Opinion
W.C. No. 4-395-349
March 28, 2001
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Mattoon (ALJ Mattoon) which awarded permanent partial disability benefits based on 7 percent impairment of the upper extremity. The claimant contends he is entitled to a new hearing, and that ALJ Mattoon's findings are not supported by the evidence. We affirm.
The issue in this case concerns whether or not the claimant's shoulder injury entitles him to permanent disability benefits under the schedule as set forth in § 8-42-107(2)(a), C.R.S. 2000, or to whole person medical impairment benefits under § 8-42-107(8)(c), C.R.S. 2000. In an order dated August 2, 1999, former ALJ Erickson awarded whole person medical impairment benefits. The respondent appealed, and in our Order of Remand dated May 5, 2000, we set aside ALJ Erickson's order and remanded for the entry of a new order. We concluded that Finding of Fact 5 was not supported by substantial evidence insofar as ALJ Erickson found the claimant "credibly testified that extensive overhead work causes right shoulder fatigue." We held that a new order was necessary because we could not ascertain how the evidence might have been evaluated in the absence of the unsupported finding.
On remand the matter was considered by ALJ Mattoon, who reviewed a transcript of the hearing as well as all exhibits admitted into evidence. ALJ Mattoon credited the testimony of the claimant's treating physician that the claimant sustained reduced range of motion of the right upper extremity, and the claimant sustained no permanent injury to his torso, cervical spine, or thoracic spine. ALJ Mattoon also credited the physician's testimony that the claimant's impairment principally affects use of the claimant's right arm. (Tr. pp. 21-23). Consequently, ALJ Mattoon concluded the claimant's functional impairment is to the right arm, and awarded permanent partial disability benefits based on the treating physician's 7 percent upper extremity impairment rating.
I.
On review, the claimant contends ALJ Mattoon's order is not supported by substantial evidence because she assigned inadequate weight to the overhead lifting restrictions imposed by the treating physician. We reject this argument.
As we previously held, the question of whether the shoulder injury is to be rated under the schedule, or as a whole person, is a question of fact for determination by the ALJ. The ALJ must determine the situs of the functional impairment, meaning the part of the body that has sustained the ultimate loss, and this site is not necessarily the situs of the injury itself. Walker v. Jim Fuoco Motor Co., 942 P.2d 1390 (Colo.App. 1997); 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 order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2000; Langton v. Rocky Mountain Health Care Corp., 937 P.2d 883 (Colo.App. 1996).
In applying the substantial evidence test, we must defer to ALJ Mattoon's resolution of conflicts in the evidence, her credibility determinations, and the plausible inferences she drew from the record. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). To the extent an expert's opinion is internally inconsistent or subject to conflicting interpretations, the ALJ may resolve the inconsistency by crediting part or none of the testimony. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968); Johnson v. Industrial Claim Appeals Office, 973 P.2d 624 (Colo.App. 1997).
The claimant's argument notwithstanding, the treating physician's imposition of restrictions against overhead reaching did not compel ALJ Mattoon to find the situs of the claimant's functional impairment was to a part of the body not listed on the schedule. Indeed, as ALJ Mattoon found, the treating physician testified the claimant's impairment principally affects the use of the right arm, and the physician denied injury to any structures of the torso beyond the shoulder. Insofar as the treating physician's testimony and report would have permitted a contrary inference, the ALJ implicitly resolved the conflict against the claimant. Under these circumstances, we may not substitute our judgment for that of the ALJ concerning whether or not the claimant sustained a scheduled or whole person impairment. Cf. Langton v. Rocky Mountain Health Care Corp., supra (substantial evidence supported award based on scheduled impairment despite fact the claimant suffered symptoms of temperature change and pain in the shoulder when doing overhead work).
II.
