2021 Colorado Code
Title 8 - Labor and Industry
Article 42 - Benefits
§ 8-42-107. Permanent Partial Disability Benefits - Schedule - Medical Impairment Benefits - How Determined

1. Benefits available.
   1. 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.
   2. 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:
   1. 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 amendment,L. 94, p. 2002, § 4, effective 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 amendment,L. 94, p. 2002, § 4, effective 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. 1. 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.
   2. 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. 1. 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.
   2. 1. 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. (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.
      2. 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).
      3. 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.
   1. 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.
   2. 1. 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). (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).
      2. 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:
         1. At least twenty-four months have passed since the date of injury;
         2. A party has requested in writing that an authorized treating physician determine whether the employee has reached maximum medical improvement and has provided the authorized treating physician with the written report required by subsection (8)(b)(II)(E) of this section;
         3. The authorized treating physician has not determined that the employee has reached maximum medical improvement;
         4. A physician other than the authorized treating physician has examined the employee at least twenty months after the date of the injury and determined that the employee has reached maximum medical improvement; and
         5. The requesting party has provided the authorized treating physician and all other parties with a written report from the physician who has examined the employee pursuant to subsection (8)(b)(II)(D) of this section, indicating that the examining physician has determined that the employee has reached maximum medical improvement, and the authorized treating physician has responded in writing to all the parties that the employee has not reached maximum medical improvement or has failed to respond in writing to all parties within fifteen calendar days after the service of the written report.

      3. 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:

         1. (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.
         2. 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.
         3. If, as of the date on which the time for selection of an IME would otherwise commence, a medical condition is not yet ratable because of a provision in the medical treatment guidelines or in the revised third edition of the “American Medical Association Guides to the Evaluation of Permanent Impairment”, the time for selection of an IME shall commence on the date on which an impairment rating is mailed or physically delivered.

   3. 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).

   4. 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.
   5. The age factor for use in calculating medical impairment benefits pursuant to this subsection (8) is as follows:
   6. 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.

History. Source: L. 90: Entire article R&RE, p. 491, § 1, effective July 1. L. 91: Entire section amended, p. 1306, § 15, effective July 1. L. 92: (8)(d) amended, p. 1827, § 1, effective April 29; (7)(b) amended and (8)(c.5) added, p. 1833, §§ 1, 2, effective May 26. L. 93: (8)(c) amended, p. 365, § 1, effective April 12. L. 94: (2)(b), (2)(c), (2)(x), (2)(y), and (7)(b) amended and (2)(a.5) and (2)(w.5) added, p. 2002, § 4, effective July 1. L. 96: (8)(b.5) added and (8)(c) amended, p. 269, § 2, effective April 8; (8)(a) and (8)(b) amended, p. 456, § 1, effective July 1. L. 98: IP(8)(b)(II), (8)(b)(III), (8)(b.5)(I)(D), (8)(b.5)(II), and (8)(c) amended, p. 1429, § 2, effective August 5. L. 99: (6) and (7) amended, p. 298, § 1, effective July 1. L. 2003: (8)(b.5)(I)(D), (8)(b.5)(II), and (8)(c) amended, p. 1711, § 1, effective August 6. L. 2007: (8)(d) amended, p. 1472, § 2, effective May 30. L. 2009: (7)(b)(III) amended,(SB 09-243), ch. 269, p. 1223, § 3, effective July 1. L. 2010: (2)(ff) amended,(SB 10-187), ch. 310, p. 1459, § 6, effective July 1. L. 2011: (8)(f) added,(SB 11-199), ch. 196, p. 759, § 1, effective May 23. L. 2013: (8)(b)(II)(A), (8)(b)(III), and (8)(c) amended,(SB 13-285), ch. 301, p. 1595, § 6, effective July 1. L. 2021: (8)(b)(II)(B), (8)(b)(II)(C), and (8)(b)(II)(D) amended and (8)(b)(II)(E) added,(HB 21-1050), ch. 384, p. 2571, § 4, effective September 7.

1. This section is similar to former §§ 8-51-104 and 8-51-108 as they existed prior to 1990.
2. Section 13(2)(a) of chapter 384 (HB 21-1050), Session Laws of Colorado 2021, provides that the act changing this section applies to workers' compensation claims pending or filed on or after September 7, 2021.

Analysis

• I. GENERAL CONSIDERATION.
• II. DETERMINATION OF DISABILITY.
• III. LOSS OF FINGERS OR LIMBS.
• IV. LOSS OF SIGHT.
• V. DETERMINATION OF COMPENSATION.
• VI. MAXIMUM MEDICAL IMPROVEMENT.
• VII. TERMINATION OF BENEFITS.

Law reviews. For note, “One Year Review of Colorado Law-1964”, see 42 Den. L. Ctr. J. 140 (1965). For article, “Primer on Permanent Disability in the Colorado Workmen's Compensation Law”, see 57 Den. L.J. 573 (1980). For article, “Time, Equity and the Average Weekly Wage”, see 23 Colo. Law. 1831 (1994). For article, “Update on Colorado Appellate Decisions in Colorado Workers' Compensation Law”, see 30 Colo. Law. 69 (Apr. 2001). For article, “Update on Colorado Appellate Decisions In Workers' Compensation Law”, see 32 Colo. Law. 87 (Mar. 2003). For article, “The Road to Longmont Toyota: Starting and Stopping Temporary Disability Benefits”, see 34 Colo. Law. 87 (June 2005).

Annotator's note. (1) Since provisions in § 8-42-110 relating to the determination of permanent partial disability were moved to this section in 1991, relevant cases construing § 8-51-108 , which included the provisions of § 8-42-110 prior to the 1990 repeal and reenactment of the “Workers' Compensation Act of Colorado”, articles 40 to 47 of this title, and relevant cases construing § 8-51-104 have been included in the annotations to this section.

(2) Cases included in the annotations to this section which refer to the industrial commission were decided prior to the 1969 amendment which vested the director of the division of labor with the power previously exercised by the industrial commission to determine disability and make awards or were decided prior the enactment of 1986 Senate Bill No. 12 which abolished said commission.

This section does not violate constitutional guarantees of equal protection. Difference in methods of calculating benefits for partial and total injuries is rationally related to the governmental interest in providing benefits efficiently and fairly, notwithstanding that the classification is not perfect and that inequality may result in individual cases. Duran v. Indus. Claim Appeals Office, 883 P.2d 477 (Colo. 1994); Colo. AFL-CIO v. Donlon, 914 P.2d 396 (Colo. App. 1995).

Application of the schedule of disabilities in this section to minors with scheduled injuries does not deny those minors the equal protection guarantees of the fourteenth amendment and article II, § 25, of the Colorado Constitution.Torres v. Canam Indus., Inc., 942 P.2d 1384 (Colo. App. 1997).

This section not void for vagueness and does not operate as a deprivation of due process. The fact that there may be many examples of “loss of use” of a member does not equate to unconstitutional vagueness. The statute must necessarily be phrased in general terms in order to ensure applicability to varied circumstances. Fundamental fairness does not require a statute to enumerate examples or criteria in every instance. “Loss of use” is sufficiently precise to permit persons of common intelligence to understand its meaning. Walker v. Jim Fuoco Motor Co., 942 P.2d 1390 (Colo. App. 1997).

This section is clear, definite and mandatory. Cresson Consol. Gold Mining & Milling Co. v. Indus. Comm'n, 90 Colo. 353 , 9 P.2d 295 (1932); Hawkeye-Security Ins. Co. v. Tupper, 152 Colo. 12 , 380 P.2d 31 (1963).

And a liberal construction does not clothe the industrial commission or a court with power to ignore its mandatory provisions. Thompson Stores Co. v. Indus. Comm'n, 85 Colo. 576 , 277 P. 789 (1929); Colo. Fuel & Iron Co. v. Indus. Comm'n, 88 Colo. 573 , 298 P. 955 (1931); Cresson Consol. Gold Mining & Milling Co. v. Indus. Comm'n, 90 Colo. 353 , 9 P.2d 295 (1932); Hawkeye-Security Ins. Co. v. Tupper, 152 Colo. 12 , 380 P.2d 31 (1963).

