W.C. No. 4-395-349Industrial Claim Appeals Office.
May 5, 2000
ORDER OF REMAND
The respondents seek review of an order of Administrative Law Judge Erickson (ALJ) which awarded medical impairment benefits based on disability of 4 percent of the whole person. The respondents contend the claimant’s shoulder injury should have been compensated under the schedule of disabilities. We set the order aside and remand for entry of a new order.
In 1996 the claimant suffered a compensable rotator cuff tear. He underwent surgery in April 1998. The treating physician placed the claimant at maximum medical improvement (MMI) on November 16, 1998. The treating physician assessed a 7 percent upper extremity impairment based on reduced range of motion, and he converted the rating to a 4 percent whole person impairment. The treating physician also restricted the claimant from engaging in prolonged overhead work and “repetitive right arm shoulder high or above motion and lifting.”
At the hearing, the claimant initially testified that “working overhead for extended periods of time” causes shoulder fatigue. However, on cross-examination, the claimant admitted that his testimony concerning shoulder fatigue was a mere “reiteration” of the restrictions imposed by the treating physician, and that he did not know if overhead work causes fatigue since he had not done any such work since October 1997. (Tr. pp. 12-13, 17-18).
The treating physician testified the claimant sustained impairment of the “right upper extremity” based on reduced range of motion. The physician also testified that he found no impairment “beyond” the claimant’s shoulder, and that the existing impairment “principally” affects the claimant’s arm movement. (Tr. pp. 21, 23).
The ALJ found the claimant “credibly testified that extensive overhead work causes right shoulder fatigue,” and that extension of the arm causes crepitus. (Finding of Fact 5). The ALJ also credited the treating physician’s opinion that the claimant sustained lost range of motion in the right shoulder which affects use of the right shoulder. Consequently, the ALJ concluded that the claimant has “functional impairment of his right shoulder,” and that the situs of this impairment does not appear on the schedule. Therefore, the ALJ awarded permanent partial disability benefits based on medical impairment of 4 percent of the whole person.
On review, the respondents contend the record does not contain substantial evidence to support the ALJ’s award based on 4 percent whole person medical impairment. Instead, the respondents argue the evidence establishes the claimant did not sustain any “functional impairment” beyond the arm and, therefore, the injury is compensable under § 8-42-107(2)(a), C.R.S. 1999. Because we conclude that Finding of Fact 5 is not supported by substantial evidence, we remand for entry of a new order.
It is now well-established that the question of whether the claimant sustained the “loss of an arm at the shoulder” within the meaning of § 8-42-107(2)(a), or a whole person medical impairment compensable under § 8-42-107(8), C.R.S. 1999, is one of fact for determination by the ALJ. In resolving this question, the ALJ must determine the situs of the claimant’s “functional impairment,” and the site of the functional impairment is not necessarily the site of the injury itself. Langton v. Rocky Mountain Health Care Corp., 937 P.2d 883 (Colo.App. 1996) Strauch v. PSL Swedish Healthcare System, 917 P.2d 366
(Colo.App. 1996). Although a physician’s impairment rating is not dispositive, it may be considered in determining the situs of the functional impairment. Strauch v. PSL Swedish Healthcare System, supra. Further, pain or discomfort which limits the claimant’s ability to use a portion of his body may be considered a “functional impairment” for purposes of determining whether an injury is on or off the schedule. Eg. Valles v. Arrow Moving Storage, W.C. No. 4-265-129 (October 22, 1998).
The respondents’ arguments notwithstanding, the reports and testimony of the treating physician could support the inference that the claimant’s shoulder injury resulted in whole person medical impairment. The ALJ could infer from the physician’s testimony that the injury damaged the shoulder joint, and impaired the claimant’s ability to use portions of his body which do not appear on the schedule. However, the physician’s testimony would also support the inference that the injury to the shoulder joint affects only the claimant’s ability to use his arm. Thus, the issue is factual in nature, and not one of law which we may resolve on appeal.
The ALJ also “credited” the claimant’s testimony that overhead work causes shoulder fatigue. However, the claimant’s testimony, read in its entirety, establishes the claimant has not attempted to perform overhead work since October 1997 and does not know what would happen if he did so. Instead, the claimant has merely followed the restrictions imposed by the treating physician. Thus, the record does not contain substantial evidence to support Finding of Fact 5.
We cannot ascertain how the ALJ might have evaluated the other evidence, including the testimony of the treating physician, if he had correctly understood the claimant’s testimony. Consequently, the matter must be remanded for entry of a new order.
IT IS THEREFORE ORDERED that the ALJ’s order dated August 2, 1999, is set aside, and the matter is remanded for entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
Copies of this decision were mailed May 5, 2000
to the following parties:
Leonard Davis, 5 Normandy Cir., Pueblo, CO 81005
CFI Steel, L.P. dba Rocky Mountain Steel Mills, Carolyn Bjur, Oregon Steel Mills, P. O. Box 5368, Portland, OR 97228-5368
Catherine M. Higuera, Sedgwick Claims Management Services, Inc., P. O. Box 101268, Denver, CO 80250-1268
James R. Koncilja, Esq., 125 W. “B” St., Pueblo, CO 81003 (For Claimant)
Thomas E. J. Hazard, Esq., 1700 Broadway, #1700, Denver, CO 80290-1701 (For Respondents)
BY: A. Pendroy