W.C. No. 4-007-737Industrial Claim Appeals Office.
November 13, 1996
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Gandy (ALJ) which denied his claim for permanent partial disability benefits based on impairment as a whole person, and limited disfigurement benefits to $650. We affirm.
The ALJ found that the claimant suffered a compensable injury to his right hand and arm on June 4, 1990, while working for the Excel Corporation (Excel). The ALJ further found that on the date of maximum medical improvement, the treating physician, Dr. Arganese, rated the claimant’s impairment as eight percent of the upper extremity, which Dr. Arganese converted to a maximum of five percent impairment of the whole person. The respondent filed a Final Admission of Liability for permanent partial disability benefits in accordance with the eight percent upper extremity impairment rating.
On his own, the claimant was examined by Dr. Schmidt. Dr. Schmidt rated the claimant’s impairment as seven percent of the upper extremity, which converts to four percent whole person impairment. Dr. Schmidt also opined that the claimant would “probably” have a permanent inability to “use his hands for some force or repetitive motion,” and problems which would make it difficult to work in a cold environment.
The ALJ found that at the time of the injury, the claimant’s average weekly wage was $274.40. Commencing June 1994, and through the date of the hearing in March 1996, the claimant worked at Home Components. The ALJ found that the claimant was earning $6.50 per hour, plus overtime, which the ALJ orally noted resulted in an average weekly wage of $308.75, not including fringe benefits. (Tr. p. 22). See CAN-USA Construction, Inc. v. Gerber, 767 P.2d 765 (Colo.App. 1988), rev’d on other grounds at 783 P.2d 269 (1989) (the ALJ’s oral findings may be considered to interpret the ALJ’s written findings).
Based upon these findings, the ALJ determined that the claimant failed to prove a loss of earning capacity from the industrial injury. Therefore, the ALJ concluded that the claimant is not entitled to permanent partial disability benefits in excess of the benefits due pursuant to the respondent’s Final Admission of Liability.
Concerning bodily disfigurement, the ALJ found that the claimant has permanent scarring as a result of the industrial injury, which he described as “two scars, one which is 8″ long by +” wide, and the other which is 2″ long by 1/4″ wide.” The ALJ awarded bodily disfigurement benefits of $650 to compensate for these scars.
I.
On review, the claimant first contends that the ALJ erred in failing to award permanent partial disability benefits in accordance with the whole person impairment rating of Dr. Arganese. The claimant’s assertion is based upon his argument that he has permanent work restrictions. The claimant also argues that he has suffered a loss of earning capacity in view of the wage increases he would have received had he remained employed at Excel. In support, the claimant relies upon the conclusions of vocational rehabilitation consultant, Anthony Manuele (Manuele), who opined that the claimant sustained a twenty-nine percent wage loss, and an estimated vocational loss of ninety percent. We reject these arguments.
Under the law applicable to this claim, the ALJ has the discretion to award permanent partial disability benefits based upon a scheduled disability, or a working unit disability See Colo. Sess. Laws 1990, § 8-42-107 §8-42-110 at 491-494; World of Sleep, Inc. v. Davis, 188 Colo. 443, 536 P.2d 34 (1975). Specifically, the prior law allowed the ALJ’s exercise of discretion to enter a scheduled disability award where there was substantial evidence that the industrial injury did not impair the claimant’s earning capacity. London v. El Paso County, 757 P.2d 169
(Colo.App. 1988). Furthermore, where the claimant experienced a increase in post-injury earnings, the claimant bore the burden to prove that the increase was not a true indication of the absence of an impaired earning capacity. Rogers v. Industrial Claim Appeals Office, 746 P.2d 565 (Colo.App. 1987).
Here, the ALJ found that the claimant failed to present any evidence concerning wage increases he would have received had he continued to work for Excel. (Tr. p. 23). It is implicit in this finding that the claimant failed to prove that his average weekly wage of $308.75 reflects lost earning capacity.