This section not retroactive. Provisions of 1991 repeal and reenactment of workers' compensation statutes, including this section, apply only in cases where the injuries occurred on or after July 1, 1991. Golden Animal Hosp. v. Horton, 897 P.2d 833 (Colo. 1995).

Claims for injuries sustained prior to July 1, 1991, are subject to the former reemployment statute where applicable. The plain language of former § 8-42-110 required that the benefits of a claimant who is reemployed by an employer be based on the degree of medical impairment rather than an ALJ's determination of the claimant's industrial disability even though a higher award is the result of such calculation. Turner v. City & County of Denver, 867 P.2d 197 (Colo. App. 1993) (decided under former § 8-42-110 ).

General assembly may deem injury compensable per se. The provisions of the statutory scheme reflect the general assembly's conclusion that the scheduled injuries are of a kind which is so likely to result in loss of earning capacity that proof of such loss is unnecessary. Matthews v. Indus. Comm'n, 627 P.2d 1123 (Colo. App. 1980).

When an employee is involved in a work-related accident that results in both a scheduled injury and a nonscheduled injury, the scheduled injury must be converted to a whole person impairment rating and combined with the nonscheduled injury's whole person impairment rating in calculating permanent disability benefits. Mtn. City Meat Co. v. Oqueda, 919 P.2d 246 (Colo. 1996); Human Res. Co. v. Indus. Claim Appeals Office, 984 P.2d 1194 (Colo. App. 1999).

An injury must be ratable under the AMA Guides before it is compensable under subsection (8). Therefore, a functional impairment that rates at zero percent under the AMA Guides is not a compensable injury. Morris v. Indus. Claim Appeals Office, 942 P.2d 1343 (Colo. App. 1997).

When a claimant sustains both a scheduled and a nonscheduled injury from the same industrial accident, and the two are separately ratable impairments, subsection (7)(b)(II) precludes conversion of the scheduled disability rating to a whole person impairment rating. Warthen v. Indus. Claim Appeals Office, 100 P.3d 581 (Colo. App. 2004).

The cumulative trauma disorder rating scheme set forth in department of labor & employment rule XIX(G)(2), 7 Code Colo. Regs. 1101-3, which includes a provision directing the rating physician to convert each upper extremity impairment to a whole person rating when the impairment is bilateral, is applicable only where the claimant has suffered a functional impairment not found on the schedule of disabilities in subsection (2) of this section. To read rule XIX(G)(2) as requiring scheduled injuries related to cumulative trauma disorder to be rated as a whole person impairment in all cases would make it inconsistent with subsection (1)(a), and such inconsistency would render the regulation void. Kolar v. Indus. Claim Appeals Office, 122 P.3d 1075 (Colo. App. 2005).

The compensation provided in this section is payable irrespective of one's ability to work and irrespective of his ability to earn. Great Am. Indem. Co. v. Indus. Comm'n, 114 Colo. 91 , 162 P.2d 413 (1945); Hawkeye-Security Ins. Co. v. Tupper, 152 Colo. 12 , 380 P.2d 31 (1963).

This section contains a schedule of specific injuries to which attach specific awards of compensation, and any award of compensation as to an injury included in the schedule is limited and determined thereby. Hawkeye-Security Ins. Co. v. Tupper, 152 Colo. 12 , 380 P.2d 31 (1963).

And for a specific injury relating solely to the injured member claimant cannot have compensation for disability, either total or partial. Employers' Mut. Ins. Co. v. Indus. Comm'n, 89 Colo. 475 , 3 P.2d 1079 (1931); Hawkeye-Security Ins. Co. v. Tupper, 152 Colo. 12 , 380 P.2d 31 (1963).

The term “injury” refers to the manifestation in a part or parts of the body which have been impaired or disabled as a result of the industrial accident. Strauch v. PSL Swedish Healthcare Sys., 917 P.2d 366 (Colo. App. 1996).

Whether claimant has suffered a functional impairment that is listed in the schedule of disabilities is a factual question to be resolved by the administrative law judge. Strauch v. PSL Swedish Healthcare Sys., 917 P.2d 366 (Colo. App. 1996); Delaney v. Indus. Claim Appeals Office, 30 P.3d 691 (Colo. App. 2000); Kolar v. Indus. Claim Appeals Office, 122 P.3d 1075 (Colo. App. 2005).

It is the situs of the functional impairment, not the situs of the initial harm, that is the relevant inquiry. Strauch v. PSL Swedish Healthcare Sys., 917 P.2d 366 (Colo. App. 1996); Langton v. Rocky Mtn. Health Care, 937 P.2d 883 (Colo. App. 1996); Kolar v. Indus. Claim Appeals Office, 122 P.3d 1075 (Colo. App. 2005).

Therefore, it was not improper for the panel to base an award that included disability to the shoulder on the proportionate loss to the use of the arm when the functional impairment occurred only in the arm. Strauch v. PSL Swedish Healthcare Sys., 917 P.2d 366 (Colo. App. 1996).

This section grants broad discretion to elect between scheduled or working unit award. Lerner v. Wal-Mart Stores, Inc., 865 P.2d 915 (Colo. App. 1993).

Therefore, the method of determining disability provided by § 8-51-108 cannot be used when the injury is one appearing in the schedule set forth in this section, since by its specific terms such injuries are excluded. Cresson Consol. Gold Mining & Milling Co. v. Indus. Comm'n, 90 Colo. 353 , 9 P.2d 295 (1932); Hawkeye-Security Ins. Co. v. Tupper, 152 Colo. 12 , 380 P.2d 31 (1963).

Thus, to obtain compensation in addition to that scheduled for an injured member, claimant must show that some other part of his body is affected. Hawkeye-Security Ins. Co. v. Tupper, 152 Colo. 12 , 380 P.2d 31 (1963).

Neither § 8-42-101 (3.7) nor the AMA Guides can be read as superseding or overriding the express legislative directive in subsection (1) regarding how benefits are to be calculated for employees who have sustained only scheduled injuries. Kolar v. Indus. Claim Appeals Office, 122 P.3d 1075 (Colo. App. 2005).

“Disability”, as used in this section, means disability to work. Employers' Mut. Ins. Co. v. Indus. Comm'n, 70 Colo. 228 , 199 P. 482 (1921).

The term “disability” is broader and more inclusive than the term “medical impairment” as used in subsection (3); a person can have a medical impairment but still not have a disability that adversely affects earning capacity. Boice v. Indus. Claim Appeals Office, 800 P.2d 1339 (Colo. App. 1990).

Medical impairment benefits are designed to compensate for lost earning capacity. Salazar v. Hi-Land Potato Co., 917 P.2d 326 (Colo. App. 1996).

Construction of this section and § 8-51-108 . Where there is no evidence upon which an award for permanent partial disability may be made under § 8-51-108 , an award may be properly entered under this section, where it is supported by findings based upon the evidence. Winteroth v. Indus. Comm'n, 93 Colo. 38 , 22 P.2d 865 (1933).

The commission has discretionary power to compensate an injured employee for his disability under either the scheduled loss provisions of this section or under the permanent partial disability provisions of § 8-51-105 , but not both. World of Sleep, Inc. v. Davis, 188 Colo. 443 , 536 P.2d 34 (1975); Collins v. Indus. Comm'n, 676 P.2d 1270 (Colo. App. 1984).

While there is no direct prohibition in subsection (7) not to consider the factors of this section while awarding under § 8-51-108 , the use of the disjunctive indicates a choice, not a fusion, of the sections to be applied. World of Sleep, Inc. v. Davis, 188 Colo. 443 , 536 P.2d 34 (1975).

Subsection (7) is not facially invalid for want of guidelines limiting the director's discretion. Martinez v. Indus. Comm'n, 632 P.2d 1044 (Colo. App. 1981).

Subsection (7) is to be limited to cases where the injury results in the loss of use or partial loss of use of another member. Great Am. Indem. Co. v. Indus. Comm'n, 114 Colo. 91 , 162 P.2d 413 (1945); Indus. Comm'n v. Gen. Accident, Fire & Life Assurance Corp., 71 Colo. 115 , 204 P. 338 (1922).

