W.C. No. 4-546-219Industrial Claim Appeals Office.
March 26, 2004
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Klein (ALJ) which denied his request for medical impairment benefits based on whole person impairment. We affirm.
The claimant suffered a compensable right lateral meniscus tear on March 30, 2002. The treating physician permanently restricted the claimant from working in temperatures under 50 degrees, and instructed the claimant to avoid “impact activities beyond walking and standing.” A Division-sponsored independent medical examination (DIME) physician assigned 17 percent impairment to the lower extremity, which converts to 7 percent whole person impairment under the American Medical Association Guides to the Evaluation of Medical Impairment, Third Edition, Revised
(AMA Guides).
The ALJ found the claimant presented no evidence of medical or functional impairment beyond the right knee. Further, the ALJ credited Dr. Lesnak’s testimony that medical impairment and permanent restrictions cannot be equated because the assignment of permanent restrictions is not a prohibition of the activity, it is a recommendation against that activity to prevent reinjury. Therefore, the ALJ rejected the claimant’s argument that the imposition of permanent work restrictions entitled him to permanent medical impairment benefits based on the whole person conversion of the lower extremity rating.
On review the claimant contends the permanent work restrictions limit use of his body and the ALJ erroneously refused to consider this evidence in determining whether the claimant suffered “pain and discomfort that limit use of his body sufficient to place the impairment off the schedule.” The claimant also contends the ALJ erroneously ignored the distinction between functional impairment and a medical impairment rating. We disagree.
I.
Initially we note the claimant’s contention that the transcript is incomplete because the court reporter failed to transcribe the ALJ’s “oral order” at the conclusion of the hearing. The claimant contends the ALJ orally found the permanent medical restrictions affect the claimant’s “whole person in terms of employability.” Therefore, the claimant requests the matter be remanded for completion of the transcript. We deny the request.
It is the ALJ’s written order which is the subject of our review. Wait v. Jan’s Malt Shoppe, 736 P.2d 1265 (Colo.App. 1987). Therefore, insofar as the ALJ’s oral ruling contains findings of fact inconsistent with the written order, we assume the ALJ reconsidered the matter before issuing the written order.
Further, our authority to review is defined in § 8-43-301(8), C.R.S. 2003. That statute precludes us from disturbing the ALJ’s order unless the ALJ’s findings of fact are insufficient to permit appellate review, the ALJ has not resolved conflicts in the evidence, the record does not support the ALJ’s findings, the findings do not support the order, or the order is not supported by the applicable law.
Section 8-43-213 C.R.S. 2003, provides that all testimony and argument of all hearings shall be taken verbatim by a hearing reporter or shall be electronically recorded. However, subsection 8-43-213(2) provides that “for purposes of a petition to review, a transcript shall be all testimony taken which is relevant to the issue being appealed.”
The claimant does not allege the transcript is missing any testimony relevant to the issue being appealed. Under these circumstances, it is unnecessary to remand the matter for a transcription of the ALJ’s oral ruling which is allegedly missing from the transcript. See A R Concrete Construction v. Lightner, 759 P.2d 831 (Colo.App. 1988) (error which is not prejudicial will be disregarded).
II.
Section 8-42-107(1), C.R.S. 2003, limits the claimant to a scheduled disability award where the claimant suffers an “injury or injuries” described in § 8-42-107(2), C.R.S. 2003. Strauch v. PSL Swedish Healthcare System, 917 P.2d 366 (Colo.App. 1996). Where the claimant suffers an injury or injuries not enumerated in § 8-42-107(2), the claimant is entitled to whole person impairment benefits under §8-42-107(8), C.R.S. 2003. Mountain City Meat Co. v. Oqueda, 919 P.2d 246
(Colo. 1996).
In the context of § 8-42-107(1), the term “injury” refers to the part or parts of the body which have been functionally impaired or disabled as a result of the injury. Strauch v. PSL Swedish Healthcare System, supra. “Functional impairment” need not take any particular form. Accordingly, we have previously concluded that pain and discomfort which interferes with the claimant’s ability to use a portion of the body may be considered “impairment.” Mader v. Popejoy Construction Co., Inc., W.C. No. 4-198-489 (August 9, 1996), aff’d. Mader v. Popejoy Construction Co., Inc., (Colo.App. No. 96CA1508, February 13, 1997) (not selected for publication); Garcia v. Advanced Component Systems, Inc.,
W.C. No. 4-187-720, (June 21, 1996); Elwood v. Sealy Corporation, W.C. Nos. 4-175-456, 4-178-995 (June 23, 1995).
Determination of whether the claimant sustained a partial “loss of use of the leg at the hip” within the meaning of § 8-42-107(2)(w), C.R.S. 2003, or a whole person medical impairment compensable under § 8-42-107(8), is one of fact for determination by the ALJ. Consequently, we must uphold the ALJ’s order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2003; Langton v. Rocky Mountain Health Care, 937 P.2d 883 (Colo.App. 1996).
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). Under the substantial evidence standard, we must defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences which he drew from the record. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
As argued by the claimant, the determination of the situs of functional impairment is separate and distinct from the DIME physician’s medical impairment rating under the AMA Guides and thus, the DIME physician’s rating is not dispositive of the issue before the ALJ. However, the opinions of the DIME physician are some evidence which the ALJ may consider in determining the nature and extent of the claimant’s functional impairment. Strauch v. PSL Swedish Healthcare System, supra.
Contrary to the claimant’s contention the ALJ expressly recognized that pain and discomfort which limits the claimant’s use of his body may be functional impairment (Conclusion of Law 4), and that the claimant has permanent medical restrictions as a result of the industrial injury. However, the ALJ implicitly determined the claimant failed to prove his permanent medical restrictions were designed to relieve pain and discomfort to a part of the body beyond the lower extremity as opposed to being recommendations to prevent further deterioration on the knee. The ALJ’s finding is a plausible interpretation of Dr. Lesnak’s testimony, as well as the DIME report. (Claimant’s Hearing Exhibit 2). Further, the claimant admitted he only injured his right knee in the industrial accident and that he was fully capable of performing his employment within the medical restrictions imposed by the treating physician. (Tr. pp. 12, 13). Therefore, we must uphold the ALJ’s findings and the claimant has failed to establish grounds which afford us a basis to grant appellate relief.
IT IS THEREFORE ORDERED that the ALJ’s order dated September 11, 2003, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Kathy E. Dean
______________________________ Robert M. Socolofsky
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. 2003. 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 order were mailed to the parties at the addresses shown below on March 26, 2004 by A. Pendroy.
Albert Colacion, 211 Grant, Fort Morgan, CO 80701
Sheryl Wittstruck, Excel Corporation, 1505 E. Burlington Ave., Fort Morgan, CO 80701
Margaret Johnson, Crawford Company, 2850 McClelland Dr., #1600, Fort Collins, CO 80525
Britton Morrell, Esq., 1305 8th St., Greeley, CO 80631 (For Claimant)
Christopher Condit, Esq., 625 E. 16th Ave., #100, Denver, CO 80203 (For Respondents)