v. ICAO , 2021 COA 27 ( 2021 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
March 4, 2021
2021COA27
No. 20CA0732, Fisher v. ICAO — Labor and Industry —
Workers’ Compensation — Benefits — Physical Impairment
Ratings
Subsections (3)(a)(I) and (3.7) of section 8-42-101, C.R.S.
2020, state that, in workers’ compensation cases, physical
impairment ratings “shall be based on” the revised third edition of
the American Medical Association’s Guides to the Evaluation of
Permanent Impairment. In this opinion, a division of the court of
appeals considers the question whether the phrase “shall be based
on” the revised third edition of the Guides means that a doctor is
barred from using an evaluative process to determine an
impairment rating that is not described in the Guides. The division
answers the question “no.”
COLORADO COURT OF APPEALS 2021COA27
Court of Appeals No. 20CA0732
Industrial Claim Appeals Office of the State of Colorado
WC No. 5-068-151
Kerry Fisher,
Petitioner,
v.
Industrial Claim Appeals Office of the State of Colorado and State of Colorado
Department of Corrections,
Respondents.
ORDER AFFIRMED
Division I
Opinion by CHIEF JUDGE BERNARD
Rothenberg* and Taubman*, JJ., concur
Announced March 4, 2021
Hassler Law Firm, LLC, Stephen M. Johnston, Pueblo, Colorado, for Petitioner
No Appearance for Respondent Industrial Claim Appeals Office
Philip J. Weiser, Attorney General, D. Clay Thornton, Senior Assistant Attorney
General, Denver, Colorado, for Respondent State of Colorado Department of
Corrections
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2020.
¶1 The American Medical Association publishes Guides to the
Evaluation of Permanent Impairment that have been used over the
years by doctors in workers’ compensation systems to evaluate and
to describe patient impairments in terms of percentages of total
disability. Ellen Smith Pryor, Compensation and a Consequential
Model of Loss, 64 Tul. L. Rev. 783, 798 n.42 (1990). The Guides are
focused on “specifying methods of measurement and the
assignment of a single percentage for a given impairment.” Id.
There are different editions of the Guides — the most recent edition
is the sixth, see AMA, AMA Guides to the Evaluation of Permanent
Impairment, Sixth Edition: Hardcover, https://perma.cc/6JZ6-6T7U
— and there are “significant differences among” them, “not only in
emphasis of certain areas, but also as a reflection of the latest
consensus in medical science within its subject matter.” Litchfield’s
Case, 15 N.E.3d 252, 254 n.7 (Mass. App. Ct. 2014).
¶2 The revised third edition of the Guides is mentioned in section
8-42-101, C.R.S. 2020, of Colorado’s workers’ compensation
statutes, specifically in subsections (3)(a)(I) and (3.7). These
subsections address one aspect of how a doctor should evaluate a
work-related injury of a joint to determine the extent of the joint’s
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impairment, which, in turn, is used to determine the level of
compensation that the worker will receive.
¶3 As is pertinent to our analysis, subsection 101(3)(a)(I) states
that “impairment rating guidelines . . . shall be based on the revised
third edition of the [Guides] in effect as of July 1, 1991, and medical
treatment guidelines and utilization standards.” Subsection
101(3.7) is similar: “On or after July 1, 1991, all physical
impairment ratings used under articles 40 to 47 of this title shall be
based on the revised third edition of the [Guides], in effect as of July
1, 1991.”
¶4 In this appeal, we must address a question of statutory
interpretation: Does the phrase “shall be based on the revised third
edition” of the Guides mean that a doctor is barred from using an
evaluative process to determine an impairment rating that is not
described in the Guides’ revised third edition? For reasons that we
set out below, we answer this question “no.”
¶5 This statutory interpretation question is raised by claimant,
Kerry Fisher, who seeks review of a final order of a panel of the
Industrial Claim Appeals Office. The order upheld the decision of
an administrative law judge, who assigned him a scheduled
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impairment rating of thirteen percent for his injured left knee. We
affirm.
