W.C. No. 4-202-277Industrial Claim Appeals Office.
July 21, 1997
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Erickson (ALJ) which awarded permanent partial disability benefits for a shoulder injury based upon impairment of the whole person. The respondents contend that the ALJ erred in refusing to limit the claimant to a scheduled disability award under § 8-42-107(2)(a), C.R.S. (1996 Cum. Supp.), for the partial “loss of use of the arm at the shoulder.” We disagree, and therefore, affirm.
The claimant suffered a compensable left rotator cuff injury on January 27, 1994. Dr. Glatz conducted a Division-sponsored independent medical examination (IME). Based upon the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition, Revised (AMA Guides), Dr. Glatz found that the claimant suffered 7 percent impairment due to range of motion deficit in the shoulder and 15 percent impairment due to moderate crepitation in the shoulder for a total impairment of 21 percent of the upper extremity, or 13 percent of the whole person.
The claimant was also evaluated by Dr. Harder, who rated the claimant’s impairment as 22 percent of the upper extremity due to moderate crepitation, and a loss of range of motion in the shoulder. However, in his testimony Dr. Harder stated that Dr. Glatz’s calculations were correct. Dr. Harder also agreed with Dr. Glatz that the claimant’s upper extremity impairment equals 13 percent impairment of the whole person.
Crediting the claimant’s testimony, the ALJ found that as a result of the industrial injury the claimant experiences pain and restricted motion of his shoulder. Further, the ALJ found that the claimant has difficulty sleeping, golfing, driving, and is unable to shoot a rifle, as a result of the pain and restricted movement of his shoulder, not his arm.
Under these circumstances the ALJ determined that the claimant has sustained functional impairment “above the level of the arm at the shoulder.” Therefore, the ALJ determined that the claimant suffered a non-scheduled disability which cannot be compensated as a scheduled disability award for the partial “loss of use of the arm at the shoulder.”
Moreover, the ALJ found the opinions of Dr. Glatz and Dr. Harder credible and determined that the respondents had not overcome Dr. Glatz’s rating by “clear and convincing evidence.” Therefore, the ALJ ordered the respondents to pay medical impairment benefits in accordance with Dr. Glatz’s whole person impairment rating.
I.
On review, the respondents contend that the ALJ is bound by the AMA Guides in determining functional impairment. Because the AMA Guides treat the shoulder as part of the upper extremity, the respondents contend that the claimant suffered impairment of the upper extremity. Further, the respondents contend that upper extremity impairment is a scheduled disability. Therefore, the respondents argue that insofar as the ALJ found that the claimant sustained functional impairment of the shoulder, the claimant is limited to a scheduled disability award. We reject this argument.
Section 8-42-107(1), C.R.S. (1996 Cum. Supp.), provides that the claimant is limited to a scheduled disability award if the claimant suffers an “injury or injuries” described in §8-42-107(2). Colorado AFL-CIO v. Donlon, 914 P.2d 396
(Colo.App. 1995). In contrast, where the claimant suffers an injury or injuries not enumerated in§ 8-42-107(2) the claimant is limited to an award of benefits based upon impairment of the whole person under § 8-42-107(8), C.R.S. (1996 Cum. Supp.). In the context of § 8-42-107(1), the term “injury” refers to the part or parts of the body which have been impaired or disabled as a result of the injury. Mountain City Meat Co., v. Industrial Claim Appeals Office, 919 P.2d 246 (Colo 1996); Strauch v. PSL Swedish Healthcare System, 917 P.2d 366 (Colo.App. 1996).
The question of whether the claimant has suffered a scheduled or non-scheduled injury is a factual matter for resolution by the ALJ. Langton v. Rocky Mountain Health Care Corp., 937 P.2d 883 (Colo.App. 1996), cert. denied May 27, 1997. Consequently, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Strauch v. PSL Swedish Healthcare System, supra. In this regard it is for the ALJ to assess the weight and credibility of the evidence, including expert medical testimony. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
In resolving this issue, an ALJ may consider the claimant’s medical impairment rating. It is also true that 8-42-101(3.5)(a)(II), C.R.S. (1996 Cum. Supp.) requires all medical impairment ratings to be made in accordance with the AMA Guides. However, we disagree with the respondents’ assertion that § 8-42-101(3.5)(a)(II) requires ALJs to apply the AMA Guides in determining whether the claimant suffered a scheduled injury.
