W.C. No. 3-114-876Industrial Claim Appeals Office.
December 12, 1996
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Martinez (ALJ) which denied a claim for medical impairment benefits based upon impairment of the whole person, and determined that the claimant is limited to a scheduled disability award as provided by § 8-42-107(2)(a), C.R.S. (1996 Cum. Supp.). We affirm.
It is undisputed that the claimant suffered a compensable injury in 1994, and was subsequently diagnosed with bilateral thoracic outlet syndrome (TOS). Using the American Medical Association Guides to the Evaluation of Permanent Impairment (AMA Guides), Dr. Woelfel rated the claimant’s impairment as twenty-six percent of the left upper extremity, and eighteen percent of the right upper extremity, which he converted to eleven percent whole person impairment. In rating the claimant’s impairment, Dr. Woelfel measured the claimant’s impaired range of motion in both upper extremities, and applied Table 16 at page 47 of the AMA Guides entitled “Impairment of the Upper Extremity Due to Peripheral Vascular Disease.”
Crediting these ratings, the ALJ found that the claimant suffered an injury or injuries which are fully enumerated on the schedule of disabilities, to be compensated by an award for the partial “loss of an arm at the shoulder,” under §8-42-107(2)(a). In reaching this determination, the ALJ found that Dr. Woelfel did not issue an impairment rating for any part of the body except the left and right upper extremities. The ALJ also expressly relied upon Mountain City Meat Co. v. Oqueda, 919 P.2d 246 (Colo 1996), and Strauch v. PSL Swedish Healthcare System, 917 P.2d 366 (Colo.App. 1996), in which the courts held that, in the context of § 8-42-107, the term “injury” does not refer to the situs of the injury but rather, the manifestation in a part or parts of the body which have been impaired or disabled as a result of the industrial accident. Consequently, the ALJ approved the respondents’ Final Admission of Liability for the payment of a scheduled disability award consistent with Dr. Woelfel’s ratings of impairment to the upper extremities.
On appeal, the claimant contends that the ALJ’s order erroneously fails to take into account Dr. Woelfel’s “uncontroverted” testimony that the claimant suffered an injury to areas of the body besides the extremities. Specifically, the claimant relies upon Dr. Woelfel’s testimony that the area of injury from the TOS was the first cervical rib which is above the shoulder. The claimant also cites Dr. Woelfel’s testimony that the TOS has affected the claimant’s neck, shoulder and both hands. Therefore, the claimant argues that Dr. Woelfel’s testimony compelled the ALJ to award medical impairments based upon a whole person impairment. We disagree.
Initially we note that even “uncontroverted” medical testimony is not binding on the ALJ. Casa Bonita Restaurant v. Industrial Commission, 624 P.2d 1340 (Colo.App. 1981). To the contrary, the ALJ is free to credit all, part or none of an expert witness’ testimony. El Paso County Department of Social Services v. Donn, 865 P.2d 877 (Colo.App. 1993).
Furthermore, the ALJ is not required to make findings on every piece of evidence, only the evidence which he found persuasive and dispositive of the disputed issues. Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992). Similarly, the ALJ is not required to cite specific evidence before rejecting it as unpersuasive. Jefferson County Public Schools v. Dragoo, 765 P.2d 636 (Colo.App. 1988).
Here, the ALJ was implicitly unpersuaded by that part of Dr. Woelfel’s testimony which suggests that the claimant suffered permanent functional impairment to a part of the body other than the upper extremities. We may not substitute our judgment for that of the ALJ concerning the weight of the evidence, the credibility of the witnesses or the inferences to be drawn from the testimony. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995); Martinez v. Regional Transportation District, 832 P.2d 1060 (Colo.App. 1992). Consequently, the fact that the record contains some evidence, which if credited, might support a contrary result is immaterial on review, and does not establish grounds for appellate relief See Durocher v. Industrial Claim Appeals Office, 905 P.2d 4 (Colo.App. 1995) (substantial evidence is that quantum of probative evidence which a rational fact-finder would accept as adequate to support a conclusion, without regard to the existence of conflicting evidence).
Furthermore, the ALJ’s findings support his determination that the claimant did not suffer an “injury” to the whole person Mountain City Meat Co. v. Oqueda, supra; Strauch v. PSL Swedish Healthcare System. Thus, there is no basis for disturbing the scheduled disability award. Section 8-43-301(8), C.R.S. (1996 Cum. Supp.).
IT IS THEREFORE ORDERED that the ALJ’s order dated June 25, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Dona Halsey
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, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1996 Cum. Supp.).
Copies of this decision were mailed December 12, 1996
to the following parties:
Rochelle L. Seeker, 1230 W. Battlement Parkway, #C203, Parachute, CO 81635
D.H. Food Services, Inc., 51783 Hwy. 6 24, Glenwood Springs, CO 81601
Continental Divide Ins. Co., c/o Cornhusker Casualty Co., Attn: Iris Evans, 9290 W. Dodge Road Omaha, NE 68114
Thomas W. Blake, Esq., 744 Horizon Ct., Ste. 360, Grand Junction, CO 81506 (For the Respondents)
Connie K. Ward, Esq., 225 North 5th St., Ste. 1010, P.O. Box 4848, Grand Junction, CO 81502 (For the Claimant)
BY: _______________________