I. Background
¶6 The facts of this case are undisputed. Claimant worked as a
correctional officer for the Colorado Department of Corrections. In
December 2017, he suffered an injury to his left knee while walking
up some stairs. The department admitted that claimant injured his
knee while he was on duty.
¶7 Claimant’s authorized treating physician decided that he was
at maximum medical improvement as of early January 2019. The
physician also decided that the injury to his knee was permanent.
Using a method known as “normalization,” which we will describe
shortly, the physician calculated that the net impairment was
thirteen percent of the lower leg. The department filed a final
admission of liability based on the maximum medical improvement
date and the impairment rating.
¶8 Claimant thought that his impairment rating should have
been higher. He challenged the physician’s methodology of
“normalizing” the impairment to his left knee because it had not
been based on the Guides’ third edition.
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¶9 When describing this methodology, the physician explained in
a deposition that “normalization” is a process in which doctors
compare the range of motion of a patient’s uninjured joint — in this
case, claimant’s right knee — with the range of motion of the
patient’s injured joint — in this case, claimant’s left knee. The
range of motion in the uninjured joint is considered to be the
baseline. Once the range of motion in both joints is determined, the
doctor then subtracts any impairment to the range of motion of the
uninjured joint from the impairment to the injured joint to reach
the final impairment figure.
¶ 10 The practice of normalization is summarized in a Desk Aid
published by the Department of Labor and Employment, Division of
Workers’ Compensation. Dep’t of Lab. & Emp., Div. of Workers’
Comp., Desk Aid #11, Impairment Rating Tips (July 2020),
https://perma.cc/G9KX-Q2ZH. As is pertinent to our analysis, in
addition to describing the normalization process, the Desk Aid’s
discussion of “Rating of Extremities Using Contralateral Joint/
‘Normalization’” makes several other points.
 Using the uninjured joint for comparison purposes may be
“a better representation of the patient’s pre-injury state
4
than . . . [the] population norms” described in the revised
third edition of the Guides. Id.
 The revised third edition of the Guides “has little
commentary on” normalization, while the fifth edition and
the Division of Labor “consider it reasonable to compare
both extremities [ — i.e., normalization — ] when there are
specific conditions which would make the opposite,
non-injured extremity serve as a better individual baseline.”
Id.
 An evaluating doctor should not use normalization if the
opposite joint “has a known previous injury because that
joint may not reflect the ‘normal’ [range of motion] for
that individual.” Id.
¶ 11 The revised third edition of the Guides — the edition
mentioned in subsections 101(3)(a)(I) and 101(3.7) — does not
address normalization. But, as we mentioned above, the fifth
edition discusses it, and, according to the physician, the
normalization process, as outlined in the Desk Aid, has been taught
to doctors in workers’ compensation accreditation courses for at
least the last decade.
5
¶ 12 In claimant’s case, normalization reduced his range of motion
impairment by nine percentage points because he had pre-existing
degenerative arthritis in his knees.
¶ 13 When considering this case, the administrative law judge
noted that panels of the Industrial Claim Appeals Office had already
rejected numerous challenges to normalization and to the Desk Aid,
as had a division of this court in Kurtz v. Industrial Claim Appeals
Office, (Colo. App. No. 11CA2561, Oct. 18, 2012)(not published
pursuant to C.A.R. 35(f)). The judge then rejected claimant’s
challenge to the validity of the Desk Aid, concluding that
normalization was a legitimate process and that its use did not
violate any mandate in subsections 101(3)(a)(I) and 101(3.7). The
judge therefore awarded claimant benefits based on the physician’s
determination that the claimant’s left knee was thirteen percent
impaired. The reviewing panel affirmed the judge’s order.
II. General Legal Principles
¶ 14 We uphold a judge’s factual findings in a workers’
compensation case if they are supported by substantial evidence in
the record. § 8-43-308, C.R.S. 2020; Kieckhafer v. Indus. Claim
Appeals Off., 2012 COA 124, ¶ 12. “However, we review de novo
6
questions of law and of the application of law to undisputed facts.”
