W.C. No. 4-291-488Industrial Claim Appeals Office.
April 23, 1998
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Henk (ALJ), which awarded the claimant permanent partial disability benefits based on medical impairment of nine percent of the whole person. We affirm.
The issue in the case is whether the effects of a tear of the claimant’s rotator cuff, and subsequent surgery, entitle him to scheduled impairment benefits under § 8-42-107(2)(a), C.R.S. 1997, or whole person medical impairment benefits under §8-42-107(8)(c), C.R.S. 1997. In resolving this issue, the ALJ found that the claimant underwent a Division-sponsored independent medical examination (IME) by Dr. Finn. Dr. Finn opined that the claimant has a fifteen percent impairment of the “right upper extremity,” which converts to a nine percent whole person impairment under the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition (Revised) (AMA Guides).
The ALJ credited the claimant’s testimony that, after he returned to work in December 1996, he experienced problems with his back when lifting, and had difficulty turning his head when looking in the rear view mirror of his truck. These problems were in addition to the continual pain he experiences in his shoulder joint.
The ALJ also credited the testimony of an examining physician, Dr. Ryan. Dr. Ryan testified that he observed the claimant has “globally limited” cervical range of motion. Further, Dr. Ryan noted atrophy of the supraspinatus and infraspinatus muscles. Dr. Ryan stated that these muscles are “proximal” to the claimant’s shoulder joint and attached to the claimant’s shoulder blade. Under these circumstances, Dr. Ryan opined that the claimant’s “functional impairment is proximal to the glenohumeral joint, and so the rating should therefore be considered to be a whole person rating.” (Dr. Ryan, December 16, 1996).
Based upon this evidence, the ALJ found that the claimant’s functional impairment is proximal to the glenohumeral joint and that the “next proximal joint involves translation to the axial skeleton.” The ALJ also found that the claimant’s testimony, and that of Dr. Ryan, demonstrates that the claimant’s body is functionally impaired beyond the upper extremity.
I.
On review, the respondents contend that the record does not contain substantial evidence to support a finding of functional impairment beyond that listed in § 8-42-107(2)(a) (loss of an arm at the shoulder). In support, the respondents cite evidence that the claimant did not report cervical and back problems to his treating physicians, or to Dr. Ryan. The respondents also assert that Dr. Ryan’s opinions are “conclusory” and do not demonstrate that the claimant sustained functional impairment beyond the shoulder. To the contrary, the respondents argue that the evidence presented by the claimant is “overwhelmed” by evidence which they presented. We are not persuaded.
It is now well established that the question of whether an injury to the shoulder has resulted in a scheduled or whole person impairment is one of fact to be determined by the ALJ. The test is whether the claimant’s “functional impairment” is or is not listed on the schedule. In this regard the location of the claimant’s “functional impairment” is not necessarily synonymous with the situs of the physical injury. Walker v. Jim Fuoco Motor Co., 942 P.2d 1390 (Colo.App. 1997); Langton v. Rocky Mountain Health Care Corp., 937 P.2d 883 (Colo.App. 1996), cert. denied
May 27, 1997; Strauch v. PSL Swedish Healthcare System, 917 P.2d 366 (Colo.App. 1996).
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. 1997. Substantial evidence is evidence which would support a reasonable belief in the existence of a fact without regard to contrary inferences and evidence. In applying the substantial evidence test we are obliged to defer to the ALJ’s resolution of conflicts in the evidence, as well as her credibility determinations and the plausible inferences which she drew from the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
The respondents’ argument notwithstanding, the record contains substantial evidence to support the ALJ’s finding of a whole person medical impairment. The claimant’s testimony supports the inference that the shoulder injury has impaired movement of his neck and back. Although the claimant did not report these conditions during his treatment for the industrial injury, he testified that these problems did not become apparent until after he returned to work and became physically active. The ALJ credited this evidence, and we may not substitute our judgment for hers concerning the credibility of the claimant’s testimony.
Moreover, the ALJ’s order is fully supported by the testimony of Dr. Ryan. Dr. Ryan’s testimony substantiates the existence of observable physical limitations and muscle atrophy which may logically be connected with the claimant’s shoulder injury. These problems are beyond the shoulder joint, and in fact involve muscles which attach to the claimant’s “axial” skeleton.
It is true that Dr. Ryan’s testimony contained some inconsistencies, and portions of it might be viewed as supporting the respondents’ position. However, the ALJ was free to credit that part of Dr. Ryan’s testimony which she found persuasive, and the mere presence of inconsistencies does not require us to interfere with the ALJ’s order. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968).
It is also true that the respondents presented evidence which would support the conclusion that the claimant suffered a scheduled injury. However, we cannot say that this evidence was so “overwhelming” that it required the ALJ to reach a different result.
II.
The respondents next contend that the ALJ incorrectly relied on the AMA Guides “to determine the situs of impairment for the glenohumoral joint as proximal to the arm.” However, we perceive no error.
As the claimant argues, the case law does not prohibit the ALJ from considering the AMA Guides when determining whether the situs of the functional impairment is on or off the schedule. Although an impairment rating under the AMA Guides is not to be confused with the determination of the situs of functional impairment, a “rating may be considered by the ALJ in determining whether the claimant’s functional impairment is fully described on the schedule of disabilities.” Strauch v. PSL Swedish Healthcare System, 917 P.2d at 368.
The totality of the ALJ’s findings reflect a correct application of the law in view of the facts. The ALJ merely considered the AMA Guides to the extent they assisted her in determining the location of the claimant’s functional impairment. The ALJ did not hold that the AMA Guides were determinative of this issue.
IT IS THEREFORE ORDERED that the ALJ’s order dated April 2, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL ________________________________ David Cain ________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate theOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, Colorado 80203, by filing a petition to reviewwith the court, with service of a copy of the petition upon theIndustrial Claim Appeals Office and all other parties, withintwenty (20) days after the date the Order was mailed, pursuant to§§ 8-43-301(10) and 307, C.R.S. 1997.
Copies of this decision were mailed April 23, 1998 to the following parties:
Tommy J. Rozzell, 2176 E. Woodmen Rd., Colorado Springs, CO 80920
Transit Mix Concrete Co., 444 E. Costilla, Colorado Springs, CO 80903-3761
Kim Bills, Gallagher Bassett Services, Inc., 7935 E. Prentice Ave., Ste. 305, Englewood, CO 80111
Mark E. Macy, Esq. Bernard Woessner, Esq., 3900 E. Mexico Ave., Ste. 1000, Denver, CO 80210 (For the Respondents)
K. Machelle Gielarowski, Esq., 3050 Austin Bluffs Pkwy., Ste. B., Colorado Springs, CO 80918 (For the Claimant)
By: __________________________________________________