Opinion
W.C. No. 4-266-103
November 24, 1997
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) insofar as the ALJ denied his request for permanent partial disability benefits based upon medical impairment of the whole person. We affirm.
The claimant suffered a compensable injury, and ultimately underwent surgery by Dr. Crane to repair a right shoulder rotator cuff tear. Dr. Yarnell, who performed a Division-sponsored independent medical examination, rated the claimant's permanent medical impairment as 11 percent of the upper extremity. This rating was converted to 7 percent impairment of the whole person, under the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition, Revised (AMA Guides).
Before the ALJ, the parties agreed that Dr. Yarnell's impairment rating is binding. However, they disagreed whether the claimant is entitled to permanent partial disability benefits based upon Dr. Yarnell's whole person impairment rating.
Section 8-42-107(1), C.R.S. 1997, 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. 1997. Colorado AFL-CIO v. Donlon, 914 P.2d 396 (Colo.App. 1995). 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). Mountain City Meat Co. v. Oqueda, 919 P.2d 246 (Colo. 1996). 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, 917 P.2d 366 (Colo.App. 1996).
From conflicting medical evidence, the ALJ found that the claimant sustained functional impairment consisting of a loss of range of motion in his right arm. The ALJ also determined that the claimant's "functional impairment" is limited to a loss of use of the "arm at the shoulder." Consequently, the ALJ determined that the claimant is limited to scheduled disability benefits, and denied the claimant's request for benefits based upon Dr. Yarnell's whole person impairment rating.
I.
Initially, we note that the claimant has filed a motion requesting that we consolidate this appeal with the appeal of an order issued by the ALJ on July 1, 1997, in Flores v. Allied Insulation, W.C. No. 4-300-559. The respondents object.
Both claims involve scheduled disability awards for "shoulder" injuries. Further, the claimants make similar arguments on appeal. Nevertheless, the claims do not involve the same employers or the same insurers, and each award turned on a factual determination concerning the nature of the claimant's functional impairment. Under these circumstances, we decline to consolidate the claims on review. Section 8-43-301(9), C.R.S. 1997; Roe v. Industrial Commission, 734 P.2d 138 (Colo.App. 1986).
II.
The claimant argues that the ALJ erred in finding that he sustained "functional impairment" which is fully enumerated on the schedule of disabilities. In support, the claimant relies upon Dr. Harder's testimony that the AMA Guides define the shoulder as the glenohumeral joint, and the rotator cuff is above the glenohumeral joint. Dr. Harder also stated that the claimant's rotator cuff surgery involved a "resection of a part of the anterior inferior acromion," which is superior and proximate to the glenohumeral joint. Consequently, Dr. Harder opined that the claimant suffered functional impairment above the shoulder to the whole person. The claimant further argues that the schedule of disabilities does not include impairment "above the shoulder" or impairment of the "upper extremity," and therefore, that his injury must be compensated as impairment of the whole person, as a matter of law. We disagree.
The question of whether an injury has resulted in functional impairment listed on the schedule of disabilities is a question of fact for resolution by the ALJ which must be upheld if supported by substantial evidence in the record. 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., 937 P.2d 883 (Colo.App. 1996). Substantial evidence is that quantum of probative evidence which a rational fact-finder would accept as adequate to support a conclusion, without regard to the existence of conflicting evidence. Durocher v. Industrial Claim Appeals Office, 905 P.2d 4 (Colo.App. 1995).
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, supra; 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 expressly found the opinions of Dr. Crane more persuasive and the opinions of Dr. Harder. We may not substitute our judgment for that of the ALJ concerning the credibility of the witnesses, including medical experts. Metro Moving Storage Co. v. Gussert, supra; Dow Chemical Co. v. Industrial Claim Appeals Office, 843 P.2d 122 (Colo.App. 1992) (ALJ free to credit one medical opinion to the exclusion of a contrary medical opinion). Consequently, we need not consider whether Dr. Harder's testimony might support a finding that the claimant sustained functional impairment of the whole person. See F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985).
Dr. Crane testified that the rotator cuff is attached to the humerus bone which begins at the elbow and ends at the glenohumeral joint. (Tr. p. 54). Dr. Crane also stated that the claimant's functional impairment from the injury is limited to a loss of range of motion at the glenohumeral joint and does not involve functional impairment to any other part of the body. (Tr. pp. 57, 59, 63, 64). Further, Dr. Crane stated that crepitus in the shoulder is a natural consequence of the type of surgery the claimant underwent, but that at the time of his examination, the claimant did not demonstrate functional impairment from this condition. (Tr. pp. 60-61, 66).
The claimant's arguments notwithstanding, a plausible inference from Dr. Crane's testimony is that the claimant's functional impairment is limited to a loss of use of the arm at the shoulder. See Industrial Commission v. Royal Indemnity Co., 124 Colo. 210, 236 P.2d 293 (1951) (appellate issue is whether the evidence when viewed in the light most favorable to the prevailing party, is sufficient to support the ALJ's pertinent findings). Moreover, insofar as Dr. Crane's testimony is subject to conflicting inferences, it was the ALJ's sole prerogative to credit that part of Dr. Crane's testimony which supported a finding that the claimant's functional impairment is limited to the use of his arm. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968).
In reaching this conclusion, we are mindful of our previous statements that evidence of pain and discomfort which interferes with the claimant's ability to use a portion of the body may be considered functional "impairment." 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); Garcia v. Advanced Component Systems, Inc., W.C. No. 4-187-720 (June 21, 1996); Elwood v. Sealy Corporation, W.C. Nos. 4-175-456, 4-178-995 (June 23, 1995). However, we have not held that such evidence compels a finding of functional impairment of the whole person. See also Vangieson v. Gosney-Sons Inc., W.C. No. 3-110-985 (April 17, 1997).