Subsection (7) gives the industrial commission the discretion to grant a percentage award under the schedule found in this section or to rate the claimant under the working unit disability provisions of § 8-51-108 . Indus. Comm'n v. Seastone, 167 Colo. 571 , 448 P.2d 963 (1969); Cosmopolitan W. Hotel v. Henry, 172 Colo. 279 , 472 P.2d 134 (1970); Padillo v. F. H. Linneman Constr. Co., 29 Colo. App. 137, 479 P.2d 990 (1971).

But if claimant has completely lost his hand he can be compensated only under the schedule, and no discretion would be vested in the commission under subsections (6) and (7). Indus. Comm'n v. Seastone, 167 Colo. 571 , 448 P.2d 963 (1969).

Formula to determine amount of compensation under subsection (7). Amount of compensation to be awarded under subsection (7) is found by applying the percentage of loss of use to the amount of compensation which the general assembly has precisely provided in a schedule set out in this section. World of Sleep, Inc. v. Davis, 188 Colo. 443 , 536 P.2d 34 (1975).

If an employee's disability is the result of an occupational disease, he cannot recover compensation therefor under former provisions of the workmen's compensation act. Hallenbeck v. Butler, 101 Colo. 486 , 74 P.2d 708 (1937).

Although evidence was conflicting, where expert based finding of permanent partial loss of hearing on valid formula and the process used was not new or novel, such evidence was properly interpreted by the ALJ and award was properly based on the disability award schedule and not on the lower disability ratings proffered by the employer's experts. City of Aurora v. Vaughn, 824 P.2d 825 (Colo. App. 1991).

Only medical impairment considered. Where the commission compensates an injured employee under this section, it may consider only medical impairment and is limited to a disability award based entirely on the comparative compensation formula expressed therein. World of Sleep, Inc. v. Davis, 188 Colo. 443 , 536 P.2d 34 (1975); Jones v. Adolph Coors Co., 689 P.2d 681 (Colo. App. 1984).

Under subsection (3), usual wage adjustments do not include expected union job classification upgrades. Therefore, employee's delay in attaining journeyman mechanic status did not defeat the application of this section. Fulton v. King Soopers, 823 P.2d 709 (Colo. 1992).

Subsection (3) applies only to an employer who reemploys an injured employee “at the employee's preinjury rate of pay” and extends “the usual wage adjustments” to the employee, which, read as a whole and giving full meaning to the plain language thereof, are limited to the payment arrangements between the injured employee and the employer who is liable for payment of disability benefits because the injury-producing work was performed for that employer. Snyder Oil Co. v. Embree, 862 P.2d 259 (Colo. 1993).

Where hearing officer strictly followed medical opinion in determining the degree of claimant's industrial disability, it was not harmless error for the hearing officer to have excluded counselor's testimony on the degree of industrial disability merely because it embraced an ultimate issue to be decided by the trier of fact. Chambers v. CF & I Steel Corp., 757 P.2d 1171 (Colo. App. 1988).

Continued medical treatment is not inconsistent with award of permanent partial disability. Though worker may reach maximum medical improvement, continued medical treatment may be necessary to prevent deterioration in worker's physical condition. Grover v. Indus. Comm'n, 759 P.2d 705 (Colo. 1988).

A claimant's voluntary retirement does not necessarily preclude a permanent disability, where claimant retired before discovering his disabling injury and where claimant established that his employability had been reduced by the injury. State Comp. Ins. Auth. v. Indus. Claim Appeals Office, 786 P.2d 423 (Colo. App. 1989).

Under subsection (3), reemployment or reinstatement of an employee at his preinjury rate of pay when the usual wage adjustments, such as cost of living adjustments, are extended reduces the benefits that would otherwise be available to a claimant. Therefore, proof of subsection (3) is in the nature of an affirmative defense which limits the employer's liability. Valley Tree Serv. v. Jimenez, 787 P.2d 658 (Colo. App. 1990).

The burden of proof is on the employer to present evidence to satisfy each of the conjunctive requirements of subsection (3). The employer had the burden of presenting evidence to establish the statutory basis of subsection (3) which would limit claimant's award to permanent medical impairment or payment for a scheduled disability since there was no dispute that claimant's injury was work-related and the claimant met his burden of proving that he had suffered a loss in earning capacity by showing that his future efficiency and employability in the competitive labor market was reduced. The fact that proof of claimant's preinjury rate of pay occurred naturally as a result of the evidence presented by claimant to demonstrate the extent of his disability does not serve to shift the burden, which remains on the employer. Valley Tree Serv. v. Jimenez, 787 P.2d 658 (Colo. App. 1990).

Reemployment statute, former § 8-42-110 , does not apply if employer does not meet the burden of proving that, after the employee reached MMI and claimed permanent partial disability, the employer actually offered to reemploy employee and offer the usual wage adjustments. Lerner v. Wal-Mart Stores, Inc., 865 P.2d 915 (Colo. App. 1993) (decided under law prior to 1991 repeal).

The provisions of this section concern only permanent partial disability, and are inapplicable in cases within the scope of § 8-51-106 (1)(a) (now § 8-46-101 ). McGrath v. Indus. Comm'n, 708 P.2d 1382 (Colo. App. 1985).

Applied in Boulder Valley Coal Co. v. Shipka, 94 Colo. 394 , 30 P.2d 852 (1934); Consol. Coal & Coke Co. v. Todoroff, 97 Colo. 125 , 47 P.2d 404 (1935); Indus. Comm'n v. Seastone, 167 Colo. 571 , 448 P.2d 963 (1969); Cosmopolitan W. Hotel v. Henry, 172 Colo. 279 , 472 P.2d 134 (1970); City of Thornton v. Teeter, 37 Colo. App. 427, 548 P.2d 133 (1976); Martinez v. Indus. Comm'n, 632 P.2d 1044 (Colo. App. 1981); Employers Mut. v. Eidson, 646 P.2d 959 (Colo. App. 1982); R & R Well Serv. Co. v. Indus. Comm'n, 658 P.2d 1389 (Colo. App. 1983); People v. Hurd, 682 P.2d 515 (Colo. App. 1984); Kohnen v. Safeway Stores, Inc., 761 P.2d 231 (Colo. App. 1988).

Meaning of “disability” under this section. The term “disability” is not restricted to such disability as impairs present earning power at a particular occupation, but embraces any loss of physical function which detracts from the former efficiency of the body or its members in the ordinary pursuits of life. London Guarantee & Accident Co. v. Indus. Comm'n, 70 Colo. 256 , 199 P. 962 (1921); Wierman v. Tunnell, 108 Colo. 544 , 120 P.2d 638 (1941); Simpson & Co. v. Wheeler, 153 Colo. 480 , 386 P.2d 976 (1963).

How word “specifically” used. The general assembly used the word “specifically” in this section to limit the exclusion clause to that portion of § 8-51-104 relating to loss of a member, not that portion relating to loss of use. Leyden Lignite Co. v. Buddy, 98 Colo. 452 , 56 P.2d 52 (1936).

The extent of a claimant's industrial impairment is not necessarily restricted to medical considerations. Chambers v. CF & I Steel Corp., 757 P.2d 1171 (Colo. App. 1988).

Determination of medical impairment under subsection (1) was not an issue and apportionment based on medical impairment not appropriate. Lindner Chevrolet v. Indus. Claim Appeals Office, 914 P.2d 496 (Colo. App. 1995).

The extent and degree of permanent disability is determined on the basis of various interdependent factors that affect a claimant's capacity to be gainfully employed. An ALJ's consideration of unavailable substantial vocational rehabilitation due to the Colorado compensation insurance authority's refusal to provide vocational rehabilitation to a claimant beyond 52 weeks was proper in determining the claimant's ability to regain efficiency in the general labor market. Pro. Fire Prot. v. Long, 867 P.2d 175 (Colo. App. 1993).

A division-sponsored independent medical evaluation (DIME) physician's finding concerning a claimant's impairment rating is binding on the parties unless overcome by clear and convincing evidence. Whether the DIME physician's rating has been overcome is a question of fact for determination by the ALJ. Clear and convincing evidence will demonstrate that it is “highly probable” the DIME physician's rating is incorrect, and such evidence must be unmistakable and free from serious or substantial doubt. Am. Comp. Ins. Co. v. McBride, 107 P.3d 973 (Colo. App. 2004).

