Opinion
W.C. No. 4-421-202
October 1, 2002
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Muramoto (ALJ) which awarded permanent partial disability benefits based on medical impairment of 17 percent of the whole person. The respondents argue the law and the evidence compelled the ALJ to award scheduled disabilities. We affirm.
The claimant sustained injuries to both upper extremities in 1999. Ultimately, she was placed at maximum medical improvement in December 2000. Dr. Griffis, a treating physician, diagnosed the claimant as suffering from bilateral cubital tunnel syndrome (ulnar nerve entrapment at the elbows) and bilateral upper trapezius strains. In March 2001 Dr. Griffis assigned 10 percent impairment of each upper extremity based on the nerve entrapment at the elbows. He testified no rating could be assigned for the trapezius strains. These ratings combined for a 12 percent whole person impairment.
A Division-sponsored independent medical examination (DIME) physician diagnosed ulnar nerve entrapment of both elbows. Based on this diagnosis he assessed 15 percent impairment of each upper extremity, which converted to a 17 percent whole person impairment.
The respondents admitted liability based on the DIME physician's scheduled impairment ratings, and the claimant sought a hearing to determine her entitlement to whole person medical impairment benefits. The ALJ found, based on the opinion of Dr. Griffis, that the claimant has bilateral cubital tunnel syndrome and bilateral trapezius strains. The ALJ also credited the claimant's testimony that she experiences pain in her upper extremities, shoulders, neck, and head, and these symptoms impair her ability to perform activities of daily living. Under these circumstances, the ALJ concluded the claimant proved she sustained functional impairments "proximal to the arm at the glenohumeral joint," and is entitled to whole person medical impairment benefits based on impairment of 17 percent of the whole person.
On review, the respondents contend the ALJ erred as a matter of fact and law in awarding whole person medical impairment benefits. The respondents first argue the award violates principles announced in Morris v. Industrial Claim Appeals Office, 942 P.2d 1343 (Colo.App. 1997), because the claimant's trapezius strains are not ratable under the AMA Guides. We disagree.
It is now well established that the question of whether the claimant sustained a "loss of the arm at the shoulder" within the meaning of section 8-42-107(2)(a), C.R.S. 2002, or a whole person medical impairment compensable under section 8-42-107(8)(c), C.R.S. 2002, 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, 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, 917 P.2d 366 (Colo.App. 1996). An impairment rating issued under the AMA Guides is relevant but not dispositive of whether the claimant sustained a functional impairment beyond the schedule. Strauch v. PSL Swedish Healthcare System, supra. Further, we have held that pain which limits the claimant's ability to use a portion of the body may be considered functional impairment for purposes of determining whether an injury is on or off the schedule. Valles v. Arrow Moving Storage, W.C. No. 4-265-129 (October 22, 1998); E.g. Salaz v. Phase II Co., W.C. No. 4-240-376 (November 19, 1997), aff'd., Phase II Co. v. Industrial Claim Appeals Office, (Colo.App. No. 97CA2099, September 3, 1998) (not selected for publication).
Here, the ALJ found the claimant sustained functional impairment of the upper extremities beyond the arm at the shoulder. The respondents' argument notwithstanding, this determination does not implicate Morris v. Industrial Claim Appeals Office, supra. In Morris the claimant sought to combine a scheduled impairment rating with a functional, but unratable, psychiatric impairment for the purpose of obtaining a whole person rating under Mountain City Meat Co. v. Oqueda, 919 P.2d 246 (Colo. 1996). The court ruled that before such a combination may occur, the non-scheduled functional impairment must be ratable under the AMA Guides.
Unlike the situation in Morris, the claimant was not seeking to combine a scheduled impairment with a nonscheduled impairment. Rather, the ALJ determined the claimant sustained a single injury which affected various structures of the claimant's upper body. These injuries resulted in a single impairment rating for each upper extremity, which was converted to a single person whole person impairment rating for each extremity. Consequently, Morris is not pertinent. See Eidy v. Pioneer Freightways, W.C. No. 4-291-940 (August 4, 1998); Bicknell v. Pinion Truck Stop, Inc., W.C. No. 4-159-683 (May 27, 1998).
