W.C. No. 4-441-206Industrial Claim Appeals Office.
January 28, 2002
FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Stuber (ALJ) which awarded permanent partial disability benefits based on 4 percent whole person impairment. The respondent contends the ALJ’s order is contrary §§ 8-42-107(2)(b)(I) (II), C.R.S. 2001. We disagree and, therefore, affirm.
On February 4, 2000, the claimant suffered a compensable right shoulder injury which was diagnosed as a SLAP 11 tear of the labrum. Dr. Gehret performed surgery to repair the SLAP lesion and subacromial bursitis. At maximum medical improvement Dr. Gehret rated the claimant’s range of motion deficits to the right shoulder as 11 percent impairment of the right upper extremity which he determined equaled 7 percent whole person impairment.
The claimant subsequently underwent a Division-sponsored independent medical examination (DIME) by Dr. Woodcock. Dr. Woodcock opined the claimant’s range of motion had improved since Dr. Gehret’s rating. Dr. Woodcock assigned a 7 percent rating for impairment to the right upper extremity which he determined equaled 4 percent whole person impairment under page 16, Table 3 of the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition, Revised. In so doing, Dr. Woodcock opined that the pathology of the claimant’s permanent impairment was proximal to the shoulder capsule and that the functional impairment involved movement of the shoulder, not just the arm. (Woodcock depo. pp. 7, 11).
The ALJ found the claimant has functional limitations proximal to the glenohumeral joint, specifically to the muscles in the torso. The ALJ also found the claimant’s shoulder range of motion deficits are not due to functional impairment of the arm distal to the glenohumeral joint. Consequently, the ALJ determined the claimant’s permanent impairment is not enumerated on the schedule of disabilities and awarded permanent partial disability benefits based on 4 percent whole person impairment. The respondent timely appealed.
Section 8-42-107(1), C.R.S. 2001, 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. 2001. Strauch v. PSL Swedish Healthcare System, 917 P.2d 366 (Colo.App. 1996). Where the claimant suffers an injury not enumerated in § 8-42-107(2), the claimant is entitled to whole person impairment benefits under §8-42-107(8). Mountain City Meat Co. v. Oqueda, 919 P.2d 246 (Colo. 1996). Oqueda also held that when a work-related accident results in at least one injury that is listed on the schedule, and at least one injury that is not listed on the schedule, the scheduled injury must be converted to a whole person impairment rating, so that all effects of the accident are compensated as a percentage of whole-person impairment.
Sections 8-42-107(7)(b)(I) (II), 2001 [1999 Colo. Sess. Laws, Ch. 103 at 298 which apply to injuries that occur after July 1, 1999], were enacted to overrule Oqueda and ensure that when the claimant sustains both scheduled and nonscheduled injuries, the loss shall be compensated on the schedule for scheduled injuries. Accordingly, §8-42-107(7)(b)(II) provides that:
“[W]here an injury causes a loss set forth in the schedule in subsection (2) of this section and a loss set forth for medical impairment benefits in subsection (8) of this section, the loss set forth in the schedule found in said subsection (2) shall be compensated solely on the basis of such schedule and the loss set forth in said subsection (8) shall be compensated solely on the basis for such medical impairment benefits specified in subsection (8).
It follows that § 8-42-107(7) (b)(II) precludes the conversion of a scheduled disability to a whole person impairment rating for purposes of combining a scheduled disability with whole person impairment. However, we agree with the ALJ that § 8-42-107(7)(b)(II) does not govern this claim.
In this case, the claimant sustained a single injury and the issue before the ALJ was whether the resulting impairment was set forth on the schedule of disabilities. The ALJ did not combine a scheduled disability rating with a whole person rating, and thus §8-42-107(7)(b)(II) is not applicable.
Neither did the ALJ convert a scheduled disability to a whole person impairment rating. Therefore we do not consider the respondent’s argument that the ALJ’s order is barred by our conclusions in Berumen v. Arapahoe County, W.C. No. 4-114-314 (October 27, 1999). Rather, the ALJ determined the claimant suffered a single rateable impairment to the shoulder which was not listed on the schedule of disabilities.
We also agree with the ALJ that neither § 8-42-107(7)(b)(I) nor (II) amended the process for determining whether the claimant has suffered a scheduled injury. See Dependable Cleaners v. Vasquez, 883 P.2d 583 (Colo.App. 1994) (when General Assembly does not amend statute it must be presumed that General Assembly has endorsed court’s interpretation of statute). 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, supra. The determination of the claimant’s functional impairment is one of fact for determination by the ALJ and we must uphold the ALJ’s order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2001.
Further, “functional impairment” need not take any particular form. The Court of Appeals has held that, depending on the particular facts of a claim, damage to the 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, 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). 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); Elwood v. Sealy Corporation, W.C. Nos. 4-175-456, 4-178-995 (June 23, 1995). I 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). In determining the situs of the claimant’s functional impairment, the ALJ may consider the opinions of the DIME physician.
Here, the ALJ was persuaded by the opinions of the DIME physician that the claimant’s functional impairment from the industrial injury was not limited to loss of use of the arm at the shoulder within the meaning of § 8-42-107(2)(a), C.R.S. 2001. The ALJ’s finding is a plausible interpretation of Dr. Woodcock’s testimony and, is buttressed by the claimant’s testimony. Therefore, we are bound by the ALJ’s determinations on review.
Moreover, the ALJ correctly determined that § 8-42-107(7)(b)(I) (II) did not alter the list of scheduled injuries. Contrary to the respondent’s contention permanent impairment to the “upper extremity,” is not explicitly included as a scheduled injury under § 8-42-107(2). Neither is shoulder impairment, impairment proximal to the shoulder capsule, or impairment to the muscles of the torso. Consequently, the ALJ’s findings support the conclusion the claimant suffered an “injury” to be compensated as whole person impairment under § 8-42-107(8).
IT IS THEREFORE ORDERED that the ALJ’s order dated September 10, 2001, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Robert M. Socolofsky
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, within twenty (20) days after the date this Order is mailed, pursuant to §8-43-301(10) and § 8-43-307, C.R.S. 2001. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed January 28, 2002 to the following parties:
Wayne Price, 2525 S. Dayton Way, #1401, Denver, CO 80231
United Airlines, Jeff LaBelle, Gallagher Bassett, P. O. Box 4068, Englewood, CO 80155-4068
John A. Steninger, Esq., 4500 Cherry Creek Drive South, #930, Denver, CO 80246 (For Claimant)
Lynn P. Lyon, Esq. and Jason Wilson, Esq., 999 18th St., #3100, Denver, CO 80202 (For Respondent)
BY: A. Pendroy