W.C. No. 4-185-360Industrial Claim Appeals Office.
February 8, 1996
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Wheelock (ALJ) which awarded the claimant medical impairment benefits based upon a forty-seven percent loss of use of her left upper extremity at the shoulder. We affirm.
The claimant sustained an injury to her left hand in July 1993. The treating physician, Dr. Pise, performed surgery described as a trapeziometacarpal arthrodesis.
Ultimately, Dr. Pise performed an impairment rating. Dr. Pise found that the claimant has a fifty-six percent impairment of her left thumb at the CMC joint, resulting from impaired range of motion. Dr. Pise also indicated that this rating converts to a twenty-two percent impairment of the hand, which in turn converts to a twenty percent impairment of the upper extremity.
The claimant was also examined by Dr. Cramer. Dr. Cramer’s rating chart reflects his opinion that the claimant has a forty percent impairment of the thumb as measured at the CMC joint. Dr. Cramer states that this impairment converts to a sixteen percent impairment of the hand, which in turn converts to a fourteen percent impairment of the upper extremity. In addition, Dr. Cramer opined that the claimant has a six percent upper extremity impairment attributable to peripheral nervous system impairment, and a thirty-five percent impairment attributable to peripheral vascular system impairment. Combining all of these impairments, Dr. Cramer opined that the claimant has a forty-seven percent upper extremity impairment.
In her order, the ALJ recognized the various opinions concerning the claimant’s medical impairment. However, the ALJ explicitly adopted the opinion of Dr. Cramer that the claimant “suffers from a peripheral vascular disease as well as extra-digital nerve injury which contribute and are considered” to be part of the claimant’s impairment. Consequently, the ALJ concluded that the claimant has a forty-seven percent upper extremity impairment.
In reaching this conclusion, the ALJ recognized the respondents’ argument that the impairment rating is limited to the claimant’s thumb under former Rule of Procedure XIV(P)(5), 7 Code Colo. Reg. 1101 at 61-62. However, the ALJ concluded that utilization of Rule XIV(P)(5) is “discretionary.” Moreover, the ALJ held that under the AMA Guides and Rule XIV(P)(5) the claimant’s impairment should be rated at the “closest proximal joint of the applicable distal body part which in this case would be the joint closest to the body, or the shoulder.”
On review, the respondents contend that the ALJ misinterpreted Rule XIV(P)(5) as a “discretionary” rule. Moreover, the respondents assert that the Rule XIV(P)(5), if properly applied, would have resulted in an award of benefits based upon loss of the thumb at the CMC joint. We reject this argument.
We begin with the premise that all ratings, to the extent possible, are to be based on the AMA Guides (Third Edition). Section 8-42-101(3)(a)(I), C.R.S. (1995 Cum. Supp.). However, as pointed out in Rule XIV(P)(5)(a), some of the “scheduled injuries” described in §8-42-107(2) do not correspond with the ratings which may be assessed under the AMA Guides. Consequently, Rule XIV(P)(5) was adopted for the purpose of rectifying the distinctions between the AMA Guides and the specific categories described in § 8-42-107(2).
XIV(P)(5)(b) and (c) provide as follows:
“b. In the case of an injury which causes the partial loss of use of any member specified in the scheduled injuries, as set forth in § 8-42-107(2), C.R.S. (1992 Cum. Supp.), the physician shall use, for purposes of rendering an impairment opinion pursuant to § 8-42-107(7)(b), supra, the most distal body part impairment rating according to the AMA Guides, 3rd ed. (rev.). The most distal body part is the body part farthest away from the central body.
c. In calculating partial loss of use benefits pursuant to § 8-42-107(7)(b), supra, the distal body part impairment provided by said physician shall be multiplied times the number of weeks corresponding to the scheduled injury set forth in § 8-42-107(2), supra, at the closest proximal joint of the distal body part rated by said physician. The closest proximal joint of the applicable distal body part is the joint closest to the central body. If multiple injuries exist to the same extremity, the impairments are to be combined before conversion to the closest proximal joint of the distal body part.”
