30% lard’s analyzing any starting point for stat- The 29%. itself. To ute is the text of the statute total award for both Dillard’s majority’s contention that address the approximately permanent benefits is the calculation of amendments control $131,500. rating, Dillard’s to- her 29% With language cap, I first look $120,000. capped are at Under tal benefits language quoted of the two statutes. rating falls to 25% majority opinion, her references that neither statute above shows $60,000. capped are and her benefits statute, the later-enacted the other. As the logical place would be the 1999 amendments ANALYSIS language to insert for the General majority the 1999 contends amend- of the 1999 applying the strictures compel unambiguous are amendments cap, it did not do to the benefits but ments injuries must be the conclusion that mental language express Recognizing that so. applica- calculation of the excluded from the the relation- does not resolve of the statutes Maj. cap. op. at 411-412. As ble benefits acts, I must turn to ship the two between the word “combine” my above of discussion to construe the statutes. other aids illustrates, unambig- language far from *9 provide in rele- in 1999 amendments uous. The amendments were enacted The 1999 part: 99-1157, concern- vant entitled “An act House Bill _ of an exclusive (I) ing the reestablishment injuries shall be com- disability un- partial permanent and schedule provided on the schedule pensated as law, in compensation and compensat- der the workers’ shall be nonscheduled increasing cap applied amount a connection therewith benefits is after claimant’s tem- porary permanent disability received under the schedule and and has been of benefits limiting stress.” H.B. calculated. All must converted benefits for mental 99-1157, 103, 1, 8-42-107, person impairment ratings 1999 into whole in Ch. see. or- perma- injury 299. It amended the der to reflect the extent to which an Sess. Laws by partial adding impacts past wage the claimant’s nent disabilities loss and (III) 42—107(7)(b)(1),(II), Donlon, wages. and future to earn subsections See injury, provide type that each both at 404. P.2d mental, physical and is to be statute, Construing caps the benefits separately. Bill See id. House 99-1157 did (“ICAO”) Appeals Industrial Claim Office benefits, temporary disability not address “impairment rating” has held that the term cap limiting did not amend the benefits and ambiguous. not defined and is v. See Schank money any the amount of claimant can re- (I.C.A.O. Wizard, Sept. No. 4-497-494 W.C. permanent temporary ceive for benefits 19, 2003); Quackenbush Roofing v. Tenant related to the same accident. As noted Inc., (I.C.A.O. W.C. No. 4-218-272 June above, the bill had a narrow title and was 1998). Quackenbush, ad- ICAO to permanent limited right inju- dressed whether claimant’s arm legis- awards. These facts indicate that the ry extremity should be treated as a 29% lature did not intend the 1999 amendments to impairment or converted a 17% whole apply cap provision. to the benefits person impairment appli- sepa- cap Mental cation of section the benefits rately provision. from both scheduled and nonscheduled W.C. No. 4-218-272. The ICAO 8-41-301(2), “impairment rating” Section held that the term was (2005), ambiguous, was added and it determined that convert- year extremity impairment the same as the benefits stat- rating into a ute, person impairment necessary and allows worker to recover both whole was temporary permanent disability prevent giving greater benefits order to benefits to finding seriously injured of mental This less workers in contraven- 8-41-301(2)(b) legislative purpose court determined that section tion of the behind the cap provision. limited disabili- benefits Id. weeks, ty to twelve benefits but Schank, Likewise, that, the ICAO held temporary same section did not limit disabili- after the enactment of the 1999 amend ty City Replogle, benefits. Thornton v. ments, “impairment rating” the term as used 888 P.2d 782 Mental cap provision the benefits am remained explained are accorded their own biguous. rejected panel The Schank the em Guides, the AMA Guides. at 241. ployer’s theory that the 1999 amendments injury rating, inju-

