W.C. No. 4-715-730.Industrial Claim Appeals Office.
January 5, 2010.
The claimant seeks review of an order of Administrative Law Judge Krumreich (ALJ) dated July 1, 2009, that ordered the claim for conversion to whole person impairment of the claimant’s left shoulder injury denied and dismissed. We affirm.
We initially discuss the procedural posture of the case. The order under review is dated July 1, 2009, although we note that the traditional certificate of mailing is absent from the order. The petition to review pursuant to § 8-43-301, C.R.S. 2009 is due within twenty days after the date of the certificate of mailing of the order. The claimant filed an unopposed motion for extension of time to file his petition to review. In the motion the claimant stated that neither party had received a copy of the order and so on July 31, 2009, he contacted the Office of Administrative Courts and informed them of that fact. The claimant in his motion further stated that the order was then emailed to the parties on July 31, 2009. The ALJ denied the motion granting the claimant’s unopposed motion for extension of time to file the petition to review but ordered that the time period for filing a petition for review would begin to run on July 31, 2009. The petition to review contains an August 3, 2009 certificate of mailing. Therefore, the petition to review appears to be timely. We note that the respondents have made no contrary contention. We conclude from this procedural status that the petition to review was timely and we have jurisdiction to review the order.
The claimant sustained an admitted injury on February 14, 2007. The claimant underwent a Division-sponsored independent medical examination (DIME). The DIME physician assigned the claimant a 10 percent impairment of the upper extremity. The
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respondents filed a Final Admission of Liability (FAL) on February 14, 2008 admitting for benefits based upon the 10 percent upper extremity impairment rating. The FAL was based on the DIME physician’s report.
The DIME physician opined that the pain localized to the trapeziums causing discomfort over the shoulder girdle area, but that this discomfort did not alter the claimant’s scapulothoracic motion. However, the doctor stated that it did cause discomfort and limitation with glenohumeral motion above 90 degrees. The claimant testified that his functional limitation was in raising his left arm.
The ALJ found that the claimant’s symptoms of discomfort are above the level of the arm or shoulder and the discomfort principally affects the movement of the claimant’s arm. The ALJ found that the claimant did not have functional impairment of his scapulothoracic motion and the trapeziums discomfort does not restrict the claimant’s ability to use a portion of his body proximal to the arm at the shoulder. The ALJ concluded that the claimant had failed to prove by a preponderance of the evidence that he had sustained functional impairment above the level of the arm at the shoulder.
The petition to review contains only general allegations of error, derived from § 8-43-301(8) C.R.S. 2009 and the contention that the evidence demonstrates that the ALJ erred in ruling that the claimant failed to establish by a preponderance of the evidence that his scheduled impairment rating should be converted to a whole person impairment rating for his left shoulder injury of February 14, 2007. The claimant also stated in his petition to review that he reserved the right to raise additional issues in his brief in support, but the claimant has not filed a brief in support of his petition to review. Therefore, the effectiveness of our review is limited Ortiz v. Industrial Commission, 734 P.2d 642 (Colo. App. 1986).
The question of whether the claimant sustained a “loss of an arm at the shoulder” within the meaning of § 8-42-107(2)(a), C.R.S. 2009 or a whole person medical impairment compensable under § 8-42-107(8)(c), C.R.S. 2009, 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).
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. 2009. 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
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determinations and plausible inferences drawn from the record Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo. App. 2003).
Here, based on numerous factual findings, the ALJ found that the claimant had failed to prove that he sustained functional impairment to a part of his body proximal to or beyond the arm at the shoulder. The claimant failed to provide a transcript of the hearing and, therefore, we must presume that the ALJ’s factual findings are supported by the record. Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo. App. 1988). It follows that we may not interfere with the ALJ’s conclusion denying the claimant’s claim for conversion to whole person impairment for his left shoulder injury of February 14, 2007. The fact that the evidence might support another result affords no basis for relief on appeal.
IT IS THEREFORE ORDERED that the ALJ’s order dated July 1, 2009 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant
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JAMES F DINAN, 24336 EAST OTTOWA AVENUE, AURORA, CO, (Claimant).
GALLAGHER BASSETT SERVICES, INC., Attn: LOLITA CRISLER-LIGGONS, SCHAUMBERG, IL, (Insurer).
FOGEL KEATING WAGNER POLIDORI AND SHAFNER, Attn: NICK D FOGEL, ESQ., DENVER, CO, (For Claimant).
LEE KINDER, LLC, Attn: TIFFANY SCULLY KINDER, ESQ., DENVER, CO, (For Respondents).