W.C. No. 4-187-720Industrial Claim Appeals Office.
June 21, 1996
FINAL ORDER
The respondents seek review of a final order of Chief Administrative Law Judge Felter (ALJ) which awarded the claimant medical impairment benefits based upon an impairment of four percent of the whole person. We affirm.
The ALJ found that the claimant sustained an admitted injury to his left shoulder in September 1993. This injury resulted in a shoulder arthroscopy and arthroscopic subacromial decompression.
After reaching maximum medical improvement, the claimant underwent a division sponsored independent medical examination (IME) by Dr. Stabel. In a report dated June 14, 1995, Dr. Stabel opined that, under the American Medical Association Guides to the Evaluation of Permanent Impairment (AMA Guides), the claimant has a six percent impairment of the upper extremity, which equates to a four percent whole person impairment. Dr. Stabel noted that the claimant’s employment has been “adapted” and he is “working at table level” because he “really cannot do things overhead.”
The claimant was also examined by Dr. Harder who opined that the claimant has a nine percent whole person impairment “due to loss of movement.” The ALJ noted that Dr. Harder found greater crepitation in the joint than did Dr. Stabel.
The ALJ concluded that the claimant has a four percent whole person impairment. In so doing, the ALJ found that Dr. Harder’s testimony was “credible concerning where the claimant’s injury occurred.” Moreover, the ALJ stated that, “as a matter of fact, the claimant’s functional impairment of the left arm is above the level of the arm at the shoulder.” In support of this proposition, the ALJ cited the claimant’s testimony that he has “functional impairment of his body above the level of his arm” including “difficulty in sleeping, crepitus, pain with motion of the shoulder, atrophy on the shoulder and on the chest.” However, the ALJ determined that Dr. Stabel’s whole person rating was not overcome by clear or convincing evidence.
On review, the respondents contend that the ALJ’s award based on a whole person impairment is contrary to the facts and law. The respondents assert that there is no evidence of “functional impairment” beyond the claimant’s arm, and that “pain or symptoms” do not equate to functional impairment. Moreover, the respondents assert that the ALJ erred as a matter of law in concluding that an injury to the shoulder joint cannot be rated under the schedule.
The term “injury” is used in § 8-42-107(2) C.R.S. (1995 Cum. Supp.), refers to the “manifestation in a part or parts of the body which have been impaired or disabled as a result of the industrial accident.” Strauch v. PSL Swedish Health Care System, ___ P.2d ___ (Colo.App. No. 95CA1042, April 18, 1996). Further, the question of whether the claimant has suffered a functional impairment listed on the schedule is a factual one to be resolved by the ALJ. Strauch v. PSL Swedish Health Care System, supra.
Because the issue is factual in nature, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.). In this regard, it is for the ALJ to assess the weight and credibility of the medical evidence, as well as the claimant’s testimony See Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
The respondents’ argument notwithstanding, the record contains substantial evidence to support the ALJ’s order. The claimant’s testimony, as corroborated by Dr. Harder, indicates the claimant has lost both mass and strength in muscles located beyond the claimant’s arm. (Tr. pp. 23-24, 41-42). Based on Dr. Stabel’s report, the ALJ could logically infer that this loss of strength has impaired the claimant’s ability to do overhead work.
Moreover, there is no requirement that functional impairment take any particular form in order to be compensable under §8-42-107(8). Therefore, we see no reason why “symptoms” of pain and discomfort which interfere with a person’s ability to use a portion of the body may not be considered “impairment” for purposes of Strauch v. Industrial Claim Appeals Office.
Therefore, the evidence fully supports the ALJ’s factual determination that the claimant sustained functional impairment beyond that described in § 8-42-107(2)(a).
In view of this holding, we need not consider the respondents’ argument that the ALJ erred as a matter of law in concluding that an injury to a part of the body “above the shoulder” is not on the schedule. Although we do not necessarily agree with the respondents’ interpretation of the order, we need not reach this “legal” issue. The ALJ has found, on substantial evidence, that the claimant sustained functional impairment beyond the shoulder. This determination is sufficient as a matter of law, and we need not go beyond it.
IT IS THEREFORE ORDERED that the ALJ’s order dated January 30, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacatethe Order is commenced in the Colorado Court of Appeals, 2 East14th Avenue, Denver, Colorado 80203, by filing a petition toreview with the court, with service of a copy of thepetition upon the Industrial Claim Appeals Office and all otherparties, within twenty (20) days after the date the Order wasmailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. (1995Cum. Supp.).
Copies of this decision were mailed June 21, 1996 to the following parties:
Natividad Garcia, 1015 Sir Galahad, Lafayette, CO 80026
Advanced Component Systems, Inc., 1201 S. Boulder Rd., Lafayette, CO 80026-2029
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)
Jeffrey J. Cowman, Esq., 1900 Wazee, Ste. 300, Denver, CO 80202 (For the Respondents)
By: ______________________