Gonzales v. Advanced Component Systems

*575Chief Justice VOLLACK

dissenting:

The majority holds that the cosmetic portion of petitioner’s injury qualifies as a “medical impairment” under section 8-42-107, 8 C.R.S. (1997). In my view, a cosmetic deformity is not a “medical impairment” because it does not result in a loss of function. The majority further holds that petitioner may recover for the cosmetic deformity under both section 8-42-107 and section 8-42-108, 3 C.R.S. (1997). In my view, such double recovery is prohibited both by the exclusive nature of section 8-42-108 and by the plain meaning of section 8-42-107. Accordingly, I dissent.

I.

Section 8-42-107 provides in part:

(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.

§ 8-42-107(1), 3 C.R.S. (1997). In interpreting a statute, our primary task is to give effect to the intent of the legislature. See In re Marriage of Francis, 919 P.2d 776, 781 (Colo.1996). To determine legislative intent, we look first to the words used in the statute. See Pearson v. District Court, 924 P.2d 512, 516 (Colo.1996). Statutory terms must be interpreted in accordance with their plain and ordinary meaning. See Farmers Ins. Exch. v. Dotson, 913 P.2d 27, 32 (Colo.1996). However, words that have acquired a particular meaning shall be construed accordingly. See Resolution Trust Corp. v. Heiserman, 898 P.2d 1049, 1054 (Colo.1995).

The majority holds that the cosmetic deformity suffered by petitioner constitutes a “medical impairment” under section 8-42-107. I disagree. In my view, a cosmetic deformity that does not result in a loss of function is not a “medical impairment.” The term “medical impairment” has been defined as a “loss of the physical function of a member of the body, or of the body as a whole.” See Boice v. Industrial Claim Appeals Office, 800 P.2d 1339, 1340-41 (Colo.App.1990) (emphasis added).1 Therefore, a “medical impairment” exists only when an injury results in a loss of function. In this case, the authorized treating physician determined that petitioner’s eye injury resulted in an 81% loss of function. However, this portion of the injury, for which petitioner was awarded benefits under section 8-42-107, is not in dispute. The disputed issue is whether petitioner can also receive benefits under section 8-42-107 for what his treating physician labeled a “cosmetic deformity.” In assessing the deformity, the physician never stated or implied that it was a functional, as opposed to a cosmetic, impairment. In fact, the physician noted that the cosmetic deformity was in addition to the 81% loss of function. Because the cosmetic deformity is separate and distinct from the functional loss, this portion of petitioner’s injury does not qualify as a “medical impairment” under section 8-42-107.

The majority concludes, however, that the cosmetic deformity qualifies as a functional impairment. In reaching this conclusion, the majority relies on the American Medical Association, Guides to the Evaluation of Permanent Impairment (revised 3d ed. 1990) (AMA Guides). In my view, the statute, and *576not the AMA Guides, is the proper authority for evaluating whether a cosmetic deformity constitutes a “medical impairment.” The majority looks to the AMA Guides because the statute requires a treating physician to use them in determining a claimant’s “medical impairment rating.”, See § 8-42-101(3.5), 3B C.R.S. (1992 Supp.); § 8-42-107(8)(c), 3B C.R.S. (1992). However, these provisions of the statute do not apply unless a claimant suffers from a “medical impairment.” According to section 8-42-107, such an impairment is a threshold requirement for permanent partial disability benefits. See § 8 — 42-107 (providing benefits only “[w]hen an injury results in permanent medical impairment”). Therefore, if there is no “medical impairment,” no benefits can be awarded, and there is no need to determine a “medical impairment rating” by looking to the AMA Guides. Jumping ahead to the AMA Guides improperly prioritizes the AMA Guides over the requirements set forth in the statute. See Pearson, 924 P.2d at 516 (explaining that the first step in determining legislative intent is to look to the words used in the statute).2

According to the statute, an injury must result in a loss of function to qualify as a “medical impairment.” In my view, a “cosmetic deformity,” by definition, is not a functional loss. Therefore, I believe that the cosmetic portion of petitioner’s injury does not qualify as a “medical impairment.”

