W.C. No. 4-238-397Industrial Claim Appeals Office.
August 15, 1996.
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Martinez (ALJ) which awarded him medical impairment benefits under the schedule of disabilities. We affirm.
The ALJ found that the claimant sustained a shoulder injury in September 1993. The claimant’s treating physician, Dr. Mayer, ultimately rated the claimant as suffering from a fourteen percent upper extremity impairment, which equates to an eight percent whole person impairment. An independent medical examination (IME) was performed by Dr. Knackendoffel. He opined that the claimant has a sixteen and one quarter percent upper extremity impairment, which equates to a ten percent whole person impairment.
Under the circumstances, the ALJ concluded that the claimant’s injury is found on the schedule. Specifically, the ALJ noted that none of the physicians gave an impairment rating for the claimant’s “neck, back, or head.” Thus, the ALJ awarded medical impairment benefits based upon a disability of sixteen and one quarter percent loss of the arm at the shoulder under § 8-42-107(2)(a), C.R.S. (1995 Cum. Supp.).
On review, the claimant contends that the evidence does not support the ALJ’s refusal to award medical impairment benefits based on a disability of the whole person. The claimant argues that the shoulder does not appear on the schedule, and that the shoulder is not part of the “arm” within the meaning of the schedule. In support of this proposition, the claimant relies on a section of the American Medical Association Guides to the Evaluation of Permanent Impairment (AMA Guides), and on a medical text which states that, anatomically speaking, the shoulder is not part of the arm. The claimant also cites his own testimony indicating that he has pain which runs from the shoulder joint towards the neck. We are not persuaded.
The question of whether an “injury” appears on the schedule is one of fact for resolution by the ALJ. In resolving this issue, the ALJ is to determine what part of the body has sustained the ultimate functional impairment, not the location of the body to which the specific injury occurred. If the functional impairment appears on the schedule, an award of medical impairment benefits under § 8-42-107(8), C.R.S. (1995 Cum. Supp.), is not appropriate. Strauch v. PSL Swedish Healthcare System, 917 P.2d 366 (Colo.App. 1996).
Further, the issue is not whether the AMA Guides or other medical texts treat the shoulder joint as part of the “arm” or the “torso.” This is true because the ALJ is not required to focus on the situs of the injury, or technical, anatomical distinctions employed by physicians. Rather, the ALJ must focus on the location of the ultimate “functional impairment.”Strauch v. PSL Swedish Healthcare System, supra.
Because the issue is factual in nature, we must uphold the ALJ’s findings if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.). In applying this standard, 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).
The claimant’s assertions notwithstanding, the record reflects that the ALJ applied the proper legal standard in determining that the claimant’s impairment is found on the schedule. The ALJ noted that none of the treating physicians rated the claimant as suffering from any “impairment” to any portion of his body beyond the shoulder joint. Further, the medical records suggest that the impairment of the claimant’s shoulder principally affects the movement of his arm. Further, the ALJ was free to consider the implications of the physicians’ ratings in determining the issue. Strauch v. PSL Swedish Healthcare System, supra.
It is true that some evidence in the record, including the claimant’s testimony concerning pain, might support a contrary finding and conclusion. However, the existence of conflicting evidence affords no basis for relief on appeal. May D F v. Industrial Claim Appeals Office, 752 P.2d 589 (Colo.App. 1988).
We also note the ALJ’s finding that the respondents failed to overcome the scheduled rating of Dr. Knackendoffel, the IME physician, by “clear and convincing evidence.”
However, we have long held that the IME procedure set forth in § 8-42-107(8)(c), C.R.S. (1995 Cum. Supp.), does not apply to scheduled injuries. See Mestas v. Curtice Burns Meat Snacks, Inc., W.C. Nos. 4-000-190, 4-159-948, May 24, 1994. Nevertheless, the respondents have not appealed, and thus, the ALJ’s error does not affect the result in this case.
IT IS THEREFORE ORDERED that the ALJ’s order dated March 4, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacatethe Order is commenced in the Colorado Court ofAppeals, 2 East 14th Avenue, Denver, Colorado 80203, byfiling a petition to review with the court, withservice of a copy of the petition upon the Industrial ClaimAppeals Office and all other parties, within twenty(20) days after the date the Order was mailed, pursuantto §§ 8-43-301(10) and 307, C. R. S. (1995 Cum.Supp.).
Copies of this decision were mailed August 15, 1996 to the following parties:
Guy Walker, P.O. Box 40162, Grand Junction, CO 81504
Jim Fuoco Motor Co., 741 N. 1st St., Grand Junction, CO 81501-2235
Colorado Compensation Insurance Authority, Attn: Marjorie J. Long, Esq. (Interagency Mail)
I.M.E. Unit, Attn: Faye Boyd (Interagency Mail)
Thomas W. Blake, Esq., 744 Horizon Ct., Ste. 360, Grand Junction, CO 81506 (For the Respondents)
Dan O. Adkins, Esq., 2301 E. Pikes Peak, Colorado Springs, CO 80909 (For the Claimant)
By: ____________________