IN THE MATTER OF THE CLAIM OF ANGELO R. ORTIZ, Claimant, v. SERVICE EXPERTS, INC., Employer, and ACE AMERICAN INSURANCE COMPANY, Insurer, Respondents.

W.C. Nos. 4-657-974.Industrial Claim Appeals Office.
January 22, 2009.

FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Friend (ALJ) dated March 31, 2008, but issued on May 23, 2008, to the extent that they were ordered to pay permanent partial disability payments based on a whole person impairment rating. We affirm.

This matter proceeded to hearing to determine whether the respondents overcame the whole person impairment rating assessed by the Division-sponsored independent medical examination (DIME) physician, and whether the claimant was entitled to medical benefits after attaining maximum medical improvement. The ALJ determined that the respondents overcame the DIME physician’s impairment rating and imposed the whole person impairment rating by Dr. Hughes. The ALJ also determined that the claimant remained entitled to maintenance medical care. See Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988).

Several of the ALJ’s findings are summarized as follows. The claimant’s job duties included spending a significant amount of time driving. He suffered pain and numbness related to his left shoulder, elbow, and fingers. An MRI performed on January 26, 2005 revealed a type II SLAP tear, supraspinatus tendinosis and undersurface fraying, AC joint degenerative changes with capsular and reactive bone edema, subacromial/coracoarcromial mild narrowing, and subdeltoid/subacromial mild bursitis. The claimant’s function increased after receiving a shoulder injection from Dr. Failinger on February 2, 2005. Dr. Failinger administered another injection on June 23, 2005. The claimant reported to Dr. Failinger on August 31, 2005 that he had neck pain and

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numbness down his arm. Dr. Failinger recommended an evaluation of the claimant’s ulnar nerve before proceeding with shoulder treatment. Dr. Davis, an orthopedic surgeon, recommended conservative treatment of the claimant’s elbow and, also, that the claimant have shoulder surgery. On November 1, 2005 Dr. Failinger performed shoulder surgery on the claimant in the nature of a subacromial decompression, distal clavicle resection, and labral debridement. Dr. Davis later opined that the claimant’s ulnar neuropathy was due to his altered body mechanics from his industrial injury to his shoulder. On August 11, 2006 he performed ulnar nerve surgery on the claimant.

The claimant’s primary care physician, Dr. Walker, provided a 19 percent upper extremity rating for the claimant’s shoulder. Dr. Davis gave the claimant no impairment for his elbow. The respondents filed a final admission of liability based on the ratings of Drs. Walker and Davis. The claimant requested and obtained a Division-sponsored independent medical examination (DIME) from Dr. Fillmore. Prior to his DIME, the claimant obtained an independent medical examination from Dr. Diaz, who gave the claimant a whole person impairment rating of 20 percent. Dr. Hughes examined the claimant and found that the claimant’s impairment rating went beyond the arm at the shoulder due to limitations on the claimant’s cervical range of motion. Dr. Hughes gave the claimant a whole person rating of 21 percent. Dr. Fillmore rated the claimant’s impairment at 26 percent of the whole person.

The ALJ found that the respondents overcame the rating of the DIME physician, Dr. Fillmore, because Dr. Fillmore’s rating for the claimant’s elbow range of motion and peripheral vascular impairment was not supported by any of the ratings provided by other physicians. The ALJ was persuaded that Dr. Davis failed to conform to the American Medical Association Guidelines to the Evaluation of Permanent Impairment, Third Edition, Revised (AMA Guides) in providing an impairment rating. The ALJ decided that the situs of the claimant’s injury went beyond the arm at the shoulder and further determined that Dr. Hughes’ whole person rating of 21 percent was “the most credible and persuasive.” The ALJ therefore awarded the claimant permanent partial disability benefits based on a 21 percent whole person impairment rating, together with maintenance medical benefits. See Grover v. Industrial Commission, 759 P.2d 705, 711 (Colo. 1988) (claimant may be entitled to medical benefits after maximum medical improvement if there is substantial evidence in record to support determination that future medical treatment will be reasonable and necessary to relieve effects of industrial injury or prevent deterioration of claimant’s condition).

