Opinion
W.C. No. 4-657-285.
November 16, 2007.
FINAL ORDER
The claimant seeks review of the portion of an order of Administrative Law Judge Cain (ALJ) dated June 7, 2007 that denied the claimant's request for conversion of a scheduled rating to a whole person rating. We affirm.
The claimant sought an order converting his left upper extremity rating to a whole person rating. The ALJ found the claimant suffered a work-related injury to his shoulder caused by repetitive overhead lifting and while unloading and stocking merchandise. Dr. Nelson expressed the view that a shoulder injury affects the whole person. Dr. Raschbacher credibly opined he found no basis for concluding the claimant sustained functional impairment beyond the shoulder. The ALJ concluded that the claimant failed to prove it more probably true than not that he sustained functional impairment located beyond the arm at the shoulder.
I.
The claimant first contends the ALJ erred when he assigned the burden of proof to the claimant to prove that his impairment extended beyond the extremity. We disagree.
Section 8-42-107(1), C.R.S. 2007, limits the claimant to a scheduled disability award if the injury results in permanent medical impairment enumerated on the schedule of disabilities in § 8-42-107(2). Kolar v. Industrial Claim Appeals Office, 122 P.3d 1075, 1076 (Colo.App. 2005). Where the claimant suffers functional impairment that is not listed on the schedule, the claimant is entitled to medical impairment benefits for whole person impairment calculated in accordance with § 8-42-107(8)(c).
In the context of permanent partial disability the term "injury" refers to the part or parts of the body which have been permanently, functionally impaired as a result of the injury, and not the physical situs of the injury. Walker v. Jim Fouco Motor Company, 942 P.2d 1390 (Colo.App. 1997); Langton v. Rocky Mountain Health Care Corp., 937 P.2d 883 (Colo.App. 1996). The courts have held that damage to structures of the "shoulders" may or may not reflect a "functional impairment" enumerated on the schedule of disabilities. See Walker v. Jim Fouco Motor Company, supra; Strauch v. PSL Swedish Healthcare System, 917 P.2d 366 (Colo.App. 1996); Langton v. Rocky Mountain Health Care Corp., supra; Johnson-Wood v. City of Colorado Springs, W. C. No. 4-536-198 (June 20, 2005). The term "injury," as used in § 8-42-107(1)(a)-(b), refers to the part or parts of the body which have been impaired or disabled, not the situs of the injury itself or the medical reason for the ultimate loss. Warthen v. Industrial Claim Appeals Office, 100 P.3d 581 (Colo.App. 2004); Strauch v. PSL Swedish Healthcare System, supra.
Here, the ALJ did not misapprehend the applicable burden of proof. He adjudicated the question whether the claimant's injury was scheduled or non-scheduled, which turned on the factual question of whether the claimant sustained functional impairment to a part of the body off the schedule. See Warthen v. Industrial Claim Appeals Office, supra; Strauch v. Swedish Healthcare System, supra. The ALJ properly recognized that the claimant had the burden of showing the extent of his impairment by a preponderance of the evidence. Maestas v. American Furniture Warehouse, W.C. No. 4-662-369 (June 5, 2007); Johnson-Wood v. City of Colorado Springs, supra.
Nor are we persuaded by the claimant's argument that the ALJ erred because the impairment rating assigned by Dr. Nelson, an authorized physician, is binding on the ALJ pursuant to § 8-42-107.2(2)(b), C.R.S. 2007. The court of appeals has specifically stated that the determination whether a claimant sustained a scheduled or nonscheduled injury is a question of fact for the ALJ, not the rating physician. City Market, Inc. v. Industrial Claim Appeals Office 68 P.3d 601 (Colo.App. 2003); see also, Maestas v. American Furniture Warehouse, supra. Whether a claimant's impairment falls within the schedule in § 8-42-107(2) is a question of fact for the ALJ, whose determination must be upheld on appeal if it is supported by substantial evidence. Delaney v. Industrial Claim Appeals Office 30 P.3d 691(Colo.App. 2000); Walker v. Jim Fuoco Motor Co., supra; Langton v. Rocky Mountain Health Care Corp., supra.