A mental like a scheduled compelled the conclusion that scheduled dis ry rating, person is convertible to a whole application were irrelevant abilities impairment rating according to the Colorado cap provision, the benefits and held that Regulations compensa- Code of on workers’ where a claimant sustained both scheduled 12-5, tion. Rule 7 C.C.R. 1101-3 injuries, and nonscheduled the scheduled in caps provision, jury benefits section 8-42- was to be converted into a whole 107.5, was enacted 1991 to limit the total and combined with the award a claimant receives for appro to determine the permanent partial disability. priate The differenti in accordance with Quackenbush. Schank, caps represent legislative attempt ated No. 4-497-494. W.C. distinguish injured Rejecting employer’s theory, panel between workers who are seriously. Oque more and less See Colorado AFL- noted that Mountain Meat Co. Donlon, (1996); da, (Colo.1996), Quacken- CIO v. 403-04 919 P.2d 246 Hearing on proposition S.B. 218 First Conference bush remain viable for the Comm., Assembly, Reg. 58th Gen. 2d the 1999 amendments did not alter the statu Sess. 3,May (Hearing Tape tory requirement 91-32 that medical *10 or (cid:127)with the “combined” with scheduled completed in accordance ratings be injuries. in sec- expressly as authorized AMA Guides 101(3.7). Schank, No. 4- W.C.

tion 8-42— majority “key” states that the to its 8-42-101(8.7) 497-494; (“impair- § see also analysis phrase in is a subsection 8-42- 40 to 47 of ratings used under articles ment 107(7)(b)(III) stating that “mental or emo- the revised third based on this title shall be not tional stress shall be combined Association edition of the American Medical injury.” maj. or nonscheduled scheduled Im- out, of Permanent majority points to the Evaluation I op. Guides at 412. The and agree, phrase appear pairment”). that the same does not (7)(b)(II). Describing the subsection ben- demonstrate that the These decisions majority phrase “unique,” as the declares apart from cap provision separate and efits meaning.” that it “must have Id. That mean- sought to overrule amendments that the 1999 ing, according majority, the the to City Meat which in Mountain our decision statute, phrase applies to the benefits expanded permanent awards for dis- and mental stress cannot be included in cal- ability compensation where a worker sustains subject culating cap. Id. benefits and nonscheduled both scheduled view, my phrase meaning In the has where support practice also The decisions statute, legislature placed it in the and it Guides, adhering as directed to the AMA application cap provi- no to the benefits has divi- compensation statute and the workers’ sion. There was no need for the drafters to all regulations, to calculate and combine sion language identical in subsection include Guides, at impairment ratings. See (7)(b)(II) (III). injuries Scheduled are (“The espouse to xix-xx Guides continue “solely” compensated on the basis of the physical all and mental im- philosophy that injuries schedule and nonscheduled are com- pairments person, affect the whole and there- “solely” impairment pensated as medical ben- fore, ratings com- all should be 42-107(7)(b)(II). § efits. See If a claim- 8— (2005) bined.”); 8-42-107(8)(c), § ant has both scheduled and nonscheduled (“the treating physician de- authorized shall injuries, losses shall on “the be impairment rating as a termine a medical injuries the schedule and the nonscheduled percentage of the whole based on the shall be as medical Guides].”). majority ... con- [AMA 42-107(7)(b)(I). When subsec- benefits.” 8— interpreting the 1999 tends that rather than (III) (I), (II), together, tions are read merely of our amendments to undo the effect nonscheduled, scheduled, result is that decision, City the amend- Mountain Meat must be calculat- mental prevent the inclusion of a mental ments also separately and cannot be combined for ed to calculate the benefits partial disability. “special “combine” has because the term majority, Contrary to the I cannot read sub- meaning.” Maj. op. at 412. (III) leg- of the 1999 amendments cap pro- is not defined in the islative intent to amend the benefits The term “combine” and, context, ambigu- vision. “combine” is statute a technical ous it sometimes has because context, prohibition against “com- meaning within the workers’ injuries in- bining” mental Meat, scheme. See Mountain (1) juries may in- mean either that statutes). (discussing ambiguity juries together with a cannot be added clarify Specifically, amendments the 1999 pur- or nonscheduled injuries com-

