W.C. No. 4-437-950Industrial Claim Appeals Office.
March 25, 2002
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Wheelock (ALJ) insofar as the ALJ required them to pay additional permanent partial disability benefits based on 12 percent whole person impairment. We affirm.
The claimant suffered compensable injuries to his back and left elbow on February 8, 1999. The claimant subsequently developed lateral epicondylitis. Dr. Schwender assigned a 21 percent whole person rating for permanent impairment to the back. The respondents admitted liability for permanent partial disability benefits consistent with Dr Schwender’s rating.
The claimant requested a Division-sponsored independent medical examination (DIME) on the issue of medical impairment to the left upper extremity. The DIME physician, Dr. Tyler, opined the claimant had no rateable impairment to the left upper extremity.
The claimant contested Dr. Tyler’s zero rating, and in support offered the testimony of Dr. Hall, who opined the lateral epicondylitis was ratable under the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition Revised (AMA Guides) using the cumulative trauma matrix, Tables 21 to 23 of Chapter 3.1(j), for loss of grip strength or Table 14 for specific unilateral spinal nerve impairment affecting the upper extremity. Dr. Hall added that under any of the three rating methods the claimant suffered at least 12 percent whole person impairment. (Tr. p. 29).
Relying on the claimant’s testimony and the medical opinions of Dr. Hall, the ALJ found the claimant overcame the DIME’s opinion that the claimant had no rateable impairment to the upper extremity. Furthermore, based on Dr. Hall’s medical impairment rating for loss of grip strength, the ALJ determined the claimant sustained 12 percent whole person impairment to the left upper extremity. Consequently, the ALJ awarded additional permanent partial disability benefits based on 12 percent whole person impairment.
On review, the respondents contend the ALJ’s award is not consistent with the AMA Guides. In support, the respondents contend that a July 21, 2001 functional capacity evaluation (FCE) measured a 29 percent loss of grip strength which produces a 6 percent whole person impairment rating. Therefore, the respondents contend the ALJ erred in awarding benefits based on 12 percent whole person impairment. We perceive no error.
Where the ALJ determines that the DIME physician’s rating has been overcome, the question of the claimant’s correct medical impairment rating becomes a question of fact for the ALJ Arapahoe County v. Industrial Claim Appeals Office, Colo. App. No. 99CA2151, July 13, 2000 (not selected for publication) (Court of Appeals remanded the matter to the ALJ for a determination of whether the claimant’s “sleep disorder” was ratable). We must uphold the ALJ’s factual determinations if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2001; Metro Moving Storage Co. v. Gussert, 914 P.2d 411
(Colo.App. 1995).
Dr. Hall testified that as part of his evaluation he had the claimant’s grip strength measured and that measurements revealed a 53 percent strength index loss in the left upper extremity. (Tr. pp. 28, 33). Dr. Hall also stated that a 53 percent loss equals 20 percent impairment to the upper extremity, which converts to 12 percent whole person impairment under the AMA Guides.
The grip strength measurements taken during the July 2001 FCE create a conflict in the evidence. It was the ALJ’s prerogative to resolve the conflict by relying on the grip strength measurements completed for Dr. Hall. Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141 (Colo.App. 1998). Moreover, Dr. Hall’s 12 percent whole person rating for impaired grip strength is consistent with the whole person impairment ratings from the other two rating methods described by Dr. Hall. Accordingly, the ALJ’s award is supported by substantial evidence in the record.
IT IS THEREFORE ORDERED that the ALJ’s order dated July 31, 2001, and mailed September 11, 2001, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Bill Whitacre
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, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2001. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed March 25, 2002 to the following parties:
Debra Boyd, 2244 Moccasin Dr., Colorado Springs, CO 80915
Jean Houston, Academy School District #20, 7610 N. Union Blvd., Colorado Springs, CO 80903
Jennifer Thompson, Liberty Mutual Fire Insurance, P. O. Box 3539, Englewood, CO 80155-3539
Patrick C. H. Spencer, II, Esq., 403 S. Tejon St., Colorado Springs, CO 80903 (For Claimant)
David G. Kroll, Esq., 1120 Lincoln St., #1606, Denver, CO 80203 (For Respondents)
BY: A. Pendroy