W.C. No. 4-521-005.Industrial Claim Appeals Office.
December 29, 2004.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Jones (ALJ) which determined the claimant suffered functional impairment to the whole person and therefore, ordered the respondents to pay permanent partial disability benefits based upon the whole person conversion of the Division-sponsored medical examination (DIME) physician’s upper extremity rating. We affirm.
In 2001, the claimant suffered a crush injury which required amputation of his left hand. The claimant was eventually fitted with a prothesis. On September 15, 2003, a DIME physician assigned 100 percent impairment to the left upper extremity, which converts to 60 percent whole person impairment. The DIME also assigned 16 percent mental impairment for a combined rating of 66 percent whole person impairment. (Claimant’s Hearing Exhibit 1).
The respondents filed a Final Admission of Liability (FAL) which admitted liability for scheduled disability benefits based on 100 percent impairment to the left upper extremity and 12 weeks of mental impairment benefits. The claimant objected to the scheduled disability award and sought an award based on the whole person conversion of the upper extremity rating.
Crediting the claimant’s testimony the ALJ found that as a result of the injury the claimant’s ability to perform overhead work, and crawl are limited. The ALJ also found the claimant experiences difficulty getting up out of chair, and performing various recreational activities. Further, the ALJ determined the claimant experiences pain in his back and neck when reaching. Therefore, the ALJ determined the situs of the claimant’s functional impairment is beyond the arm at the shoulder and ordered the respondents to pay medical impairment benefits based on the DIME physician’s whole person impairment rating.
On review, the respondents contend the ALJ’s finding the claimant suffered functional impairment to the whole person is not supported by the record and the applicable law. In particular, the respondents contend the ALJ misapplied the law in considering the claimant’s mental impairment as evidence the claimant suffered physical impairment beyond the arm. We are not persuaded.
Section 8-42-107(1), C.R.S. 2004, 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. 2004. Strauch v. PSL Swedish Healthcare System, 917 P.2d 366 (Colo.App. 1996). In the context of §8-42-107(1), the term “injury” has been defined to refer to the manifestation in a part or parts of the body which have been functionally impaired or disabled as a result of the industrial accident. Strauch v. PSL Swedish Healthcare System, supra. Where the claimant suffers an injury not enumerated in § 8-42-107(2), the claimant is entitled to whole person impairment benefits under § 8-42-107(8), C.R.S. 2004.
The DIME physician’s rating of permanent impairment to the extremity is not determinative of whether the claimant has functional impairment to the whole person. To the contrary, in Strauch the court stated that the factual determination of the situs of functional impairment is “distinct from, and should not be confused with, the treating physician’s rating of physical impairment under the AMA Guides.”
Rather, the determination of the nature and extent of functional impairment is a question of fact, and we must uphold the ALJ’s findings of fact if supported by substantial evidence in the record. Strauch v. PSL Swedish Healthcare System, supra. Substantial evidence is that quantum of probative evidence which a rational fact-finder would accept as adequate to support a conclusion, without regard to the existence of conflicting evidence. Durocher v. Industrial Claim Appeals Office, 905 P.2d 4 (Colo.App. 1995). In applying this standard, the ALJ is also presumed to have considered and applied the relevant legal principles Shafer Commercial Seating, Inc. v. Industrial Claim Appeals Office, 85 P.3d 619 (Colo.App. 2003). Further, substantial evidence is not limited to medical evidence. Rather, the claimant’s testimony, if credited, may be sufficient to support an ALJ’s finding on the nature and extent of the claimant’s functional impairment. Savio House v. Dennis, 665 P.2d 141 (Colo.App. 1983).
We also note that there is no requirement that functional impairment take any particular form in order to be compensable under § 8-42-107(8). Accordingly, evidence of pain which interferes with the claimant’s ability to use a portion of the body may be considered “impairment.” See Guillotte v. Pinnacle Glass Company, W.C. No. 4-443-878 (November 20, 2001), aff’d., Pinnacle Glass Co. v. Industrial Claim Appeals Office,
(Colo.App. No. 01CA2386, August 22, 2002) (not selected for publication); Mader v. Popejoy Construction Co., Inc., W.C. No. 4-198-489
(August 9, 1996), aff’d., Popejoy Construction Co., Inc., (Colo.App. No. 96CA1508, February 13, 1997) (not selected for publication); Salaz v. Phase II et. al., W.C. No. 4-240-376 (November 19, 1997), aff’d., Phase II v. Industrial Claim Appeals Office, (Colo.App. No. 97CA2099, September 3, 1998) (not selected for publication). However, § 8-42-107(7)(b)(I)
(II), 2004, preclude conversion of an upper extremity impairment to a whole person impairment based on symptoms which extended above the arm at the shoulder, where the symptoms above the arm are separately rateable Warthen v. Industrial Claim Appeals Office, 100 P.3d 581 (Colo.App. 2004).
The respondents’ arguments notwithstanding, the ALJ’s order reflects her application of the proper legal standard. (See Conclusions of Law 4). The ALJ expressly considered the claimant’s pain and the physical restrictions resulting from that pain to find that the claimant suffered functional impairment beyond the arm at the shoulder. Consequently, we decline to infer that the ALJ’s mere reference to the claimant’s anxiety, nightmares and sleeping disorder compels the conclusion that the ALJ improperly converted the claimant’s upper extremity rating to a whole person rating based on the separately ratable psychological impairment caused by the injury. Rather, we are convinced from Finding of Fact 12 that the award was properly based on the functional impairment of the upper extremity apart from the psychological problems. The ALJ’s finding is predominately concerned with limitations on physical activities Shafer Commercial Seating, Inc. v. Industrial Claim Appeals Office, supra.
Further, because “pain” is a symptom reported by the claimant, an ALJ’s authority to consider the claimant’s “pain” symptoms necessarily authorizes the ALJ to rely on the claimant’s testimony. Thus, we disagree with the respondents’ contention that the claimant was required to present medical evidence of pain and limitations beyond the upper extremity.
Here, the claimant’s testimony contains substantial evidence of pain in his back and neck which restricts his movement. (Tr. pp. 13, 16). Contrary to the respondents’ further contention, the claimant’s testimony is consistent with the symptoms reported to Dr. Smith on March 23, 2004 (Respondents’ Hearing Exhibits A), and the April 17, 2003, Functional Capacity Evaluation results (Respondents’ Hearing Exhibits E). Thus, the claimant’s testimony is sufficient to support the ALJ’s finding of functional impairment beyond the arm.
IT IS THEREFORE ORDERED that the ALJ’s order dated June 10, 2004 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________ David Cain
____________________ Kathy E. Dean
Ruben R. Chacon, Gilcrest, CO, Nichols Aluminum Golden, Inc., Fort Lupton, CO, American Casualty Company of Reading Pennsylvania, Denver, CO, William F. Garcia, Esq., Greeley, CO, (For Claimant).
Robert H. Coate, Esq. and D. Clay Thornton, Esq., Denver, CO, (For Respondents).