Physician's “finding” is not limited to the initial report. For purposes of subsection (8)(c), a division-sponsored independent medical evaluation (DIME) physician's “finding” consists not only of the initial report but also any subsequent opinion given by the physician. Andrade v. Indus. Claim Appeals Office, 121 P.3d 328 (Colo. App. 2005).

A physician's written report need not be given more weight than his or her opinion expressed orally under oath. The ALJ properly assigned to claimant the burden to overcome by clear and convincing evidence the physician's opinion stated under oath that some of claimant's medical issues were not caused by his work injury, even if the physician's statements under oath conflicted to some extent with her written report. Meza v. Indus. Claim Appeals Office, 2013 COA 71 , 303 P.3d 158.

It is a question of fact for the administrative law judge (ALJ) to determine whether a party has overcome, by clear and convincing evidence, the opinion of a division-selected independent medical examiner physician as to an impairment rating. The clear and convincing standard in subsection (8)(b) is satisfied by a showing that the truth of a contention is highly probable. The ALJ is the sole arbiter of conflicting medical evidence, and the ALJ's findings are binding on review if supported by substantial evidence and plausible inferences drawn from the record. Postlewait v. Midwest Barricade, 905 P.2d 21 (Colo. App. 1995).

“Clear and convincing” standard does not apply to an 18-month DIME physician's determination regarding impairment under subsection (8)(b)(II) because impairment determinations are not authorized under that statutory provision. Therefore, an 18-month DIME physician's opinion is only binding as to an MMI determination, which the 18-month DIME physician is statutorily authorized to make. Meza v. Indus. Claim Appeals Office, 2013 COA 71 , 303 P.3d 158.

“Clear and convincing” standard did not apply where the independent medical examiner's opinion was not at issue, and employer had raised the separate issue of causation under § 8-41-301 before the IME was performed. Therefore the ALJ did not err in applying a preponderance standard in determining whether claimant had sustained a compensable injury. Faulkner v. Indus. Claim Appeals Office, 12 P.3d 844 (Colo. App. 2000).

For where accident aggravated preexisting condition, see Kamp v. Disney, 112 Colo. 65 , 145 P.2d 877 (1944).

Where medical examinations come so close together as to indicate nothing more than disagreement concerning a present condition, the industrial commission is justified in considering all the reports together, and does not have to consider the testimony given at the latest hearing, “the manifest weight of the evidence”, nor is the commission bound to find, as a matter of law, that there was permanent partial disability under this section, since it clearly appeared that the medical testimony was in direct conflict on question of sterility or loss of function of testicle. Robinson v. Indus. Comm'n, 112 Colo. 21 , 144 P.2d 979 (1944).

Degree of permanent partial disability is determined according to claimant's actual condition and earning capacity regardless of who paid for claimant's vocational treatment. Martin K. Eby Const. Co. v. Indus. Comm'n, 710 P.2d 1164 (Colo. App. 1985).

Determination of permanent disability. Permanent disability generally cannot be determined until the authorized physicians treating a claimant for work-related injuries advise that they can do nothing further for the claimant. Evaluation for permanent disability cannot precede the determination that claimant's condition has stabilized. Dziewior v. Mich. Gen. Corp., 672 P.2d 1026 (Colo. App. 1983).

The method of determining disability provided by this section cannot be used when the injury is one appearing in §§ 8-51-104 to 8-51-107 inclusive, because by its specific terms such injuries are excluded. Arkin v. Indus. Comm'n, 145 Colo. 463 , 358 P.2d 879 (1961); Hawkeye-Security Ins. Co. v. Tupper, 152 Colo. 12 , 380 P.2d 31 (1963).

Scheduled and nonscheduled impairments are treated differently for purposes of determining permanent disability benefits. Specifically, the procedures of subsection (8)(c), which state that the division-sponsored independent medical examination finding as to permanent impairment can be overcome only by clear and convincing evidence and that such finding is a prerequisite to a hearing on permanent impairment, are applicable only to nonscheduled impairments. Delaney v. Indus. Claim Appeals Office, 30 P.3d 691 (Colo. App. 2000).

Commission's discretion not abused in determining extent of disability. The commission does not abuse its discretion when it determines that the percentage decrease in the claimant's wages is the proper measure of the extent of his disability. Sw. Inv. Co. v. Indus. Comm'n, 650 P.2d 1355 (Colo. App. 1982).

But where there is no evidence relating claimant's circumstances to a reduction in wage level, the commission may reject the referee's rating and reach its own determination of the percentage of disability. Gilliatt v. Indus. Comm'n, 680 P.2d 1310 (Colo. App. 1983).

Impairment of earning capacity. Under this section the extent or degree of disability is not to be determined solely by the claimant's impaired earning capacity as it relates to the kind of labor in which he was employed when injured. It is obvious that such factor, while pertinent and important, must be considered with all other elements. Byouk v. Indus. Comm'n, 106 Colo. 430 , 105 P.2d 1087 (1940).

Impaired earning capacity one of many factors. While impaired earning capacity, as it relates to the kind of work in which a claimant was employed when he became disabled, is a pertinent factor which the commission must consider when evidence relative thereto is submitted, it is but one of many factors to be considered under the mandate of subsection (1)(b). Evans v. Aurora Elevator Co., 631 P.2d 1201 (Colo. App. 1981).

Impaired earning capacity is only one factor to be taken into consideration under subsection (1)(b). Employers Mut. v. Eidson, 646 P.2d 959 (Colo. App. 1982).

Disability, to be compensable, must rest upon the actual impairment of the claimant as a working unit. Indus. Comm'n v. Vigil, 150 Colo. 356 , 373 P.2d 308 (1962).

Insurer's refusal to pay claimant's unauthorized medical expenses does not entitle claimant to compensation for higher degree of permanent disability than that which she actually suffered. Pickett v. Colo. State Hosp., 32 Colo. App. 282, 513 P.2d 228 (1973).

Finding sufficient for award. A finding of the industrial commission that claimant's disability amounts to “permanent partial disability equal to ten percent of permanent total disability”, is sufficient upon which to base an award. London Guarantee & Accident Co. v. Indus. Comm'n, 70 Colo. 256 , 199 P. 962 (1921).

This section does not require a greater quantum of proof than that required in other matters in issue before the industrial commission. London Guarantee & Accident Co. v. Coffeen, 96 Colo. 375 , 42 P.2d 998 (1935).

But sets forth the factors to be considered in translating “partial permanent disability” into terms of “general permanent disability”. It is clear that rather than laying down a rule as to the quantum of proof of which the claimant must bear the burden, this section intends to set forth the factors that the commission shall consider in translating what may be an obvious or manifest “partial permanent disability” into terms of “general permanent disability”. London Guarantee & Accident Co. v. Coffeen, 96 Colo. 375 , 42 P.2d 998 (1935).

And “the manifest weight of evidence” is merely one of the factors to be considered along with the “general physical condition and mental training, ability, former employment and education of the injured employee”. London Guarantee & Accident Co. v. Coffeen, 96 Colo. 375 , 42 P.2d 998 (1935).

Meaning of “manifest weight of evidence”. The actual physical disability or injury that is manifest, apparent, evident to the mind, and clear to the commission after the weighing of the evidence of it, and determining the nature of such actual disability from the preponderance thereof, is the “manifest weight of evidence” to which reference is made in this section. London Guarantee & Accident Co. v. Coffeen, 96 Colo. 375 , 42 P.2d 998 (1935).

And the degree of disability cannot be measured by physical condition alone, but the injured man's age, his industrial history, his mentality, his education, and the availability of that type of work which he can do must be taken into consideration. Colo. Fuel & Iron Corp. v. Indus. Comm'n, 151 Colo. 18 , 379 P.2d 153 (1962); Simpson & Co. v. Wheeler, 153 Colo. 480 , 386 P.2d 976 (1963); Steel Placers, Inc. v. Reese, 169 Colo. 360 , 455 P.2d 874 (1969).

Issue of degree of permanent disability is to be decided according to actual facts and is not to be influenced by who did or who did not pay for claimant's medical treatment. Pickett v. Colo. State Hosp., 32 Colo. App. 282, 513 P.2d 228 (1973).