As the court of appeals pointed out in Strauch, the determination whether the claimant has suffered a functional impairment that is listed on the schedule of disabilities is distinct from, and should not be confused with, the treating physician's rating of physical impairment under the AMA Guides. Strauch, 917 P.2d at 368. Consequently, we reject the claimant's contention that this is a medical question for binding resolution by the authorized physician. Thus, the threshold issue is whether the claimant suffered an injury not listed on the schedule of disabilities. Tellez v. King Soopers, Inc., W. C. Nos. 4-162-937 4-162-940 (November 6, 1997); Vialpando v. AMIK Moving Storage, W. C. No. 4-157-904 (July 21, 1995). The issue of whether the claimant suffered an injury or injuries which are fully enumerated on the schedule of disabilities is a factual determination for the ALJ. Jones v. Adolph Coors Co., 689 P.2d 681 (Colo.App. 1984); Carothers v. J.C. Trucking, Inc., W.C. No. 4-134-297 (August 12, 1994); Mestas v. Curtice Burns Meat Snacks, Inc., W.C. Nos. 4-000-190 4-159-948 (May 24, 1994); Aultman v. JVK Enterprises, Inc., W.C. No. 4-112-073 (December 31, 1993). In our opinion, the ALJ correctly applied the applicable law.
II.
The claimant next contends that the ALJ erred in limiting the award for the claimant's permanent partial disability to the schedule under § 8-42-107(2). The claimant argues that given the anatomy of the shoulder and the shoulder girdle, all shoulder injuries, by definition, constitute injury to the whole person. The claimant, citing Mader v. Popejoy Constr. Co., Inc., W.C. No. 4-198-489 (August 9, 1996), aff'd, Popejoy Constr. Co., Inc. v. Industrial Claim Appeals Office, No. 96CA1508 (Feb. 13, 1997) (not selected for publication), argues that the shoulder joint and the shoulder girdle are not on the schedule and all functional impairments of the shoulder, whether identified based on diminished range of motion or impairment to a structure, constitute impairment to the whole person under § 8-42-107(8) as a matter of law. In our view the claimant's reliance upon Mader as authority that the ALJ was compelled to award him a whole person permanent partial disability rating is misplaced.
In Mader, the ALJ found that the claimant sustained functional impairment to the "shoulder joint", which was not listed on the schedule of disabilities listed in § 8-42-107(2). The ALJ awarded the claimant compensation for an impairment of the whole person under § 8-42-107(8). In Mader, the ALJ expressly recognized that he was required to determine the nature of the claimant's "functional impairment" and found that the claimant suffered a functional impairment, which was not listed on the schedule of disabilities. In Mader, a physician testified there was expert and lay testimony that the claimant had pain in his shoulders, chest, radiating up over the borders of the trapezius, into his neck and down into the midarm, which precluded the claimant from performing overhead work. Here the ALJ also expressly recognized that he was required to determine the nature of the claimant's functional impairment. The ALJ was persuaded by the evidence that the claimant had returned to work without any limitation or restriction, the absence of documented medical findings as shown by Dr. Raschbacher's examination, and by Dr. Raschbacher's opinion that the claimant did not evidence functional impairment beyond the arm at the shoulder. The decision in Mader simply turned on a different factual basis than does this matter.
The claimant argues that anatomically, the shoulder girdle attaches to the arm at the glenohumeral joint. Therefore, given the anatomy of the shoulder and the shoulder girdle, the claimant asserts that all shoulder injuries, by definition, constitute injury to the whole person. The ALJ recognized that the claimant had surgery to structures beyond the glenohumeral joint, and that he may have mild, intermittent residual symptoms, but was still not persuaded that the claimant sustained any functional impairment not encompassed in the schedule.
The fact that the claimant may have physical injury to structures found proximal to the arm does not compel a finding of "functional impairment" beyond the arm at the shoulder. Blei v. Tuscarora, W. C. No. 4-588-628 (June 17, 2005). The courts have consistently emphasized that it is not the location of physical injury or the medical explanation for the "ultimate loss" which determines the issue. See Walker v. Jim Fuoco Motor Co, supra; Strauch v. PSL Swedish Healthcare System, supra; Langton v. Rocky Mountain Health Care Corp., supra. In Strauch, the court of appeals specifically stated that they were not persuaded by the AMA Guides' demarcation of where the torso stops and the extremity begins or by foreign authorities that, as a matter of law, the shoulder is not part of the arm. Strauch, 917 P.2d at 368-69. Indeed, most of the cases involve fact patterns where the claimant has sustained some physical damage or impairment of a structure, which is "above the arm." In Walker, the physicians "found no impairment beyond the shoulder, and were also of the view that the impairment principally affects claimant's arm movements." Walker, 942 P.2d at 1392. In Langton, the claimant sustained pain and "loss of range of motion in her shoulder." Langton, 937 P.2d at 883. In Strauch, the claimant described pain in her shoulder. Strauch, 917 P.2d at 367. Despite injury to a structure proximal to the arm, all of these cases upheld an ALJ's determination that the claimant's ultimate loss was found on the schedule. Applying these principles here, we perceive no error in the ALJ's order.
III.