Neither did we conclude in Mader, that an injury to the "glenohumeral joint" is an "injury" not listed on the schedule of disabilities. Instead, we held that the evidence the ALJ found persuasive concerning the claimant's pain in his shoulders, chest, back, and neck, which restricted his ability to perform overhead activities, supported the ALJ's finding of functional impairment not listed on the schedule.
Here, the claimant testified that he experiences pain in his shoulders and in the muscles between his shoulders and neck. However, unlike Mader and Garcia, the ALJ in this matter was not persuaded the claimant's pain evidenced functional impairment beyond the arm. Consequently, we cannot say that the record compelled an award of whole person impairment benefits. See Walker v. Jim Fouco Motor Company, supra; Strauch v. PSL Swedish Healthcare System, supra; Langton v. Rocky Mountain Health Care Corp., supra.
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, even if the glenohumeral joint is part of the torso, and not the "arm at the shoulder," the fact that the claimant necessitated a resection of the acromion, which is proximate to the glenohumeral joint, does not compel a finding that the claimant sustained residual functional impairment to the body as a whole.
We also reject the claimant's contention that the ALJ read non-existent provisions into the statute, in finding that the claimant's functional impairment of the upper extremity is the equivalent of an impairment to the "arm at the shoulder." The ALJ recognized that the schedule of disabilities does not list impairment of the "upper extremity." (Tr. p. 58). Nevertheless, considering the evidence as a whole, the ALJ could infer that the nature of the claimant's range of motion deficiencies in his "upper extremity" reflected the partial loss of use of the arm at the shoulder. See (Finding of Fact 14; Conclusions of Law 4) ; Wierman v. Tunnell, 108 Colo. 544, 120 P.2d 638 (1941) (ALJ considered to possess expert knowledge which renders him competent to evaluate medical evidence and draw plausible inferences from it). Thus, we are not persuaded that the ALJ erred in failing to award benefits based upon Dr. Yarnell's whole person impairment rating.
III.
The claimant also contends that the ALJ's order is invalid because the order was prepared by respondents' counsel. We reject this argument.
In pertinent part, § 8-43-215, C.R.S. 1997, provides that any party dissatisfied with the ALJ's summary order may request specific findings of fact and conclusions of law, and in the event of such a request, specific findings of fact and conclusions of law "shall be completed" within twenty-five days of the request. Although we do not dispute the claimant's assertion that the ALJ's authority is strictly statutory, Lewis v. Scientific Supply Co., 897 P.2d 905 (Colo.App. 1995), § 8-43-215 does not prescribe a particular method for the ALJ's completion of specific findings. Nor does the statute expressly preclude the ALJ from delegating the duty of preparing a draft of the order to the parties.
Moreover, the courts have repeatedly declined to reverse orders merely because they were originally drafted by one of the parties. In Ficor, Inc. v. McHugh, 639 P.2d 385 (Colo. 1982), and Uptime Corp. v. Colorado Research Corp., 161 Colo. 87, 420 P.2d 232 (1966), the courts held that if the findings are otherwise sufficient, they are not weakened or discredited because they were originally drafted by one of the parties. The court in Uptime added that it is presumed on appeal that the fact finder "examined the proposed findings and agreed that they correctly stated the facts as he himself found them to be; otherwise, he would not have adopted them as his own." 420 P.2d at 235; see also Colorado-Ute Electric Association. v. Scarlett, (Colo.App. No. 88CA1055, September 14, 1989) (not selected for publication). We unpersuaded that there is any basis from departing from these holdings.
Nevertheless, as argued by the claimant's counsel, we must scrutinize the ALJ's findings more critically where the order was drafted by one of the parties. Ficor, Inc. v McHugh, supra. Here, the ALJ's findings adequately indicate the basis for the decision, and the findings support the award. Furthermore, the ALJ did not adopt the proposed order verbatim. Rather, the ALJ edited both the findings and the conclusions of law to reflect additional determinations. See (Finding of Fact 9, Conclusions of Law 7). Thus, we perceive no irregularity or impropriety.
Finally, we presume that the ALJ considered and rejected the claimant's written objection to the proposed order before he signed it. See Wecker v. TBL Excavating, Inc., 908 P.2d 1186 (Colo.App. 1995); Ski Depot Rentals, Inc. v. Lynch, 714 P.2d 516 (Colo.App. 1985) (ALJ is entitled to the presumption of integrity.); Raffaelo v. Industrial Commission, 670 P.2d 805 (Colo.App. 1983); Isfahani v. Metro Taxi Inc., W.C. No. 3-930-899 (November 23, 1992). Therefore, we decline to reverse the ALJ's order merely because the order was drafted by counsel for the respondents.
To the extent the claimant has other arguments, they are not persuasive.
IT IS THEREFORE ORDERED that the ALJ's order dated July 7, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ Kathy E. Dean
________________________________ Dona HalseyNOTICE 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, 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 this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1997.
Copies of this decision were mailed November 24, 1997 to the following parties:
Benito Montoya, 594 S. Stuart, Denver, CO 80219
Colorado Asphalt Services, Inc., P.O. Box 329, Commerce City, CO 80037-0329
Kristin Boeke, Claims Adjuster, CIGNA Insurance, P.O. Box 2941, Greenwood Village, CO 80150
Pepe J. Mendez, 700 Broadway, Ste. 1101, Denver, CO 80203 (For the Claimant)
Paul D. Feld, Esq., 999 18 St., #3100, Denver, CO 80202-2431 (For the Respondents)
By: __________________________