Estimates relating to anatomical loss of organs may be relevant to the referee's determination of a permanent disability award. In certain circumstances, these estimates may function as guidelines in setting a reasonable percentage figure for permanent disability. Dravo Corp. v. Indus. Comm'n, 40 Colo. App. 57, 569 P.2d 345 (1977).

Determination of life expectancy. After the industrial commission has determined the percentage of general permanent disability in a workmen's compensation case, it is then authorized to determine from a “recognized expectancy table” the life expectancy of the claimant. Colo. Fuel & Iron Corp. v. Indus. Comm'n, 148 Colo. 557 , 367 P.2d 597 (1961).

Life expectancy table must be used in form it appears at time of use. And where no other evidence relating to expectancy has been presented and where the general assembly itself has designated the “recognized” table, then that table must be used in the form in which it appears at the time of its use. Indus. Comm'n v. Big Six Coal Co., 72 Colo. 377 , 211 P. 361 (1922); Colo. Fuel & Iron Corp. v. Indus. Comm'n, 148 Colo. 557 , 367 P.2d 597 (1961).

And the commission may without formal introduction by either party make use of the expectancy table or of other “recognized expectancy tables” in a workmen's compensation case. Indus. Comm'n v. Big Six Coal Co., 72 Colo. 377 , 211 P. 361 (1922); Colo. Fuel & Iron Corp. v. Indus. Comm'n, 148 Colo. 557 , 367 P.2d 597 (1961).

For the presumption exists that in making an award the commission considers and gives due weight to all of the factors therein enumerated. Byouk v. Indus. Comm'n, 106 Colo. 430 , 105 P.2d 1087 (1940); Nat'l Fuel Co. v. Arnold, 121 Colo. 220 , 214 P.2d 784 (1950); Colo. Fuel & Iron Corp. v. Indus. Comm'n, 151 Colo. 18 , 379 P.2d 153 (1962); Holmstrom v. Pub. Serv. Co., 169 Colo. 439 , 458 P.2d 77 (1969).

A presumption exists that the referee considered and gave due weight to all factors enumerated in this section in making an award. Dravo Corp. v. Indus. Comm'n, 40 Colo. App. 57, 569 P.2d 345 (1977).

And life expectancy is a proper element for consideration. Inasmuch as this section provides a maximum amount which a claimant may receive for permanent partial disability, his life expectancy is at least a proper element for consideration to assist in determining whether he is entitled to the full maximum allowance or a lesser sum. Kamp v. Disney, 112 Colo. 65 , 145 P.2d 877 (1944).

Neurotic mental disability is as real as any other disability and, in the absence of evidence of malingering, is as much a personal injury. Casa Bonita Rest. v. Indus. Comm'n, 624 P.2d 1340 (Colo. App. 1981).

Burden of proof is upon claimant to establish his right to benefits. Matthews v. Indus. Comm'n, 627 P.2d 1123 (Colo. App. 1980).

Evidence of degree of functional disability is admissible as relating to the “general physical condition” of the injured employee. Byouk v. Indus. Comm'n, 106 Colo. 430 , 105 P.2d 1087 (1940).

Commission entitled to look to claimant's mental ability. The industrial commission had the right to look beyond claimant's physical impairments to her mental ability, including mental impairment, in determining the issue of permanent total disability. Casa Bonita Rest. v. Indus. Comm'n, 624 P.2d 1340 (Colo. App. 1981).

The industrial commission is vested with the widest possible discretion, with the exercise of which the courts will not interfere, in determining the extent or degree of disability. Byouk v. Indus. Comm'n, 106 Colo. 430 , 105 P.2d 1087 (1940); Kamp v. Disney, 112 Colo. 65 , 145 P.2d 877 (1944); Colo. Fuel & Iron Corp. v. Indus. Comm'n, 151 Colo. 18 , 379 P.2d 153 (1962); Tillman v. Capitol Hill Transf. & Storage Co., 165 Colo. 514 , 440 P.2d 152 (1968); N.J. Zinc Co. v. Indus. Comm'n, 165 Colo. 482 , 440 P.2d 284 (1968).

Commission's determination consistent with evidence may not be disturbed on appeal. Where the commission's determination that a claimant has failed to meet his burden is consistent with the evidence of record, that determination may not be disturbed on appeal. Matthews v. Indus. Comm'n, 627 P.2d 1123 (Colo. App. 1980).

Commission is vested with widest possible discretion in determining the extent of an injured worker's disability. Evans v. Aurora Elevator Co., 631 P.2d 1201 (Colo. App. 1981); Gilliatt v. Indus. Comm'n, 680 P.2d 1310 (Colo. App. 1983); City & County of Denver v. Indus. Comm'n, 682 P.2d 513 (Colo. App. 1984).

Evidence not sufficient to sustain determination that claimant sustained a one-percent permanent partial disability. Puffer Mercantile Co. v. Arellano, 190 Colo. 138 , 546 P.2d 481 (1975).

Award not inconsistent with ineligibility for vocational rehabilitation benefits. The commission's finding that a claimant is not eligible for vocational rehabilitation benefits is not inconsistent with its award for permanent partial disability benefits. Sw. Inv. Co. v. Indus. Comm'n, 650 P.2d 1355 (Colo. App. 1982).

Hearing on admission of liability is required only when requested by the claimant. Failure to request a hearing to contest an admission is a waiver of the claimant's right to have statutory factors and pre-injury and post-injury factors considered. In re Brunetti v. Indus. Comm'n, 670 P.2d 1246 (Colo. App. 1983).

Timely invocation of former subsection (3)(a). Where an employer continues to employ the injured employee and indicates its intent to elect the five percent rule if unsuccessful in contesting an award, the employer has timely invoked the provisions of subsection (3)(a)(now repealed). Arellano v. Dir., Div. of Labor, 42 Colo. App. 149, 590 P.2d 987 (1979).

Determination of disability from loss of fingers. Where an employee sustained a loss of his right thumb, index and middle fingers and a partial loss of use of the hand, under subsection (7), the industrial commission has the power to fix the disability on the basis of a partial loss of the use of the hand, under subsection (7), the industrial commission has the power to fix the disability on the basis of a partial loss of the use of the hand, rather than on the loss of the fingers. Indus. Comm'n v. Gen. Accident, Fire & Life Assurance Corp., 71 Colo. 115 , 204 P. 338 (1922).

But double compensation is not allowed. The industrial commission may not allow for loss of fingers and add compensation for the loss or partial loss of use of the hand. Indus. Comm'n v. Gen. Accident, Fire & Life Assurance Corp., 71 Colo. 115 , 204 P. 338 (1922).

Compensation for an amputation is limited to the specific amount provided in the statutory schedules for such permanent disability. Martinez v. Indus. Comm'n, 32 Colo. App. 270, 511 P.2d 921 (1973).

And employee who suffers amputation cannot receive additional compensation for disability measured as a working unit. Martinez v. Indus. Comm'n, 32 Colo. App. 270, 511 P.2d 921 (1973).

Employee not limited to recovery for loss of use of hands. An employee who was afflicted with deep and extensive adhesions due to burns, and whose arms were bound to his sides, is not limited to recovery for loss of the use of his hands under this section. Rio Grande Motor Way v. De Merschman, 100 Colo. 421 , 68 P.2d 446 (1937).

Section differentiates between loss of leg at hip and loss at or above knee. This section, which prescribes the measure of damages for loss of, or loss of use of, a bodily member, differentiates between the loss of a leg at the hip joint or so near thereto as to preclude the use of a prosthesis and loss of a leg at or above the knee which remains sufficient to permit the use of a prosthesis. Horizon Land Corp. v. Indus. Comm'n, 34 Colo. App. 178, 524 P.2d 638 (1974).

Subsection (4) has no reference to the specifications for loss of an arm. Employers' Mut. Ins. Co. v. Indus. Comm'n, 78 Colo. 501 , 242 P. 988 (1926).

Award for loss of leg may be amended where artificial limb is later used. Lindsay v. Indus. Comm'n, 77 Colo. 424 , 236 P. 1005 (1925).

Claimant award of permanent partial disability benefits based upon a scheduled impairment under this section rather than a whole person impairment was appropriate. The ALJ applied the proper legal standard in determining the claimant's impairment was within the scheduled impairment category for “the loss of an arm at the shoulder”. The treating physicians found no impairment beyond the shoulder, and the injury principally affects claimant's arm movements. Walker v. Jim Fuoco Motor Co., 942 P.2d 1390 (Colo. App. 1997).

