W.C. No. 4-348-214Industrial Claim Appeals Office.
June 7, 2001
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Jones (ALJ) which awarded permanent partial disability benefits under the schedule. The claimant argues the ALJ’s findings do not support the order, and that he is entitled to permanent partial disability benefits based on whole person medical impairment. We affirm.
The ALJ found the claimant sustained a compensable left shoulder injury on July 20, 1997, while performing his duties at a security guard. After an MRI revealed moderate impingement, the claimant underwent an acromioplasty and debridement.
In November 1999 the claimant’s treating physician determined the claimant was at maximum medical improvement. This physician assessed a 6 percent upper extremity impairment based on reduced range of motion. Relying on the claimant’s testimony “about his injury,” and the reports and testimony of the treating physician, the ALJ found the claimant’s “symptoms only affect the use of his arm.” Consequently, the ALJ awarded benefits under § 8-42-107(2)(a), C.R.S. 2000, based on a 6 percent loss of the arm at the shoulder.
On review, the claimant contends the ALJ’s findings are internally inconsistent and do not support the denial of whole person medical impairment benefits. The claimant argues that ongoing symptoms and impairment of activities of daily living, including sleep, compel the conclusion he sustained functional impairment of the whole person. We are not persuaded.
The question of whether the claimant’s shoulder injury resulted in impairment listed on the schedule, or whole person medical impairment compensated under § 8-42-107(8)(c) and (d), C.R.S. 2000, depends on the situs of the claimant’s functional impairment. The situs of the functional impairment is not necessarily the site of the injury, but refers to the portion of the body that sustains the ultimate loss Strauch v. PSL Swedish Healthcare System, 917 P.2d 366 (Colo.App. 1996). Resolution of this issue is one of fact for determination by the ALJ Delaney v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 00CA0081, September 14, 2000); Langton v. Rocky Mountain Health Care Corp., 937 P.2d 883 (Colo.App. 1996).
Because the issue is factual in nature, we must uphold the ALJ’s resolution if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2000; Langton v. Rocky Mountain Health Care Corp., supra. This standard of review requires us to defer to the ALJ’s resolution of conflicts in the evidence, her credibility determinations, and the plausible inferences she drew from the record. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). Further, the ALJ is not held to a standard of absolute clarity in expressing findings of fact and conclusions of law. It is sufficient for the ALJ to make findings concerning the evidence which she considers determinative of the issues, and we may consider findings which are implicit in the ALJ’s order. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).
The claimant’s arguments notwithstanding, the fact the claimant is impaired when performing certain activities of daily living did not compel the ALJ to conclude that the claimant sustained whole person medical impairment. The claimant admitted that his ability to perform various activities is attributable to his inability to use the left arm. (Tr. p. 25). Under these circumstances, the ALJ plausibly interpreted the claimant’s testimony as supporting an inference that the situs of the functional impairment is to the upper extremity, not some other portion of the body. (Conclusion of Law 3). Neither was the ALJ required to conclude the claimant’s difficulties with sleeping demonstrated a whole person impairment. In fact, the claimant testified his sleep problems occurred during a period of time he was taking pain medication. The claimant admitted he is no longer taking this medication, and that his current inability to work long hours is because he can’t “stretch my arm out.” (Tr. pp. 18-19).
Neither do we perceive any inherent inconsistency in Finding of Fact 7. Indeed, Finding of Fact 7 is an accurate representation of the claimant’s testimony as well as Dr. Jenkins’ December 8, 1998 report. Dr. Jenkins, as a medical expert, reported the claimant’s symptoms were consistent with an injury to the “shoulder region.” In any event, Conclusion of Law 3 indicates the ALJ was most persuaded by the testimony of the treating physician, and his impairment rating which was issued nearly one year after Dr. Jenkins’ report. Thus, any error in Finding of Fact 7 is harmless.
Nothing in Delvalle v. Cherry Creek Schools, W.C. 4-202-277 (July 21, 1997), mandates a different result. Our order in Delvalle merely held the ALJ’s findings and conclusions were supported by the record. Nothing in that decision should be read as creating any rule of law other than the principle that an ALJ’s findings of fact must be upheld if supported by substantial evidence. Thus, the claimant’s reliance o Delvalle is misplaced.
Here, the evidence which the ALJ found credible and persuasive supports the conclusion that the claimant’s functional impairment is limited to the left arm. Although the evidence might have supported other conclusions, we decline to substitute our judgment for that of the ALJ concerning the inferences to be drawn from this record.
IT IS THEREFORE ORDERED that the ALJ’s order dated December 4, 2000, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to §8-43-301(10) and § 8-43-307, C.R.S. 2000. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed June 7, 2001 to the following parties:
Bishop Spence, 100 S. Eliot St., Denver, CO 80219
Borg Warner Protective Service, John M. Lebsack, Esq., 950 17th St., #2100, Denver, CO 80202
Lumbermens Mutual Casualty, Kemper Insurance Co., P. O. Box 5347, Denver, CO 80217
Thomas J. Roberts, Esq., 1650 Emerson St., Denver, CO 80218 (For Claimant)
John M. Lebsack, Esq., 950 17th St., #2100, Denver, CO 80202 (For Respondents)
BY: A. Pendroy