W.C. No. 3-996-786Industrial Claim Appeals Office.
December 15, 1995
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) which awarded permanent partial disability benefits based upon an 18 percent loss of use of the arm at the shoulder. The award was based on the schedule of disabilities formerly codified as § 8-42-107, C.R.S. (1990 Cum. Supp.). We affirm.
The parties stipulate that the claimant suffered a compensable industrial injury arising out of his employment with the respondent-employer. The parties also agree that the claim for permanent disability benefits is governed by former § 8-42-110(3), C.R.S. (1990 Cum. Supp.) (the reemployment statute).
That statute provides that the claimant is limited to permanent partial disability benefits based upon medical impairment or a payment under the schedule of disabilities, whichever is less. Turner v. City and County of Denver, 867 P.2d 197 (Colo.App. 1993). Where the claimant suffers an “injury” listed in § 8-42-107, the claimant is limited to a scheduled disability award. Duran v. Industrial Claim Appeals Office, 883 P.2d 477 (Colo. 1994). Insofar as pertinent, subsection 8-42-107(1)(a) provides that the “partial loss of use of the arm at the shoulder” is a scheduled disability.
The ALJ found that the claimant underwent a right shoulder arthroscopy, acromioplasty, arthrotomy and carpal tunnel repair, as a result of the industrial injury. The ALJ also found that the claimant has pain in her upper arm, shoulder and upper back as a result of the injury.
Based upon the American Medical Association Guides to the Evaluation of Permanent Impairment (AMA Guides), Dr. Horstman rated the claimant’s permanent medical impairment as 18 percent of the upper extremity, which he converted to 11 percent of the whole person. Dr. Harder rated the claimant’s impairment as 21 percent impairment of the upper extremity which he converted to 13 percent of the whole person. However, the ALJ found that according to Dr. Hughes, the functional impairment measured by Dr. Horstman and Dr. Harder involved only the arm. Dr. Hughes also stated that there was nothing in the records or ratings to reflect functional impairment of any other portion of the claimant’s upper extremity or body.
The ALJ determined that the claimant sustained no functional impairment except to the arm. The ALJ also determined the Dr. Horstman’s impairment rating was more persuasive than Dr. Harder’s rating. Therefore, the ALJ ordered the respondents to pay the claimant a scheduled disability award based upon an 18 percent loss of use of the arm at the shoulder.
On review, the claimant argues that the ALJ erroneously determined that the claimant’s “shoulder” impairment is listed on the schedule of disabilities. We disagree.
First, the fact that the claimant underwent a right shoulder arthroscopy, acromioplasty, and arthrotomy does not compel a finding that the claimant suffered functional impairment beyond a scheduled disability. Rather, as the ALJ recognized, the term “injury,” in the context of permanent disability, refers to the part or parts of the claimant’s body which have been functionally impaired or disabled as a result of the industrial accident. Mountain City Meat Co., v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 94CE0015, January 26, 1995), cert. granted, October 30, 1995; Carothers v. J.C. Trucking, Inc., W.C. No. 4-134-297, August 12, 1994.
The issue of whether the claimant suffered an injury or injuries which are fully enumerated on the schedule of disabilities is a factual determination for the ALJ. Jones v. Adolph Coors Co., 689 P.2d 681
(Colo.App. 1984); Aultman v. JVK Enterprises, Inc., W.C. No. 4-112-073, December 31, 1993; Mestas v. Curtice Burns Meat Snacks, Inc., W.C. Nos. 4-000-190 4-159-948, May 24, 1994; Carothers v. J.C. Trucking, Inc., supra.
Consequently, we must uphold the ALJ’s determination that the claimant suffered an “injury” listed on the schedule of disabilities if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.). Furthermore, the substantial evidence test requires that we defer to the ALJ’s credibility determinations, the ALJ’s plausible inferences drawn from the record, and his assessment of the sufficiency and probative value of the evidence he found persuasive. Monfort Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993).
Here, the ALJ implicitly credited the testimony of Dr. Hughes to find that the claimant’s functional impairment from the industrial injury is limited to the arm. Further, there is substantial evidence in Dr. Hughes’ testimony to support the ALJ’s determination. (Tr. pp. 16, 20, 25, 48, 52). Consequently, it is immaterial that the record contains some evidence, which if credited, might support a contrary result. General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118 (Colo.App. 1994).
Moreover, medical impairment ratings are not dispositive of whether the claimant’s “injury” is listed on the schedule. Rather, a medical impairment rating is merely some evidence which is not necessarily dispositive of whether the claimant has suffered an injury enumerated on the schedule of disabilities. See Elwood v. Sealy Corporation,
W.C. Nos. 4-175-456, 4-178-995, June 23, 1995; Quick v. Contractors Crane Service, W.C. No. 4-160-963, May 10, 199 ; Strauch v. PSL Swedish Healthcare System, W.C. No. 4-192-279, June 9, 1995. Therefore, the fact that Dr. Horstman and Dr. Harder converted their extremity ratings to whole person impairment ratings is not determinative.
Finally, the AMA Guides do not govern impairment ratings for injuries arising prior to July 1, 1991. Colorado AFL-CIO v. Donlon, ___ P.2d ___ (Colo.App. Nos. 93CA1118, 93CA1392, June 15, 1995). In fact, as explained by Dr. Hughes, the medical impairment ratings contained in the AMA Guides are inconsistent with the scheduled injury ratings contained in § 8-42-107. (Tr. pp. 18, 19, 26); Mountain City Meat Co. v. Industrial Claim Appeals Office, supra; Smith v. Denver Peterbilt, Inc., W.C. No. 4-175-281, January 27, 1994. Accordingly, the evidence that the AMA Guides do not consider a “shoulder” to be part of the arm, does not compel a conclusion that the claimant suffered an injury not listed on the schedule.
IT IS THEREFORE ORDERED that the ALJ’s order dated June 30, 1995, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Dona Halsey
NOTICE
This Order is final unless an action to modify or vacate this Order iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO80203, by filing a petition for review with the court, with service of acopy of the petition upon the Industrial Claim Appeals Office and allother parties, within twenty (20) days after the date this Order ismailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed December 15, 1995 to the following parties:
Felicia Armenta, 2409 Oleander Ct., Loveland, CO 80538
John Buck, Anheuser Busch, P.O. Box 20000, Ft. Collins, CO 80522-2501
John Bearss, Claims Adjustor, Pacific Employers Ins., Cigna Property
Casualty Co., P.O. Box 2941 Greenwood Village, CO 80110
Lynn P. Lyon, Esq., 999 18th St., Ste. 3100, Denver, CO 80202
(For the Respondents)
Pepe J. Mendez, Esq., 700 Broadway, Ste. 1101, Denver, CO 80203-3444
(For the Claimant)
BY: _______________________