II.

Section 8-42-108, which governs benefits for disfigurement, provides as follows:

If any employee is seriously, permanently disfigured about the head, face, or parts of the body normally exposed to public view, the director, in addition to all other compensation benefits provided in this article, may allow such sum for compensation on account thereof as the director may deem just, not exceeding two thousand dollars.

§ 8-42-108.

In my view, section 8-42-108 sets forth the exclusive remedy for a purely cosmetic disfigurement. Under this section, a claimant who is “seriously, permanently disfigured about the head, face, or parts of the body normally exposed to public view” may recover up to two thousand dollars. See id. Thus, when an injury results in a cosmetic disfigurement, as opposed to a functional impairment, the right to benefits arises under section 8 — 42-108. See Arkin v. Industrial Comm’n, 145 Colo. 463, 465-69, 358 P.2d 879, 880-82 (1961) (analyzing disfigurement separately under the predecessor to section 8 — 42-108); Twilight Jones Lounge v. Showers, 732 P.2d 1230 (Colo.App.1986) (analyzing disfigurement solely under the predecessor to section 8-42-108). *

The majority, however, holds that petitioner may recover for a cosmetic disfigurement under both section 8-42-107 and section 8-42-108. In my view, this holding not only contradicts the exclusive nature of section 8-42-108, it also disregards the plain meaning of section 8 — 42-107. According to section 8-42-107, when a claimant qualifies for medical impairment benefits, the claimant’s recovery “shall he limited to medical impairment ben*577efits as specified in ... this section.” See § 8-42-107(1). Thus, if petitioner recovers under section 8-42-107 as the majority allows, double recovery under any other section, including section 8-42-108, is expressly prohibited. Instead of disregarding this prohibition, I would hold that section 8-42-108 provides the sole and exclusive remedy for cosmetic disfigurement.

III.

In my view, the cosmetic deformity suffered by petitioner, which in no way affects the function of his eye, is not a “medical impairment” under section 8-42-107. This view not only gives effect to the intent of the General Assembly, it also avoids the possibility of double recovery, which is prohibited by the exclusive nature of section 8-42-108 and the plain meaning of section 8-42-107. Accordingly, I dissent.

. The majority argues that because Boice construes former section 8-51-108, 3B C.R.S. (1989 Supp.), which was repealed and reenacted as section 8-42-110, 3B C.R.S. (1990 Supp.), the definition of "medical impairment” set forth in Boice is irrelevant. I disagree. When the General Assembly added "medical impairment” to section 8-42-107 in 1991, it was fully aware of Boice and the definition of "medical impairment” set forth therein. See Heiserman, 898 P.2d at 1054 (stating that the legislature is presumed to have acted with full knowledge of relevant judicial precedent). Because our primary task is to give effect to the intent of the General Assembly, I believe that Boice is relevant in determining the meaning of "medical impairment” as used in section 8-42-107.

. Furthermore, the AMA Guides simply do not characterize a cosmetic deformity as a functional impairment. In support of its position, the majority cites section 9.2 of the AMA Guides, which provides in part:

The face has a unique role in communication. No other part of the body serves as specific a function for personal identity and for expression of thought and emotion. Facial expressions are an integral part of normal living posture. A degree of normalcy is expected for effective verbal and nonverbal communication. ...
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The face is such a prominent feature of a person that it plays a critical role in his physical, psychological and emotional makeup. Facial disfigurement can affect all these components and can result in social and vocational handicap.

AMA Guides § 9.2._ Although section 9.2 observes that the face serves "a function for personal identity,” this observation does not mean that a facial deformity should be treated as a functional impairment. On the contrary, section 9.2 expressly states that its provisions, including those on facial disfigurement, do not refer to functional impairment: "In evaluating permanent impairment from a disorder of the face, functional capacity as well as structural integrity are considered. Impairment in this section [9.2] is limited to abnormality in structural integrity only. (For loss of function, refer to [other sections'].)" Id. (emphasis added).