Applied in Downing v. Gen. Iron Works Co., 120 Colo. 104 , 207 P.2d 525 (1949).

Under subsection (7) the question is one of percent of disability, not of blindness. In case of disability under the schedule in this section, the ratio of the award to the maximum should be the ratio of the proved disability to total disability. Employers' Mut. Ins. Co. v. Indus. Comm'n, 70 Colo. 228 , 199 P. 482 (1921).

Subsection (7) specifically authorizes an award for partial permanent disability caused by permanent impairment of vision and provides an identical method of computing the amount thereof irrespective of whether the employee before the accident had the sight of one or both eyes. For example, if an employee with perfect vision in both eyes loses 50%; of the sight of one and suffers 50%; disability as a result thereof, he is entitled to compensation for 50%; of 104 or 52 weeks. If he becomes blind in one eye and later suffers 50%; partial permanent impairment of vision of the remaining one, he is entitled to the same amount of compensation as in the first instance, namely, 50%; of 104 or 52 weeks. Colo. Fuel & Iron Co. v. Indus. Comm'n, 88 Colo. 573 , 298 P. 955 (1931).

And this section applies if there is anything short of total loss of vision. Platt-Rogers v. Indus. Comm'n, 101 Colo. 458 , 74 P.2d 673 (1937).

Thus, only when compensation for permanent partial disability is awarded is this section applicable; and only if there is no loss of vision in a remaining eye may this section be applied when compensation is sought for an enucleated eye. Jewell Collieries Corp. v. Kenda, 110 Colo. 394 , 134 P.2d 206 (1943).

An employee who suffers enucleation of a sightless eye, is entitled to permanent disability compensation only for the facial disfigurement caused thereby. London Guarantee & Accident Co. v. Indus. Comm'n, 76 Colo. 155 , 230 P. 598 (1924).

Enucleation of eye in which vision was impaired. Where vision in workman's eye was impaired prior to accident necessitating enucleation the industrial commission could not, upon the theory that the enucleated eye was “industrially blind” prior to the accident, deduct 104 weeks allowed for “total blindness of one eye” from the allowance for “the loss of an eye by enucleation” of 139 weeks, and award to claimant the difference, namely, 35 weeks, “for and on account of the enucleation of the left eye”. To translate the phrase “total blindness” into “industrial blindness” would be the usurpation of legislative functions. Downs v. Indus. Comm'n, 109 Colo. 12 , 121 P.2d 489 (1942).

Award for total blindness is correct where the vision remaining is of no value for working. The industrial commission awarded employee full compensation under this section for total blindness of the right eye. It is agreed that he lost but ninety percent of the eye's sight and retained ten percent. The commission made a finding of “almost complete loss of vision” in the injured eye, and “That the amount of vision now remaining is of no value from a working standpoint”. Under such finding the award was right. Employers' Mut. Ins. Co. v. Indus. Comm'n, 70 Colo. 228 , 199 P. 482 (1921); Indus. Comm'n v. Johnson, 64 Colo. 461 , 172 P. 422 (1918).

Despite small percentage of remaining vision, director may find there is loss of vision. The fact that an employee may have five, eight or even ten percent of vision remaining in an injured eye, does not preclude a finding by the industrial commission of total loss of vision in that eye, the amount of vision remaining being of no value from a working standpoint. Platt-Rogers v. Indus. Comm'n, 101 Colo. 458 , 74 P.2d 673 (1937).

The effect of glasses in correcting vision should not be considered in connection with the awarding of the statutory allowance for blindness of an eye. Great Am. Indem. Co. v. Indus. Comm'n, 114 Colo. 91 , 162 P.2d 413 (1945).

Industrial claim appeals panel did not err in its conclusion that injury be compensated as a scheduled injury under this section by refusing to treat “loss of visual acuity” differently from “blindness” for purposes of a scheduled injury. McKinley v. Bronco Billy's, 903 P.2d 1239 (Colo. App. 1995).

Cosmetic deformity of the face impairs an individual's function and may be calculated as a non-scheduled injury and added to the individual's scheduled whole person impairment rating under this section notwithstanding the additional remedy for cosmetic disfigurement available under § 8-42-108 . Accordingly, cosmetic deformity of the eye as it affects the functioning of the face is rated under section 9.2 of the AMA Guides and benefits are calculated for a whole person impairment under this section. Gonzales v. Advanced Component Sys., 949 P.2d 569 (Colo. 1997).

A mental impairment rating due to mental or emotional stress cannot be combined with the physical impairment rating for purposes of exceeding the benefit cap applicable to an impairment rating of 25 percent or less pursuant to § 8-42-107.5 . Dillard v. Indus. Claim Appeals Office, 121 P.3d 301 (Colo. App. 2005), aff'd, 134 P.3d 407 (Colo. 2006).

Applied in Rogers, Inc. v. Fishman, 154 Colo. 122 , 388 P.2d 755 (1964).

This statute provides compensation for the actual degree of permanent partial disability. Pickett v. Colo. State Hosp., 32 Colo. App. 282, 513 P.2d 228 (1973).

Basis of concept of compensable general permanent disability. The concept of a compensable general permanent disability is not based upon one's present functional disability, but rather on the injury's impact upon one's earning capacity, present or future. Dravo Corp. v. Indus. Comm'n, 40 Colo. App. 57, 569 P.2d 345 (1977).

An employee shall be deemed to be permanently partially disabled from the time he is so declared by the industrial commission, and his age at that time is the criterion which furnishes the basis upon which his life expectancy should be computed. Wierman v. Tunnell, 108 Colo. 544 , 120 P.2d 638 (1941).

And time at which disability is to be determined is within discretion of industrial commission. Since there is no provision in the workmen's compensation act, which specifies the time at which disability is to be determined; this problem is left to the sound discretion of the commission. Wilson v. Sinclaire, 109 Colo. 592 , 128 P.2d 996 (1942).

In determining compensation for permanently disabled minors, the compensation scheme specified in § 8-42-102 takes precedence over the general compensation scheme for adults under this section. Horton v. Golden Animal Hosp., 879 P.2d 459 (Colo. App. 1994).

The maximum rate payable for medical impairment benefits for a permanently disabled minor is the maximum rate of temporary total disability allowed by § 8-42-105 . Arkansas Valley Seeds, Inc. v. Indus. Claim Appeals Office, 972 P.2d 695 (Colo. App. 1998).

Conclusion that an injured minor remains entitled to the benefit of the higher end “age factor” listed in this section as well as computation of benefits at the maximum temporary disability rate, is not inconsistent with the legislative intent of this section or § 8-42-102 . Arkansas Valley Seeds, Inc. v. Indus. Claim Appeals Office, 972 P.2d 695 (Colo. App. 1998).

Minor with scheduled disability is not entitled to aggregate amount of benefits allowed by statute as provided by § 8-42-102 (4) . Since subsection (6) provides for a fixed rate of compensation for all scheduled disabilities, there is no disparity between the benefits paid to minors and to adults. Williams v. Indus. Claim Appeals Office, 932 P.2d 869 (Colo. App. 1997).

This section establishes a standard rate for computation of benefits, without reference to the average weekly wage and its inherent disparity of treatment between adults and minors. De Jiacomo v. Indus. Claim Appeals Office, 817 P.2d 552 (Colo. App. 1991).

For purposes of the benefits provided employers by subsection (3), the relevant rate of pay is the amount paid by the reemploying employer to the injured employee prior to the injury, without regard to income from other self-employment previously enjoyed by the employee prior to the injury. Snyder Oil Co. v. Embree, 862 P.2d 259 (Colo. 1993) (decided under law as it existed prior to the 1991 repeal of this section).

Post-injury earnings one factor to consider in determining a percentage disability figure. Vail Assocs., Inc. v. West, 661 P.2d 1187 (Colo. App. 1982), aff'd, 692 P.2d 1111 (Colo. 1984); Smith v. Indus. Comm'n, 735 P.2d 921 (Colo. App. 1986).

