W.C. No. 4-204-023Industrial Claim Appeals Office.
July 26, 1996
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Friend (ALJ) which awarded medical impairment benefits based upon impairment of 14 percent of the whole person. We affirm.
The claimant suffered an admitted shoulder injury on February 23, 1994. On August 15, 1994, Dr. Gehret determined the claimant to be at maximum medical improvement with permanent impairment of 12 percent of the right upper extremity. Thereafter, the claimant underwent a Division-sponsored independent medical examination (IME) by Dr. Ginsburg under the provisions of § 8-42-107(8)(c), C.R.S. (1995 Cum. Supp.). Dr. Ginsburg rated the claimant’s impairment as 16 percent of the right upper extremity which equals 10 percent impairment of the whole person. On his own, the claimant was also evaluated by Dr. Harder who rated the claimant’s impairment as 15 percent of the right upper extremity which converts to a 9 percent impairment of the whole person under the American Medical Association Guides to the Evaluation of Permanent Impairment (AMA Guides). Dr. Harder also assigned impairment of 4 percent of the whole person due to the claimant’s “ongoing pain problem” resulting from impairment of the sternoclavicular joint, for a combined impairment of 14 percent of the whole person.
The ALJ credited the claimant’s testimony that he has pain in the sternoclavicular joint with activity, and chest pain at the base of the neck. The ALJ was also persuaded by the medical evidence from Drs. Gehret, Reichardt and O’Brien which indicates that the claimant has tenderness in sternoclavicular joint. Implicitly crediting the testimony of Dr. Harder, the ALJ also found that the sternoclavicular joint is proximal to the glenohumeral joint, and that the “arm” begins at the glenohumeral joint. Therefore, the ALJ determined that the claimant sustained functional impairment which must be compensated as impairment of the whole person under § 8-42-107(8). The ALJ further determined that Dr. Ginsburg’s whole person medical impairment rating was overcome by “clear and convincing evidence,” and ordered the respondents to pay permanent partial disability benefits in accordance with Dr. Harder’s rating of 14 percent whole person impairment.
I.
On review the respondents first contend that there is not substantial evidence in the record to support the ALJ’s finding that the claimant sustained functional impairment of the whole person. In support the respondents assert that the claimant’s medical restrictions only pertain to the use of the arm, and that there is no evidence of any functional impairment above the shoulder. The claimant also argues that the claimant’s testimony concerning symptoms of “pain” is not evidence of functional impairment. We disagree.
Initially, we note that damage to the structures of the “shoulder” may or may not reflect a “functional impairment” which is enumerated on the schedule of disabilities. See Strauch v. PSL Swedish Healthcare System, 917 P.2d 366 (Colo.App. 1996). Under Strauch, this is a factual question to be determined by the ALJ.
As we stated in Garcia v. Advanced Component Systems, Inc.,
W.C. No. 4-187-720, June 21, 1996, there is no requirement that functional impairment take any particular form in order to be compensable under §8-42-107(8). Accordingly, in Garcia we rejected an argument that evidence of pain and discomfort beyond an extremity cannot support a finding of functional impairment of the whole person. Rather, we concluded that pain and discomfort which interferes with the claimant’s ability to use a portion of the body may be considered “impairment.”
We adhere to our conclusions in Garcia. Therefore, the ALJ did not err in relying upon the claimant’s testimony to find that the injury to the claimant’s shoulder resulted in a functional impairment of the whole person. Furthermore, the claimant’s testimony together with the medical evidence the ALJ found persuasive contains substantial evidence of functional impairment beyond the arm. (Tr. pp. 27, 28).
II.
The claimant further contends that the ALJ erred in finding that Dr. Ginsburg’s medical impairment rating was overcome by clear and convincing evidence. In support the respondents cite Dr. Harder’s admission that the AMA Guides do not explicitly contain a rating for sternoclavicular joint impairment. The respondents also contend that Dr. Harder’s rating for “ongoing pain” is inconsistent with the AMA Guides and the language in §8-42-107(8)(c), which prohibits an impairment rating based upon “chronic pain without anatomic or physiologic correlation.” We reject these arguments.
