Opinion
W.C. No. 4-300-559
November 24, 1997
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) which denied his request for permanent partial disability benefits based upon medical impairment of the whole person. We affirm.
The claimant suffered a compensable injury to his left shoulder. Dr. Yarnell performed a Division-sponsored independent medical examination and rated the claimant's permanent medical impairment as 12 percent of the left upper extremity, which he converted to 7 percent impairment of the whole person under the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition, Revised (AMA Guides). The claimant was also evaluated by Dr. Harder, who rated the claimant's impairment as 14 percent of the whole person due to impairment of the left upper extremity and cervical spine.
Section 8-42-107(1), C.R.S. 1997, provides that the claimant is limited to a scheduled disability award if the claimant suffers an "injury or injuries" described in § 8-42-107(2), C.R.S. 1997. Colorado AFL-CIO v. Donlon, 914 P.2d 396 (Colo.App. 1995). Where the claimant suffers an injury or injuries not enumerated in § 8-42-107(2), the claimant is limited to whole person impairment benefits under § 8-42-107(8). Mountain City Meat Co. v. Oqueda, 919 P.2d 246 (Colo. 1996). In the context of § 8-42-107(1), the term "injury" refers to the part or parts of the body which have been functionally impaired or disabled as a result of the injury. Mountain City Meat Co., v. Industrial Claim Appeals Office, supra; Strauch v. PSL Swedish Healthcare System, 917 P.2d 366 (Colo.App. 1996).
From conflicting evidence, the ALJ found that the claimant sustained functional impairment consisting of a loss of range of motion of the arm and crepitus with motion in the arm. Consequently, the ALJ determined that the claimant is limited to a scheduled disability award and denied the claimant's request for whole person impairment benefits.
I.
The claimant has filed a motion requesting that we consolidate our review in this claim with our review of an order issued by the ALJ on July 7, 1997, in Montoya v. Colorado Asphalt, W.C. No. 4-266-103. The claimant filed a similar motion with the ALJ, which the ALJ denied upon receipt of the respondents' objection.
Both claims involve scheduled disability awards for "shoulder" injuries. Further, the claimants make similar arguments on appeal. Nevertheless, the claims do not involve the same employers or the same insurers, and each order turned on the ALJ's resolution of a factual dispute concerning the nature of the claimant's functional impairment. Under these circumstances, we decline to consolidate the claims on review. Section 8-43-301(9), C.R.S. 1997; Roe v. Industrial Commission, 734 P.2d 138 (Colo.App. 1986).
II.
On review, the claimant argues that the ALJ erred in finding that he sustained "functional impairment" enumerated on the schedule of disabilities. In support, the claimant relies upon evidence that the AMA Guides define the "shoulder" as the glenohumeral joint, and the claimant has impairment due to crepitation in the acromioclavicular joint which is above the glenohumeral joint. Therefore, the claimant argues that he suffered functional impairment above the "shoulder" to the whole body. The claimant also argues that the schedule of disabilities does not include impairment "above the shoulder" or impairment of the "upper extremity." Therefore, the claimant argues that, as a matter of law, his injury must be compensated as impairment of the whole person. We disagree.
The question of whether an injury has resulted in functional impairment listed on the schedule of disabilities is a question of fact for the ALJ which must be upheld if supported by substantial evidence in the record. Walker v. Jim Fouco Motor Company, 942 P.2d 1390 (Colo.App. 1997); Strauch v. PSL Swedish Healthcare System, supra; Langton v. Rocky Mountain Health Care Corp., 937 P.2d 883 (Colo.App. 1996). Furthermore, the court has held that, depending on the particular facts of a claim, damage to the structures of the "shoulders" may or may not reflect a "functional impairment" which is enumerated on the schedule of disabilities. See Walker v. Jim Fouco Motor Company, supra; Strauch v. PSL Swedish Healthcare System, supra; Langton v. Rocky Mountain Health Care Corp., supra.
For example, 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).
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.