The claimant next contends that because the evidence in this case is subject to conflicting inferences, any of decision made by ALJ Mattoon constitutes "pure speculation." The claimant further argues that because our Order of Remand did not decide whether the claimant sustained a whole person impairment rating, "there is no basis for ALJ Mattoon to make such a finding." The claimant reasons that it makes "no sense to give deference to ALJ Mattoon's decision, since she was in no better position than this Panel to decide the issue." Finally, the claimant asserts the case must "either be decided by Judge Erickson or the claimant should be granted a new hearing." We disagree with these arguments.
Initially, we note there was no due process requirement for ALJ Mattoon personally to hear the evidence so long as she reviewed a transcript of the hearing before ALJ Erickson and considered the evidence received at the hearing. Ski Depot Rentals, Inc. v. Lynch, 714 P.2d 516 (Colo.App. 1985). Further, this is not a case in which ALJ Mattoon was required to apply complex legal standards to ambiguous findings entered by ALJ Erickson. See Legouffe v. Prestige Homes, Inc., 689 P.2d 697 (Colo.App. 1984). Rather, our Order of Remand called for an ALJ to reconsider the record and enter an entirely new order without regard to the finding of fact which we determined was unsupported by substantial evidence. Thus, no new hearing was required on remand.
The fact the evidence in this case might permit conflicting factual determinations as to whether the claimant sustained a scheduled or whole person impairment rating does not mean that ALJ Mattoon's resolution of the issue amounts to "pure speculation." To the contrary, it was ALJ Mattoon's responsibility, as the finder of fact, to resolve conflicts in the evidence, determine credibility, and draw plausible inferences from the record. Indeed, in Walker v. Jim Fuoco Motor Co., supra, the court expressly acknowledged the record in that case contained evidence which would have supported a finding opposite of that reached by the ALJ, but the court upheld the ALJ's order because it was supported by substantial evidence.
Further, the claimant's argument that ALJ Mattoon is in no better position than we are to decide whether the claimant sustained a whole person impairment rating misapprehends the statutory scheme for resolving disputes in workers' compensation cases. Our authority to review an ALJ's findings of fact is expressly limited to determining whether the record contains substantial evidence to support the finding. Section 8-43-301(8); Metro Moving and Storage Co. v. Gussert, supra. In contrast, an ALJ possesses original jurisdiction to hear matters arising under the Act, determine whether the claimant carried the burden of proof to establish entitlement to benefits, and to enter appropriate findings of fact and conclusions of law. Section 8-43-201, C.R.S. 2000; § 8-43-215(1), C.R.S. 2000. The ALJ's authority to resolve issues of fact under the appropriate standard of proof is different from and should not be confused with the standard of review which we apply on appeal. Metro Moving and Storage Co. v. Gussert, supra. Moreover, both we and the ALJs are without jurisdiction to adjudicate issues except in the manner expressly set forth in the statute. Lewis v. Scientific Supply Co., Inc., 897 P.2d 905 (Colo.App. 1995).
Thus, our Order of Remand returned the matter to the Division of Administrative Hearings for entry of a new order because we lack statutory authority to resolve conflicts in the evidence, determine credibility, and draw inferences from the record. It is because the record was subject to conflicting inferences that we were required to remand the matter to an ALJ rather than draw our own conclusions concerning the evidence.
IT IS THEREFORE ORDERED that ALJ Mattoon's order dated May 11, 2000, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Kathy E. Dean
NOTICE
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, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2000. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed March 28, 2001 to the following parties:
Leonard Davis, 5 Normandy Circle, Pueblo, CO 81001
CFI Steel, L.P. d/b/a Rocky Mountain Steel Mills, P. O. Box 5368, Portland, OR 97228-5368
Oregon Steel Mills, Inc., Sedgwick Claims Management Services, Inc., 1225 17th St., #2100, Denver, CO 80202-5521
James R. Koncilja, Esq., 125 W. "B" St., Pueblo, CO 81003 (For Claimant)
Gary J. Benson, Esq., 3900 E. Mexico Ave., #1300, Denver, CO 80210 (For Respondent)
BY: A. Pendroy