Winter v. Indus. Claim Appeals Off., 2013 COA 126, ¶ 7.
Consequently, if a panel’s decision misconstrues or misapplies the
law, it does not bind us. Paint Connection Plus v. Indus. Claim
Appeals Off., 240 P.3d 429, 431 (Colo. App. 2010). Because the
underlying facts are undisputed in this case, we review the panel’s
application of the law to the facts de novo.
¶ 15 We also review the panel’s interpretation of the statutes at
issue in this case de novo. Lobato v. Indus. Claim Appeals Off., 105
P.3d 220, 223 (Colo. 2005). When interpreting a statute, we must
determine and give effect to the legislature’s intent. Davison v.
Indus. Claim Appeals Off., 84 P.3d 1023, 1029 (Colo. 2004). If the
statutory language is clear, we interpret the statute according to its
plain and ordinary meaning. Specialty Rests. Corp. v. Nelson, 231
P.3d 393, 397 (Colo. 2010).
III. Analysis
¶ 16 Claimant contends, as he did at the previous stages of his
case, that (1) subsections 101(3)(a)(I) and 101(3.7) state that
impairment ratings “shall be based” on the revised third edition of
the Guides; therefore (2) doctors cannot employ the process of
7
normalization because it is not mentioned in the revised third
edition; (3) even though normalization is discussed in the Desk Aid,
doctors nonetheless cannot use the process because the Desk Aid
“is not law”; and, as a result, (4) the Division of Workers’
Compensation “has overstepped its authority and changed the
calculation of extremity ratings inconsistently with the law.” We
disagree for the following three reasons, and we therefore conclude
that the panel did not err when it affirmed the judge’s order.
¶ 17 First, the plain language of subsections 101(3)(a)(I) and
101(3.7) did not bar the physician from employing the process of
normalization. To remind the reader, both subsections provide that
impairment ratings “shall be based on” the revised third edition of
the Guides. § 8-42-101 (emphasis added).
¶ 18 The use of the word “based” is critical to interpreting
subsections 101(3)(a)(I) and 101(3.7). As a verb, it means “to find a
foundation or basis for: to find a base for” and “to make, form, or
serve as a base for.” Merriam-Webster Dictionary,
https://perma.cc/5SP2-LPZ5. Among the many definitions of the
noun “base,” the most relevant to this case are: “a main ingredient”;
“a first or bottom layer of something on which other elements are
8
added”; “the fundamental part of something”; and “the starting
point or line for an action or undertaking.” Id.
¶ 19 So, when the legislature stated that impairment ratings shall
be “based on” the revised third edition of the Guides, it meant that
the revised third edition is the starting point, not the exclusive
fount, of impairment rating methodology. By employing “based on,”
instead of using a more limiting word such as “only,” the legislature
made clear that doctors should have some leeway and discretion
when determining a patient’s final impairment rating. When viewed
from this perspective, we can see that the legislature intended the
revised third edition to be the foundation upon which a doctor can
begin to develop an impairment rating.
¶ 20 The Kansas Supreme Court reached the same conclusion in
Johnson v. U.S. Food Service, 478 P.3d 776, 779 (Kan. 2021).
Johnson involved Kansas’s version of subsections 101(3)(a)(I) and
101(3.7), which reads that “[t]he extent of permanent partial general
disability shall be . . . based on [the Guides].” Id. (quoting 2013
Kan. Sess. Laws 539). The court reasoned that “[u]sing the phrase
‘based on’ typically signifies a guideline rather than a mandate.” Id.
at 780. In other words, “[t]he use of the phrase ‘based on’ indicates
9
the [l]egislature intended the [Guides] to serve as a standard
starting point . . . .” Id.; cf. Hughes v. United States, 584 U.S. ___,
___, 138 S. Ct. 1765, 1775 (2018)(A court “imposes a sentence that
is ‘based on’ a [federal Sentencing] Guidelines range [in a criminal
case] if the range was a basis for the court’s exercise of discretion in
imposing a sentence.”).
