W.C. Nos. 4-163-770, 4-264-470Industrial Claim Appeals Office.
March 31, 1999.
FINAL ORDER
The claimant seeks review of a final order of Chief Administrative Law Judge Felter (ALJ) which awarded permanent partial disability benefits based on a 16 percent loss of the arm at the shoulder, as provided in § 8-42-107(2)(a), C.R.S. 1998. The claimant argues the evidence requires an award based on whole person medical impairment. We affirm.
The claimant sustained a work-related injury to his left arm and shoulder in November 1992, and underwent two shoulder surgeries. The treating physician assessed an 8 percent impairment of the upper extremity based on lost range of motion of the shoulder. Subsequently, the claimant underwent an independent medical examination (IME). The IME physician assessed a 16 percent impairment of the upper extremity, which he converted to 10 percent whole person impairment. The IME physician’s impairment rating was also based on lost range of motion in the shoulder.
At the hearing, the claimant testified that he has lost substantial range of motion in his shoulder and “can’t do too much.” The claimant also stated that he frequently complains of left elbow pain, pain in his left hand, and weakness in his left arm. Finally, the claimant testified that he asked the employer to make accommodations for difficulties caused by use of the left arm. (Tr. pp. 14-20).
The ALJ found the claimant failed to prove the existence of functional impairment beyond the arm at the shoulder. Consequently, the ALJ denied the claimant’s request for whole person medical impairment benefits. In support, the ALJ cited the claimant’s testimony concerning difficulties with use of his left arm and the medical evidence corroborating the claimant’s testimony. The ALJ further stated that, although there is evidence the claimant “suffered pain beyond his left upper extremity,” there is not evidence of functional impairment “beyond the left upper extremity.”
On review, the claimant contends the ALJ’s order is contrary to the evidence, and that his findings do not support the order. The claimant relies on various medical records indicating that he has pain and muscle spasms in structures beyond the arm, including the neck, scapula and trapezius muscle. The claimant also cites evidence that there was physiological damage to anatomical structures beyond the arm. We find no error.
The question of whether the claimant sustained an “injury” which appears on the schedule found at § 8-42-107(2), or an injury which entitles him to whole person impairment benefits pursuant to § 8-42-107(8), C.R.S. 1998, depends on whether the claimant sustained a “functional impairment” to a portion of the body listed on the schedule. Strauch v. PSL Swedish Healthcare System, 917 P.2d if 366 (Colo.App. 1996). Under the functional impairment test, neither the situs of the injury nor the anatomical distinctions found in the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition (Revised) controls the issue. Rather, the ALJ must consider all relevant evidence and determine what parts of the body have been functionally impaired. Langton v. Rocky Mountain Health Care Corp., 937 P.2d 883 (Colo.App. 1996). Even if the claimant proves tissue damage and pain in structures beyond the schedule the ALJ may still find a scheduled injury. Strauch v. PSL Swedish Healthcare System, supra.
Ultimately, the question of whether the claimant has proven whole person impairment is one of fact for determination by the ALJ. Strauch v. PSL Swedish Healthcare System, supra. Because the issue is factual nature, we must uphold the ALJ’s order of supported by substantial evidence of the record. Section 8-43-301
(8), C.R.S. 1998. This test requires us to defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences he drew from the evidence. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411
(Colo.App. 1995). Further, we note that the ALJ is not held to a standard of absolute clarity in expressing his findings of fact and conclusions of law so long as the basis of the order is apparent from the findings. Riddle v. Ampex Corp., 839 P.2d 489
(Colo.App. 1992).
Here, the ALJ’s findings of fact demonstrate that he recognized the claimant sustained damage to the shoulder joint and experienced pain in anatomical structures not found on the schedule. However, the ALJ was not persuaded that the physiological damage or pain proved that the claimant sustained “functional impairment” to any part of the body other than the arm. This conclusion constitutes a plausible interpretation of the evidence in light of the claimant’s testimony concerning difficulties in the use of his arm, as well as medical evidence emphasizing the claimant’s complaints of pain in the arm and hand.
It is true, as the claimant argues, that we have previously ruled that pain may constitute a “functional impairment” for purposes of removing an injury from the schedule. Eg. Valles v. Arrow Moving Storage, W.C. No. 4-265-129 (October 22, 1998). However, neither Valles, nor any published appellate decision, has held that the mere existence of pain beyond the schedul requires the ALJ to find whole person impairment. Rather, pain is only one factor which the ALJ may evaluate in determining the situs of the functional impairment. Indeed, the claimant i Strauch v. PSL Swedish Healthcare Systems, supra, suffered pain to her shoulder, but the court upheld a scheduled award.
In reaching this result, we also recognize Finding of Fact 10, where the ALJ stated that, although there was evidence the claimant suffered “pain beyond his left upper extremity,” there was not evidence that he “suffered a functional impairment beyond his left upper extremity.” While this finding could be interpreted to mean that the ALJ did not recognize pain as a form of impairment, we do not read it in this manner. During his oral remarks at the conclusion of the hearing the ALJ stated that “the evidence supports the pain going elsewhere, going into the shoulder, where the pain is not synonymous with the situs of functional impairment.” (Tr. p. 24) Thus, the ALJ appreciated that he could consider pain, but also correctly recognized that pain and functional impairment are not necessarily equivalents See CAN-USA Construction, Inc. v. Gerber, 767 P.2d 765
(Colo.App. 1988) reversed on other grounds, 789 P.2d 269 (Colo. 1989) (may consider oral findings when interpreting written order).
IT IS THEREFORE ORDERED that the ALJ’s order dated June 10, 1998 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. 1998.
Copies of this decision were mailed March 31, 1999
to the following parties:
Wilburn Brewer, 12632 East Elmondorf Place, Denver, CO 80239
General Motors Corp., PO Box 9029, Warren, MI 48090-9029
Gayle Trottnow, Adjuster, c/o CIGNA, PO Box 2941, Greenwood Village, CO 80150-0141
Janet L. Frickey, Esq., 940 Wadsworth Blvd., 4th Fl., Lakewood, CO 80215 (For Claimant)
Elaine T. Corey, Esq., 999 18th St., Ste. 3100, Denver, CO 80202 (For Respondents)
BY: L. Epperson