W.C. No. 4-238-483Industrial Claim Appeals Office.
February 11, 1997
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Rumler (ALJ), which required them to file an amended admission liability in which they admit liability for medical impairment benefits based upon twelve percent impairment of the whole person. The respondents contend that the ALJ erred in finding that the claimant suffered impairment of the whole person. We disagree, and therefore, affirm.
On December 13, 1994, the claimant suffered a left shoulder injury arising out of and in the course of his employment for Mile Hi Express, Inc. The claimant was subsequently diagnosed with a rotator cuff tear, and underwent surgery. At the time of maximum medical improvement Dr. Kawaski rated the claimant’s impairment as twenty percent of the left upper extremity, seventeen percent being due to a loss of range of motion in the shoulder. Dr. Kawaski also reported that the rating converts to twelve percent impairment of the whole person under the American Medical Association Guides to the Evaluation of Permanent Impairment.
Relying upon Dr. Kawaski’s rating, the respondents filed a Final Admission of Liability in which they admitted liability for scheduled disability benefits based upon twenty percent impairment of the left upper extremity. The claimant objected and sought an order requiring the respondents to admit liability for impairment of the whole person.
Crediting the testimony of the claimant and Dr. Kawaski the ALJ found that the claimant sustained functional impairment which is not listed on the schedule of disabilities. Therefore, the ALJ determined that the respondents should have admitted liability for medical impairment benefits due to impairment of the whole person, and ordered them to file an amended final admission of liability based upon a twelve percent whole person impairment. The ALJ further found that the claimant expressly reserved the right to contest the amended final admission by requesting an independent medical examination (IME) under the provisions of § 8-42-107(8)(c), C.R.S. (1995 Cum. Supp.) [substantially amended in 1996].
On appeal the respondents contend that the ALJ failed to address the claimant’s “functional” or “operative impairment,” and erroneously based her determination on the claimant’s “physiological” or “structural” impairment. The respondents also argue that there is not substantial evidence in the record to support the ALJ’s finding that the claimant suffered functional impairment to a part of the body which is not listed on the schedule of disabilities. To the contrary, the respondents contend that the claimant’s functional impairment is limited to the partial “loss of an arm at the shoulder,” as set forth in § 8-42-107(2)(a), C.R.S. (1996 Cum. Supp.). We reject these arguments.
In view of the ALJ’s finding that claimant reserved the right to contest Dr. Kawaski’s whole person impairment rating, we have considered whether the ALJ’s order is currently subject to review. Section 8-43-301(2), C.R.S. (1996 Cum. Supp.) authorizes review of an order “which requires any party to pay a penalty or benefits or denies a claimant a benefit or penalty.” Orders which determine liability for benefits, without determining the amount of benefits, do not award or deny benefits as contemplated by § 8-43-301(2), and thus, are interlocutory. Oxford Chemicals, Inc. v. Richardson, 782 P.2d 843 (Colo.App. 1989); C F I Steel Corp. v. Industrial Commission, 650 P.2d 1332 (Colo.App. 1982).
Here, the respondents’ original Final Admission of Liability provided for the payment of benefits based upon an average weekly wage of $303.77, and there is no dispute concerning the claimant’s average weekly wage, or his age. Under §8-42-107(8)(d), C.R.S. (1996 Cum. Supp.) whole person impairment benefits are calculated from the claimant’s impairment rating, the temporary disability rate, and the applicable age factor in subsection 8-42-107(8)(e). See Broadmoor Hotel v. Industrial Claim Appeals Office, __ P.2d __ (Colo.App. No. 96CA014, August 22, 1996). Consequently, the ALJ’s order requiring the respondents to admit liability based on a particular impairment rating amounts to a decision that the respondents must pay “benefits” in an amount certain. See 8-43-203(2)(d), C.R.S. (1996 Cum. Supp.)(“if any liability is admitted, payments shall continue according to admitted liability”). Under these circumstances, the ALJ’s order is a final order within the meaning of § 8-43-301(2).