The respondents’ argument is that, under Rule XIV(P)(5)(b), the ALJ was required to adopt an impairment of the thumb because that is the most “distal body part” rated by the physicians in this case. However, the respondents’ interpretation of the rule ignores that portion of Rule XIV(P)(5)(c) which states that, where there are multiple injuries to the same extremity, “the impairments are to be combined before conversion to the closest proximal joint of the distal body part.”
Here, the ALJ credited the opinion of Dr. Cramer that the claimant sustained an injury to not only her thumb, but also to the peripheral nervous and vascular systems of the upper extremity. Under such circumstances, Dr. Cramer appears to have concluded that the claimant sustained “multiple injuries” to her upper extremity and, under such circumstances, the most “distal body part” subject to a rating was the claimant’s entire upper extremity. Therefore, the ALJ correctly determined that the “closest proximal joint of the distal body part” rated was the claimant’s arm at the shoulder.
We note that this interpretation of Rule XIV(P)(5) is consistent with case law interpreting § 8-42-107(1)(a), C.R.S. (1995 Cum. Supp.). I Mountain City Meat Co. v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. 94CE0015, January 26, 1995), cert. granted, October 30, 1995, the court indicated that the term “injury,” as it appears in §8-42-107(1)(a), 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.” A plausible interpretation of Dr. Cramer’s rating is that it was not possible to rate the claimant’s entire injury at the thumb because a greater portion of the arm was physically disabled due to the industrial injury. In our view, Rule XIV(P)(5) is in no way inconsistent with this analysis.
We recognize that the rating of Dr. Pise might permit a different result. However, the ALJ was not persuaded by this rating, and we may not substitute our judgment for that of the ALJ concerning the weight and credibility of the medical evidence. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.); Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). Similarly, it was for the ALJ to determine which physician’s rating correctly reflected the rating requirements of the AMA Guides. See Metro Moving and Storage Co. v. Gussert, ___ P.2d ___ (Colo.App. No. 94CA1926, June 15, 1995) (proper application of AMA Guides is a question of fact).
Moreover, our holding in Guerrero v. Plastmold, Inc.,
W.C. No. 4-125-534, May 27, 1994, is not authority to the contrary. In that case, there was no evidence that the claimant sustained rateable impairment to any portion of his upper extremity other than the thumb at the CMC joint. Here, as we have pointed out, the record contains evidence of rateable impairment of other portions of the upper extremity.
Finally, we need not consider the respondents’ argument that ALJ erred in ruling that application of Rule XIV(P)(5) is “discretionary.” The ALJ’s holding that the claimant’s impairment is forty-seven percent of the upper extremity under the provisions of Rule XIV(P)(5) is correct, and therefore, consideration of the alternative holding is unnecessary.
IT IS THEREFORE ORDERED that the ALJ’s order, dated April 24, 1995, is affirmed.
INDUSTRIAL CLAIM APPEAL PANEL
___________________________________ David Cain
___________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate the Order iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver,Colorado 80203, by filing a petition to review with the court, withservice of a copy of the petition upon the Industrial Claim Appeals Officeand all other parties, within twenty (20) days after the date the Orderwas mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed February 8, 1996 to the following parties:
Judy G. Menk, 3019 E. Pikes Peak, Colorado Springs, CO 80909
Sally Beauty Co., Inc., 4144 Austin Bluffs Pkwy., ED-1, Colorado Springs, CO 80918-2928
Zurich American Insurance Group, Attn: Michelle Todd, 7007 College Blvd., Ste. 400,
Overland Park, KS 66211
Katherine H. Mackey, Esq., 1700 Broadway, Ste. 1910, Denver, CO 80290 (For the Respondents)
James A. May, Esq., 90 S. Cascade Ave., Ste. 300, P.O. Box 2940,
Colorado Springs, CO 80901-2940 (For the Claimant)
By: _______________________