Colorado Revised Statutes Title 8 Labor and Industry § 8-42-107 Permanent partial disability benefits--schedule--medical impairment benefits--how determined

(1) Benefits available.  (a) When an injury results in permanent medical impairment, and the employee has an injury or injuries enumerated in the schedule set forth in subsection (2) of this section, the employee shall be limited to medical impairment benefits as specified in subsection (2) of this section.

(b) When an injury results in permanent medical impairment and the employee has an injury or injuries not on the schedule specified in subsection (2) of this section, the employee shall be limited to medical impairment benefits as specified in subsection (8) of this section.

(2) Scheduled injuries.  In case an injury results in a loss set forth in the following schedule, the injured employee, in addition to compensation to be paid for temporary disability, shall receive compensation for the period as specified:

(a)

The loss of an arm at the shoulder

208 weeks

(a.5)

The loss of an arm above the hand including the wrist

208 weeks

(b)

Deleted by Laws 1994, S.B.94-199, § 4, eff. July 1, 1994

(c)

The loss of a hand below the wrist

104 weeks

(d)

The loss of a thumb and the metacarpal bone thereof

50 weeks

(e)

The loss of a thumb at the proximal joint

35 weeks

(f)

The loss of a thumb at the second or distal joint

18 weeks

(g)

The loss of an index finger and the metacarpal bone thereof

26 weeks

(h)

The loss of an index finger at the proximal joint

18 weeks

(i)

Loss of an index finger at the second joint

13 weeks

(j)

Loss of an index finger at the distal joint

9 weeks

(k)

Loss of a second finger and the metacarpal bone thereof

18 weeks

(l)

Loss of a middle finger at the proximal joint

13 weeks

(m)

Loss of a middle finger at the second joint

9 weeks

(n)

Loss of a middle finger at the distal joint

5 weeks

(o)

Loss of a third or ring finger and the metacarpal bone thereof

11 weeks

(p)

Loss of a ring finger at the proximal joint

7 weeks

(q)

Loss of a ring finger at the second joint

7 weeks

(r)

Loss of a ring finger at the distal joint

4 weeks

(s)

Loss of a little finger and the metacarpal bone thereof

13 weeks

(t)

Loss of a little finger at the proximal joint

9 weeks

(u)

Loss of a little finger at the second joint

9 weeks

(v)

Loss of a little finger at the distal joint

4 weeks

(w)

Loss of a leg at the hip joint or so near thereto as to preclude the use of an artificial limb

208 weeks

(w.5)

The loss of a leg above the foot including the ankle

208 weeks

(x)

Deleted by Laws 1994, S.B.94-199, § 4 eff. July 1, 1994

(y)

The loss of a foot below the ankle

104 weeks

(z)

The loss of a great toe with the metatarsal bone thereof

26 weeks

(aa)

The loss of a great toe at the proximal joint

18 weeks

(bb)

The loss of a great toe at the second or distal joint

9 weeks

(cc)

The loss of any other toe with the metatarsal bone thereof

11 weeks

(dd)

The loss of any other toe at the proximal joint

4 weeks

(ee)

The loss of any other toe at the second or distal joint

4 weeks

(ff)

The loss of a tooth

6 weeks

(gg)

Total blindness of one eye

104 weeks

(hh)

Total deafness of both ears

139 weeks

(ii)

Total deafness of one ear

35 weeks

(jj)

Where worker prior to injury has suffered a total loss of hearing in one ear, and as a result of the accident loses total hearing in remaining ear

139 weeks

(3) Temporary disability terminates as to injuries coming under any provision of this section upon the occurrence of any of the events enumerated in section 8-42-105(3) .

(4) For the purpose of this schedule, permanent and complete paralysis of any member as the proximate result of accidental injury shall be deemed equivalent to the loss thereof.

(5) If amputation is made between any two joints mentioned in this schedule, except amputation between the knee and the hip joint, the resulting loss shall be estimated as if the amputation had been made at the joint nearest thereto.  If any portion of the bone of the distal joint of any finger, thumb, or toe is amputated, the amount paid therefor shall be the amount allowed for amputation at said distal joint.

(6)(a) The amounts specified in subsections (1) to (5) of this section shall be at the compensation rate of one hundred seventy-six dollars per week.

(b) On July 1, 2000, and on each succeeding July 1 thereafter, the compensation rate established in this subsection (6) shall be modified for claims arising on and after such date by the same percentage increase or decrease as the state average weekly wage as determined by the director when the director establishes the state average weekly wage pursuant to section 8-47-106 .

(7)(a) When an injured employee sustains two or more injuries coming under this schedule, the disabilities specified in subsections (1) to (5) of this section shall be added, and the injured employee shall receive the sum total thereof;  except that, where the injury results in the loss or partial loss of use of the index finger and thumb of the same hand or of more than two digits of any one hand or foot, the disability, in the discretion of the director, may be compensated on the basis of the partial loss of use of said hand or foot, measured respectively from the wrist or ankle.

