W.C. Nos. 4-271-758; 4-337-778Industrial Claim Appeals Office.
January 24, 2001
FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Wheelock (ALJ) which determined the claimant suffered functional impairment not listed on the schedule of disabilities and, therefore, awarded whole person medical impairment benefits under § 8-42-107(8), C.R.S. 2000. The respondent contends the record does not support the ALJ’s finding the claimant sustained functional impairment to the whole person. We disagree and, therefore, affirm.
The claimant suffered admitted injuries to his left shoulder which required him to undergo a left shoulder arthroscopic subacromial ligament resection and acromioplasty, as well as a left shoulder arthroscopic distal clavicle resection.
The claimant testified that as a result of the injury, he suffers pain and weakness in the shoulder, upper back, and neck. The claimant also stated he experiences pain extending to the top of his shoulder, which makes it difficult to complete the exercise program he performs to keep in shape for his work as a police officer. (Tr. p. 6). Further, the claimant stated that he has difficulty performing routine agility tests required of his employment. (Tr. p. 8).
On May 3, 1999, the claimant underwent a Division-sponsored independent medical examination (DIME) by Dr. Richman. Dr. Richman opined the claimant sustained 11 percent impairment of the upper extremity, which he converted to 7 percent whole person impairment under the American Medical Association Guidelines to the Evaluation of Permanent Impairment, Third Edition, Revised
(AMA Guides). At the time of the DIME, the claimant complained of pain in the left shoulder, neck, and upper back. Dr. Richman opined that the neck and upper back pain were due to problems in the trapezius muscle, a muscle that connects the neck to the shoulder. (Richman depo. p. 6). Dr. Richman also found tenderness over the AC joint, which is between where the arm connects to the torso and the neck. (Richman depo. p. 9). Dr. Richman opined that reaching, lifting, and repetitive use of the shoulder activities could aggravate the claimant’s trapezius and neck pain. (Richman depo. p. 15). Dr. Richman also restricted the claimant from wearing a bullet proof vest because the weight may aggravate the claimant’s pain at the top of the left shoulder.
Relying on the testimony of Dr. Richman and the claimant, the ALJ found the claimant sustained functional impairment not listed on the schedule of disabilities in § 8-42-107(2), C.R.S. 2000. Therefore, the ALJ ordered the respondent to pay permanent partial disability benefits in accordance with Dr. Richman’s whole person impairment rating.
The respondent contends the evidence is legally insufficient to support the ALJ’s finding of a non-scheduled disability. In support, the respondent contends the claimant did not identify any permanent physical restrictions beyond his shoulder, and the claimant admitted he did not suffer neck pain except during strenuous activity. Further, the respondents rely on Dr. Richman’s testimony that tender points in the claimant’s upper back and neck are muscle related and do not represent a permanent condition. (Richman depo. p. 22).
The applicable law is undisputed. Section 8-42-107(1), C.R.S. 2000, limits the claimant to a scheduled disability where the claimant suffers an “injury or injuries” described in §8-42-107(2). 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). 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. The Court of Appeals has held that, depending on the particular facts of a claim, damage to the structures of the “shoulders” may or may not reflect a “functional impairment” which is enumerated on the schedule of disabilities See Walker v. Jim Fouco Motor Company, 942 P.2d 1390 (Colo.App. 1997); Strauch v. PSL Swedish Healthcare System, supra; Langton v. Rocky Mountain Health Care Corp, 937 P.2d 883 (Colo.App. 1996).
Furthermore, “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); Garcia v. Advanced Component Systems, Inc., supra; Elwood v. Sealy Corporation, W.C. Nos. 4-175-456, 4-178-995 (June 23, 1995). Specifically, in Mader, we concluded that the ALJ did not err in finding functional impairment of the whole person where the claimant experienced pain in his shoulders, chest, back, and neck, which restricted his ability to perform overhead activities. The court upheld our conclusion in Mader v. Popejoy Construction Co., Inc., (Colo.App. No. 96CA1508, February 13, 1997) (not selected for publication).
Determination of whether the claimant sustained a partial “loss of an arm at the shoulder” within the meaning of §8-42-107(2)(a), 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. 2000; Langton v. Rocky Mountain Health Care, 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). Under the substantial evidence standard, we must defer to the ALJ’s resolution of conflicts in the evidence, her credibility determinations, and the plausible inferences which she drew from the record. Metro Moving Storage Co. v. Gussert, 914 P.2d 411
(Colo.App. 1995).
In determining the situs of the claimant’s functional impairment, the ALJ may consider the opinions of the DIME physician. However, the DIME physician’s opinions are not dispositive of the claimant’s functional impairment. Strauch v. PSL Swedish Healthcare System, supra. Furthermore, the ALJ is free to credit part of an expert’s opinion. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21
(1968). Therefore, the ALJ was not bound by Dr. Richman’s opinion that tender points in the trapezius area of the claimant’s spine demonstrate reactive pain and not a “permanent” condition.
It is undisputed the claimant reached maximum medical improvement (MMI) on January 28, 1998. The record supports the ALJ’s determination the claimant was still experiencing pain in the neck and upper back almost one and one-half years later during the DIME. Further, at the hearing on January 31, 2000, the claimant complained of neck pain with activity. Under these circumstances, the ALJ could reasonably infer that the functional impairment which resulted in neck and upper back pain was permanent. See 8-40-201(11.5), C.R.S. 2000; Gonzales v. Industrial Claim Appeals Office, 905 P.2d 16 (Colo.App. 1995) (MMI is defined at the point in time when “any medically determinable physical or mental impairment as a result of the injury has become stable and when no further treatment is reasonably expected to improve the condition”).
Finally, evidence that the claimant’s neck and upper back pain was only symptomatic with activity does not compel a contrary result. By definition, functional impairment refers to the effect a medical “impairment” has on the claimant’s activity level. See Askew v. Industrial Claim Appeals Office, 927 P.2d 1333 (Colo. 1996). Thus, “functional” impairment cannot be ascertained based on the claimant’s pain level while idle.
The record contains substantial evidence that the claimant’s occupation is physically demanding. The claimant’s occupation also requires that he maintain his physical condition with vigorous exercise. The claimant testified that as a result of the industrial injury, he experiences pain while attempting to perform the physical activities required of his employment. This testimony supports the ALJ’s implicit determination that the claimant’s functional impairment is limited by neck and upper back pain caused by the industrial injury. Accordingly, we perceive no error in the whole person award.
IT IS THEREFORE ORDERED that the ALJ’s order dated April 19, 2000, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Dona Halsey
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. 2000. 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 January 24, 2001 to the following parties:
Stephen Copp, P. O. Box 5432, Woodland Park, CO 80866
Andrew Martinez, City of Colorado Springs, P. O. Box 1575, Mail Code 1145, Colorado Springs, CO 80901
Gordon J. Heuser, Esq., 625 N. Cascade, #300, Colorado Springs, CO 80903 (For Claimant)
Carol A. Finley, Esq., 111 S. Tejon, #700, Colorado Springs, CO 80903 (For Respondent)
BY: A. Pendroy