W.C. Nos. 4-195-164 3-974-350Industrial Claim Appeals Office.
October 18, 1995
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Gandy (ALJ) which awarded permanent partial disability benefits and medical benefits beyond maximum medical improvement. We affirm.
The claimant sustained two compensable upper extremity injuries. The claimant injured his right shoulder on March 12, 1990, and injured his left shoulder injury on May 12, 1993. Dr. Magsamen rated the claimant’s impairment from the 1990 injury as 26 percent of the right upper extremity or 16 percent of the whole person, and the claimant’s impairment from the 1993 injury as 56 percent of the left upper extremity. The parties agree that the claim for permanent partial disability benefits as a result of the 1990 injury is governed by the provisions of former § 8-42-110(3), C.R.S. (1990 Cum. Supp.) (the reemployment statute).
Insofar as pertinent, the ALJ determined that the claimant suffered permanent medical impairment of 16 percent of the whole person as a result of the 1990 injury, and ordered the payment of benefits in accordance with this determination. The ALJ also ordered the respondents to provide ongoing medical benefits.
The respondents contend that the ALJ erroneously applied the reemployment statute in awarding permanent partial disability benefits for the 1990 injury based upon a whole person medical impairment rather than a scheduled disability. We perceive no error.
Former § 8-42-110(3) provides that where the statute is applicable, the claimant’s “permanent partial disability award shall be limited to permanent medical impairment or a payment under § 8-42-107, whichever is less.” Where the claimant’s injury results in a “loss” which is enumerated on the schedule of disabilities, the claimant is limited to a payment under under § 8-42-107. Turner v. City and County of Denver, 867 P.2d 197
(Colo.App. 1993).
As we have previously stated, the issue of whether the claimant has sustained a loss which is enumerated on the schedule of disabilities, is a factual matter for resolution by the ALJ. City of Aurora v. Vaughn, 824 P.2d 825 (Colo.App. 1991); Jones v. Adolph Coors Co., 689 P.2d 681 (Colo.App. 1984). The resolution of this issue requires a determination of the part or parts of the claimant’s body which have been functionally impaired or disabled by the industrial injury. See Hawkeye-Security Insurance Co. v. Tupper, 152 Colo. 12, 380 P.2d 31 (1963); Mountain City Meat Co., v. Industrial Claim Appeals Office, 904 P.2d 1333
(Colo.App. 1995).
The fact that a claimant’s impairment is ratable as the loss of an extremity under the American Medical Association Guidelines to the Evaluation of Permanent Impairment (AMA Guides) is not dispositive of whether the claimant has suffered a “loss” enumerated in the schedule of disabilities. Elwood v. Sealy Corporation, W.C. Nos. 4-175-456, 4-178-995, June 23, 1995. In fact, the medical impairment ratings contained in the AMA Guides are inconsistent with the scheduled injury ratings contained in § 8-42-107. Mountain City Meat Co., v. Industrial Claim Appeals Office supra. To the contrary, the ALJ is free to consider any relevant evidence. Quick v. Contractors Crane Service, W.C. No. 4-160-963, May 10, 1995; Smith v. Denver Peterbilt, Inc., W.C. No. 4-115-281, January 27, 1994. Accordingly, Dr. Magsamen’s rating of the claimant’s impairment from the 1990 injury as the partial loss of use of the upper extremity was not binding on the ALJ.
Because the pertinent determination is factual in nature, we must uphold the ALJ’s findings if supported by substantial evidence and plausible inferences drawn from the record. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.); Suetrack USA v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. 94CA0094, February 9, 1995); General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118 (Colo.App. 1994). We must also defer to the ALJ’s credibility determinations and his assessment of the sufficiency and probative weight of the evidence. May D F v. Industrial Claim Appeals Office, 752 P.2d 589 (Colo.App. 1988).
Here the ALJ expressly credited the claimant’s testimony. The claimant testified that, as a result of the 1990 injury, he suffers pain in his fingers, neck and back between his shoulder blades. Tr. pp. 5, 9, 25. The schedule of disabilities does not include functional impairment of the neck or back. Accordingly, the claimant’s testimony supports the ALJ’s implicit determination that the claimant suffered an injury or injuries not listed on the schedule of disabilities.
Where the claimant’s impairment cannot be fully compensated by a award under § 8-42-107, the claimant is not limited to a scheduled disability award. Mountain City Meat Co., v. Industrial Claim Appeals Office, supra.
Under these circumstances, the ALJ did not err by awarding permanent partial disability benefits in the 1990 injury claim based upon impairment of the whole person. Wal-Mart Stores, Inc. v. Martinez (Colo.App. No. 92CA1380, July 29, 1993) (not selected for publication) (reemployment statute did not limit claimant to scheduled disability award where ALJ found that the claimant suffered injuries to the shoulder, neck and back).
The respondents also contend that the ALJ erroneously awarded continuing medical benefits. In support, the respondents argue that there is no evidence of a recommendation for a “particular course of medical treatment.” We disagree.
It is proper to award medical benefits beyond maximum medical improvement where the claimant presents substantial evidence that future medical treatment will be reasonably needed to relieve the effects of the injury or prevent further deterioration. Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988); Milco Construction v. Cowan, 860 P.2d 539
(Colo.App. 1992). Subsequently, in Stollmeyer v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 94CA1798, September 14, 1995), the Court of Appeals rejected the notion that Milco Construction requires proof that a “particular” or “specific course of treatment be anticipated or articulated,” at the time of the award. However, the court concluded that there was no evidence of a prescription or recommendation for any course of medical treatment in that record. Therefore, the Stollmeyer court held that the record was insufficient to support an award of Grover medical benefits.
Here, the ALJ expressly relied upon Dr. Magsamen’s letter dated June 15, 1994, and the claimant’s testimony to find that the claimant sustained his burden of proof for Grover medical benefits. The claimant testified that he continues to need a TENS unit and pain medication prescribed by Dr. Magsamen. Tr. pp. 8, 10. Dr. Magsamen opined that the claimant is likely to develop degenerative arthritis as a result of the right and left upper extremity injuries and indicated that the claimant “may require additional care including possible shoulder joint replacement surgery.” Therefore, unlike the facts in Stollmeyer, this record contains substantial evidence of a prescription or recommendation for ongoing medical treatment. Consequently, the ALJ’s award of Grover medical benefits is supported by the record and the applicable law.
IT IS THEREFORE ORDERED that the contested portion of the ALJ’s order dated April 15, 1995, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate this Order iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO80203, by filing a petition for review with the court, with service of acopy of the petition upon the Industrial Claim Appeals Office and allother parties, within twenty (20) days after the date this Order ismailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed October 18, 1995 to the following parties:
Ernest Sanchez, 415 W. Street, Ft. Collins, CO 80521
Ram Waste Systems, Inc., 5704 Bueno Dr., Ft. Collins, CO 80525-3879
Colorado Compensation Insurance Authority, Attn: C. Kriksciun, Esq., (Interagency Mail)
Thomas H. Moore, Esq., 425 W. Mulberry, Ste. 112, Ft. Collins, CO 80521-2896 (For the Claimant)
BY: _______________________