Opinion
W.C. No. 4-761-724.
May 11, 2010.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Krumreich (ALJ) dated November 30, 2009 that denied the claimant's claim for additional permanent partial disability benefits. We affirm.
A hearing was held on the issue of whether the claimant sustained functional impairment to a part of his body off the schedule and whether he was therefore entitled to permanent partial disability benefits based on a whole person impairment rating. Following the hearing the ALJ entered findings of fact that for the purposes of this order may be summarized as follows. The claimant sustained an admitted injury to his right shoulder on June 7, 2008, and was referred to Dr. Fox for medical treatment. Dr. Fox referred the claimant to Dr. Papilion, who performed surgery on the claimant's shoulder on August 28, 2008. On February 9, 2008 Dr. Fox placed the claimant at maximum medical improvement and released him to his regular work as a truck driver with no permanent restrictions. The claimant obtained a Division-sponsored independent medical examination (DIME), which was performed by Dr. Basse. The ALJ found that Dr. Basse did not state an opinion regarding whether the claimant sustained functional impairment above the level of the arm at the shoulder. Dr. Watson performed an independent medical examination at the claimant's request and reported that he had resumed his activities without any limitations. Dr. Watson opined that the claimant had sustained no impairment proximal to the shoulder. Without examining the claimant, Dr. Swarsen testified that the claimant had sustained functional impairment to the shoulder. The ALJ expressly credited the opinions of Dr. Watson and found that the claimant failed to prove that he sustained functional impairment above the arm at the shoulder. Accordingly, the ALJ denied the claimant's claim for additional permanent partial disability benefits in excess of the 15 percent impairment of the arm at the shoulder, which the respondents had admitted for.
The claimant appealed and argues that the ALJ erred in awarding permanent partial disability benefits based only on the extremity impairment rating. Specifically, the claimant argues that the ALJ's findings that the claimant had impairment of the shoulder compels the conclusion that his functional impairment should be compensated based on a whole person impairment rating. In this regard, the claimant also argues that the ALJ's inference that the claimant suffered only functional impairment to his arm is unsupported by the factual record, and that the uncontroverted evidence compels the finding that the impairment was to his shoulder. The claimant argues that this finding, in turn, requires that the impairment be compensated using the whole person impairment rating. However, we are not persuaded that the ALJ committed reversible error.
The parties do not appear to disagree regarding the applicable legal principles, which are well-established. The question of whether the claimant's impairment for his right shoulder is a scheduled injury is an issue 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, 693 (Colo. App. 2000). Here, it was the claimant's burden to show that his injury resulted in functional impairment beyond the arm at the shoulder. Section 8-43-201, C.R.S. (claimant has burden of proof to establish entitlement to benefits); § 8-42-107(b)(I), C.R.S. (scheduled injuries to be compensated under the schedule and nonscheduled injuries compensated as medical impairment benefits); Strauch v. Industrial Claim Appeals Office, 917 P.2d 366 (Colo. App. 1996). 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, supra. In applying this standard, the ALJ is also presumed to have considered and applied the relevant legal principles. Shafer Commercial Seating, Inc. v. Industrial Claim Appeals Office, 85 P.3d 619 (Colo. App. 2003).
The parties also recognize that the ALJ's factual findings must be upheld if supported by substantial evidence in the record. Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141 (Colo. App. 1998). 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. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo. App. 2003). Under this standard of review it is the ALJ's sole prerogative to evaluate the credibility of the witnesses and the probative value of the evidence. The substantial evidence standard requires that we view evidence in the light most favorable to the prevailing party, and defer to the ALJ's assessment of the sufficiency and probative weight of the evidence. Thus, the scope of our review is "exceedingly narrow." Metro Moving Storage Co. v. Gussert, supra.
This narrow standard of review also requires that we 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). Moreover, the existence of evidence which, if credited, might permit a contrary result also affords no basis for relief on appeal. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo. App. 2002).