It was not error to consider the amount by which claimant's efforts subsequent to termination of employment increased his rental income where claimant spent a substantial amount of time managing and maintaining rental properties in order to maximize his rental income. Smith v. Indus. Comm'n, 735 P.2d 921 (Colo. App. 1986).

The term “loss of earning capacity” as contemplated by this section means the loss of the ability to earn, not simply lost wages. A workers' actual earnings following an industrial accident or occupational disease are relevant but not presumptive evidence of the workers' earning capacity. Nor is a claimant's loss of earnings due to injury or occupational disease dispositive of the amount of the claimant's entitlement to permanent partial disability benefits. Instead, such matters are merely individual factors to be considered in determining the existence of impaired earning capacity. Hobbs v. Indus. Claim Appeals Office, 804 P.2d 210 (Colo. App. 1990).

Loss of earning capacity is basis for benefits, however denominated. The purpose of the “medical impairment benefits” under subsection (8) is substantially the same as the purpose of the “permanent partial disability benefits” referenced in § 8-42-103 (1)(c)(I) , i.e., to compensate for loss of earning capacity. Ray v. Indus. Claim Appeals Office, 920 P.2d 868 (Colo. App. 1996).

Benefits under subsection (8) are subject to offset pursuant to § 8-42-103 . Ray v. Indus. Claim Appeals Office, 920 P.2d 868 (Colo. App. 1996).

Subsection (8) requires that payment of medical impairment benefits be based upon the temporary total disability rate that workers compensation claimant would have received if claimant had been temporarily and totally disabled for more than three working days, even if claimant had not lost any wages and had not actually received temporary disability benefits. Broadmoor Ins. Co. v. Indus. Claim Appeals Office, 939 P.2d 460 (Colo. App. 1996).

Simply because this section limits the inquiry in determining disability to measurable medical impairment does not mean that awards made thereunder are unrelated to lost earning capacity. Waymire v. Indus. Claim Appeals Office, 924 P.2d 1168 (Colo. App. 1996).

Medical impairment benefits awarded under this section are a form of permanent partial disability benefits designed to compensate for lost earning capacity. Consequently, such benefits compensate for the same loss of future earning capacity as permanent total disability benefits. It is therefore improper to award contemporaneous medical impairment and total disability benefits. Waymire v. Indus. Claim Appeals Office, 924 P.2d 1168 (Colo. App. 1996).

Award for permanent partial disability cannot be made after death of employee. Employers' Mut. Ins. Co. v. Indus. Comm'n, 89 Colo. 475 , 3 P.2d 1079 (1931).

Actual post-injury earnings do not always reflect worker's true earning capacity subsequent to his injury. Evans v. Aurora Elevator Co., 631 P.2d 1201 (Colo. App. 1981); Employers Mut. v. Eidson, 646 P.2d 959 (Colo. App. 1982); Ampex Corp. v. Indus. Comm'n, 699 P.2d 980 (Colo. App. 1985).

Award may be appropriate even with greater post-injury earnings. A permanent partial disability award may be appropriate even where post-injury earnings are greater than pre-injury earnings. Employers Mut. v. Eidson, 646 P.2d 959 (Colo. App. 1982); Ampex Corp. v. Indus. Comm'n, 699 P.2d 980 (Colo. App. 1985).

Where a claimant produces evidence that his disability precludes him from pursuing his chosen occupation and excludes him from potentially available jobs, he is entitled to a disability award, even where he has obtained new employment at a higher salary. Vail Assocs. v. West, 661 P.2d 1187 (Colo. App. 1982), aff'd, 692 P.2d 1111 (Colo. 1984).

Although a rule which treats evidence of a post-injury increase in earnings as giving rise to a rebuttable presumption of earning capacity commensurate with actual earnings has been applied in several jurisdictions, the court declines to adopt it and adheres to the existing rule which allows the commission to consider post-injury earnings as one factor among several in ascertaining permanent partial disability. Vail Assocs., Inc. v. West, 692 P.2d 1111 (Colo. 1984).

Application of percentage as a working unit. Percentage as a working unit is not applied to the amount of compensation paid for the loss of the member, but is applied to the total sum which the workman would receive over his expected lifetime if he were permanently disabled. World of Sleep, Inc. v. Davis, 188 Colo. 443 , 536 P.2d 34 (1975).

Reopening case for change in extent of disability. Under the proviso of this section at any time during the period for which compensation for permanent partial disability has been awarded, the industrial commission, upon petition of a party in interest, is required to reopen a case upon showing the disability of such injured employee has undergone a change in extent or degree since the entry of the award. Byouk v. Indus. Comm'n, 106 Colo. 430 , 105 P.2d 1087 (1940).

In view of prior cases, the beneficial purposes of the act, and the language of this section and § 8-53-113 , the conclusion is inescapable that the general assembly has given the director authority to reopen a case within requisite time limitations regardless of how the case was resolved. Padilla v. Indus. Comm'n, 696 P.2d 273 (Colo. 1985) (decided prior to 1985 amendment to subsection (2)).

Denial of petition to reopen claim for additional award of permanent disability benefits and/or vocational rehabilitation was not abuse of discretion where claimant's condition of being unable to work had not changed since time of original award. Loucks v. Safeway Stores, 757 P.2d 639 (Colo. App. 1988).

Second award for increased disability. This section applies only when there has been a determination of total permanent or permanent partial disability, and when there is a supplemental or second award for increased permanent partial disability, it is to be based upon the employee's age as of the date when the supplemental award is entered. Lefkaras v. Moffat Coal Co., 113 Colo. 416 , 158 P.2d 386 (1945).

Normal rate of pay, as used in repealed subsection (3)(a), is determined by the total weekly earnings rather than the hourly rate of pay. Miller v. Halliburton Servs., 689 P.2d 662 (Colo. App. 1984), aff'd, 720 P.2d 571 (Colo. 1986).

Procedures prescribed by subsection (8) do not result in any violation of procedural due process. The general assembly sought to reduce litigation over maximum medical improvement (MMI) and degree of impairment for purposes of workers' compensation claims by providing that, if either party disputes the finding of the treating physician as to MMI or degree of impairment, that party may require an independent medical examination (IME) be performed. If the parties cannot agree as to the physician to perform the IME, the director will select the physician, and that physician's opinion upon the issues involved can then be overcome only by clear and convincing evidence. These provisions are rationally related to the general assembly's goal of decreasing such litigation. Colo. AFL-CIO v. Donlon, 914 P.2d 396 (Colo. App. 1995).

However, due process of law guarantees are violated by subsection (8) when a fee requirement requires an indigent worker to prepay a fee before he can obtain either administrative or judicial review of an adverse decision of the employer-selected treating physician. Whiteside v. Smith, 67 P.3d 1240 (Colo. 2003).

Subsection (8)(b)(II), as amended in 1996, does not constitute retrospective legislation. Subsection (8)(b)(II) establishes procedures for the determination of MMI and the allocation of the burden of proof. Because the statute effects a change that is procedural, it may be applied retroactively. Brownson-Rausin v. Indus. Claim Appeals Office, 131 P.3d 1172 (Colo. App. 2005).

The term “determination” in subsection (8)(b)(II) refers to a medical determination. Brownson-Rausin v. Indus. Claim Appeals Office, 131 P.3d 1172 (Colo. App. 2005).

An 18-month DIME physician is statutorily authorized to determine only MMI under subsection (8)(b)(II). Therefore, if he or she makes a determination of impairment as well, that determination carries no presumptive weight under the statute. Meza v. Indus. Claim Appeals Office, 2013 COA 71 , 303 P.3d 158.

Subsection (8)(c) precludes an administrative law judge from considering causation or altering a treating physician's impairment rating when a statutory IME has not been performed. Egan v. Indus. Claim Appeals Office, 971 P.2d 664 (Colo. App. 1998).

Subsection (8)(b)(III) grants presumptive weight only to a DIME physician's opinion concerning MMI and permanent medical impairment; the provision does not require deference to a DIME physician's opinion as to causation. Yeutter v. Indus. Claim Appeals Office, 2019 COA 53 , __ P.3d __.

A claimant's agreement to accept the results of an IME as binding constitutes a waiver of procedural due process rights. Colo. AFL-CIO v. Donlon, 914 P.2d 396 (Colo. App. 1995).