Similarly, in Walker, the court held that where there was no medical impairment rating beyond the shoulder, and the claimant's impairment principally affected the claimant's arm movements, the record supported the ALJ's determination that the claimant sustained functional impairment listed on the schedule.
Here, the record is susceptible to conflicting inferences concerning the extent of the claimant's functional impairment. The ALJ resolved conflicts based upon his decision to credit the opinions of Dr. Roth and Dr. Yarnell over the opinions of Dr. Harder. (Findings of Fact 5, 6). We may not substitute our judgment for that of the ALJ concerning the credibility of the witnesses, including medical experts. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995); Dow Chemical Co. v. Industrial Claim Appeals Office, 843 P.2d 122 (Colo.App. 1992) (ALJ free to credit one medical opinion to the exclusion of a contrary medical opinion).
At the time of his examination, Dr. Yarnell observed no loss of range of motion in the claimant's neck, and did not include any rating for impairment of the cervical spine. Dr. Roth agreed with Dr. Yarnell's rating and stated that the claimant did not demonstrate any functional impairment beyond the shoulder during his examination. (Tr. pp. 34, 42). Further, the ALJ found the claimant's testimony of restricted range of motion in the cervical spine not credible. (Finding of Fact 7). In view of the evidence, the ALJ could, and did infer that the claimant did not suffer functional impairment of the whole person. See Lantern Inn v. Industrial Commission, 624 P.2d 929 (Colo.App. 1981) (where the evidence is subject to conflicting inferences, the issue on review is whether the ALJ's inferences were permissible ones in light of the totality of the circumstances).
In reaching this conclusion, we are mindful of our previous statements that pain and discomfort which interferes with the claimant's ability to use a portion of the body may be considered "impairment." Mader v. Popejoy Construction Co., Inc., W.C. No. 4-198-489 (August 9, 1996), aff'd, Mader v. Popejoy Construction Co., Inc., (Colo.App. No. 96CA1508, February 13, 1997) (not selected for publication); Garcia v. Advanced Component Systems, Inc., W.C. No. 4-187-720 (June 21, 1996); Elwood v. Sealy Corporation, W.C. Nos. 4-175-456, 4-178-995 (June 23, 1995). However, we have not held that such evidence compels a finding of functional impairment of the whole person. See also Vangieson v. Gosney-Sons Inc., W.C. No. 3-110-985 (April 17, 1997). Neither did we conclude in Mader, that an injury to the "glenohumeral joint" is an "injury" not listed on the schedule of disabilities. Instead, we held that the evidence which the ALJ found persuasive concerning the claimant's pain in his shoulders, chest, back, and neck, which restricted his ability to perform overhead activities, supported the ALJ's finding of functional impairment not listed on the schedule.
Here, the claimant testified that he has pain in his neck as a result of the injury. However, unlike Mader and Garcia, the ALJ did not find the claimant's testimony persuasive. Furthermore, even though the claimant complained of pain in multiple body parts including his neck, Dr. Roth attributed the pain to "psychological factors," not any measurable impairment. (Tr. pp. 47, 48, 51). Consequently, we cannot say that the record compelled an award of whole person impairment benefits. See Walker v. Jim Fouco Motor Company, supra; Strauch v. PSL Swedish Healthcare System, supra; Langton v. Rocky Mountain Health Care Corp., supra.
In any case, it is situs of the functional impairment, not the situs of the initial harm that is the relevant inquiry. Strauch v. PSL Swedish Healthcare System, supra. Consequently, even if the claimant was treated with injections in the rotator cuff and acromioclavicular joints, and those areas are above the "shoulder," those facts do not compel a finding that the claimant sustained residual functional impairment to the body as a whole.
We also reject the claimant's contention that the ALJ read non-existent provisions into the statute, by finding that the claimant's upper extremity impairment was the equivalent of an impairment to the "arm at the shoulder." We cannot say that it was unreasonable for the ALJ to infer that the nature of the claimant's functional impairment was limited to the use of his arm at the shoulder. See Wierman v. Tunnell, 108 Colo. 544, 120 P.2d 638 (1941) (ALJ considered to possess expert knowledge which renders him competent to evaluate medical evidence and draw plausible inferences from it). Thus, we are not persuaded that the ALJ erred in failing to award benefits based upon impairment of the whole person.