Contrary to the claimant's argument, the ALJ's determination that the claimant did not sustain whole person impairment related to his shoulder is supported by evidence in the record. The dispositive question to be resolved by the ALJ was whether the claimant was "limited to medical impairment benefits as specified in subsection (2)" of § 8-42-107, C.R.S. That subsection, entitled "[scheduled injuries" provides for medical impairment benefits where the impairment has resulted in "[t]he loss of an arm at the shoulder." See also § 8-42-107(8), C.R.S. (when injury results in permanent medical impairment not set forth in the schedule, benefits are calculated as provided in subsection (8)).
Here, the ALJ expressly credited the opinions of Dr. Watson and stated that he was more persuaded by those opinions than by the conflicting ones of Dr. Swarsen. Dr. Watson testified that he examined the claimant and specifically focused in that examination on determining the site of his functional impairment, if any. Deposition of Robert Watson, Jr., M.D. (November 11, 2009) at 7 (hereinafter Watson Depo.) He further testified that the claimant's functional impairment was "in the shoulder" and "affecting the use of the upper extremity." Watson Depo. at 7. He noted that the claimant had reached maximum medical improvement and had returned to his regular work with "no limitations." Watson Depo. at 8. In response to the question whether the claimant had any functional limitations placed on him by any doctor, Dr. Watson responded that "there are none." Watson Depo. at 10. Dr. Watson testified that the claimant did not have any impairment "above the shoulder level," and that any range of motion limitations were confined to the use of his right arm. Watson Depo. at 13-14. He further testified that he did not find any basis on which to place any limitations on the claimant's functional abilities. Watson Depo. at 16.
This testimony amply supports the ALJ's findings that the claimant did not sustain functional impairment to any portion of his body not set forth on the schedule in § 8-42-107(2). We note that Dr. Watson's testimony, standing alone, provides sufficient support for the ALJ's findings; however, the factual record contains other evidence providing additional support. Thus, we note that Dr. Basse and Dr. Fox both opined that the claimant's injury did not result in any physical restrictions that would prevent the claimant from returning to full duty. Taken as a whole and in the light most favorable to the prevailing party, the factual record fully supports the ALJ's findings. Those findings, in turn, support the ALJ's conclusion that the claimant failed to show that his injury resulted in permanent medical impairment not set forth in the schedule.
Insofar as the claimant argues that any impairment of the shoulder joint must be compensated based upon a whole person impairment rating, we disagree. It is evident from the ALJ's conclusions of law that he thoroughly and correctly applied the relevant legal principles. Thus, he discussed the legal authority relevant to a determination whether impairment is properly compensated on the schedule, noting that an injury to the shoulder joint does not necessarily require compensation calculated using a whole person impairment rating. We perceive no error in the ALJ's application of the law to his factual findings.
In this regard, the Colorado 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; Henke v. United Airlines, W.C. Nos. 4-456-163, 4-490-897 (September 10, 2003) 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.
The ALJ's factual findings are supported by substantial evidence in the record and those findings support the ALJ's legal conclusions. He reached those conclusions by the correct application of the relevant legal principles and there is therefore no basis on which to set aside his order. IT IS THEREFORE ORDERED that the ALJ's order dated November 30, 2009, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant
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CHRISTOPHER B GONZALES, AURORA, CO, (Claimant)
TRANSERVICE LEASE CORPORATION, DENVER, CO, (Employer)
TRAVELERS INDEMNITY COMPANY OF COLORADO, Attn: ANNA K CURREY, DENVER, CO, (Insurer)
LAW OFFICE OF OTOOLE SBARBARO, PC, Attn: NEIL D. OTOOLE, ESQ., DENVER, CO, (For Claimant)
THOMAS, POLLART MILLER, LLC, Attn: ERIC J POLLART, ESQ., GREENWOOD VILLAGE, CO, (For Respondents)