Opinion
W.C. No. 4-003-430
September 21, 1995
FINAL ORDER
The respondent seeks review of a final order of Chief Administrative Law Judge Felter (ALJ) which awarded the claimant permanent partial disability benefits based on a thirteen percent whole person impairment. We affirm.
The parties stipulated that this claim is governed by the provisions of former § 8-42-110(3), C.R.S. (1990 Cum. Supp.) (reemployment statute). The issue concerns the degree of the claimant's physical impairment.
The ALJ found that the claimant suffered an injury to his shoulder. The injury required surgery described as repair of the rotator cuff and an achromioplasty. Subsequently, the claimant was rated by three physicians. Dr. Fenton rated the claimant as suffering from an eleven percent impairment of the upper extremity, which equated to a seven percent whole person impairment. Dr. Gamble rated the claimant as suffering from a twelve percent impairment of the left upper extremity, which equated to a seven percent whole person impairment.
However, the ALJ credited the testimony and opinions of Dr. Harder. Dr. Harder stated that the claimant had a twenty-two percent impairment of the left upper extremity which is the equivalent of a thirteen percent whole person impairment. In support of this rating, Dr. Harder stated that the claimant's "shoulder" is medically defined as the glenohumeral joint involving the humerus (upper bone of the arm), the scapula (shoulder blade) and the clavicle (collar bone). (Tr. pp. 17-21). Dr. Harder testified that, under the American Medical Association Guides to the Evaluation of Permanent Impairment (Third Edition Revised) (AMA Guides), the clavicle and scapula are considered to be part of the "upper extremity." However, Dr. Harder distinguished the clavicle and scapula from the "arm," which he defined as "that portion of the upper extremity between the shoulder and the elbow." (Tr. p. 16). Dr. Harder also testified that his rating accounted for crepitus and lost motion involving the scapula. (Tr. pp. 22-25).
Having credited Dr. Harder's testimony, the ALJ concluded that the claimant was entitled to a whole person medical impairment rating. In support of this conclusion, the ALJ cited Dr. Harder's testimony for the proposition that an injury to the shoulder does not constitute "loss of an arm at the shoulder" within the meaning of former § 8-42-107(1)(a), C.R.S. (1990 Cum. Supp.).
On review, the respondent contends that the ALJ erred because the "evidence supports the final admission filed by the respondent for permanent partial disability of eleven percent loss of the arm at the shoulder" as set forth in § 8-42-107(1)(a). The respondent asserts that the shoulder affects "only the use or impairment of the arm" and that the AMA Guides indicate that the shoulder is part of the "upper extremity." Thus, the respondent reasons that, under the reemployment statute, the claimant's compensation is limited to that provided in § 8-42-107(1)(a). We reject this argument.
Section 8-42-110(3) provides that, where the statute is applicable, the claimant's "permanent partial disability award shall be limited to permanent medical impairment or a payment under § 8-42-107, whichever is less." Where the claimant's injury results in a "loss" which is enumerated under § 8-42-107, it is proper to order a payment under the schedule. Turner v. City and County of Denver, 867 P.2d 197 (Colo.App. 1993).
The claimant correctly argues that in resolving whether an "injury" has "resulted in a loss" described by § 8-42-107(1)(a), the ALJ must determine what part or parts of the claimant's body have been functionally impaired or disabled. See Carothers v. J.C. Trucking, Inc., W.C. No. 4-134-297, August 12, 1994; cf. Mountain City Meat Company v. Industrial Claim Appeals Office, 904 P.2d 1333 (Colo.App. 1995). Ultimately, the question of whether the impairing effects of the injury appear on the schedule, or affect a part of the body not listed on the schedule, is a matter of fact for resolution by the ALJ. City of Aurora v. Vaughn, 824 P.2d 825 (Colo.App. 1991); Jones v. Adolph Coors Co., 689 P.2d 681 (Colo.App. 1984); Carothers v. J.C. Trucking, Inc., supra.
Because the issue is factual in nature, we must uphold the ALJ's resolution of this question if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.). In applying this test, we are obliged to defer to the ALJ's resolution of conflicts in the evidence, and the weight and credibility he assigned to the opinions of the various medical experts. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
The respondent's arguments notwithstanding, the testimony of Dr. Harder, which the ALJ explicitly credited, supports the conclusion that the injury to the claimant's shoulder resulted in permanent physical impairment beyond the claimant's "arm." In this regard, we note that the interpretation of the AMA Guides, and their application to particular cases, are themselves factual matters to which the testimony of experts is pertinent. See Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
In affirming the ALJ's order, we should not be understood as agreeing with the ALJ that an injury to the shoulder can never result in a loss described in § 8-42-107(1)(a). We merely hold that, in view of the ALJ's decision to credit Dr. Harder's testimony, the record supports the conclusion that the claimant suffered a loss beyond that described in § 8-42-107(1)(a). Therefore, the claimant was not limited to an award under § 8-42-107. Cf. Romero v. Department of Auraria Higher Education, W.C. No. 4-107-553, November 8, 1993 (evidence supported finding that injury to the claimant's shoulder constituted a scheduled loss.)
IT IS THEREFORE ORDERED that the ALJ's order, dated January 30, 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 September 21, 1995 to the following parties:
James J. Shippley, 6463 Vrain St., Arvada, CO 80003
King Soopers, Inc., Attn: Marc Gallegos, P.O. Box 5567, T.A., Denver, CO 80217
Pepe J. Mendez, Esq., 700 Broadway, #1101, Denver, CO 80203 (For the Claimant)
Richard Glasman, Esq., 455 Sherman St., #210, Denver, CO 80203 (For the Respondent)
By: ______________________