Opinion
W.C. No. 4-160-963
July 25, 1996
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Wells (ALJ) insofar as it failed to increase his average weekly wage for the period of January 16, 1993 through July 16, 1993. The respondents seek review of the order insofar as it awarded medical impairment benefits based on a disability of the whole person. We affirm.
I.
The initial dispute concerns the claimant's average weekly wage. We previously considered this issue in our Final Order dated May 10, 1995. There, we held that the claimant was not entitled to any increase in his average weekly wage when the employer ceased its fringe benefit contribution to the claimant's union. Specifically, we determined that, because the claimant continued to receive "cost-free health insurance as a result of his membership in the union" after the employer terminated the union contribution, § 8-40-201(19)(b), C.R.S. (1995 Cum. Supp.) precluded inclusion of the contribution in calculating claimant's average weekly wage.
The claimant subsequently petitioned to reopen the average weekly wage issue arguing that the union health insurance benefit ceased on July 17, 1993. The ALJ reopened the claim and increased the claimant's average weekly wage by $300 per month as of July 17. The increased wage reflected "the replacement cost of the health insurance" to the claimant after the union benefit ceased.
However, the ALJ rejected the claimant's argument that the average weekly wage should be increased for the period of January 16, 1993 through July 16, 1993. In this regard, the claimant presented evidence that he had been a union member for fifty years and paid union dues of between $15,000 and $20,000 over that span of time. The claimant asserted that a portion of his union dues constituted "pre-payment" for the six months of health insurance benefits he received from January 16 through July 16. Further, the claimant asserted that the "cost" of the health insurance should be calculated by dividing two-thirds of his union due payments ($10,000) by six, the number of months he received union health insurance. Alternatively, the claimant suggested that the ALJ should calculate the cost of health insurance at $300 per month, the same as the cost of conversion to a new plan on July 17, 1993. In ruling on this issue the ALJ stated:
"I just don't know what the dollar amount is, and I don't know what the proportion is." (Tr. p. 53).
On review, the claimant contends that the ALJ erred in failing to increase the average weekly wage for the period January 16, 1993 through July 16, 1993 and he reiterates the arguments which he made to the ALJ. We are not persuaded.
Initially, we note that we are obliged to uphold the ALJ's pertinent findings of fact if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.). Consequently, we must uphold the ALJ's credibility determinations, his resolution of conflicts in the evidence, and the plausible inferences which he drew from the evidence . Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). Moreover, the question of whether the claimant carried his burden of proof to establish entitlement to benefits is itself a question of fact. Metro Moving Storage Co. v. Gussert, supra.
Assuming, arguendo, that "pre-payment" of health insurance can constitute a "cost of conversion" for purposes of § 8-40-201(19)(b), we conclude that the evidence supports the ALJ's refusal to make such an allocation in this case. As the ALJ noted in his oral remarks, there is no basis for determining what portion of the claimant's union dues was paid for health insurance. In fact, the claimant invited the ALJ, and now us, to speculate that all dues were paid for health insurance. The ALJ did not err in failing to accept the claimant's invitation to speculate on this question.
Similarly, there is no basis for concluding that the claimant's cost of conversion in July 1993 reflects the amount of the union dues which went for health insurance. To the contrary, the ALJ could reasonably infer that union members received the benefit of group health insurance rates, and the claimant's individual rate is substantially higher. The ALJ was certainly not required to follow the inference argued for by the claimant, especially in the absence of any evidence justifying that inference.
II.
The respondents contend that the ALJ erred in awarding medical impairment benefits based upon a disability of six percent of the whole person. In this regard, the ALJ found that the claimant sustained a "functional impairment to his shoulder," as well as a "functional impairment in regard to the pain which extends across the top of the shoulder and continues to the base of the neck."
The respondents contend that the evidence compels the conclusion that the claimant sustained a loss of the arm at the shoulder under § 8-42-107(2)(a), C.R.S. (1995 Cum. Supp.). In support of this argument they point to portions of the claimant's testimony where he indicated that his principal problem involves movement of his arm. We are not persuaded.
In Strauch v. PSL Swedish Healthcare System, 917 P.2d 366 (Colo.App. 1996), the court of appeals considered the question of whether an injury to the shoulder must be rated under § 8-42-107(2)(a), or under § 8-42-107(8), C.R.S. (1995 Cum. Supp.) because it does not appear on the schedule. In resolving this question the court held that the term "injury," as it appears in § 8-42-107(2), refers to the "manifestation in a part or parts of the body which have been impaired or disabled as a result" of the industrial accident. Further, the court stated that determination of what part of the body has been "impaired" is a question of fact for resolution by the ALJ, and does not depend upon "the particular site of the injury or the medical reason for the loss." In Strauch, the court concluded that the evidence supported the determination that the claimant's "shoulder injury" impaired only the functioning of his arm, and therefore, was properly rated under the schedule.
Here, the ALJ found that the claimant suffered impairment of his "shoulder," and that this impairment involves the area between the shoulder joint and the claimant's neck. This finding is supported by the claimant's testimony as well as plausible inferences to be drawn from the medical reports concerning the claimant's condition. It follows that the ALJ's determination that the claimant sustained impairment not found on the schedule is supported by the evidence, and must be upheld on review. Strauch v. PSL Swedish Healthcare System, supra.
We need not address the ALJ's alternative basis for resolving this issue. Suffice it to say that, in our view, Strauch repudiates the notion that an injury to a shoulder can never be rated under the schedule.
IT IS THEREFORE ORDERED that the ALJ's order dated December 29, 1995, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Kathy E. DeanNOTICE This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to 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 the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. (1995 Cum. Supp.).
Copies of this decision were mailed July 25, 1996 to the following parties:
Jack B. Quick, 3940 Applewood Dr., Colorado Springs, CO 80907
Contractors Crane Service, Inc., 1608 N. Circle Dr., Colorado Springs, CO 80909-2408
Colorado Compensation Insurance Authority, Attn.: Brandee L. DeFalco, Esq. (Interagency Mail)
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909-4349 (For the Claimant)
By: ________________________