W.C. Nos. 4-223-928, 4-201-879Industrial Claim Appeals Office.
December 31, 1997
FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Stuber (ALJ) which awarded medical impairment benefits based upon whole person impairment. We affirm.
On January 11, 1994, the claimant suffered a compensable injury to her right wrist, which is the subject of W.C. No. 4-201-879. On February 15, 1994, the claimant suffered a compensable injury to her shoulders, which is the subject of W.C. No. 4-223-928.
The claimant underwent a Division-sponsored independent medical examination by Dr. Woodcock on the issue of permanent medical impairment. Based upon the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition, Revised (AMA Guides), Dr. Woodcock reported that the injuries resulted in a 12 percent impairment of the right upper extremity, and an 11 percent impairment of the left upper extremity, which equals a combined impairment of 22 percent of the whole person.
The claimant was also evaluated by Dr. Harder, who rated the claimant’s impairment as 25 percent of the right upper extremity and 18 impairment of the left upper extremity. Dr. Harder included a rating for lost range of motion and mild crepitation in the shoulders. Dr. Harder also converted the extremity ratings to 24 percent of the whole person under the AMA Guides.
The claims were consolidated for hearing on the issue of permanent disability. At hearing, the parties stipulated that Dr. Woodcock’s impairment rating is binding. However, the parties disputed whether the claimant is entitled to permanent partial benefits based upon Dr. Woodcock’s extremity rating or whole person impairment rating.
Section 8-42-107(1), C.R.S. 1997, provides that the claimant is limited to a scheduled disability award if the claimant suffers an “injury or injuries” described in § 8-42-107(2), C.R.S. 1997. Colorado AFL-CIO v. Donlon, 914 P.2d 396
(Colo.App. 1995). Section 8-42-107(2)(a), C.R.S. 1997, provides that the partial “loss of an arm at the shoulder” is a scheduled disability.
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. 1997 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, 917 P.2d 366 (Colo.App. 1996). Thus, the issue before the ALJ was whether the claimant sustained functional impairment which is fully enumerated on the schedule of disabilities.
Crediting the testimony of the claimant, the ALJ found that the claimant has pain, discomfort, loss of motion, and crepitation at the glenohumeral joint and into the anterior chest wall. Further, the ALJ credited Dr. Harder’s testimony that the glenohumeral joint is part of the shoulder, and proximal to the arm, which is not enumerated on the schedule of disabilities. Therefore, the ALJ determined that the claimant sustained functional impairment which is not on the schedule of disabilities, and ordered the respondent to pay medical impairment benefits based upon Dr. Woodcock’s rating of 22 percent whole person impairment.
I.
Initially, we reject the respondent’s contention that the ALJ failed to award permanent disability benefits in W.C. No. 4-201-879. The caption on the ALJ’s Findings of Fact, Conclusions of Law, and Order expressly lists W.C. No. 4-201-879.
Furthermore, it is clear from the record that the ALJ’s award of medical impairment benefits based upon a 22 percent whole person impairment is the permanent partial disability benefits for both 1994 injury claims This is illustrated by the facts that the claims were consolidated for hearing on the issue of permanent partial disability, and were both addressed at the hearing. Moreover, Dr. Woodcock expressly referenced the claimant’s 1994 right wrist injury in calculating the claimant’s total impairment.
II.
The respondent also contends that the ALJ’s award of whole person impairment benefits is not supported by the evidence or the applicable law. We disagree.
The question of whether an injury has resulted in functional impairment listed on the schedule of disabilities is a question of fact for resolution by the ALJ, which must be upheld if supported by substantial evidence in the record. 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).
Application of the substantial evidence test also requires that we defer to the ALJ’s credibility determinations and assessment of the probative value of the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995); Dow Chemical Co. v. Industrial Claim Appeals Office, 843 P.2d 122 (Colo.App. 1992) (ALJ free to credit one medical opinion to the exclusion of a contrary medical opinion). Consequently, if the ALJ’s determination is supported by substantial evidence in the record, we need not consider whether the record contains some evidence which, if credited, might support a contrary determination. See F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985).
