W.C. No. 4-367-183Industrial Claim Appeals Office.
May 23, 2000
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Harr (ALJ) which awarded permanent partial disability benefits based on medical impairment of 12 percent of the whole person. The respondents contend the ALJ erred as a matter of fact and law by failing to compensate the claimant’s bilateral shoulder injuries under the schedule of disabilities. We affirm.
The claimant sustained injuries to both shoulders on December 24, 1997. He underwent surgery on both shoulders which was described as “decompression of the aromion and division of the coracromial ligament.” After the claimant reached maximum medical improvement he underwent a Division-sponsored independent medical examination on the issue of permanent impairment. The Division IME physician opined the claimant sustained a 9 percent impairment of the right upper extremity and 6 percent impairment of the left upper extremity. These ratings were combined for a 12 percent whole person impairment. The IME physician also noted that the claimant was suffering neck pain and headaches which reflected “referral pain from the shoulder area.”
At the hearing, the claimant presented the testimony and report of Dr. Harder, who conducted an IME at the claimant’s request. Dr. Harder assigned a 14 percent whole person impairment based on reduced range of motion and crepitus in both shoulders. Dr. Harder testified that the “arm” is properly defined as that part of the upper extremity located between the elbow joint and the glenohumeral (shoulder) joint. Further, Dr. Harder stated that the surgeries involved repair of bones and ligaments proximal to the arm. (Tr. pp. 9-13).
The claimant testified that he experiences pain between the shoulder and his neck. Further, he has difficulty reaching overhead, an activity required by his job. (Tr. p. 21).
The ALJ rejected the respondents’ contention that permanent disability benefits should be awarded under § 8-42-107(2)(a), C.R.S. 1999, for the bilateral loss of the arms at the shoulders. Instead, the ALJ found the claimant sustained functional impairment beyond the arms at the shoulders as demonstrated by the credible testimony of the claimant and Dr. Harder. Thus, the ALJ awarded permanent partial disability benefits based on medical impairment of 12 percent of the whole person.
On review, the respondents contend the ALJ erred as a matter of fact and law in awarding permanent disability benefits based on whole person impairment. In essence, the respondents contend the applicable cases compel the conclusion that the claimant’s impairment is limited to the arms at the shoulders. We find no error.
It is now well-established that the question of whether the claimant has sustained a “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), C.R.S. 1999, is one of fact for determination by the ALJ. In resolving this question the ALJ must determine the situs of the claimant’s “functional impairment,” and the site of the functional impairment is not necessarily the site of the injury itself. Langton v. Rocky Mountain Health Care Corp., 937 P.2d 883 (Colo.App. 1996) Strauch v. PSL Swedish Healthcare System, 917 P.2d 366
(Colo.App. 1996).
It is true, as the respondents argue, that the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition (Revised) (AMA Guides) definition of where the arm ends and the torso begins is not dispositive of whether the claimant sustained functional impairment of the arm or of the whole person. Nevertheless, a physician’s rating under the AMA Guides “may be considered by the ALJ in determining whether the claimant’s functional impairment is fully described on the schedule of disabilities.” Strauch v. PSL Swedish Healthcare System, 917 P.2d 368; Valles v. Arrow Moving Storage, W.C. No. 4-265-129 (October 22, 1998). Further, “functional impairment” need not take any particular form, and we have previously held that pain and discomfort which impairs a claimant’s ability to use a portion of his body may be considered in determining whether an injury is on or off the schedule. Eidy v. Pioneer Freightways, W.C. No. 4-291-940 (August 4, 1998); Salaz v. Phase II Co.,
W.C. No. 4-240-376 (November 19, 1997), aff’d., Phase II Co. v. Industrial Claim Appeals Office, (Colo.App. 97CA 2099, Sept. 3, 1998) (not selected for publication).
Because the question of whether the claimant’s functional impairment appears on the schedule is one of fact, we must uphold the ALJ’s order of supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1999; Langton v. Rocky Mountain Health Care, supra. This standard of review requires us to 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).
Here, the ALJ applied the correct standard of law in determining whether the claimant is entitled to benefits based on a whole person impairment. The ALJ recognized that the test is the location of the claimant’s “functional impairment.” The respondents’ assertion notwithstanding, the ALJ did not base his decision on the AMA Guides’ definition of where the arm ends and the torso begins, but instead considered Dr. Harder’s testimony as some evidence that the claimant sustained functional impairment beyond the arm. The ALJ also credited the claimant’s testimony concerning difficulty performing overhead activities, and his testimony concerning neck pain and headaches. The report of the Division IME physician corroborates the claimant’s testimony concerning pain referred from the shoulder to the neck and head. These facts, taken together, constitute substantial evidence in support of the ALJ’s conclusions of law and the award of whole person medical impairment benefits. Eidy v. Pioneer Freightways, supra.
Moreover, none of the cases cited by the respondents compels a different conclusion. Indeed, Strauch, Langton, and Walker v. Jim Fuoco Motor Co., 942 P.2d 1390 (Colo.App. 1997), all recognize the differentiation between scheduled injuries and whole person injuries is a factual matter for resolution by the ALJ. In both Langton and Walker the Court of Appeals was careful to state that there was conflicting evidence, and that the claimants in those cases could have prevailed if the ALJs had resolved the conflicts in the evidence differently. In the Strauch case, the ALJ expressly found the claimant’s symptoms “only affected the use of her arm.”
IT IS THEREFORE ORDERED that ALJ’s order dated January 13, 2000, 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 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. 1999. 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 May 23, 2000
to the following parties:
Dino Duran, 670 Winnona Ct., Unit 37, Denver, CO 80204
Big O Tires, 7900 W. Quincy Ave., Denver, CO 80123
American Home Assurance, P.O. Box 32130, Phoenix, AZ 85064
Tina Gustafson, AIG Claim Services, P.O. Box 32130, Phoenix, AZ 85064
Erica West, Esq., 837 E. 17th Ave., Ste. 102, Denver, CO 80218
James B. Fairbanks, Esq., Prentice R. Ehret, Esq., 999 18th St., Ste. 1600, Denver, CO 80202
BY: A. Pendroy