Opinion
W.C. No. 4-743-367.
October 7, 2009.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Walsh (ALJ) dated June 2, 2009, that awarded permanent partial disability benefits based upon a five percent whole person rating. We affirm.
The claimant suffered an admitted work-related injury on July 24, 2007. The respondents filed a Final Admission of Liability admitting for permanent partial disability of 12 percent scheduled impairment of the lower extremity. This was based upon the opinion of Dr. Nanes who diagnosed the claimant with fractures of the left ankle and sensory loss in the left foot. In his report, Dr. Nanes converted the 12 percent scheduled impairment to 5 percent permanent impairment of the whole person.
The ALJ found that the claimant's testimony and the medical records established that the claimant suffered functional impairment to his knees, left hip and lower back. As such, the ALJ determined the claimant had suffered a functional impairment that was not listed on the schedule of disabilities and awarded permanent partial disability benefits based upon a whole person calculation of five percent as found by Dr. Nanes.
The respondents appeal contending that the ALJ erred in determining that the claimant suffered a functional impairment not listed on the schedule. The respondents argue the claimant only sustained a work related ankle injury and that there was no documentation that he suffered additional injuries. The respondents argue that there is nothing in the record that supports the claim that the claimant has a functional impairment beyond the scheduled lower extremity.
We first note that as we read the ALJ's order and the arguments presented by the parties, this is not a situation where there was an attempt to combine or add individual impairment ratings, some of which are scheduled and some of which are non-scheduled. We note that § 8-42-107(1)(a), C.R.S. 2009, limits a claimant to a scheduled disability award if the claimant suffers an "injury or injuries" described in § 8-42-107(2), C.R.S. 2009. Strauch v. PSL Swedish Healthcare System, 917 P.2d 366 (Colo. App. 1996). Thus, while a claimant who suffers an injury not enumerated in § 8-42-107(2) is entitled to whole person impairment benefits under § 8-42-107(8), C.R.S. 2009, see § 8-42-107(1)(b), C.R.S. 2009; Warthen v. Industrial Claim Appeals Office, 100 P.3d 581 (Colo. App. 2004), scheduled injuries may not be compensated with whole person medical impairment benefits. See United Airlines, Inc. v. Industrial Claim Appeals Office, 993 P.2d 1152, 1158 n. 7 (Colo. 2000)(§ 8-42-107(7)(b)(I), C.R.S. 2009, legislatively overrules contrary rule recognized in Mountain City Meat Co. v. Oqueda, 919 P.2d 246 (Colo. 1996)); see also, Kolar v. Industrial Claim Appeals Office of State 122 P.3d 1075 (Colo. App. 2005).
Here, the claimant does not appear to have argued that the claimant suffered a functional impairment to the low back that was ratable and compensated under § 8-42-107(8). Rather the issue before the ALJ as framed by the parties was whether the functional impairment to the lower extremity was fully enumerated under the schedule of disability. We perceive no reversible error in the ALJ's order finding that the claimant established by a preponderance of the evidence that his functional impairment is not listed on the schedule of benefits.
Section 8-42-107(1) provides that the claimant is limited to an award of permanent partial disability benefits based on an extremity rating if the claimant's injury is described in the schedule set forth in subsection (2) of the statute. See Strauch v. PSL Swedish Health Care System, supra. Conversely, if the claimant has sustained an injury not enumerated on the schedule, the claimant is entitled to benefits based upon a whole person impairment rating under § 8-42-107(8).
Moreover, there is no requirement that functional impairment for these purposes take any particular form. Accordingly, pain and discomfort which interferes with the claimant's ability to use a portion of the body may be considered "impairment" for purposes of assigning a whole person impairment rating. Under § 8-42-107(2), the partial loss of a leg at the hip or loss of a leg above the foot including the ankle is a scheduled disability. Here, the ALJ found that in connection with the claimant's compensable left ankle condition he had functional impairment to his knees, left hip and lower back. Depending upon the facts of a particular claim, an injury to the lower extremity may or may not reflect functional impairment enumerated on the schedule of benefits. See generally, Walker v. Jim Fuoco Motor Co., 942 P.2d 1390 (Colo. App. 1997); Abeyta v. Wackenhut Services W. C. No. 4-519-399 (September 16, 2004). Here, the ALJ correctly recognized that the disputed issue to be resolved was whether the claimant sustained functional impairment not enumerated on the schedule of benefits.
Whether the claimant has suffered an injury enumerated in the schedule of disabilities is a question of fact to be resolved by the ALJ based on the evidence of impairment. See Jones v. Adolph Coors Co., 689 P.2d 681 (Colo. App. 1984). As applied in § 8-42-107, the terms "injury" and injured "member" do not pertain to the physical situs of the compensable accident. Rather the terms refer to that part of the worker's body which is functionally impaired as a result of the compensable accident. See Hawkeye-Security Insurance Co. v. Tupper, 152 Colo. 12, 380 P.2d 31 (1963) (the claimant's "injured member" was the leg despite the fact that the compensable accident occurred to the foot and required amputation of the leg below the knee).
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 credibility determinations, resolution of conflicts in the evidence, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo. App. 2003).
Here, there is ample support for the ALJ's findings that the situs of the claimant's functional impairment was not included in the schedule. The ALJ relied on the claimant's testimony and the medical records to establish that the claimant had suffered functional impairment to his knees, left hip and lower back. The claimant testified that his injury was not isolated to his ankle, but he suffered additional problems with his knees, hip, and lower back. Tr. at 17. In addition, the medical record supports the existence of these additional problems. Exhibit 3 at 46, 48, 50, 60.
In our view, there is substantial evidence that supports the conclusion that the claimant has sustained functional impairment to a part of the body not found on the schedule of disabilities. Consequently, the order must be upheld. Warthen v. Industrial Claim Appeals Office, supra (determination of situs of functional impairment must be affirmed if supported by substantial evidence). The existence of evidence which may support an award of benefits based upon a partial loss of the hand is immaterial. May D F v. Industrial Claim Appeals Office, 752 P.2d 589 (Colo. App. 1988); see also, Aultman vs. JVK Enterprises, Inc., d/b/a Domino's Pizza, W.C. 4-112-073 (December 31, 1993).
IT IS THEREFORE ORDERED that the ALJ's order dated June 2, 2009 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ John D. Baird
______________________________ Thomas Schrant
CRAIG NICHOLS, 538 MORRISON STREET, PUEBLO, CO, (Claimant).
LAFARGE CONSTRUCTION, Attn: SONIA BIXLER, C/O: CHURCH RANCH OFFICE CENTER, WESTMINSTER, CO, (Employer).
GALLAGHER BASSETT, Attn: ALIXE LANDRY, ENGLEWOOD, CO, (Insurer).
KONCILJA KONCILJA, PC, Attn: ROBERT D. BAUMBERGER, ESQ., PUEBLO, CO, (For Claimant).
TREECE, ALFREY, MUSAT BOSWORTH, PC, Attn: KAREN G TREECE, ESQ., DENVER, CO, (For Respondents).
LAFARGE NORTH AMERICA, Attn: EBRU ROSE CRAFT-KAZANOVA, WORLDGATE DRIVE, HERNDON, VA, (Other Party).