¶ 21 Second, in addition to referring to the revised third edition of
the Guides, subsection 101(3)(a)(I) states that “impairment rating
guidelines . . . shall [also] be based on . . . medical treatment
guidelines and utilization standards.” According to the physician,
normalization has been taught to doctors for at least ten years —
which suggests that normalization is a utilization standard — and it
is discussed in the Desk Aid — which indicates that normalization
is found in medical treatment guidelines. The Desk Aid therefore
supplies guidance for doctors who are determining permanent
impairment ratings.
¶ 22 But, claimant asserts, by promulgating the Desk Aid, the
Division of Workers’ Compensation adopted a “law[] that [was]
contrary to” subsections 101(3)(a)(I) and 101(3.7). See Suetrack
USA v. Indus. Claim Appeals Off., 902 P.2d 854, 855 (Colo. App.
10
1995)(“Any regulation that is contrary to or inconsistent with the
regulatory authorizing statute is void.”).
¶ 23 The Division might have set up such a conflict (1) if it had
required doctors to follow the normalization process, as described in
the Desk Aid; or (2) if it had issued a rule under the rule-making
process of the Administrative Procedure Act, see § 24-4-103(1),
C.R.S. 2020, that incorporated the contents of the Desk Aid, and
this rule “establishe[d] a norm that commands a particular result in
all applicable proceedings,” Hammond v. Pub. Emps.’ Retirement
Ass’n, 219 P.3d 426, 428 (Colo. App. 2009).
¶ 24 But it did not set up such a conflict. Rather, using the same
reasoning that supports our conclusion that the phrase “based on”
does not restrict doctors to using the revised third edition of the
Guides, we further conclude that the phrase “based on” does not
require doctors to use “medical treatment guidelines and utilization
standards” such as the Desk Aid instead of the revised third
edition. See § 8-42-101(3)(a)(I).
¶ 25 The Desk Aid was not issued pursuant to the rule-making
process, and there is no indication that the Division intended it to
serve as a rule that would mandate a particular result in all cases.
11
Rather, the Desk Aid simply “establishes guidelines that do not
bind the agency to a particular result.” Hammond, 219 P.3d at 428.
For example, when discussing normalization, the Desk Aid states
that “the Division consider[s] it reasonable to compare both
extremities when there are specific conditions which would make the
opposite, non-injured extremity serve as a better individual
baseline.” (Emphasis added.) In this way, the Desk Aid serves as
an “interpretive rule” as described by section 24-4-103(1), which is
not subject to the formal rule-making process, including notice and
an opportunity for comments, and which is “not meant to be
binding . . . .” See Hammond, 219 P.3d at 428. Indeed, the panel
concluded that the Desk Aid was an interpretive rule, and we agree.
¶ 26 Third, it has long been the law that the two inquiries into
whether, in the course of conducting a division-sponsored
independent medical examination, a doctor properly applied the
Guides, and whether the subsequent rating was overcome by clear
and convincing evidence, “are questions of fact.” Wackenhut Corp.
v. Indus. Claim Appeals Off., 17 P.3d 202, 204 (Colo. App. 2000);
see also McLane W. Inc. v. Indus. Claim Appeals Off., 996 P.2d 263,
265 (Colo. App. 1999)(“Whether the . . . physician has properly
12
applied the . . . Guides in ascertaining the impairment rating and
whether that rating has been overcome by clear and convincing
evidence are questions of fact to be determined by” the judge.).
And, because the appropriate application of the Guides is a
question of fact, a panel will not set aside a judge’s decision if it is
supported by substantial evidence in the record. See Wackenhut,
17 P.3d at 204; see also Leewaye v. Indus. Claim Appeals Off., 178
P.3d 1254, 1256 (Colo. App. 2007)(“We are bound by the [judge’s]
factual determinations . . . if they are supported by substantial
evidence in the record.”).