(b)(I) The general assembly finds, determines, and declares that the rating organization that studied the impact of the changes in Senate Bill 91-218, enacted at the first regular session of the fifty-eighth general assembly, assumed that scheduled injuries would remain on the schedule and nonscheduled injuries would be compensated as medical impairment benefits.  Therefore, the general assembly finds, determines, and declares that the purpose of changing the provisions of subparagraph (II) of this paragraph (b), as amended by House Bill 99-1157, enacted at the first regular session of the sixty-second general assembly, is to clarify that scheduled injuries shall be compensated as provided on the schedule and nonscheduled injuries shall be compensated as medical impairment benefits, and that, when an injured worker sustains both scheduled and nonscheduled injuries, the losses shall be compensated on the schedule for scheduled injuries and the nonscheduled injuries shall be compensated as medical impairment benefits.  The general assembly further determines and declares that mental or emotional stress shall be compensated pursuant to section 8-41-301(2) and shall not be combined with a scheduled or a nonscheduled injury.

(II) Except as provided in subsection (8) of this section, where an injury causes the loss of, loss of use of, or partial loss of use of any member specified in the foregoing schedule, the amount of permanent partial disability shall be the proportionate share of the amount stated in the above schedule for the total loss of a member, and such amount shall be in addition to compensation for temporary disability.  Where an injury causes a loss set forth in the schedule in subsection (2) of this section and a loss set forth for medical impairment benefits in subsection (8) of this section, the loss set forth in the schedule found in said subsection (2) shall be compensated solely on the basis of such schedule and the loss set forth in said subsection (8) shall be compensated solely on the basis for such medical impairment benefits specified in said subsection (8).

(III) Mental or emotional stress shall be compensated pursuant to section 8-41-301(2) and shall not be combined with a scheduled or a nonscheduled injury, except for the purposes of calculating a claimant's impairment rating to determine the applicable cap for benefits pursuant to section 8-42-107.5 .

(8) Medical impairment benefits--determination of MMI for scheduled and nonscheduled injuries.  (a) When an injury results in permanent medical impairment not set forth in the schedule in subsection (2) of this section, the employee shall be limited to medical impairment benefits calculated as provided in this subsection (8).  The procedures for determination of maximum medical improvement set forth in paragraph (b) of this subsection (8) shall be available in cases of injuries set forth in the schedule in subsection (2) of this section and also in cases of injuries that are not set forth in said schedule.

(b)(I) An authorized treating physician shall make a determination as to when the injured employee reaches maximum medical improvement as defined in section 8-40-201(11.5) .

(II) If either party disputes a determination by an authorized treating physician on the question of whether the injured worker has or has not reached maximum medical improvement, an independent medical examiner may be selected in accordance with section 8-42-107.2 ;  except that, if an authorized treating physician has not determined that the employee has reached maximum medical improvement, the employer or insurer may only request the selection of an independent medical examiner if all of the following conditions are met:

(A) At least twenty-four months have passed since the date of injury;

(B) A party has requested in writing that an authorized treating physician determine whether the employee has reached maximum medical improvement;

(C) Such authorized treating physician has not determined that the employee has reached maximum medical improvement;  and

(D) A physician other than such authorized treating physician has determined that the employee has reached maximum medical improvement.

(III) Notwithstanding paragraph (c) of this subsection (8), if the independent medical examiner selected pursuant to subparagraph (II) of this paragraph (b) finds that the injured worker has reached maximum medical improvement, the independent medical examiner shall also determine the injured worker's permanent medical impairment rating.  The finding regarding maximum medical improvement and permanent medical impairment of an independent medical examiner in a dispute arising under subparagraph (II) of this paragraph (b) may be overcome only by clear and convincing evidence.  A hearing on this matter shall not take place until the finding of the independent medical examiner has been filed with the division.

(b.5) When an authorized treating physician providing primary care who is not accredited under the level II accreditation program pursuant to section 8-42-101(3.5) makes a determination that an employee has reached maximum medical improvement, the following procedures shall apply:

(I)(A) If the employee is not a state resident upon reaching maximum medical improvement, such physician shall, within twenty days after the determination of maximum medical improvement, determine whether the employee has sustained any permanent impairment.  If the employee has sustained any permanent impairment, such physician shall conduct such tests as are required by the revised third edition of the “American Medical Association Guides to the Evaluation of Permanent Impairment” to determine such employee's medical impairment rating and shall transmit to the self-insured employer or insurer all test results and all relevant medical information.

(B) However, if the employee chooses not to have the authorized treating physician perform such tests, or if the information is not transmitted in a timely manner, the self-insured employer or insurer shall arrange and pay for the employee to return to Colorado for examination, testing, and rating, at the expense of the self-insured employer or insurer.  If the employee refuses to return to Colorado for examination, no permanent disability benefits shall be awarded.

(C) The self-insured employer or insurer shall, within twenty days after receipt of the medical information described in sub-subparagraph (A) of this subparagraph (I), appoint a level II accredited physician to determine the employee's medical impairment rating.  If the employee was treated by an authorized level II accredited physician in Colorado for the same injury for which a medical impairment rating is being sought, the self-insured employer or insurer shall request such physician to determine the claimant's medical impairment rating.  At the same time as such rating is transmitted to the self-insured employer or insurer, the level II physician shall transmit a copy of the same to the authorized treating physician and the employee.

