W.C. No. 4-198-489Industrial Claim Appeals Office.
August 9, 1996
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Erickson (ALJ) insofar as the ALJ awarded medical impairment benefits based upon whole person impairment under § 8-42-107(8), C.R.S. (1995 Cum. Supp.). The respondents contend that the claimant is limited to a scheduled disability award under § 8-42-107(2)(a), C.R.S. (1995 Cum. Supp.). We disagree, and therefore, affirm.
The ALJ found that the claimant suffered a compensable injury to his right shoulder, right hand, right elbow, right posterior lumbar area and right ribs. Crediting the opinion of Dr. Roth, the ALJ found that the claimant sustained functional impairment to the “shoulder joint.” In particular, the ALJ relied upon Dr. Roth’s testimony that “the muscles engaged . . . in shoulder girdle support and mobility [sic] and scapular stabilization — and that’s certainly part of the shoulder mechanism — are all tense and not working correctly.”
The ALJ further determined that the “shoulder joint” is not listed on the schedule of disabilities. Therefore, the ALJ determined that the claimant suffered an injury which must be compensated as impairment of the whole person under §8-42-107(8).
Dr. Roth rated the claimant’s permanent medical impairment as 21 percent of the upper extremity which he converted to 13 percent impairment of the whole person. Consequently, the ALJ ordered the respondents to pay benefits based upon 13 percent whole person impairment.
On review, the respondents contend that the ALJ erroneously based his award on “physiological” impairment “to the structure of the muscles in the claimant’s shoulder girdle,” rather than the claimant’s “functional” impairment. Further, the respondents contend that the claimant’s “functional” impairment is limited to the partial loss of use of the arm. In support, the respondents cite evidence that the claimant’s permanent medical restrictions only pertain to use of the arms. We reject this argument.
As argued by the respondents the claimant is limited to a scheduled disability award if his “injury” is listed on the schedule of disabilities. Section 8-42-107(1)(a), C.R.S. (1995 Cum. Supp.). In the context of § 8-42-107(1), 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, Mountain City Meat Co. v. Oqueda, ___ P.2d ___ (Sup. Ct. 95SC246, June 24, 1996); Strauch v. PSL Swedish Healthcare System, 917 P.2d 366 (Colo.App. 1996).
However, we have previously concluded that there is no rule or statute which requires that functional impairment take any particular form. See Garcia v. Advanced Component Systems, Inc., W.C. No. 4-187-720, June 21, 1996. Therefore, evidence of pain and discomfort which limit the claimant’s use of a portion of his body, may be considered “functional impairment.”See Carpenter v. Twin Landfill Co., W.C. No. 4-135-566, July 18, 1995; Elwood v. Sealy Corporation, W.C. No. 4-175-456, June 23, 1995.
The determination of whether the claimant suffered impairment which can be fully compensated under the schedule of disabilities is a factual determination for the ALJ. Strauch v. PSL Swedish Healthcare System, supra; Jones v. Adolph Coors Co., 689 P.2d 681 (Colo.App. 1984). Consequently, the issue on review is whether the ALJ’s finding that the claimant suffered functional impairment which is not listed on the schedule of disabilities is supported by substantial evidence and plausible inferences drawn from the record. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.); General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118 (Colo.App. 1994).
Contrary to the respondents’ contention the ALJ expressly recognized that he was required to determine the nature of the claimant’s “functional impairment.” (Discussion and Conclusions of Law, see also Summary Order October 27, 1995). Furthermore, the record contains substantial evidence to support the ALJ’s finding that the claimant suffered “functional” impairment not listed on the schedule of disabilities.
Dr. Roth testified that at the time of his rating the claimant was experiencing pain in his shoulders, chest, and pain “radiating up over the borders of the trapezius, into his neck and down to the midarm.” (Roth Depo. pp. 8, 19-20). Dr. Roth also stated that the claimant’s pain limits movement of the shoulder joint which includes performing overhead work. (Roth Depo. p. 15).
Similarly, the claimant testified that he continues to experience pain in his back, rib cage, shoulders, and between his shoulder blades as a result of the industrial injury. (Tr. pp. 14-15, 27, 30). The claimant added that this pain limits his ability to use his arms and shoulders. (Tr. pp. 14, 16, 30-31).
Moreover, the “shoulder joint” impairment described by the claimant and Dr. Roth is not enumerated on the schedule of disabilities. Therefore, we cannot say that the ALJ erred in finding that the claimant’s impairment must be compensated under § 8-42-107(8).
IT IS THEREFORE ORDERED that the ALJ’s order dated December 5, 1995, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL ____________________________________ David Cain ____________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify orvacate this Order is commenced in the Colorado Court of Appeals,2 East 14th Avenue, Denver, CO 80203, by filing a petition forreview with the court, with service of a copy of the petitionupon 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 August 9, 1996 to the following parties:
Albert J. Mader, P.O. Box 2034, Garden City, KS 67846
Popejoy Construction Co., Inc., P.O. Box 385, Ulysses, KS 67880-0385
Division of Workers’ Compensation, Attn: Faye Boyd, IME Coordinator (Interagency Mail)
Colorado Compensation Insurance Authority, Attn: Brandee L. DeFalco, Esq. (Interagency Mail)
Darla Scranton Specht, Esq., 200 S. Fifth St., P.O. Box 1079, Lamar, CO 81052 (For the Claimant)
BY: _______________________