III.
The claimant also contends that the ALJ's order is invalid because the order was prepared by respondents' counsel. We reject this argument.
Section 8-43-215 C.R.S. 1997, provides, in pertinent part, that any party dissatisfied with the ALJ's summary order may request specific findings of fact and conclusions of law, and in the event of such a request, specific findings of fact and conclusions of law "shall be completed" within twenty-five days of the request. We do not dispute the claimant's assertion that the ALJ's authority is strictly statutory. Lewis v. Scientific Supply Co., 897 P.2d 905 (Colo.App. 1995). However, § 8-43-215 does not prescribe a particular method for the ALJ's completion of specific findings. Nor does the statute expressly preclude the ALJ from delegating the duty of preparing a draft of the order to the parties.
Further, the courts have repeatedly declined to interfere with the order of the fact finder merely because it was originally drafted by one of the parties. To the contrary, in Ficor, Inc. v. McHugh, 639 P.2d 385 (Colo. 1982), and Uptime Corp. v. Colorado Research Corp., 161 Colo. 87, 420 P.2d 232 (1966), the courts held that if the findings are otherwise sufficient, they are not weakened or discredited because they were originally drafted by one of the parties. The court in Uptime added that, on appeal, it shall be presumed that the fact finder "examined the proposed findings and agreed that they correctly stated the facts as he himself found them to be; otherwise, he would not have adopted them as his own." 420 P.2d at 235; also Colorado-Ute Electric Association. v. Scarlett, (Colo.App. No. 88CA1055, September 14, 1989) (not selected for publication). We are unpersuaded that there is any basis from departing from these holdings.
Nevertheless, as argued by the claimant's counsel, where the order was drafted by one of the parties, we must scrutinize the ALJ's findings more critically. Ficor, Inc. v McHugh, supra. However, we perceive no irregularity or impropriety in this case.
The ALJ's findings adequately indicate the basis for the decision and the findings support the award. Furthermore, the ALJ did not adopt the proposed order verbatim. Rather, the ALJ supplemented the proposed findings of fact and the conclusions of law to reflect additional determinations. See (Finding of Fact 9, Conclusions of Law 7).
Finally, we presume that the ALJ considered the claimant's written objection to the proposed order before he signed it. See Wecker v. TBL Excavating, Inc., 908 P.2d 1186 (Colo.App. 1995); Ski Depot Rentals, Inc. v. Lynch, 714 P.2d 516 (Colo.App. 1985) (ALJ entitled to presumption of integrity, honesty, and impartiality); Raffaelo v. Industrial Commission, 670 P.2d 805 (Colo.App. 1983); Isfahani v. Metro Taxi Inc., W.C. No. 3-930-899 (November 23, 1992). Therefore, we decline to reverse the ALJ's order merely because it was drafted by counsel for the respondents.
To the extent the claimant has other arguments, they are not persuasive.
IT IS THEREFORE ORDERED that the ALJ's order dated July 1, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ Kathy E. Dean
________________________________ Dona HalseyNOTICE 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. 1997.
Copies of this decision were mailed November 24, 1997 to the following parties:
Jorge Flores, 9387 W. 56th Pl., Arvada, CO 80002
Allied Insulation Co. of Colorado, 6395 Brighton Blvd., Commerce City, CO 80022-3118
Colorado Compensation Insurance Authority, Attn: Laurie A. Schoder, Esq. (Interagency Mail)
Pepe J. Mendez, Esq., 700 Broadway, Ste. 1101, Denver, CO 80203 (For the Claimant)
Hollyce H. Farrell, Esq., 999 18th St., #3100, Denver, CO 80202-2431 (For the Respondents)
By: __________________________