Furthermore, the courts have held that damage to 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, supra; Strauch v. PSL Swedish Healthcare System, supra; Langton v. Rocky Mountain Health Care Corp., supra. For example, Strauch
involved a claimant whose shoulder injury was diagnosed as a rotator cuff tear and shoulder impingement syndrome. The Court of Appeals concluded that the record supported an ALJ’s finding that the claimant’s functional impairment from the “shoulder injury” was limited to the use of the claimant’s arm. Consequently, th Strauch court upheld the ALJ’s determination that the claimant was limited to a scheduled disability award.
In Langton, an ALJ found that the claimant’s functional impairment was limited to the use of her arm, even though she experienced a loss of range of motion in her shoulder, impairment of the peripheral nervous system, and shoulder pain with overhead work. The Langton court concluded that the ALJ’s determination was supported by substantial evidence in the record, and therefore, the court upheld the ALJ’s determination that the claimant was limited to a scheduled disability award.
Similarly, in Walker, the court held that where there was no medical impairment rating beyond the shoulder, and the claimant’s impairment principally affected the claimant’s arm movements, the record supported the ALJ’s determination that the claimant sustained functional impairment listed on the schedule.
However, there is no requirement that functional impairment take any particular form in order to be compensable under §8-42-107(8). Garcia v. Advanced Component Systems, Inc.,
W.C. No. 4-187-720, June 21, 1996,. 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).
Here, the claimant testified that she has pain in her shoulders and chest wall. (Tr. pp. 15, 16, 17, 18). She stated that the pain interferes with her ability to perform various activities including cleaning, shopping, sleeping, reaching and cooking. (Tr. pp. 19, 25). The claimant’s testimony, together with the medical evidence the ALJ found persuasive, contains substantial evidence of functional impairment beyond the arm.
Dr. Harder testified that the chest wall is not part of the upper extremity. (Tr. p. 34). Further, Dr. Harder stated that under the AMA Guides the “shoulder” is the glenohumeral joint and the “arm” ends at the glenohumeral joint (Tr. p. 30-31). Dr. Harder also opined that due to a rotary cuff injury and impingement syndrome in both shoulders, the claimant has sustained functional impairment to the part of the body above the arm. (Tr. pp. 32, 36).
As found by the ALJ, Dr. Harder’s testimony is buttressed by the evidence that Dr. Yarnell, Dr. Woodcock, and Dr. Chan found a loss of range of motion in the claimant’s shoulders and crepitation in the glenohumeral joint bilaterally. In fact, Dr. Yarnell included an impairment rating for rotator cuff tendinitis.
A plausible inference from this medical evidence is that the claimant has functional impairment beyond the partial loss of use of the arm. See Industrial Commission v. Royal Indemnity Co., 124 Colo. 210, 236 P.2d 293 (1951) (appellate issue is whether the evidence when viewed in the light most favorable to the prevailing party, is sufficient to support the ALJ’s pertinent findings). Therefore, we must uphold the ALJ’s determination that the claimant suffered functional impairment of the whole person. Consequently, the ALJ did err in ordering the respondent to pay permanent partial disability benefits consistent with Dr. Woodcock’s whole person impairment rating.
IT IS THEREFORE ORDERED that the ALJ’s order dated July 17, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Kathy E. Dean
______________________________ Bill Whitacre
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. 1997.
Copies of this decision were mailed December 31, 1997 to the following parties:
Susanna S. Goff, 6800 E. Tennessee, #631, Denver, CO 80224
City County of Denver, 1445 Cleveland Pl., Rm. 200, Denver, CO 80202-5306
Tina M. Southard, Worker’s Compensation Unit, 1445 Cleveland Pl., #303, Denver, CO 80202
Division of Labor Employment, Attn: Faye Boyd, IME Coordinator (Interagency Mail)
Pepe Mendez, Esq. 700 Broadway, Ste. 1101, Denver, CO 80203 (For the Claimant)
Richard H. Glasman, Esq., 777 E. Speer Blvd., Ste. 210, Denver, CO 80203 (For the Respondent)
Olivia Hudson Smith, Esq., 1445 Cleveland Pl., Ste. 200, Denver, CO 80202 (For the Respondent)
By: _______________________________