¶ 27 Yet, in the twenty years since Wackenhut and McLane were
issued, the legislature has not amended subsection 101(3)(a)(I) or
subsection 101(3.7) to change this law by limiting doctors’
discretion or by requiring them to comply strictly with the revised
third edition of the Guides. Indeed, despite amendments to one or
both of these subsections in 2004 and 2009, the statutory
statement that impairment ratings are to be “based on” the revised
third edition remains unchanged. Because the legislature is
presumed to be aware of judicial statutory interpretations, “where,
as here, there is no express intent to repeal or abrogate existing law
13
. . . we presume that the legislature ‘accepted and ratified [our]
prior judicial construction’ of the statute.” Sullivan v. People, 2020
CO 58, ¶ 17 (quoting People v. Swain, 959 P.2d 426, 430-31 (Colo.
1998)).
¶ 28 To summarize, the Desk Aid states that the determination of
whether normalization is necessary rests squarely with the
examining doctor, who “may” follow normalization procedures
“when deemed appropriate.” In our view, the Desk Aid does not
reject the revised third edition of the Guides; rather, it expands on
the factors upon which doctors may, in their discretion, base
impairment ratings. And, as we have pointed out above, the
legislature gave doctors that discretion by using the phrase “based
on” in subsections 101(3)(a)(I) and 101(3.7). Given the legislature’s
acceptance of this medical discretion, and its long-term acceptance
of Wackenhut and McLane, we conclude that the panel’s
interpretation of subsections 101(3)(a)(I) and 101(3.7) is consistent
with the legislature’s intent. We therefore will not set it aside. See
Zerba v. Dillon Cos., 2012 COA 78, ¶ 37 (“The [p]anel’s
interpretation [of the Workers’ Compensation Act] will . . . be set
aside only ‘if it is inconsistent with the clear language of the statute
14
or with the legislative intent.’” (quoting Support, Inc. v. Indus. Claim
Appeals Off., 968 P.2d 174, 175 (Colo. App. 1998))).
¶ 29 Claimant’s two remaining contentions do not persuade us to
reach a different conclusion.
¶ 30 Initially, claimant asserts, without citing any legal authority,
that, by recommending normalization, “the Desk Aid specifically
discriminates against individuals based on age and body habitus
[physical build],” ostensibly because older workers are more prone
to arthritis and cannot “remember every injury that they have
suffer[ed] to the nonindustrial injured limb.” But he does not
articulate how the panel’s interpretation of subsections 101(3)(a)(I)
and 101(3.7) discriminates against him and other similarly situated
workers. And he does not offer any examples illustrating how the
physician, the Division, the judge, or the panel treated him
differently or how his individual circumstances produced an
unequal application of subsections 101(3)(a)(I) and 101(3.7). We
decline to address this contention because he has not developed it.
See Sanchez v. Indus. Claim Appeals Off., 2017 COA 71, ¶ 41
(declining to address “underdeveloped arguments” (quoting
Antolovich v. Brown Grp. Retail, Inc., 183 P.3d 582, 604 (Colo. App.
15
2007))); Meza v. Indus. Claim Appeals Off., 2013 COA 71, ¶ 38
(same).
¶ 31 Finally, claimant theorizes that the physician wrongly thought
that he was required to follow the normalization procedure
described in the Desk Aid even though its use is discretionary. But
he does not develop this assertion either. Rather, he simply raises
it, without offering legal authority or citations to the record to
support it. We therefore will not address it. See Mauldin v. Lowery,
127 Colo. 234, 236, 255 P.2d 976, 977 (1953)(“It is the task of
counsel to inform us, as required by our rules, both as to the
specific errors relied on and the grounds and supporting facts and
authorities therefor.”); see also Sanchez, ¶ 62 (“‘Given the dearth of
legal grounds offered,’ we decline to address claimant’s remaining
arguments.” (quoting Meza, ¶ 38)).
¶ 32 The order is affirmed.
JUDGE ROTHENBERG and JUDGE TAUBMAN concur.
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