W.C. No. 3-110-985Industrial Claim Appeals Office.
April 17, 1997
FINAL ORDER
The claimant seeks of an order of Administrative Law Judge Martinez (ALJ), which determined that the claimant is limited to a scheduled disability award of permanent partial disability benefits. We affirm.
In 1993, the claimant suffered compensable shoulder injuries. As a result, the claimant underwent a partial acromioplasty and rotator cuff repair. The treating physician, Dr. Hillmer, rated the claimant’s permanent medical impairment as three percent of the left shoulder and seven percent of the right shoulder which, under the AMA Guides, converts to a total of six percent impairment of the whole person. An independent medical examination (IME) was conducted by Dr. Brumfield who opined that, the claimant sustained an eleven percent impairment of the right upper extremity and a five percent impairment of the left upper extremity, which converts to ten percent impairment of the whole person. The respondents filed a Final Admission of Liability, admitting liability for scheduled disability benefits in accordance with Dr. Brumfield’s extremity rating.
The claimant objected to the Final Admission and asserted that respondents are liable for medical impairment benefits based upon ten percent whole person impairment, because he sustained functional impairment which is not listed on the schedule of disabilities. In support, the claimant testified that he suffers pain from his elbow to the top of his left shoulder, between his shoulder blades, and along the center of his back when he extends his arms straight forward. He also stated that he has a “knot” at the center of his back which occurs with prolonged use of his hands at or above his shoulders. (Tr. pp. 7, 9). To avoid this pain the claimant stated that he tries to keep his arms below his shoulder, and tries to get help when he has to lift something. (Tr. p. 11).
The ALJ recognized that the claimant suffers “intermittent symptomatology in his back and shoulder area not listed on the schedule of disabilities.” However, the ALJ found that all of the claimant’s “functional impairment” is attributable to his left and right shoulders, in areas that are listed on the schedule. Therefore, the ALJ determined that the claimant is limited to a scheduled disability award for permanent partial disability benefits.
On review the claimant contends that neither the evidence nor the applicable law supports the ALJ’s finding that the claimant’s functional impairment is fully enumerated on the schedule of disabilities. We disagree.
The applicable law provides that a claimant is entitled to permanent partial disability benefits based upon a whole person impairment if he suffers an “injury” which is not listed on the schedule. Section 8-42-107(1)(b), C.R.S. (1996 Cum. Supp.); Mountain City Meat Co. v. Oqueda, 919 P.2d 246 (Colo 1996). The “loss of an arm at the shoulder” is listed on the scheduled of disabilities. Section 8-42-107(2)(a), C.R.S. (1996 Cum. Supp.).
However, as argued by the claimant, a “shoulder injury” is not expressly listed on the schedule of disabilities. Therefore, the claimant argues that, as a matter of law, a “shoulder injury” is not a scheduled disability. The claimant recognizes that his argument was rejected in Strauch v. PSL Swedish Healthcare System, 917 P.2d 366
(Colo.App. 1996), and Langton v. Rocky Mountain Health Care Corp., ___ P.2d ___ (Colo.App. No. 95CA1984, November 7, 1996). However, the claimant contends that Strauch and Langton were wrongly decided, and seeks to preserve his argument on appeal.
The claimant’s argument notwithstanding, we are bound by published decisions of the Court of Appeals. C.A.R. 35(f). Furthermore, Strauch
and Langton represent the current state of the law concerning a claimant’s entitlement to medical impairment benefits for a “shoulder injury.” Consequently, to the extent that the ALJ’s order is consistent with Strauch and Langton, we are compelled to conclude that the ALJ’s order is supported by the applicable law.
Section 8-42-107(1)(a), C.R.S. (1996 Cum. Supp.) provides that where a worker suffers an “injury” which is listed on the schedule of disabilities, the worker is limited to a scheduled disability award of permanent partial disability benefits. In Strauch v. PSL Swedish Healthcare System, supra, the court held that, in the context of §8-42-107(1), the term “injury” refers to the claimant’s functional impairment, or in other words, the part or parts of the body which have been impaired or disabled as a result of the industrial injury. 917 P.2d at 36 ; see also Mountain City Meat Co, v. Industrial Claim Appeals Office, 904 P.2d 1333 (Colo.App. 1995), aff’d Mountain City Meat Co. v. Oqueda, 919 P.2d 246 (Colo 1996). Furthermore, in Strauch and Langton
the Court of Appeals concluded that the question of whether the claimant suffered functional impairment which can be fully compensated on the schedule of disabilities is a factual determination for the ALJ, and the ALJ’s resolution of the issue must be upheld if supported by substantial evidence in the record. But see Morris v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 96CA0863, February 6, 1996) (effects of a psychological injury must be “rateable” under AMA Guides before they can constitute a whole person impairment).