(D) If the employee, insurer, or self-insured employer disputes a medical impairment rating, including a finding that there is no medical impairment, made pursuant to sub-subparagraph (A) of this subparagraph (I), the parties to the dispute may select an independent medical examiner in accordance with section 8-42-107.2 to review the rating.  The cost of such independent medical examination shall be borne by the requesting party.  The finding of such independent medical examiner shall be overcome only by clear and convincing evidence.  Any review by an independent medical examiner shall be based on the employee's written medical records only, without further examination, unless a party to the dispute requests that such review include a physical examination by the independent medical examiner.  Except when the provisions of section 8-42-107.2(5)(b) apply, the party requesting a physical examination shall pay all additional costs, including, if applicable, the reasonable cost of returning the employee to Colorado.

(II) If the employee is a state resident, such physician shall, within twenty days after the determination of maximum medical improvement, determine whether the employee has sustained any permanent impairment.  If the employee has sustained any permanent impairment, such physician shall refer such employee to a level II accredited physician for a medical impairment rating, which shall be based on the revised third edition of the “American Medical Association Guides to the Evaluation of Permanent Impairment”.  If the referral is not timely made by the authorized treating physician, the insurer or self-insured employer shall refer the employee to a level II accredited physician within forty days after the determination of maximum medical improvement.  If the employee, insurer, or self-insured employer disputes the finding regarding permanent medical impairment, including a finding that there is no permanent medical impairment, the parties to the dispute may select an independent medical examiner in accordance with section 8-42-107.2 .  The finding of any such independent medical examiner shall be overcome only by clear and convincing evidence.

(c) When the injured employee's date of maximum medical improvement has been determined pursuant to subparagraph (I) of paragraph (b) of this subsection (8), and there is a determination that permanent medical impairment has resulted from the injury, the authorized treating physician shall determine a medical impairment rating as a percentage of the whole person based on the revised third edition of the “American Medical Association Guides to the Evaluation of Permanent Impairment”, in effect as of July 1, 1991.  Except for a determination by the authorized treating physician providing primary care that no permanent medical impairment has resulted from the injury, any physician who determines a medical impairment rating shall have received accreditation under the level II accreditation program pursuant to section 8-42-101 .  For purposes of determining levels of medical impairment, the physician shall not render a medical impairment rating based on chronic pain without anatomic or physiologic correlation.  Anatomic correlation must be based on objective findings.  If either party disputes the authorized treating physician's finding of medical impairment, including a finding that there is no permanent medical impairment, the parties may select an independent medical examiner in accordance with section 8-42-107.2 .  The finding of the independent medical examiner may be overcome only by clear and convincing evidence.  A hearing on this matter shall not take place until the finding of the independent medical examiner has been filed with the division.

(c.5) When an injury results in the total loss or total loss of use of an arm at the shoulder, a forearm at the elbow, a hand at the wrist, a leg at the hip or so near thereto as to preclude the use of an artificial limb, the loss of a leg at or above the knee where the stump remains sufficient to permit the use of an artificial limb, a foot at the ankle, an eye, or a combination of any such losses, the benefits for such loss shall be determined pursuant to this subsection (8).

(d) Medical impairment benefits shall be determined by multiplying the medical impairment rating determined pursuant to paragraph (c) of this subsection (8) by the age factor determined pursuant to paragraph (e) of this subsection (8) and by four hundred weeks and shall be calculated at the temporary total disability rate specified in section 8-42-105 .  Up to ten thousand dollars of the total amount of any such award or scheduled award shall be automatically paid in a lump sum less the discount as calculated in section 8-43-406 upon the injured employee's written request to the employer or, if insured, to the employer's insurance carrier.  The remaining periodic payments of any such award, after subtracting the total amount of the lump sum requested by the employee without subtracting the discount calculated in section 8-43-406 , shall be paid at the temporary total disability rate but not less than one hundred fifty dollars per week and not more than fifty percent of the state average weekly wage, beginning on the date of maximum medical improvement.

(e) The age factor for use in calculating medical impairment benefits pursuant to this subsection (8) is as follows:

AGE

FACTOR

20 or younger

1.80

21

1.78

22

1.76

23

1.74

24

1.72

25

1.70

26

1.68

27

1.66

28

1.64

29

1.62

30

1.60

31

1.58

32

1.56

33

1.54

34

1.52

35

1.50

36

1.48

37

1.46

38

1.44

39

1.42

40

1.40

41

1.38

42

1.36

43

1.34

44

1.32

45

1.30

46

1.28

47

1.26

48

1.24

49

1.22

50

1.20

51

1.18

52

1.16

53

1.14

54

1.12

55

1.10

56

1.08

57

1.06

58

1.04

59

1.02

60 or older

1.00

(f) In all claims in which an authorized treating physician recommends medical benefits after maximum medical improvement, and there is no contrary medical opinion in the record, the employer shall, in a final admission of liability, admit liability for related reasonable and necessary medical benefits by an authorized treating physician.


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