Furthermore, the ALJ was not persuaded that the claimant has permanent medical restrictions which limit his earning capacity. Although there is conflicting evidence on this issue, the ALJ resolved the conflict by affording the greatest weight to the opinion of Dr. Arganese. The ALJ found that Dr. Arganese released the claimant to return to his regular employment in May 1994. The ALJ also noted that Dr. Arganese has not imposed any restrictions since May 1994, and that the claimant has not returned to see Dr. Arganese.
The ALJ recognized that the record contains some evidence that the claimant is in pain while performing his regular duties at Home Components. However, the ALJ found that the claimant did not report any restrictions when he applied for work at Home Components, and has worked at Home Components for almost two years without restrictions.
The ALJ also expressly rejected the vocational opinions of Manuele. In support, the ALJ found that Manuele only spoke to the claimant by telephone. The ALJ also determined that Manuele’s conclusions were based upon the restrictions recommended by Dr. Schmidt, and failed to take into account the fact that Dr. Arganese released the claimant to return to his regular employment. Further, the ALJ implicitly determined that Manuele’s opinions were inconsistent with the claimant’s admission that he worked at Home Components for two years without restrictions.
The claimant argues, in effect, that the ALJ should have drawn different inferences from the evidence. However, we may not substitute our judgment for that of the ALJ concerning such matters. Martinez v. Regional Transportation District, 832 P.2d 1060 (Colo.App. 1992). Furthermore, the ALJ’s findings of fact are supported by substantial evidence in the record. Consequently, the ALJ’s award of permanent partial disability benefits based upon a scheduled disability will not be disturbed See London v. El Paso County, supra.
The claimant has not contested the award on any other basis, and we decline to consider other issues. Cf. Oxford Chemicals, Inc. v. Richardson, 782 P.2d 843 (Colo.App. 1989).
II.
Regarding the disfigurement award, the claimant essentially contends that “the extensive degree” of the two scars described compels an award greater than $650. We disagree.
Section 8-42-108, C.R.S. (1996 Cum. Supp.), affords the ALJ great discretion to award up to $2,000 for permanent bodily disfigurement. This discretion is vested in the ALJ because the ALJ views the disfigurement and is in the best position to assess what amount should be awarded. See Arkin v. Industrial Commission, 145 Colo. 463, 358 P.2d 879 (1961).
Here, the claimant does not dispute the ALJ’s description of his scarring, and the ALJ’s description reflects his consideration of the pertinent factors for an award of disfigurement benefits. See Twilight Jones Lounge v. Showers, 732 P.2d 1230 (Colo.App. 1986). Further, we are not persuaded that the description establishes that an award of $650 is so inadequate as to exceed the bounds of reason. Therefore, the award must be upheld. See Rosenberg v. Board of Education of School District #1, 710 P.2d 1095 (Colo.App. 1983).
IT IS THEREFORE ORDERED that the ALJ’s order dated May 9, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
__________________________________ Kathy E. Dean
__________________________________ Dona Halsey
NOTICE
This Order is final unless an action to modify orvacate this Order is commenced in the Colorado Court of Appeals,2 East 14th Avenue, Denver, CO 80203, by filing a petition forreview with the court, with service of a copy of the petitionupon the Industrial Claim Appeals Office and all other parties,within twenty (20) days after the date this Order is mailed,pursuant to section 8-43-301(10) and 307, C.R.S. (1996 Cum.Supp.).
Copies of this decision were mailed November 13, 1996
to the following parties:
Juan Amezquita, 21525 Weld County Rd., No. R-1, Ft. Morgan, CO 80701
EXCEL Corporation, Erin Hatfield, Workers Compensation Coordinator, C.S. 4100, Ft. Morgan, CO 80701 % Crawford Co., Attn: Gina Griego, P.O. Box 340, Greeley, CO 80632
Allen J. Kincaid, Esq., 6312 S. Fiddler’s Green Cir., Ste. 270N, MCI Plaza, Englewood, CO 80111 (For the Claimant)
Tama L. Levine, Esq., 1290 Broadway, Ste. 708, Denver, CO 80203 (For the Respondent)
BY: _______________________