Strauch involved a claimant whose shoulder injury was diagnosed as a rotator cuff tear and shoulder impingement syndrome. The Court of Appeals concluded that the record supported an ALJ’s finding that the claimant’s functional impairment from the “shoulder injury,” was limited to the use of the claimant’s arm. Consequently, the Strauch court upheld the ALJ’s determination that the claimant was limited to scheduled disability benefits under § 8-42-107(2)(a).
Similarly, in Langton an ALJ found that the claimant’s functional impairment was limited to the use of her arm, even though she experienced a loss of range of motion in her shoulder, impairment of the peripheral nervous system and shoulder pain with overhead work. The Langton court concluded that the ALJ’s determination was supported by substantial evidence in the record, and therefore, the court upheld the ALJ’s determination that the claimant was limited to a scheduled disability award of benefits.
Contrary to the claimant’s argument, we did not conclude in Garcia v. Advanced Components Systems, Inc., W.C. No. 4-187-720, June 21, 1996, or Mader v. Popejoy Construction, Co., Inc., W.C. No. 4-198-489, August 9, 1996, aff’d. Popejoy Construction Co., Inc., (Colo.App. No. 96CA1508, February 13, 1997) (not selected for publication), that when the injured worker sustains a “shoulder injury” similar to the one described by the claimant in this matter, the “injury” is not listed on the schedule of disabilities. Rather, we cited Strauch and held that the nature of the worker’s functional impairment is a question of fact for the ALJ.
However, in Garcia we also stated that evidence of debilitating pain and discomfort beyond the arm may be evidence of “functional impairment of the whole person.” Specifically, the record in Garcia contained evidence that the worker’s left shoulder injury resulted in pain which limited movement of his “shoulder joint.” Furthermore, impairment to the “shoulder joint” is not listed on the scheduled of disabilities. Therefore, we held that the record supported the ALJ’s finding that the claimant’s industrial injuries resulted in functional impairment beyond the arm.
Similarly, in Mader, we concluded that evidence of pain in the claimant’s shoulders, chest and neck which limited movement of the claimant’s shoulder joint was sufficient to support the ALJ’s finding of functional impairment of the whole person. Therefore, we upheld the ALJ’s award of medical benefits based upon impairment of the whole person.
Unlike Mader and Garcia, the ALJ in this matter was not persuaded by the evidence concerning the claimant’s physical limitations that the claimant had functional impairment beyond the arm. Instead, the ALJ was persuaded by the medical evidence that neither Dr. Hillmer nor Dr. Brumfield included any rating for impairment to any part of the body except the upper extremity. Further, the ALJ noted that the medical evidence was consistent with the claimant’s report to Dr. Brumfield that his lifting and reaching was restricted but that he had no limitations in bending, sitting, standing, walking, stair climbing, and running.
The medical evidence which the ALJ found persuasive is sufficient to support the ALJ’s pertinent findings. Consequently, it is immaterial on review that the record, including Dr. Brumfield’s deposition, contains some evidence which, if credited, might support a finding of functional impairment of the whole person. F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985) (substantial evidence is probative evidence which would warrant a reasonable belief in the existence of facts supporting a particular finding, without regard to the existence of contradictory testimony or contrary inferences); Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968) (ALJ may credit all, part, or none of a witness’ testimony).
The claimant’s remaining arguments have been considered and do not alter our conclusion.
IT IS THEREFORE ORDERED that the ALJ’s order dated November 8, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate this Orderis commenced in the Colorado Court of Appeals, 2 East 14th Avenue,Denver, CO 80203, by filing a petition for review with the court, withservice of a copy of the petition upon the Industrial Claim AppealsOffice and all other parties, within twenty (20) days after the date thisOrder is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1996Cum. Supp.).
Copies of this decision were mailed April 17, 1997 to the following parties:
John M. VanGieson, 0194 Basalt Dr., Alamosa, CO 81101
Gosney Sons, Inc., P. O. Box 367, Bayfield, CO 81122
Brandee DeFalco-Galvin, Esq., Colorado Compensation Insurance Authority — Interagency Mail
Gail C. Harriss, Esq., 572 E. 3rd Ave., Durango, CO 81301 (For Claimant)
BY: _______________________