W.C. No. 4-180-076Industrial Claim Appeals Office.
March 27, 1996
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Wheelock (ALJ) which awarded permanent partial disability benefits based upon medical impairment of 48 percent of the whole person. The respondents argue that the ALJ should have compensated that portion of the claimant’s impairment involving the upper extremities under the schedule of disabilities found at § 8-42-107(2), C.R.S. (1995 Cum. Supp.). We disagree, and therefore, affirm.
In 1993 the claimant injured his neck and shoulders while working for the respondent-employer. The respondents filed a Final Admission of Liability admitting liability for permanent partial disability benefits based upon 30 percent impairment of the whole person due to cervical impairment, and scheduled disability benefits based upon 20 percent impairment of the left upper extremity and 26 percent impairment of the right upper extremity.
Dr. Ciccone conducted an independent medical examination and rated the claimant’s impairment as 30 percent of the whole person due to the cervical injury, 20 percent of the left upper extremity which he converted to 12 percent of the whole person, and 26 percent of the right upper extremity which he converted to 16 percent of the whole person. The parties stipulated that Dr. Ciccone’s total rating equals 48 percent of the whole person, if the extremity ratings are converted to whole person ratings.
Crediting the testimony of Dr. Pero, the ALJ determined that the claimant’s shoulder injuries are compensable as impairment of the whole person. Alternatively, the ALJ concluded that Mountain City Meat Co. v. Industrial Claim Appeals Office, 904 P.2d 1333 (Colo.App. 1995), cert. granted October 30, 1995, compelled an order which compensated the claimant’s shoulder injuries as impairment of the whole person under §8-42-107(8), C.R.S. (1995 Cum. Supp.). Therefore, the ALJ ordered the respondents to pay permanent partial disability benefits based upon medical impairment of 48 percent of the whole person.
On appeal the respondents contend that the ALJ applied an incorrect legal standard in failing to compensate the shoulder injuries under the schedule of disabilities. We disagree.
As argued by the respondents, § 8-42-107(1)(a), C.R.S. (1994 Cum. Supp.), provides that permanent disability benefits are limited to benefits under the schedule of disabilities where the claimant suffers an injury or injuries described in § 8-42-107(2). Colorado AFL-CIO v. Donlon, ___ P.2d ___ (Colo.App. Nos. 93CA1392, 93CA1118, June 15, 1995). In contrast, subsection 8-42-107(1)(b) provides that permanent disability is limited to medical impairment benefits under § 8-42-107(8) where the claimant suffers an injury or injury not described in the schedule of disabilities. The respondents also correctly state that in this context, the term “injury” refers to the claimant’s functional impairment or, in other words, the part of the body that has sustained the ultimate loss. Mountain City Meat Co. v. Industrial Claim Appeals Office, supra; Strauch v. PSL Swedish Healthcare System (Colo.App. No. 95CA1042, March 21, 1996) (not selected for publication).
Here, Dr. Pero testified that part of the claimant’s permanent medical impairment rating by Ciccone pertained to the claimant’s “bilateral shoulder impingement.” (Tr. p. 9). Dr. Pero stated that shoulder impingement is a loss of range of motion “produced by swelling and inflammation of the spinatus and supraspinatus tendon,” which is attached to the neck and scapula, and thus, considered part of the “torso.” (Tr. pp. 10, 11). Further Dr. Pero stated that although the supraspinatus tendon is anatomically part of the arm, it is biomechanically part of the whole person. (Tr. p. 13).
The ALJ expressly credited Dr. Pero’s opinion concerning the claimant’s shoulder impingement, as well as Dr. Pero’s opinion that the supraspinatus tendons are part of the torso. Because the “torso” is not an impairment listed on the schedule of disabilities, the ALJ has necessarily determined that the claimant sustained “biomechanical” or “functional” impairment not described on the schedule of disabilities.
Under these circumstances, we reject the respondents’ contention that the ALJ failed to consider the situs of the claimant’s functional impairment in determining that the shoulder injuries could not be compensated as a scheduled disability. Similarly, we are not persuaded that the ALJ concluded as a matter of law that “any” shoulder injury causes permanent impairment of the whole person.
Furthermore, even if the ALJ erred in failing to find that the shoulder injuries resulted in a scheduled disability, the ALJ did not err in compensating the shoulder injuries under § 8-42-107(8). In Mountain City Meat Co., v. Industrial Claim Appeals Office, supra, the Court of Appeals held that where a claimant suffers an injury or injuries not on the schedule as well as an injury or injuries which are scheduled, all effects of that injury or injuries are to be compensated in accordance with § 8-42-107(8). See also Durocher v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. Nos. 94CE0024, 94CE0025, May 18, 1995).
The respondents do not dispute that the claimant has suffered permanent medical impairment to the whole person as a result of the cervical injury. Therefore, under Mountain City the ALJ properly compensated both the cervical and the shoulder injuries under § 8-42-107(8). The respondents contend that Mountain City is inconsistent with the legislative intent and the plain meaning of § 8-42-107, and therefore, argue that it was wrongly decided. However, the respondents’ arguments were rejected in Mountain City. Moreover, although Mountain City is pending review by the Colorado Supreme Court, we are bound by published opinions of the Court of Appeals. C.A.R. 35(f). Therefore, we must uphold the ALJ’s order insofar as she awarded permanent partial disability benefits for the claimant’s shoulder injuries in accordance with Mountain City Meat Co., v. Industrial Claim Appeals Office, supra.
IT IS THEREFORE ORDERED that the ALJ’s order dated June 8, 1995, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
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, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1995 Cum. Supp.).
Copies of this decision were mailed March 27, 1996 to the following parties:
Jerry L. Franks, 1514 N. Murray Blvd., Colorado Springs, CO 80915
C.G.F. Sign, Inc., 2120 Naegele Rd., Colorado Springs, CO 80904-3329
Colorado Compensation Insurance Authority, Attn: Brandee L. DeFalco, Esq. (Interagency Mail)
Jon C. Thomas, Esq., 1032 North Wahsatch Ave., Colorado Springs, CO 80903
(For the Claimant)
BY: _____