The respondents next contend that Walker v. Jim Fuoco Motor, Co., 942 P.2d 1390 (Colo.App. 1997), establishes a requirement for the claimant to present "current medical evidence" of functional impairment. Our review of Walker does not indicate the court established any such evidentiary requirement. Rather, the Walker court cited Langton for the principle that the issue of scheduled versus whole person impairment is a "factual question for the ALJ, the determination of which must be upheld if supported by substantial evidence." Id. at 1392. In Walker the court cited the medical evidence as support for the ALJ's finding of a scheduled impairment, but also stated there was other evidence which could have supported a whole person award. Thus, nothing in Walker alters the standard for our review of the ALJ's order.
The respondents' remaining arguments pertain to the adequacy of the findings and the sufficiency of the evidence to support the findings. In this regard, the ALJ is not held to a standard of absolute clarity in expressing findings of fact and conclusions of law. Rather, the ALJ must enter findings and conclusions which demonstrate the evidentiary and legal bases for the award. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000). Further, we must uphold the ALJ's findings if supported by substantial evidence. This standard requires deference to the ALJ's resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
The respondents' contention notwithstanding, the findings and conclusions are fully adequate to indicate the basis of the order. The ALJ determined the functional impairment of the claimant's upper extremities extends beyond the arms at the shoulders. This finding is based on evidence the claimant suffered bilateral trapezius strains which are proximal to the shoulder joint. (Finding of Fact; Griffis Depo. P. 10). Moreover, the claimant testified that pain associated with these strains impairs her ability to perform functions of daily living such as vacuuming and brushing her hair. (Finding of Fact 13, Conclusion of Law 13; Transcript P. 18).
Moreover, these findings constitute substantial evidence the claimant sustained functional impairment beyond the arm at the shoulder. Cf. Valles v. Arrow Moving Storage, supra. The fact that there was no "rating" given for the trapezius strains does not mean the strains did not affect the claimant's function. As noted, the issue is not whether every aspect or diagnosis is given a rating under the AMA Guides, but rather the extent of the functional impairment. Ratings under the AMA Guides are not determinative with respect to functional impairment because the rating scheme contained in the Guides is not consistent with the schedule of disabilities. Mountain City Meat Co. v. Industrial Claim Appeals Office, 904 P.2d 1333, 1337 (Colo.App. 1995), aff'd., 919 P.2d 246 (Colo. 1996); Strauch v. PSL Swedish Healthcare System, supra.
The respondents' assertion that the ALJ's findings concerning the claimant's reports of headaches, neck pain, and shoulder pain before MMI are irrelevant is without merit. The respondents attempted to establish the claimant had no such symptoms. Evidence of consistent reports of pain before MMI tended to refute the respondents' assertions and make it more probable that the symptoms persisted after MMI.
The respondents' remaining arguments concern the weight to be accorded the evidence. However, the fact that some evidence might have supported another result affords no basis for relief on appeal. Walker v. Jim Fuoco Motor Co., supra.
IT IS THEREFORE ORDERED that the ALJ's order dated March 5, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Bill Whitacre
NOTICE
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, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2001. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe Street, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed October 1, 2002 to the following parties:
Wanda L. Smith, P. O. Box 72, Wiley, CO 81092
Neoplan USA Corp., 700 Auwaerter Dr., Lamar, CO 81052-2252
ACE Fire Underwriters Insurance Co., Stanford Place 3, 4582 Ulster, #FL7, Denver, CO 80237
Janet Frickey, Esq., 940 Wadsworth Blvd., 4th Floor, Lakewood, CO 80214 (For Claimant)
Richard A. Bovarnick, Esq., and Harvey D. Flewelling, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For Respondents)
By: _____A. Hurtado______