Insofar as the respondents purport to argue that the ALJ’s findings are insufficient to ascertain the evidence he relied upon in reaching his determination, this assertion is without merit. The ALJ’s findings explicitly indicate that he relied upon the evidence that unlike the reports of Drs. Gehret, O’Brien and Harder, Dr. Ginsburg’s report does not show that he questioned the claimant about pain in the sternoclavicular joint, and that Dr. Ginsburg did not include a rating for impairment of the sternoclavicular joint. (Findings of Fact 6, 8, 10, 13, 15, 16). The ALJ was also persuaded by Dr. Harder’s opinion that it was proper to include a rating for impairment of the sternoclavicular joint. (Findings of Fact 9, 11, 15, 17).
Moreover, Dr. Harder testified that he assigned a 4 percent rating for impairment of the sternoclavicular joint in accordance with Chapter 3, p. 52 of the AMA Guides entitled “Other Musculoskeletal System Defects.” (Tr. pp. 11, 23, 24). That subsection provides that the examining physician has the “discretion” to give “additional impairment” where the “severity of the clinical findings does not correspond to the true extent of the musculoskeletal defect.” Dr. Harder testified that based upon his examination, the claimant’s clinical findings did not correspond to the true extent of the musculoskeletal defect resulting from impairment of the sternoclavicular joint, and thus, he exercised his discretion to assign additional impairment of 4 percent for an “ongoing pain problem affecting the body” which follows this type of impairment. (Tr. pp. 23, 24).
Contrary to the respondents’ arguments Dr. Harder’s testimony supports a determination that a proper application of the AMA Guides entitles the claimant to an impairment rating for the residual effects of the sternoclavicular joint injury. See Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995), cert. denied April 15, 1996 (proper application of AMA Guides is factual issue for ALJ). Because Dr. Ginsburg’s medical impairment rating did not include a rating for this impairment, Dr. Harder’s testimony necessarily supports a determination that it is “highly probably” that Dr. Ginsburg’s rating was incorrect. To the extent that Dr. Harder’s interpretation of the AMA Guides was inconsistent with the opinions of the other examining physicians, the ALJ was free to resolve the conflict based upon his decision to credit Dr. Harder’s testimony, and we may not disturb that determination. See Dow Chemical Co. v. Industrial Claim Appeals Office, 843 P.2d 122 (Colo.App. 1992) (ALJ free to credit one medical opinion to the exclusion of a contrary medical opinion).
Furthermore, even if accepted the respondents’ argument that the 4 percent rating for impairment to the sternoclavicular joint represents a rating based upon “chronic pain,” Dr. Harder’s rating is not precluded by §8-42-107(8)(c). The statute does not preclude a rating for “chronic pain,” if anatomic correlation exists. The statute also provides that the “[A]natomic correlation must be based on objective findings.” Dr. Harder testified that the disputed impairment is demonstrated by objective evidence of the existence of a lump at the sternoclavicular joint. (Tr. p. 24). Consequently, the evidence did not compel the ALJ to exclude Dr. Harder’s 4 percent rating for “ongoing pain.”
III.
Lastly, the respondents contend that the AMA Guides combined impairment chart provides that 9 percent and 4 percent whole person impairment equals 13 percent and not 14 percent impairment of the whole person. Therefore, the respondents argue that even if the ALJ did not err in adopting Dr. Harder’s rating, the ALJ miscalculated the award.
As argued by the claimant, this argument was not raised before the ALJ. (Tr. p. 33). Nor can it be raised for the first time on appeal. See Colorado Compensation Ins. Authority v. Industrial Claim Appeals Office, 884 P.2d 1131 (Colo.App. 1994). Therefore, this argument has been waived.
IT IS THEREFORE ORDERED that the ALJ’s order dated February 14, 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 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 July 26, 1996 to the following parties:
Benjamin Chavero, 1360 Williams St., #403, Denver, CO 80218
Denver Cedar Roofing, 1109 S. Sheridan Blvd., Lakewood, CO 80226
Colorado Compensation Insurance Authority, Attn: Marjorie J. Long, Esq. (Interagency Mail)
Pepe J. Mendez, Esq., 700 Broadway, Ste. 1101, Denver, CO 80203 (For the Claimant)
Thomas L. Kahan, Esq., 1700 Broadway, Ste. 1910, Denver, CO 80290
BY: _______________________