W.C. No. 4-551-161.Industrial Claim Appeals Office.
April 21, 2005.
FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Friend (ALJ) which awarded permanent partial disability benefits based on a whole person impairment. The respondent contends the record does not support the ALJ’s order converting the upper extremity impairment rating to a whole person rating. The respondent further argues the ALJ erred in finding that it failed to overcome the whole person rating of the Division-sponsored independent medical examination (DIME) physician by clear and convincing evidence. We affirm.
The claimant sustained a left shoulder injury in June 2002. A torn rotator cuff was discovered and surgically repaired. The treating physician placed the claimant at maximum medical improvement and restricted her to lifting no more than 20 pounds. A later functional capacities examination reduced the lifting restriction to five pounds.
The claimant underwent a DIME. The DIME physician assigned a 19 percent upper extremity impairment rating based on 4 percent impairment for reduced range of motion, 6 percent impairment for crepitus, and 10 percent impairment for rotator cuff “weakness.” The DIME physician also opined the 19 percent extremity rating “merits” conversion to an 11 percent whole person rating. In support, the DIME physician stated there is permanent loss of strength in the rotator cuff which “affects the left upper quadrant of the torso and the trunk.”
The respondent presented the report and testimony of Dr. Lesnak. Dr. Lesnak found no reduced range of motion or neurological condition warranting an impairment rating. However, he did assign a 5 percent upper extremity impairment for “other musculoskeletal system defects.”
The ALJ, implicitly crediting the opinion of the DIME physician, found the claimant’s functional impairment is not “limited to the arm at the shoulder.” Specifically, the ALJ found the injury was to the shoulder, the claimant’s discomfort is in the shoulder, and the claimant’s functional impairment is to the shoulder. Further, the ALJ found that the respondent failed to overcome the DIME physician’s 11 percent rating by clear and convincing evidence.
I.
On review, the respondent contends the evidence does not support the ALJ’s finding that the claimant proved entitlement to a whole person impairment rating rather than a scheduled rating for loss of the arm at the shoulder under § 8-42-107(2)(a), C.R.S. 2004. The respondent asserts the ALJ’s finding concerning the location of the injury “has no bearing” on the situs of the functional impairment, and that the finding concerning the situs of the functional impairment is “not supported by any medical evidence.” Finally, the respondent asserts that it is the “use of the arm” which causes the discomfort. We are not persuaded.
It is now 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), or a whole person medical impairment compensable under §8-42-107(8)(c), C.R.S. 2004, 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).
The AMA Guides’ definition of where the arm ends and where the torso begins is not dispositive of whether the claimant sustained a scheduled loss of the arm at the shoulder. Nevertheless, a physician’s rating under the AMA Guides “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. Further, we have held that pain and discomfort which limits a claimant’s ability to use a portion of his body may be considered a “functional impairment” for purposes of determining whether an injury is on or off the schedule. Eg. Beck v. Mile Hi Express, Inc., W.C. No. 4-238-483
(February 11, 1997).
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. 2004. This standard of review requires us to consider 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. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003).
The respondent’s assertion notwithstanding, the “situs of the injury” is relevant to, albeit not determinative of, the situs of the functional impairment. Here, the DIME physician’s report supports the ALJ’s finding that the situs of the injury was the shoulder joint, and that the injury produced functional impairment of the shoulder joint beyond the “arm at the shoulder.” This functional impairment is evidenced by limitation of strength in the “left upper quadrant” of the torso.
Moreover, the ALJ rejected the testimony of Dr. Lesnak. As the ALJ found, Dr. Lesnak admitted that the claimant has no “loss” of the left arm. (Tr. P. 13; Finding of Fact 5). Moreover, the ALJ correctly recognized that Dr. Lesnak’s opinion appears to be predicated on the erroneous assumption that an injury to the shoulder joint is necessarily restricted to the schedule unless there “is an injury proximal to the shoulder.” (Lesnak report P. 7; Tr. P. 16).
It follows there is substantial evidence to support the ALJ’s finding that the claimant proved an injury not found on the schedule. The fact that the evidence might support another result affords no basis for relief on appeal.
II.
The respondent next contends the ALJ erred in finding that it failed to overcome the DIME physician’s whole person impairment rating by clear and convincing evidence. The respondent relies on the opinions of Dr. Lesnak to support this argument. We find no error.
To the extent the respondent asserts that it was not required to overcome the DIME physician’s rating by clear and convincing evidence, we disagree. Once the ALJ determined that the claimant sustained whole person impairment, the DIME physician’s rating of the impairment became binding unless overcome by clear and convincing evidence. Section 8-42-107(8)(c); Delaney v. Industrial Claim Appeals Office, 30 P.3d 691
(Colo.App. 2000). Because the respondent sought to overcome the DIME physician’s rating, the respondent bore the burden of proof. Lambert Sons, Inc. v. Industrial Claim Appeals Office, 984 P.2d 656 (Colo.App. 1998).
The questions of whether the DIME physician properly applied the AMA Guides in arriving at the rating, and whether the rating is correct, present issues of fact for resolution by the ALJ. Wackenhut Corp. v. Industrial Claim Appeals Office, 17 P.3d 202 (Colo.App. 2000). Consequently, we must uphold the ALJ’s determination if supported by substantial evidence. Wilson v. Industrial Claim Appeals Office, supra.
Here, there was a conflict between the DIME physician’s rating and that of Dr. Lesnak. The DIME physician recorded lost range of motion and crepitus, but Dr. Lesnak did not. Moreover, both the DIME physician and Dr. Lesnak appear to have used “other musculoskeletal system defects” as a basis for assessing impairment of the rotator cuff. Whether, Dr. Lesnak’s opinion was of sufficient weight to overcome the DIME physician’s finding was an issue of credibility for the ALJ.
IT IS THEREFORE ORDERED that the ALJ’s order dated December 17, 2004, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________ David Cain
____________________ Kathy E. Dean
Alicia M. Meza-Vargas, Patty Malavasic, Excel Corporation, Margaret Johnson, Crawford Company, Fort Collins, CO, Britton Morrell, Esq., Greeley, CO, (For Claimant).
Christopher Condit, Esq., Denver, CO, (For Respondents).