Opinion
W.C. No. 4-468-108
April 23, 2003
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Mattoon (ALJ) which denied medical impairment benefits for whole person impairment. We affirm.
The claimant suffered an electrocution injury to his upper extremities. He was subsequently diagnosed with left shoulder strain, impingement syndrome, and bicipital tendinitis. Eventually the claimant underwent left shoulder surgery consisting of a subacromial decompression and distal clavicle resection.
A Division-sponsored independent examination (DIME) physician assigned 19 percent upper extremity impairment for impaired range of motion in the shoulder and the clavicle resection. This rating converts to 11 percent whole person impairment. The DIME physician opined the claimant had no permanent impairment to the clavicle. Instead, the DIME physician opined that the claimant's functional impairment is limited to the left upper extremity and left shoulder which resulted in problems with overhead activities, reaching, abduction, extension, and rotation of the shoulder.
The claimant underwent an independent examination by Dr. Beatty. Dr. Beatty opined the claimant did not suffer any whole person impairment.
The ALJ found the claimant is limited in the amount of overhead reaching, and lifting he can perform with his left arm. The ALJ also found that use of the arm causes shoulder pain. Further, the ALJ found that during the course of treatment the claimant complained of neck pain. However, the ALJ determined that condition had resolved. Based on these findings, the ALJ determined the claimant's functional impairment is limited to the arm. Consequently, the ALJ denied the request for permanent partial disability benefits based on the whole person conversion for the DIME physician's upper extremity impairment rating.
On review, the claimant contends he has pain in his neck and upper back when driving a car, bowling or using his arm above the shoulder. The claimant also contends the DIME physician opined that the anatomical part which was hurt is not part of the upper extremity or shoulder. Therefore, the claimant contains the record compels a finding that the claimant suffered functional impairment to the whole person. We disagree.
Section 8-42-107(1)(a), C.R.S. 2002, provides that the claimant is limited to a scheduled disability award if the claimant suffers an "injury or injuries" described in § 8-42- 107(2), C.R.S. 2002. Strauch v. PSL Swedish Healthcare System, 917 P.2d 366 (Colo.App. 1996). Where the claimant suffers an injury or injuries not enumerated in § 8-42-107(2), the claimant is entitled to whole person impairment benefits under § 8-42-107(8), C.R.S. 2002. Section 8-42-107(1)(b) § 8-42-107(7)(b)(II), C.R.S. 2002. In the context of § 8-42-107(1), the term "injury" refers to the part or parts of the body which have been functionally impaired or disabled as a result of the injury. Strauch v. PSL Swedish Healthcare System, supra. Under § 8-42-107(2)(a), the partial "loss of an arm at the shoulder" is a scheduled disability.
The question of whether the claimant sustained a partial "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." Langton v. Rocky Mountain Health Care Corp., 937 P.2d 883 (Colo.App. 1996) ; Strauch v. PSL Swedish Healthcare System, supra.
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. 2002, Langton v. Rocky Mountain Healthcare Corp., supra. This standard requires us to defer to the ALJ's resolution of conflicts in the evidence, her credibility determinations, and the plausible inferences which she drew from the evidence.
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" which is enumerated on the schedule of disabilities. See Walker v. Jim Fouco Motor Company, 942 P.2d 1390 (Colo.App. 1997); Strauch v. PSL Swedish Healthcare System, supra; Langton v. Rocky Mountain Health Care Corp, supra. For example, Strauch involved a claimant whose shoulder injury was diagnosed as a rotator cuff tear and shoulder impingement syndrome. The Court of Appeals concluded that the record supported an ALJ's finding that the claimant's functional impairment from the "shoulder injury," was limited to the use of the claimant's arm. Consequently, the Strauch court upheld the ALJ's determination that the claimant was limited to scheduled disability benefits under § 8-42-107(2)(a).
In Langton, an ALJ found that the claimant's functional impairment was limited to the use of her arm, even though she experienced a loss of range of motion in her shoulder, impairment of the peripheral nervous system, and shoulder pain with overhead work. The Langton court concluded that the ALJ's determination was supported by substantial evidence in the record, and therefore, the court upheld the ALJ's determination that the claimant was limited to a scheduled disability award.
Similarly, in Walker, the court held that where there was no medical impairment rating beyond the shoulder, and the claimant's impairment principally affected the claimant's arm movements, the record supported the ALJ's determination that the claimant sustained functional impairment listed on the schedule.
Here, the ALJ explicitly recognized that pain and discomfort which interfere with the ability to use a portion of the body may be considered functional impairment for purposes of determining whether an injury is on or off the schedule. See Salaz v. Phase II et. al., W.C. No. 4-240-376 (November 19, 1997), aff'd., Phase II v. Industrial Claim Appeals Office, (Colo.App. No. 97CA2099, September 3, 1998) (not selected for publication) ; Mader v. Popejoy Construction Co., Inc., W.C. No. 4-198-489 (August 9, 1996), aff'd, Mader v. Popejoy Construction Co., Inc., (Colo.App. No. 96CA1508, February 13, 1997) (not selected for publication). However, such evidence does not compel a finding of functional impairment of the whole person. See Vangieson v. Gosney-Sons Inc., W.C. No. 3-110-985 (April 17, 1997).
In this case, the ALJ implicitly found the expert medical evidence that the claimant's functional impairment was limited to the arm or upper extremity more persuasive than the claimant's testimony concerning his functional impairment. See Levy v. Everson Plumbing Co., Inc., 171 Colo. 468, 468 P.2d 34 (1970) (ALJ is not required to credit the claimant's testimony). Indeed the ALJ implicitly credited the DIME physician's testimony that the claimant denied neck pain at the time of the DIME. (Finding of Fact 9).
Further, it is situs of the functional impairment, not the situs of the initial harm that is the relevant inquiry. Strauch v. PSL Swedish Healthcare System, supra. Consequently, assuming, arguendo, that the DIME physician found at least one of the anatomical structures damaged during the industrial accident is part of the torso, that evidence does not compel a finding that the claimant sustained residual functional impairment to the body as a whole.
The claimant's remaining arguments essentially request that we reweigh the evidence on review. However, we have no authority to do so. See General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118 (Colo.App. 1994); Gelco Courier v. Industrial Commission, 702 P.2d 295 (Colo.App. 1985). Moreover, the ALJ's findings support the conclusion the claimant failed to prove entitlement to whole person impairment benefits.
IT IS THEREFORE ORDERED that the ALJ's order dated October 12, 2002, 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. 2002. 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 April 23, 2003 to the following parties:
Joseph Martinez, 812 Woodlawn, Canon City, CO 81212
Charlie Casey, CDK Contracting Co., 800 S. Hutton, Farmington, NM 87401
CIGNA, c/o Wes Johnson, ACE/ESIS, Inc., P. O. Box 911, Portland, OR 97207
Barkley D. Heuser, Esq., 625 N. Cascade, #300, Colorado Springs, CO 80903 (For Claimant)
Kathleen Mowry Fairbanks, Esq., 999 18th St., #1600, Denver, CO 80202 (For Respondents)
BY: A. Hurtado