The claimant finally contends that even under the "functional situs" test, the claimant's shoulder injury and residual impairment are not found on the schedule, thereby entitling the claimant to conversion of his extremity rating to the whole person. The claimant, citing Colton v. Tire World, Inc., W. C. No. 4-449-005 (April 11, 2002) and Price v. United Airlines, W.C. No. 4-441-206 (January 28, 2002), argues that where an injury involves the area known as the proximal glenohumeral joint the injury is not on the schedule and must be converted to the whole person. We disagree. We do not read Colton or Price as mandating a conversion to the whole person if the injury involves the glenohumeral joint.
In Colton., the Panel once again noted that it is 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)(c), is one of fact for determination by the ALJ. The Panel found that substantial evidence supported the ALJ's finding the claimant sustained functional impairment beyond the arm at the shoulder. In Colton, the treating physician assessed a snapping scapular syndrome and palpable crepitance in the periscapular muscles, which occurs beyond the arm at the shoulder. The Panel also noted support for the ALJ's conclusion in the claimant's testimony concerning physical difficulties with overhead reaching and ongoing pain in the back of his neck and on the top of the shoulder.
In Price, the claimant suffered a compensable right shoulder injury, which was diagnosed as a SLAP 11 tear of the labrum. The ALJ found the claimant had functional limitations proximal to the glenohumeral joint, specifically to the muscles in the torso. The ALJ also found the claimant's shoulder range of motion deficits were not due to functional impairment of the arm distal to the glenohumeral joint. Consequently, the ALJ determined the claimant's permanent impairment was not enumerated on the schedule of disabilities and awarded permanent partial disability benefits based on a whole person impairment. The Panel first stated that "functional impairment" need not take any particular form and went on to recite that the court of appeals has held that, depending on the particular facts of a claim, damage to the structures of the "shoulders" may or may not reflect a "functional impairment" that is enumerated on the schedule of disabilities. See Walker v. Jim Fouco Motor Company, supra; Strauch v. PSL Swedish Healthcare System, supra; Langton v. Rocky Mountain Health Care Corp. supra. Then the Panel noted that the ALJ was persuaded by the opinions of a physician that the claimant's functional impairment from the industrial injury was not limited to loss of use of the arm at the shoulder within the meaning of § 8-42-107(2)(a) and this was buttressed by the claimant's testimony. In Price, the Panel was bound by the ALJ's determinations supported by substantial evidence, as we are in the present case.
Because the issue whether the claimant has sustained functional impairment beyond the arm at the shoulder is a factual question for the ALJ, we must uphold the ALJ's resolution if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2007; Walker v. Jim Fuoco Motor Co., supra. 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 resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003). Inherent in this standard is the ALJ's authority to resolve conflicts between expert witnesses, and to resolve internal inconsistencies in the testimony of an individual expert. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968); Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002).
The claimant's argument notwithstanding, the evidence here supports the ALJ's finding that the claimant failed to prove entitlement to a whole person impairment rating. In his brief, the claimant relies heavily on the opinions of Dr. Nelson. However, as noted by the ALJ, on cross-examination Dr. Nelson stated she could not identify any functional impairment beyond the shoulder. Nelson Depo. at 27. Here the ALJ found that the claimant's statements to Dr. Nelson and Dr. Raschbacher establish that he had returned to his full range of duties without restrictions of significant limitation. Exhibit C at 31; Exhibit C at 9; Nelson Depo at 26-27. The ALJ found that although the claimant may occasionally experience some aching in the back of his shoulder or a headache, the persuasive evidence demonstrated these occasions are rare and do not affect the claimant's capacity to function. Tr. at 17, 20, 23, 24, 25. The ALJ found there was no mention of any sleep problem at the time the claimant was placed at MMI, or by Dr. Raschbacher. Exhibit D at 31; Exhibit C. Dr. Raschbacher credibly opined that he found no basis for concluding that the claimant sustained functional impairment beyond the shoulder. Tr. at 36; Exhibit C at 10. In our opinion, there was ample evidence to support the ALJ's denial of the claimant's request for conversion of the scheduled rating to a whole person rating.
IT IS THEREFORE ORDERED that the ALJ's order dated June 7, 2007 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Thomas Schrant
JEFFREY W LOVETT, 3511 E 120TH AVE #7-1-1, THORNTON, CO, (Claimant)
BIG LOTS, COLUMBUS, OH, (Employer)
ZURICH AMERICAN INSURANCE CO, Attn: PAMELA MOON, GREENWOOD VILLAGE, CO, (Insurer)
BISSET LAW FIRM, Attn: JENNIFER BISSET, ESQ., DENVER, CO, (For Claimant)
HALL EVANS, L.L.C., Attn: DOUGLAS J KOTAREK, ESQ., DENVER, CO, (For Respondents)