Opinion
W.C. No. 4-291-940
August 4, 1998
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Friend (ALJ), which awarded permanent partial disability benefits based on a thirteen percent whole person medical impairment rating. Relying on Morris v. Industrial Claim Appeals Office, 942 P.2d 1343 (Colo.App. 1997), the respondents assert the ALJ erred because there is no evidence that the claimant's upper extremity injury resulted in a "rateable" whole person impairment. We affirm.
The claimant sustained a compensable injury to his right upper extremity. The injury affected the claimant's shoulder, elbow and radial nerve.
Ultimately, a Division-sponsored independent medical examination (IME) was performed by Dr. Curiel. In his report, Dr. Curiel opined the claimant has a twenty-two percent impairment of the upper extremity based on lost range of motion in the shoulder and elbow, and damage to the radial nerve. Dr. Curiel went on to state the "patient has had a right upper extremity injury that caused shoulder, elbow, and radial nerve injury that has resulted in a thirteen percent Whole Person Impairment according to the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition (revised)."
At the hearing, the claimant presented the testimony of Dr. Harder. Dr. Harder opined that the claimant sustained functional limitation of the shoulder joint, and that the joint is not part of the claimant's "arm." Dr. Harder also opined that the claimant's shoulder injury causes pain in the claimant's neck, chest and back muscles. (Tr. pp. 11-17).
The claimant testified that he suffers pain in his shoulder and arm when performing work activities, and he has particular difficulty with pushing and pulling. (Tr. pp. 27-28).
In light of this and other evidence, the ALJ concluded the claimant's injury is not "on the schedule of impairment and will be rated as a whole person" under § 8-42-107(8), C.R.S. 1997. Consequently, the ALJ awarded permanent partial disability benefits based on Dr. Curiel's whole person medical impairment rating.
On review, the respondents contend that the record contains no evidence of a "rateable" impairment beyond the claimant's arm at the shoulder. Consequently, the respondents argue this case is "controlled" by Morris v. Industrial Claim Appeals Office, supra, and the claimant's disability must be rated under § 8-42-107(2)(a), C.R.S. 1997. We disagree.
It is now well established that the question of whether the claimant sustained a "loss of an arm at the shoulder" within the meaning of § 8-42-107(2)(a), or a whole person medical impairment compensable under § 8-42-107(8), 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). The AMA Guides definition of where the arm ends and the torso begins is not dispositive of whether the claimant sustained a scheduled loss of the arm at the shoulder. Nevertheless, a physician's rating under the AMA Guides "may be considered by the ALJ in determining whether the claimant's functional impairment is fully described on the schedule of disabilities." Strauch v. PSL Swedish Healthcare System, 917 P.2d at 368.
Because the question of whether the claimant's functional impairment appears on the schedule is one of fact, we must uphold the ALJ's order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1997, Langton v. Rocky Mountain Healthcare Corp., supra. This standard requires us to defer to the ALJ's resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences which he drew from the evidence.
The respondents' argument notwithstanding, the record contains substantial evidence of functional impairment beyond the claimant's arm at the shoulder. Dr. Harder's testimony provides ample evidence that the claimant's shoulder injury damaged tissue and caused dysfunction beyond the claimant's arm at the shoulder. Moreover, the claimant's testimony indicates that the damage impairs his ability to use the shoulder and surrounding structures when performing work activities.
The respondents' assertion that the ALJ was not entitled to consider pain in the claimant's muscles is incorrect. We have often held that pain and discomfort which limit a claimant's ability to use a portion of his body may be considered a "functional impairment" for purposes of determining whether an injury is on or off the schedule. E.g. Beck v. Mile High Express, Inc., W.C. No. 4-238-483 (February 11, 1997). This is not a case in which the ratings, including that of Dr. Curiel, were based solely on pain without anatomic or physiologic correlation. See § 8-42-107(8)(c).
Further, the respondents' reliance on Morris v. Industrial Claim Appeals Office, supra, as authority for a contrary result, is misplaced. That case concerns the circumstances under which separate scheduled and non-scheduled impairments may be combined into a single whole person impairment rating for purposes of Mountain City Meat Company v. Oqueda, 919 P.2d 246 (Colo. 1996). In Morris, the court held that a scheduled extremity rating could not be combined with a psychological impairment to create a single whole person medical impairment rating without proof that the psychological impairment was "rateable" under the AMA Guides.
Here, in contrast, the claimant sustained a single injury which affected various structures of his upper extremity. The components of the claimant's injury were combined into a single upper extremity impairment rating, which was then converted to a single whole person impairment rating. Thus, unlike the situation in Morris, there was no attempt to "combine" the claimant's upper extremity injury with a separate and unrated functional impairment of the whole person for purposes of creating a single whole person impairment rating. See Bicknell v. Pinon Truck Stop, Inc., W.C. No. 4-159-683 (May 27, 1998); Morris v. Darrell W. Crank d/b/a DMI Collision, W.C. No. 4-231-195 (May 19, 1998). Thus, Morris v. Industrial Claim Appeals Office, supra, is inapposite.
IT IS THEREFORE ORDERED that the ALJ's order dated January 15, 1998, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to 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 the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. 1997.
Copies of this decision were mailed August 4, 1998 to the following parties:
Joseph Eidy, 8625 W. 55th Dr., Arvada, CO 80002
Pioneer Freightways, 5555 Quebec St., Commerce City, CO 80022-4837
Colorado Compensation Insurance Authority, Attn: Laurie A. Schoder, Esq. (Interagency Mail)
Pepe J. Mendez, Esq., 700 Broadway, #1101, Denver, CO 80203 (For the Claimant)
By: _______________________