Furthermore, the respondents do not allege that the ALJ erred in ordering them to file an amended admission of liability See Rules of Procedure, Part IV(N)(4)(b), 7 Code Colo. Reg. 1101-3 at 6.02 (1994) [amended effective November 30, 1996]. Therefore, we do not address this issue, and shall proceed to consider the respondents’ contention that the claimant is limited to scheduled disability benefits.
The claimant is limited to an award of scheduled disability benefits if he suffers an “injury” listed on the schedule of disabilities. Section 8-42-107(1)(a), C.R.S. (1996 Cum. Supp.). In the context of § 8-42-107(1), the term “injury” refers to the part of the body that has sustained the ultimate loss Mountain City Meat Co. v. Oqueda, 919 P.2d 246 (Colo 1996); Strauch v. PSL Swedish Healthcare System, 917 P.2d 366 (Colo.App. 1996). In other words, if the injury’s only ratable effect is the impairment of a member listed on the schedule, the claimant is limited to a scheduled disability award. See Morris v. Industrial Claim Appeals Office,
__ P.2d __ (Colo.App. No. 96CA0863, February 6, 1996); Advanced Component Systems v. Gonzales, __ P.2d __ (Colo.App. No. 95CA0768, April 4, 1996).
However, there is no rule or statute which requires functional impairment to take any particular form. Damage to the structures of the “shoulder” may or may not reflect a “functional impairment,” of the whole person. Strauch v. PSL Swedish Healthcare System, supra. Furthermore, we have previously concluded that pain and discomfort which limit the claimant’s use of a portion of his body, may be considered “functional impairment.” See Carpenter v. Twin Landfill Co., W.C. No. 4-135-566, July 18, 1995; Elwood v. Sealy Corporation, W.C. No. 4-175-456, June 23, 1995. We adhere to our previous conclusion.
Notwithstanding the respondents’ arguments, the record does not support a conclusion that the ALJ misapplied the law in finding that the claimant suffered permanent impairment of the whole person. To the contrary, the ALJ clearly recognized that the issue was whether the injury impaired the claimant’s ability to use a part of his body other than the arm. (Tr. pp. 22, 25, 27, 30, 32, 35-36); 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).
Relying upon the testimony of Dr. Kawaski, the ALJ found that due to the industrial injury, the claimant has a range of motion deficit in the shoulder joint. (Finding of Fact 4). Due to this deficiency, the ALJ found that the claimant is unable to perform activities which require lifting overhead or above the chest. (Findings of Fact 5, 6). The ALJ also found that the claimant experiences pain and grinding when attempting to perform overhead activities, and as a result, is impaired in his ability to perform these activities. In fact, the ALJ found that the claimant is medically restricted from performing overhead activities. (Finding of Fact 4).
The ALJ also determined that the claimant’s impaired use of his shoulder negatively affects his ability to perform his job duties which include loading and unloading trucks. (Finding of Fact 7). Therefore, the ALJ determined that the claimant suffered functional impairment to the shoulder joint which is not fully compensated as the partial “loss of the arm at the shoulder.” (Conclusions of Law).
These factual determinations are supported by substantial evidence and the ALJ’s plausible inferences drawn from the testimony of the claimant and Dr. Kawaski. Moreover, the sufficiency and probative weight of this testimony was a matter within the sole prerogative of the ALJ. Langton v. Rocky Mountain Health Care Corp., __ P.2d __ (Colo.App. No. 95CA1984, November 7, 1996). Therefore, the respondents have failed to establish grounds which afford us a basis to interfere with the ALJ’s finding that the claimant sustained medical impairment to the whole person.
IT IS THEREFORE ORDERED that the ALJ’s order dated July 22, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for 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 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 February 11, 1997
to the following parties:
Lyndall Beck, 3443 W. Ohio Ave., Denver, CO 80219
Mile Hi Express, Inc., 1335 40th St., Denver, CO 80205-3310
Colorado Compensation Insurance Authority, Attn: Brandee DeFalco-Galvin, Esq. (Interagency Mail)
Jordan S. Levine, Esq., 3515 S. Tamarac Dr., #200, Denver, CO 80237(For the Claimant)
BY: _______________________