I.
The respondents assert on appeal that the ALJ erred by finding that Dr. Davis failed to follow the AMA Guides. The ALJ found that a portion of the DIME physician’s impairment rating was in error. The ALJ therefore determined that the respondents had

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overcome the overall rating of the DIME physician. See DeLeon v. Whole Foods Market, Inc., W.C. No. 4-600-477 (November 16, 2006) (DIME physician’s entire impairment rating overcome by ALJ’s finding highly probable DIME physician’s range of motion deficits part of overall impairment rating in error). However, in our view the pertinent issue is not whether Dr. Davis complied with the AMA Guides in formulating his impairment rating, but rather whether the ALJ erred or abused his discretion in selecting the impairment rating that he ultimately awarded. Having found that the respondents overcame the impairment rating of the DIME physician, Dr. Fillmore, the question became what impairment rating was appropriate under the circumstances. The claimant’s correct medical impairment rating becomes a question of fact for the ALJ’s resolution based on a preponderance of the evidence Garlets v. Memorial Hospital, W.C. No. 4-336-566 (September 5, 2001).

II.
The respondents also assert the ALJ erred in relying on the 21 percent whole person impairment rating of Dr. Hughes. In support of this contention, the respondents assert that Dr. Hughes failed to compute his rating in accordance with the applicable statute and the AMA guides. According to the respondents, the rating by Dr. Hughes did not comply with the AMA Guides as evidenced by his use of informal guidelines provided by the division of workers’ compensation.

The claimant’s physical impairment must be based on the AMA Guides. Section 8-42-110(3.7), C.R.S. 2008; McLane Western, Inc. v. Industrial Claim Appeals Office, 996 P.2d 263, 265 (Colo.App. 1999). The respondents argue that the ten percent impairment rating assessed by Dr. Hughes for the claimant’s distal clavicle resection is based, not on the AMA Guides, but upon a memorandum from the medical director of the division of workers’ compensation. The director of the division is advised by a medical director on impairment rating guidelines. Section 8-42-101(3.6)(n), C.R.S. 2008. Both parties refer to section 3.1j of the AMA Guides, which recognizes that “[derangements not previously described [in the AMA Guides] can contribute to impairments of the hand and upper extremity and should be considered in the final impairment rating.” The AMA Guides go on to state that secondary impairments ar “usually rated by other parameters,” but “[w]hether or not to consider these disorders separately is left to the discretion of the examiner.” AMA Guides at 48 (emphasis in original). In our view the particular provisions of the AMA Guides at issue are subject to differing interpretations and we are not persuaded to interfere with the ALJ’s exercise of discretion in his interpretation of the AMA Guides.

Dr. Hughes testified to the effect that he based his impairment rating related to the claimant’s distal clavicle resection on the AMA Guides, section 3. 1j, as well as on “impairment rating tips” authored by the medical director of the division, which refers to

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a maximum rating of ten percent. Tr. (1/23/08) at 157-58; Tr. (2/22/08) at 28; Exhibit 23. We note that the regulatory interpretations of the director of the division of workers’ compensation are generally entitled to a degree of deference. See Lenox v. United Airlines, W.C. No. 4-616-469 (June 2, 2006) (affording “great weight” to director’s interpretive bulletin on AMA Guides). In any event, at a minimum, the ALJ was entitled to give these impairment rating tips, as applied by Dr. Hughes, the weight he considered appropriate under the circumstances. It was the ALJ’s prerogative to weigh the evidence, and that the ALJ might have reached a contrary conclusion is immaterial on review. Mountain Meadows Nursing Center v. Industrial Claim Appeals Office, 990 P.2d 1090
(Colo.App. 1999).

