Opinion
W.C. No. 4-449-392
January 7, 2002
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Mattoon (ALJ) which awarded permanent partial disability benefits under the schedule of disabilities, and denied the request for whole person medical impairment benefits. The claimant contends the ALJ's findings do not support the denial of whole person medical impairment benefits. We affirm.
The claimant sustained an injury to her right upper extremity on July 9, 1999, when operating a vault door. The claimant underwent arthroscopic decompression of the right shoulder in November 1999, and stabilization of the right ulnar nerve in January 2000.
The treating physician placed the claimant at maximum medical improvement on June 16, 2000, and assessed a 26 percent upper extremity impairment based on reduced range of motion in the claimant's right wrist, elbow, and shoulder joint. On October 17, 2000, the claimant underwent a Division-sponsored independent medical examination (DIME) on the issue of impairment. The DIME physician assessed a 28 percent upper extremity impairment based on 20 percent impairment for reduced range of motion in the upper extremity, and 10 percent impairment for "residual symptoms related to the right ulnar transposition." On January 9, 2001, the DIME physician reported that, "with problems limited to one upper extremity, [he] did not feel compelled to suggest a conversation [sic] to a whole person impairment rating."
The claimant testified that she has difficulty raising her arm and experiences pain which sometimes radiates into her neck and upper back. Also, she has difficulty sleeping because of pain caused by the shoulder condition. The claimant's difficulties with sleeping result in her being "less sharp at work" and she has less "stamina."
The ALJ found the claimant failed to meet her burden of proof to establish the upper extremity impairment rating should be converted to a whole person impairment rating. The ALJ found that the "situs" of the claimant's "functional impairment" is limited to her right arm and shoulder, and the occasional pain in her neck and upper back does not rise to the level of a functional impairment.
On review, the claimant contends the ALJ's findings of fact do not support the denial of permanent disability benefits based on whole person medical impairment. The claimant asserts the "relevant inquiry is whether or not [her] injury to the right shoulder affects more than her arm at the shoulder." The claimant argues the ALJ found functional impairment to the "shoulder" which is beyond the arm. The claimant also argues the claimant's findings concerning the claimant's sleep difficulties and problems performing certain activities compel the conclusion the claimant sustained functional impairment beyond the arm. We are not persuaded.
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), C.R.S. 2001, or a whole person medical impairment compensable under § 8-42-107(8), C.R.S. 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 situs of the functional impairment is not necessarily the location 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 hold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2001; Walker v. Jim Fuoco Motor Co., 942 P.2d 1390 (Colo.App. 1997). This standard of review requires us to defer to the ALJ's resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). Further, an ALJ is not held to standard of absolute clarity in expressing findings of fact and conclusions of law so long as the basis of the order is apparent from those findings and conclusions which are entered. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).
Here, we understand the ALJ to have found the claimant sustained physical injury to her shoulder joint, but the "functional impairment" is limited to use of the claimant's arm. Although the ALJ found the claimant experienced some symptoms of pain in the neck and back, she also found these symptoms do not amount to functional impairment. This finding is supported by evidence the claimant did not report neck and back symptoms to the DIME physician, and by the DIME physician's opinion that the claimant's "problems" are limited to the upper extremity and do not warrant a whole person medical impairment rating. Walker v. Jim Fuoco Motor Co., supra.
It is true the ALJ found the claimant has "functional impairment" in her shoulder. However, the mere fact that the shoulder joint does not physically function as it did before the injury, or that the claimant experiences pain in the shoulder joint, does not establish as a matter of law that the claimant has proven a functional impairment beyond the arm. Indeed, in the vast majority of cases involving shoulder injuries there has been damage to the shoulder joint which results in pain or some restriction of movement in the joint. For instance, in Langton v. Rocky Mountain Health Care Corp., supra, the claimant experienced pain in her shoulder if she "did much overhead work" and "experienced difficulty reaching behind her back." 937 P.2d at 885. Nevertheless, the court found the evidence supported the ALJ's determination that the claimant's functional impairment was limited to her arm. Similarly, in Strauch v. PSL Swedish Healthcare System, supra, the ALJ found the claimant "experienced pain in her shoulder, arm, hand, and fingers, but that the symptoms only affected the use of her arm." 917 P.2d at 367. However, the Strauch court upheld the ALJ's conclusion that the claimant failed to prove functional impairment beyond the arm. See also Flores v. Allied Insulation, W.C. No. 4-300-559 (November 24, 1997) (court has held that depending on particular facts of a claim, damage to the structures of the "shoulders" may or may not reflect functional impairment on the schedule of disabilities).
Neither does the fact the claimant experienced some limitation in her activities at work compel a conclusion she sustained functional impairment not listed on the schedule. It is conceded the claimant has sustained some functional impairment, the real issue is the location of the functional impairment. The mere fact the claimant has difficulty "cradling a phone" with her shoulder or putting laundry in a washer does not establish as a matter of law the claimant's functional impairment is located beyond the arm. In fact, both of these activities might be viewed as involving use of the claimant's arm.
Finally, we are unpersuaded the claimant's problems with sleep require a conclusion the claimant sustained a functional impairment not found on the schedule. Relying on Morris v. Industrial Claim Appeals Office, 942 P.2d 1343 (Colo.App. 1997), we have previously held that in order for a "sleep disorder" to constitute a "functional impairment" of the whole person, the record must contain evidence the sleep disorder is separately rateable under the AMA Guides. See Bicknell v. Pinion Truck Stop, Inc., W.C. No. 4-159-683 (December 10, 1997); Divido v. John C. Ley, D.D.S., P.C., W.C. No. 4-288-357 (November 26, 1997). The Court of Appeals reached much the same conclusion in Arapahoe County v. Industrial Claim Appeals Office, (Colo.App. No. 99CA2151, July 13, 2000) (not selected for publication), wherein it observed that an injury "must be rateable under the AMA Guides before it is compensable as a whole person impairment under § 8-42-107(8)." In that case, which involved bilateral upper extremity injuries, the court noted the ALJ found the claimant's sleep disorder resulted in a "functional impairment," but the ALJ "assigned" no rating for the impairment. Consequently, the court held a remand was required "so that the ALJ may clarify whether a rating should be assigned to the functional impairment found." The court directed that if the ALJ assigned a rating to the sleep disorder, the claimant was entitled whole person impairment benefits. However, the court directed that if no rating was assigned the ALJ "shall award benefits under the schedule."
Here, there is no evidence any of the physicians found the claimant's sleep problems are separately rateable from the claimant's upper extremity impairment. Consequently, there is no evidence of "functional impairment" beyond that listed on the schedule. Hence, the claimant's argument is without merit. In light of this determination, we need not consider whether, in view of a § 8-42-107(7)(b)(I), C.R.S. 2001, a separately rateable sleep disorder could legally serve as evidence of "functional impairment" sufficient to justify conversion of an upper extremity impairment rating to a whole person impairment rating.
IT IS THEREFORE ORDERED that the ALJ's order dated August 7, 2001, 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. 2001. 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 January 7, 2002 to the following parties:
Patricia Ellison, 6613 Warbler Ln., Colorado Springs, CO 80919
People's National Bank, 5175 N. Academy Blvd., Colorado Springs, CO 80918
Truck Insurance Exchange, Farmer Insurance Exchange, Tamarac II, 7535 E. Hampden Ave., #200, Denver, CO 80231
Gordon J. Heuser, Esq., 625 N. Cascade, #300, Colorado Springs, CO 80903 (For Claimant)
Chris Lind, Esq., 1801 Broadway, #1500, Denver, CO 80202 (For Respondents)
BY: A. Chick