The clear and convincing standard set forth in subsection (8) is satisfied by a showing that the truth of a contention is highly probable. Askew v. Sears Roebuck & Co., 914 P.2d 416 (Colo. App. 1995), rev'd on other grounds, 927 P.2d 1333 (Colo. 1996).

Nothing in this section or in division of labor regulation limits a DIME physician who has provider and advisor contracts with employer's insurance company from performing an independent medical examination absent any direct or substantial relationship with the treating physician. Such a physician may be an “independent” medical examiner within the meaning of subsection (8)(c). Benuishis v. Indus. Claim Appeals Office, 195 P.3d 1142 (Colo. App. 2008).

Whether DIME physician has a conflict of interest is a question of fact. ALJ's findings regarding whether a DIME physician was laboring under an actual or apparent conflict of interest when performing claimant's independent medical examination will be upheld on appeal if supported by substantial evidence in the record. Benuishis v. Indus. Claim Appeals Office, 195 P.3d 1142 (Colo. App. 2008).

Date of maximum improvement determined compensable actual disability. Where claimant's permanent partial disability was two percent on the date of maximum improvement, this is the actual disability which she suffered and for which she is entitled to compensation. Pickett v. Colo. State Hosp., 32 Colo. App. 282, 513 P.2d 228 (1973).

This section merely codified the already accepted practice of using “maximum medical improvement”, or substantially similar expressions of the same concept, to determine when temporary disability ends and permanent disability begins. Golden Animal Hosp. v. Horton, 897 P.2d 833 (Colo. 1995).

Both MMI and need for further treatment to improve existing condition cannot exist together; claimant is either in need of further treatment to improve his existing conditions, thus making permanent disability award premature, or his condition has stabilized and issue of permanent disability must be determined. Grover v. Indus. Comm'n, 739 P.2d 900 (Colo. App. 1987).

Lump sum payments of PPD benefits less than $10,000 are authorized by subsection (8)(d) and acceptance of a lump sum does not imply acceptance of employer's final admission of liability and does not constitute a settlement or waiver of the claimant's right to challenge the final admission of liability. Leprino Foods Co. v. Indus. Claim Appeals Office, 134 P.3d 475 (Colo. App. 2005).

Panel did not err in concluding that a finding of MMI from the authorized treating physician was a prerequisite to either party seeking another physician's evaluation. Aren Design, Inc. v. Becerra, 897 P.2d 902 (Colo. App. 1995).

Denial of and reimbursement for TTD benefits received after a claimant is deemed to have reached MMI is permitted. An independent medical examiner may be authorized to determine whether an employee has reached MMI. If the examiner finds that an employee has reached MMI, that employee is no longer eligible for TTD benefits, and the cost of any such benefits paid out to the employee after the finding of MMI may then be offset against the employee's permanent partial disability benefits. Brownson-Rausin v. Indus. Claim Appeals Office, 131 P.3d 1172 (Colo. App. 2005).

An IME is required prior to any hearing disputing the validity of the authorized physician's finding of MMI. Because no IME was performed, to the extent claimant's request to change physicians was for purposes of obtaining treatment to further cure her injury, or to obtain reinstatement of temporary total disability benefits, the ALJ exceeded her jurisdiction and authority in granting the request. Story v. Indus. Claim Appeals Office, 910 P.2d 80 (Colo. App. 1995).

Absent a division-sponsored IME, an ALJ lacks jurisdiction to resolve a dispute concerning the validity of an authorized treating physician's finding of MMI. Town of Ignacio v. Indus. Claim Appeals Office, 70 P.3d 513 (Colo. App. 2002).

But when the issue is not the finding of MMI itself, a division-sponsored IME is not a prerequisite. A claimant who requested a change of physician based on alleged professional misconduct before being placed at MMI by that same physician was clearly not attempting to indirectly challenge the finding of MMI itself, therefore would not be required to undergo a division-sponsored IME. Ames v. Indus. Claim Appeals Office, 89 P.3d 477 (Colo. App. 2003).

The general assembly expressly made the procedures used to determine MMI available in cases of scheduled and nonscheduled injuries. Delaney v. Indus. Claim Appeals Office, 30 P.3d 691 (Colo. App. 2000).

Whether the division-sponsored IME physician correctly applied the AMA Guides and whether the rating itself has been overcome are questions of fact for determination by the ALJ and not questions of law. Wilson v. Indus. Claim Appeals Office, 81 P.3d 1117 (Colo. App. 2003).

Clear and convincing proof that an employee was not at MMI is not required when the record, including the IME physician's report, supports an ALJ's finding that the report concluded that the employee was not at MMI. Magnetic Eng'g, Inc. v. Indus. Claim Appeals Office, 5 P.3d 385 (Colo. App. 2000).

Where the authorized treating physician issues conflicting opinions concerning MMI, the ALJ may resolve the conflict without requiring the claimant to obtain an IME. Blue Mesa Forest v. Lopez, 928 P.2d 831 (Colo. App. 1996); Mosley v. Indus. Claim Appeals Office, 78 P.3d 1150 (Colo. App. 2003).

Once an ALJ concludes that an employer or an employer's insurer has overcome a DIME physician's MMI opinion, the ALJ may determine the claimant's MMI status and permanent impairment rating as questions of fact. There need not be a conflict between the authorized treating physician and the DIME physician for the ALJ to determine the claimant's MMI. If an ALJ holds that clear and convincing evidence disproves the division's independent medical opinion about MMI, the ALJ may set the claimant's MMI status and permanent impairment rating because they are questions of fact. Destination Maternity v. Burren, 2020 CO 41, 463 P.3d 266.

An IME physician's conclusion that a claimant's medical problems were components of claimant's overall impairment constitutes a part of the diagnostic assessment that comprises the IME process. As such, the conclusion must be given presumptive effect and can be overcome only by clear and convincing evidence. Qual-Med, Inc. v. Indus. Claim Appeals Office, 961 P.2d 590 (Colo. App. 1998); Mosley v. Indus. Claim Appeals Office, 78 P.3d 1150 (Colo. App. 2003); Leprino Foods Co. v. Indus. Claim Appeals Office, 134 P.3d 475 (Colo. App. 2005).

Whether the division-sponsored IME physician's rating has been overcome is a question of fact for determination by the ALJ. Wackenhut Corp. v. Indus. Claim Appeals Office, 17 P.3d 202 (Colo. App. 2000); Mosley v. Indus. Claim Appeals Office, 78 P.3d 1150 (Colo. App. 2003).

It is not incumbent on the claimant to timely request a follow-up division-sponsored IME to contest the authorized treating physician's second MMI determination if the claimant had previously requested a division-sponsored IME to contest the authorized treating physician's initial determination of MMI. Stefanski v. Indus. Claim Appeals Office, 128 P.3d 282 (Colo. App. 2005), aff'd on other grounds, 147 P.3d 5 (Colo. 2006).

Once a claimant has successfully challenged a finding of MMI through the division independent medical examination process, that process remains open, such that when the authorized treating physician makes a second finding of MMI, the employer or insurer may not file a final admission of liability to close the case until they return the claimant to the IME for a follow-up examination and determination of MMI. Williams v. Kunau, 147 P.3d 33 (Colo. 2006); Sanco Indus. v. Stefanski, 147 P.3d 5 (Colo. 2006).

Employee's death did not trigger the provisions of subsection (8)(b) regarding MMI as a matter of law. The general assembly logically premised enactment of the IME procedure upon an assumption that the employee is alive to participate therein. Because employee was not at MMI when he died, the industrial claim appeals panel did not err in denying his dependents permanent partial disability benefits and penalties. Dependents of Nunnally v. Wal-Mart Stores, Inc., 943 P.2d 26 (Colo. App. 1996).

An award for initial permanent partial disability should terminate on the commencement date of a permanent total award. Kehm v. Cont'l Grain, 756 P.2d 381 (Colo. App. 1987).

Increased earnings. An increase in post-injury earnings is not presumptive evidence that claimant has not suffered a permanent impairment to earning capacity, but burden is on claimant to prove that such increase is not a true indication of the absence of impaired earning capacity. Rogers v. Indus. Claim Appeals Office, 746 P.2d 565 (Colo. App. 1987).