Opinion
W.C. No. 4-231-195
May 19, 1998
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Wheelock (ALJ), which awarded the claimant permanent partial disability benefits based on a medical impairment of seventeen percent as a whole person. We affirm.
The ALJ's order was entered pursuant to our Order of Remand dated January 6, 1998. Our order contains a statement of the facts, and we will not repeat them here.
On remand, the ALJ found that the claimant's right shoulder injury resulted in functional impairment beyond the upper extremity. In so doing, the ALJ credited the claimant's testimony that when he uses his shoulder, he experiences pain into the neck, shoulder blade and arm. This pain causes him difficulty when reaching and lifting. (Tr. pp. 9-10, 12-13). The ALJ also found that Dr. Labosky converted the claimant's twenty-eight percent upper extremity impairment rating to a seventeen percent whole person rating.
Moreover, the ALJ determined that Dr. Finn's Division-sponsored independent medical examination (IME), which concluded that the claimant had no whole person impairment, was overcome by clear and convincing evidence. In support, the ALJ cited the ratings of Dr. Labosky, Dr. Phelps, and the claimant's testimony.
On review, the respondents contend the ALJ erred in converting the claimant's extremity rating to a whole person rating because there is no evidence of rateable impairment beyond the arm at the shoulder. Citing Morris v. Industrial Claim Appeals Office, 942 P.2d 1343 (Colo.App. 1997), the respondents argue that the testimony of the claimant, and the reports of Dr. Labosky and Dr. Phelps, are insufficient to establish rateable impairment beyond the arm at the shoulder. We disagree.
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. 1997, or a whole person medical impairment compensable under § 8-42-107(8), C.R.S. 1997, 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 Healthcare Corp., 937 P.2d 883 (Colo.App. 1996); Strauch v. PSL Swedish Healthcare System, 917 P.2d 366 (Colo.App. 1996).
It is true that the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition (Revised) (AMA Guides) definition of where the arm ends and the torso begins does not resolve the question of whether a claimant has sustained a loss of the 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 fully 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. 1997, 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. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
Here, the record contains substantial evidence to support the ALJ's finding that the claimant sustained a functional impairment beyond the arm at the shoulder. The claimant testified that he has pain extending to his neck and shoulder blade, and that the pain impairs his ability to perform various functions including reaching and lifting. Under such circumstances, the ALJ could logically find that the injury to the claimant's shoulder has caused functional impairment of the body which is not limited to the claimant's use of his arm, and also affects the use of his back and cervical region in activities of daily living.
Moreover, the whole person impairment ratings of Dr. Labosky and Dr. Phelps support the ALJ's order. The ALJ was free to consider that these physicians believe the claimant's upper extremity rating should be converted to a whole person impairment rating under the circumstances. The ALJ's decision to consider and credit their opinions is fully supported by the holding in Strauch v. PSL Swedish Healthcare System, supra.
The respondents' reliance on Morris v. Industrial Claim Appeals Office, supra, is misplaced. That case concerns the circumstances under which scheduled and nonscheduled impairments may be combined into a single whole person impairment pursuant to the holding in 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 psychological impairment to create a single whole person medical impairment rating without proof that the psychological impairment was "rateable" under the AMA Guides.
Although the ALJ purportedly "combined" the claimant's non-scheduled impairment of the shoulder with the claimant's scheduled disability of the right thumb, this case does not involve a combination of scheduled and non-scheduled impairments. To the contrary, the claimant has suffered a single injury to his upper extremity, which resulted in permanent impairment to both the thumb and shoulder. Further, the issue was whether the total upper extremity impairment could be rated as a scheduled disability. Because the ALJ has found, as a matter of fact, that the claimant's impairment cannot be fully compensated on the schedule of disabilities and is a rateable whole person impairment, Morris does not dictate a different result.
We recognize that the IME physician did not rate the claimant as having any whole person impairment. However, the ALJ found that this rating was overcome by clear and convincing evidence. The respondents do not challenge this conclusion, and we do not consider that issue on appeal.
IT IS THEREFORE ORDERED that the ALJ's order dated February 6, 1998, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL ____________________________________ David Cain ____________________________________ Kathy E. DeanNOTICE 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. (1996 Cum. Supp.).
Copies of this decision were mailed May 19, 1998 to the following parties:
Fernando Baca, 3971 West Kentucky Ave., Denver, CO 80219
City and County of Denver, 110 16th St., Denver, CO 80202-5202
City County of Denver, Attn: Richard Uhriaub, 1445 Cleveland Pl., Room 200, Denver, CO 80202-5306
Daniel E. Muse, Esq. Evelyn B. Makovsky, Esq., City County of Denver, 1445 Cleveland Place, Rm. 200, Denver, CO 80202-5306
Michael S. Krieger, Esq., 3333 S. Bannock St., Ste. 888, Englewood, CO 80110 (For the Claimant)
BY: _______________________