III.
Finally, the respondents argue that the ALJ erred in finding that the claimant’s functional impairment went beyond his upper extremity. Section 8-42-107(1), C.R.S. 2008 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), C.R.S. 2005. Strauch v. PSL Swedish Healthcare System, 917 P.2d 366 (Colo.App. 1996). Where the claimant suffers an injury or injuries not enumerated in § 8-42-107(2), the claimant is entitled to whole person impairment benefits under § 8-42-107(8), C.R.S. 2008; Mountain City Meat Co. v. Oqueda, 919 P.2d 246 (Colo. 1996). In the context of § 8-42-107(1), the term “injury” does not refer to the situs of the injury or the situs of surgery for the industrial injury. Rather, the term refers to the part or parts of the body which have been functionally impaired or disabled as a result of the injury. Warthen v. Industrial Claim Appeals Office, 100 P.3d 581(Colo.App. 2004); Strauch v. PSL Swedish Healthcare System, supra.

The question of “[w]hether a claimant suffered an impairment that can be fully compensated under the schedule of disabilities is a factual question for the ALJ, whose determination must be upheld if it is supported by substantial evidence.” Kolar v. Industrial Claim Appeals Office, 122 P.3d 1075, 1076 (Colo.App. 2005); see also, § 8-43-301(8), C.R.S. 2008. Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion City of Colorado Springs v. Givan, 897 P.2d 753 (Colo. 1995). This standard of review 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 Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).

The ALJ was persuaded that the claimant’s shoulder problems extended into his back and neck muscles, as testified to by the claimant and Drs. Hughes and Fillmore. Order at 16-17 (unpaginated), ¶ 15. He was further persuaded that the claimant’s ulnar nerve injury was “outside the schedule.” Order at 16 (unpaginated), ¶ 14. The ALJ’s

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findings are supported by the record. For example, the claimant testified that he suffered numbness through his arm and fingers, and a “bad headache up the back of my back up to the back of my head.” Tr. (1/23/08) at 23. In response to questions about the site of the claimant’s functional impairment, Dr. Hughes described the claimant’s ulnar nerve as originating in his spine and ending in his hand after passing under the clavicle and between the scapula. According to Dr. Hughes, the claimant’s shoulder injury irritated the ulnar nerve at the elbow and, also, caused the claimant’s numbness and pain due to swelling and inflammation related to the nerve. Tr. (1/23/08) at 97-100. Dr. Fillmore testified that the claimant’s left hand was weaker than his right hand due to the claimant’s injury. Fillmore Depo. (1/9/08) at 21-22. He indicated that numbness is not a standard complaint for an injury to only the shoulder. Fillmore Depo. (1/16/08) at 66-68. Dr. Fillmore also described the claimant’s pain in various regions of the claimant’s shoulder and back. Fillmore Depo. (1/16/08) at 83-88. We find no error in the ALJ determining that the claimant was entitled to an award of benefits based on a whole person impairment rating.

IT IS THEREFORE ORDERED that the ALJ’s order dated March 31, 2008 is affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

______________________________ John D. Baird

______________________________ Curt Kriksciun

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ANGELO R ORTIZ, BROOMFIELD, CO, (Claimant).

SERVICE EXPERTS, INC., Attn: FAY COLLIER, C/O: LENNOX INTERNATIONAL, INC, RICHARDSON, TX, (Employer).

ACE AMERICAN INSURANCE COMPANY, Attn: MICHELLE WIDMER, PORTLAND, OR, (Insurer).

THE LAW OFFICES OF BARBARA J FURUTANI, PC, Attn: BARBARA FURUTANI, ESQ., DENVER, CO, (For Claimant).

CLIFTON, MUELLER BOVARNICK, PC, Attn: RICHARD BOVARNICK, ESQ./KATHERINE M HOLOM, ESQ., DENVER, CO, (For Respondents).

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