W.C. No. 4-438-986Industrial Claim Appeals Office.
May 7, 2002
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Martinez (ALJ) which awarded permanent partial disability benefits based on medical impairment of the whole person. The respondents contend the award was erroneous because the claimant’s shoulder injury resulted in an impairment found on the schedule of disabilities. We affirm.
The claimant sustained an injury to his left shoulder in October 1999. Subsequently, the claimant underwent two surgeries and was ultimately placed at maximum medical improvement in April 2001.
On May 14, 2001, Dr. Price assessed a 21 percent impairment of the left upper extremity, which converted to a 13 percent whole person impairment. This rating was based on impaired range of motion of the shoulder joint and mild crepitus in the shoulder joint. On April 23, 2001, Dr. Heil examined the claimant and assessed an 18 percent upper extremity impairment, which converted to an 11 percent whole person impairment.
When questioned concerning his current symptoms, the claimant testified as follows:
When — like, when I do something with my left arm, it will hurt still down the front and on top, and driving long distances, it will hurt up into my neck and the outside shoulder; difficulty sleeping at times if you [sic] roll over on your arm the wrong way or get it out of where it’s — its comfort zone. (Tr. p. 7).
The claimant also testified that the reduced range of motion and pain in his shoulder causes difficulty performing numerous activities of daily living, including recreational activities. The claimant particularly testified to problems when performing overhead activities.
Crediting the claimant’s testimony, the ALJ found the claimant “continues to suffer symptomatology post-surgically into his shoulder and neck which substantially limits his ability to perform activities of daily living.” Consequently, the ALJ found the claimant sustained functional impairment to his shoulder, his neck, and his left arm. The ALJ then concluded that because the “functional impairment is to the shoulder and beyond, claimants is entitled to whole person benefits” based on impairment of 11 percent.
On review, the respondents contend the ALJ’s order is contrary to law and unsupported by substantial evidence in the record. We disagree.
It is well established that the question of whether the claimant sustained a “loss of an arm at the shoulder” within the meaning of §8-42-107(2)(a), C.R.S. 2001, or a whole person medical impairment compensable under § 8-42-107(8), C.R.S. 2001, is one of fact for determination by the ALJ. In resolving this question, the ALJ must determine the situs of the claimant’s “functional impairment,” and the site of the functional impairment is not necessarily the site of the injury itself. Langton v. Rocky Mountain Health Care Corp., 937 P.2d 883
(Colo.App. 1996); Strauch v. PSL Swedish Healthcare System, 917 P.2d 366
(Colo.App. 1996). In determining the situs of the functional impairment, the ALJ may consider a physician’s impairment rating, but such ratings are not dispositive. Strauch v. PSL Swedish Healthcare System, supra. Further, the ALJ may consider pain and discomfort which limits a claimant’s ability to use a portion of the body as evidence of “functional impairment.” Valles v. Arrow Moving Storage,
W.C. No. 4-265-129
(October 22, 1998); Salaz v. Phase II Co., W.C. No. 4-240-376
(November 19, 1997), aff’d. Phase II Co. v. Industrial Claim Appeals Office, (Colo.App. No. 97CA2099, September 3, 1998) (not selected for publication).
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. 2001. Substantial evidence is evidence supporting a reasonable belief in the existence of a fact without regard to the existence of conflicting evidence and contrary inferences Ackerman v. Hilton’s Mechanical Men, Inc., 914 P.2d 524 (Colo.App. 1996). The substantial evidence test requires us to view the evidence in a light most favorable to the prevailing party, and defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). Further, insofar as the testimony of a witness is subject to conflicting interpretations, the ALJ may resolve the inconsistency and credit that part of the testimony which the ALJ finds to be credible and persuasive. Johnson v. Industrial Claim Appeals Office, 973 P.2d 624 (Colo.App. 1997).
Moreover, an ALJ is not held to a standard of absolute clarity in expressing findings of fact and conclusions of law. Rather, it is sufficient for the ALJ to enter findings of fact and conclusions of law which reveal the reasoning which underlies the order. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385
(Colo.App. 2000).
The respondents contend the ALJ erred as a matter of law because he based the award of whole person medical impairment on the site of the injury, the shoulder, not the situs of the claimant’s functional impairment. The respondents assert the situs of the functional impairment is limited to the claimant’s arm.
However, reading the order in its entirety, we understand the ALJ to have found the claimant sustained permanent injury to structures beyond the arm, including the shoulder joint. Further, the ALJ found the claimant suffers from pain on top of the shoulder, in front of the shoulder, and this pain extends into the claimant’s neck. The ALJ also concluded the reduced range of motion and ongoing pain cause significant functional limitations involving overhead activities and repetitive motion. Finally, the ALJ concluded the “functional impairment is to the shoulder and beyond.” Thus, we have no difficulty in ascertaining the basis of the ALJ’s order, and have no doubt he recognized and applied the correct legal standard when considering the evidence.
The respondents next contend the order is erroneous because it is unsupported by substantial evidence, and the “only objective medical evidence” indicates the injury is on the schedule. In support of this argument, the respondents cite a report, dated June 9, 2000, in which Dr. Price expressed the opinion the claimant’s injury “should be considered an upper extremity impairment rather than whole person.”
Although relevant, the ALJ was not obliged to credit the opinion of Dr. Price. In this regard, we note Dr. Price’s opinion that the claimant’s impairment was limited to the “upper extremity” was issued prior to the time the claimant actually reached MMI after the second surgery. Moreover, it is not clear whether Dr. Price understands the distinction between impairment of the “upper extremity” as that concept is used in the AMA Guides, and that concept of “functional impairment” discussed in Strauch v. PSL Swedish Healthcare System, supra, and similar cases.
Moreover, the claimant’s testimony and other evidence cited by the ALJ constitute substantial evidence the claimant sustained functional impairment beyond the arm at the shoulder. The respondents’ assertion notwithstanding, the ALJ plausibly interpreted the claimant’s testimony, cited above, as proof the claimant has pain extending into the neck. The ALJ need not have interpreted this testimony to mean the claimant experiences neck pain only when he drives long distances. Moreover, the ALJ reasonably interpreted the claimant’s testimony to mean the pain which he feels on top of the shoulder, in front of the shoulder, and into his neck inhibit his ability to perform various activities, including overhead lifting. Thus, the ALJ plausibly concluded the claimant has “functional impairment” of structures of the body beyond the arm at the shoulder. Cf. Valles v. Arrow Moving Storage, supra.
Insofar as the respondents make other arguments, we find them to be without merit.
IT IS THEREFORE ORDERED that the ALJ’s order dated November 5, 2001, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ 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 Street, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed May 7, 2002 to the following parties:
Tom Richards, P. O. Box 391, Hotchkiss, CO 81419
Mountain Coal Company LLC, 5174 Highway 133, Somerset, CO 81434
Gwen Brightwell ESIS (CIGNA), P. O. Box 2941, Greenwood Village, CO 80150
James Fairbanks, Esq., 999 18th St., #1600, Denver, CO 80202-2416 (For Respondents)
Joanna Jensen, Esq., P. O. Box 4859, 225 N. 5th St., #1010, Grand Junction, CO 81502 (For the Claimant)
By: A. Hurtado