In Strauch v. PSL Swedish Healthcare System, supra, an Langton v. Rocky Mountain Health Care Corp., supra, the court expressly rejected an argument that the AMA Guides are determinative of whether the claimant has suffered an injury listed on the schedule of disabilities. Consequently, th Strauch court concluded that the AMA Guides definition of the upper extremity is of “no consequence.”
In any case, impairment of the “upper extremity” is not listed on the schedule of disabilities. See Mountain City Meat Co. v. Oqueda, supra (schedule of disabilities is all-inclusive and there are no statutory provisions to add additional injuries to that list). Further, the Strauch court rejected an argument that the “loss of the arm at the shoulder” is the equivalent to an “amputation of the upper extremity” under the AMA Guides. Cf. Mountain City Meat Co, v. Industrial Claim Appeals Office, 904 P.2d 1333 (Colo.App. 1995) (physical impairment ratings in AMA Guides are inconsistent with the ratings in the schedule of disabilities). Therefore, the fact that the AMA Guides treats the shoulder as a part of the upper extremity does not compel a finding that the claimant suffered a scheduled injury.
Moreover, neither Langton nor Strauch held that functional impairment of the shoulder must be compensated as a scheduled disability. Rather, the Langton court held that disability to the shoulder “could properly be characterized as a proportionate loss of the use of the arm when the functional impairment occurred only in the arm.”
In Langton, an ALJ found that an industrial injury caused a loss of range of motion in the shoulder, impairment to the peripheral nervous system and loss of grip strength. However, the ALJ determined that the situs of the claimant’s functional impairment was the arm. Because the ALJ’s findings were supported by substantial, albeit conflicting evidence, the court determined that the ALJ’s findings were binding on review.
Here, as in Langton, the ALJ found that the residual affects of the claimant’s industrial injury include a loss of range of motion in the shoulder. However, there is substantial evidence in the testimony of the claimant and Dr. Harder to support the ALJ’s finding that the situs of the claimant’s functional impairment is beyond the “arm at the shoulder.” (Tr. pp. 9, 15, 25-27). See Strauch v. PSL Swedish Healthcare System, supra. (evidence of pain which limits a claimant’s use of a portion of his body may support a finding of functional impairment). Furthermore, both Dr. Harder and Dr. Glatz determined that the claimant suffered impairment in the AC joint above the shoulder. (Tr. pp. 15, 18; Glatz report April 30, 1996). Therefore, we may not disturb the ALJ’s finding that the claimant sustained functional impairment not listed on the schedule of disabilities.
II.
Because the ALJ found that the claimant suffered functional impairment not listed on the schedule of disabilities, the claimant’s permanent partial disability is governed by §8-42-107(8), C.R.S. (1996 Cum. Supp.). Under subsection 8-42-107(8)(c) the IME physician’s rating of the claimant’s whole person impairment is binding unless overcome by “clear and convincing evidence.” Consequently, we reject the claimant’s argument that the ALJ erroneously applied the “clear and convincing evidence” standard in upholding Dr. Glatz’s whole person impairment rating.
IT IS THEREFORE ORDERED that the ALJ’s order dated December 19, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacatethis Order is commenced in the Colorado Court of Appeals, 2 East14th Avenue, Denver, CO 80203, by filing a petition for reviewwith the court, with service of a copy of the petition upon theIndustrial Claim Appeals Office and all other parties, withintwenty (20) days after the date this Order is mailed, pursuant tosection 8-43-301(10) and 307, C.R.S. (1996 Cum. Supp.).
Copies of this decision were mailed July 21, 1997 to the following parties:
Juan DelValle, P.O. Box 461312, Aurora, CO 80046
Cherry Creek School Dist. No. 5, 4850 Yosemite St., Englewood, CO 80111-1308
Joint School Dist. Workers’ Compensation, Occupational Healthcare Management, 700 Broadway, Ste. 1132, Denver, CO 80273
Karen Wells Esq., and Anne Smith Myers, Esq., 3900 E. Mexico Ave., Ste. 1000, Denver, CO 80210, (For Respondent).
Pepe J. Mendez, Esq., 700 Broadway, Ste. 1101, Denver, CO 80203, (For the Claimant).
BY: ________________________________