Opinion
W.C. No. 4-296-588
September 10, 1998
FINAL ORDER
The respondent seeks review of a final order of Administrative Law Judge Erickson (ALJ) which awarded permanent partial disability benefits based on a seventeen percent whole person medical impairment rating. The respondent contends that the record compels the conclusion the claimant's impairment is limited to a scheduled disability based on loss of the arm at the shoulder under § 8-42-107 (2)(a), C.R.S. 1998. The respondent also cites Morris v. Industrial Claim Appeals Office, 942 P.2d 1343 (Colo.App. 1997), for the proposition that because the claimant sustained no rateable impairment of his thoracic spine the shoulder injury must be rated on the schedule. We affirm the ALJ's award based on the whole person impairment rating.
The claimant sustained a compensable injury to his right shoulder on August 19, 1995. The treating physician, Dr. Kem, diagnosed "impingement syndrome," and performed an anterior acromioplasty and excision of the coracoacromial ligament in March 1996.
After the claimant reached maximum medical improvement (MMI), he underwent a Division-sponsored independent medical examination (IME) by Dr. Kassan. Dr. Kassan rated the claimant as suffering from a twenty-eight percent upper extremity impairment, which converts to a seventeen percent whole person impairment. (Tr. p. 8). Dr. Kassan also opined that the claimant has no rateable impairment of his thoracic spine.
At the hearing, the claimant presented the testimony of Dr. Harder. Dr. Harder testified that the arm is defined as that part of the upper extremity between the glenohumeral joint and the elbow. Thus, Dr. Harder opined that the claimant's shoulder surgery was performed "above the arm" and "proximal to the humerus, which is the arm bone." (Tr. p. 20). Dr. Harder also stated that the claimant suffers from crepitus above the arm.
Further, Dr. Harder testified that the claimant sustained injury to his thoracic spine, and the injury is rateable under the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition (Revised) (AMA Guides). Dr. Harder attributed this impairment to a specific disorder of the spine, as well as lost range of motion.
The claimant testified that he has difficulty reaching overhead and reaching behind his back. Moreover, he is unable to carry a backpack on his right shoulder because it is "extremely painful." (Tr. pp. 59-60).
Under the circumstances, the ALJ concluded that the claimant is entitled to permanent partial disability benefits based on Dr. Kassan's seventeen percent whole person impairment rating. The ALJ specifically found that the injury resulted in "functional impairment to the claimant's shoulder joint and the shoulder joint is not on the schedule." Moreover, the ALJ credited the claimant's testimony that the injury has resulted in "losses beyond his arm" as demonstrated by symptoms in the shoulder, the back of the shoulder, and the inability to do overhead work.
However, the ALJ found that the claimant failed to overcome Dr. Kassan's IME opinion with respect to the thoracic spine. Thus, the ALJ declined to award benefits based on impairment of the thoracic spine.
On review, the respondent contends that the evidence compelled the ALJ to find the claimant's shoulder injury resulted in scheduled impairment for loss of arm at the shoulder. We reject this argument.
It is now well established that the question whether the claimant sustained a "loss of the 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), C.R.S. 1998, 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 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 wholly 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. 1998, Langton v. Rocky Mountain Health Care Corp., supra. This standard of review 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. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
The respondent's argument notwithstanding, the record contains substantial evidence of functional impairment beyond the arm at the shoulder. Dr. Harder's report and testimony indicate that the claimant's injury, and the subsequent surgery, resulted in damage to tissues beyond the claimant's arm. This evidence, taken with the claimant's testimony concerning pain and the inability to reach overhead and behind the back, supports the whole person award. Strauch v. PSL Swedish Healthcare System, supra.
It is true that some evidence in the record would support an inference that the claimant's functional impairment is limited to the arm. However, we decline the respondent's invitation to substitute our judgment for that of the ALJ concerning the inferences to be drawn from the record.
The respondent also points out that some evidence indicates the claimant sustained post-injury damage to his shoulder. However, Dr. Kassan attributed all of the claimant's impairment to the industrial injury. To the extent the respondent wished to challenge the IME rating, it was required to overcome Dr. Kassan's rating by clear and convincing evidence. See Qual-Med, Inc. v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. 97CA1440, May 28, 1998). The respondent made no attempt to challenge the rating, and may not do so on appeal
Finally, we disagree with the respondent's assertion that, because Dr. Kassan found no rateable impairment of the thoracic spine, Morris v. Industrial Claim Appeals Office, supra, required the ALJ to award benefits under the schedule. Morris concerns 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 Co. v. Oqueda, 919 P.2d 246 (Colo. 1996). In Morris, the court held that a scheduled extremity rating may not be combined with a functional psychological impairment to create a single whole person impairment rating without proof that the psychological impairment is "rateable" under the AMA Guides.
Here, in contrast to Morris, the claimant sustained a single injury which affected various structures of his right upper extremity. Dr. Kassan combined the components of the claimant's extremity injury into a single upper extremity impairment rating, which was then converted to a single whole person impairment rating in accordance with the AMA Guides. 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 for purposes of creating a single whole person impairment rating. See Eidy v. Pioneer Freightways, W.C. No. 4-291-940 (August 4, 1998).
Insofar as the respondent made other arguments, we find them to be without merit.
IT IS THEREFORE ORDERED that the ALJ's order dated December 31, 1997, 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. 1998.
Copies of this decision were mailed September 10, 1998 to the following parties:
Donald Gonzales, 1581 S. Syracuse St., Denver, CO 80231
City and County of Denver, 1445 Cleveland Place, Annex 1, #200, Denver, CO 80202
City and County of Denver, 110 16th St., Denver, CO 80202-5202
Erica West, Esq., 333 W. Hampden Ave., Ste. 510, Englewood, CO 80110 (For Claimant)
Evelyn B. Makovsky, Esq., 1445 Cleveland Pl., Ste. 200, Denver, CO 80202 (For Respondent)
BY: _______________________