that mental are limited com- poses of 8-41-301(2), pensation outlined in section pensation, cannot be that mental or emotional stress “shall be “impair- in the calculation of the included with a scheduled or nonscheduled appropri- rating” determines, 42—107(7)(b)(Ili). injury.” § Subsection cap. interpretation The former ate benefits (I) states that scheduled and nonscheduled context of the 1999 amend- conforms narrow title of compensated separately, and and fits within the shall be ments permanent partial disabil- the bill limited to iterates that mental are not *11 understood, really ... prevent .... is to ity [The bill] the amend- benefits. So a, they way indicating to calculate someone from that have explains proper ment disability compensation, depressed their about their scheduled [sic] provi- cap using depression that and does not affect the benefits and then to 8-42-107; also In re get see a formula award. sion. See 401, 406, Breene, 24 P. 14 Colo. (statements Berry). Proponent of John Id. (“If partic- to a of a bill be limited the title Tim Jackson stated: subject, general ular subdivision designed This bill is to eliminate the men- embody pertain- the bill matters right to tal award on stress remaining subdivisions of such ing to the compensation, leg- worker’s similar to the Applying subject relinquished.”). passed islation that the full cap to the benefits re- 1999 amendments the last two sessions. speculate legis- to quires the court (statements Jackson). Id. of Tim The tran- change cap to lature intended hearing scripts of the on House Bill 99-1157 any express language ty- provision without only single person, a reveal that workers’ provisions together. separate ing the two compensation attorney testifying opposi- majority’s interpretation also uses the The bill, possi- tion to the was concerned with the implicit an ex- to create 1999 amendments ble connection the enactment and between ception the use of the AMA Guides Testimony of the benefits statute. See despite explicit cap provision the benefits Bob Turner before the House Business Af- contrary in sections 8-42- directions to Committee, fairs & 62d As- Labor General 101(3.7) 8-42-107(8). reading Such sembly, Reg. (Hearing Tape 1st Sess. 99-5-d remaining provisions of the renders 1999). testimony Jan. of a bill’s statutory in- statute vulnerable to further however, opponent, legis- indicative consistencies. lative intent. history of the 1999 amend- legislative Finally, we must remember that the work supports my that no ments further belief compensation important an ers’ law serves made amend- connection can be between the public purpose. “liberally It must be con testimony cap. The ments and the benefits accomplish pur strued to its humanitarian 99-1157, sponsor of House Bill of the Senate pose assisting injured workers and their Owen, supporters, two Senator John Meat, families.” Mountain 919 P.2d at Jackson, Berry, and Tim shows the bill’s Counties, (quoting 252-53 Colorado Inc. v. possibility purpose was to eliminate the Davis, (Colo.App.1990), aff'd combining impairment ratings mental County sub nom. Workers injury ratings in scheduled or nonscheduled Davis, (Colo.1991)). Pool 817 P.2d 521 perma- to receive a formula order benefit Including disability “impair disability. nent Senator Owen stated: rating” of the benefits ... I think the heart of this bill is whether provides seriously fair in injuries, you on scheduled or nonscheduled jured Excluding workers like Debra Dillard. .... [T]he consider mental rolls the clock back to the is, question impairment] [mental should compensate time when the state did not men compensated along injury, with the or com- disability. tal pensated separate ... reasons, respectfully For all of these I before the Remarks Senator Owen Senate majority’s opinion from the dissent Comm., Military Veterans & Affairs State would of the court of reverse decision (Hear- Assembly, Reg. 62d 1st Sess. General appeals. Likewise, ing Tape 99-8-D Feb. Berry proponent stated: John I am authorized to state that Justice That’s what the does .... It also [inau- bill joins MARTINEZ in this dissent. way being with what fear as dible] the we huge loophole, allowing and that is some- one who has a scheduled benefit combined go off

with a mental benefit get a formula benefit

the schedule and