Opinion
W.C. No. 4-210-135
December 11, 1997
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Wheelock (ALJ), insofar as the ALJ awarded permanent partial disability benefits. The claimant contends that the ALJ erroneously granted benefits based upon a scheduled disability instead of a whole person impairment. We disagree, and therefore, affirm.
The ALJ found that the claimant sustained an occupational disease, and was diagnosed with bilateral carpal tunnel syndrome. Dr. Tyler placed the claimant at maximum medical improvement (MMI) on November 14, 1996, with permanent impairment of the peripheral nervous system equal to twelve percent of the right upper extremity, and four percent of the left upper extremity under the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition, Revised (AMA Guides).
The respondents admitted liability for a scheduled disability award under § 8-42-107(2)(a), C.R.S. 1997, based upon a sixteen impairment of the upper extremities. The claimant objected and requested benefits based on impairment of the whole person.
At the hearing, the claimant testified that she has pain in her neck, shoulders and upper back as a result of the industrial injury. She also stated that due to pain, swelling and numbness in her hands, she can only get two hours of uninterrupted sleep, which impairs the functioning of her whole body. Therefore, she argued that she has sustained functional impairment which must be compensated as impairment of the whole person.
The ALJ found that the claimant's functional impairment from the carpal tunnel syndrome is limited to her hands and wrists. Therefore, the ALJ determined that the claimant is limited to a scheduled disability award. The ALJ also determined that compensation for the claimant's functional impairment is to be determined in accordance with § 8-42-107(7), C.R.S. 1997. Consequently, the ALJ approved the respondents' admission for benefits based upon sixteen percent impairment of the upper extremities.
I.
Initially, we reject the respondents' contention that the claimant failed timely to file his petition for review. Section 8-43-301(2), C.R.S. 1997, provides that a petition to review must be filed at "the place indicated in the order," within twenty days of the date the ALJ's order is mailed to the parties The statute also allows the petition to be filed by mail. If filed by mailing the petition:
"shall be deemed filed on the date of mailing, as determined by the certificate of mailing, provided the certificate of mailing indicates that the petition to review was mailed to the appropriate administrative law judge."
Here, the ALJ's order required the petition to review to be filed at the "Division of Administrative Hearings, 20 E. Vermijo, Room 407, Colorado Springs, CO. 80903." The order also contains a certificate of mailing showing that the order was mailed to the parties on March 17, 1997. Accordingly, the claimant's petition for review had to filed within twenty days of March 17, 1997, or no later than April 6, 1997. However, since April 6, 1997 was a Sunday, the time for filing a petition to review was extended to April 7, 1997. Section 2-4-108 C.R.S. 1997.
The claimant's petition contains a certificate of mailing showing that it was mailed April 7, 1997, to the "Division of Labor, 20 E. Vermijo, Colorado Springs, CO 80903." The certificate of mailing on the claimant's Designation of Record is similar, but also shows that it was sent to room "407."
A date stamp shows that the claimant's petition and designation of record were received by the Division of Administrative Hearings on April 9, 1997. Thus, regardless of the fact that the pleadings were addressed to the "Division of Labor," the record demonstrates that they promptly reached the correct location and agency.
We also note that the ALJ had an opportunity to consider the respondents' jurisdictional challenge before transmitting the record to us for review. See (claimant's Motion to Strike Memorandum Brief in Opposition to Petition to Review, Order dated October 9, 1997). Because the ALJ transmitted the matter to us, we understand the ALJ to be satisfied that the claimant's petition was timely mailed to her.
There appears to be no doubt that the claimant mailed his petition in a timely fashion, and that the minor deviation in the name of the addressee did not affect timely delivery of the petition to the ALJ. Under these circumstances, we conclude that the claimant substantially complied with the requirements of § 8-43-301(2), and that the petition was timely filed by mail. See Rendon v. United Airlines, 881 P.2d 482 (Colo.App. 1994) [cover letter showing petition to review timely mailed to the ALJ constituted "substantial compliance" with § 8-43-301(2)].
Furthermore, the untimely service of process on opposing party is not the equivalent of an untimely filing of a petition to review. See Colorado Department of Institutions v. Industrial Claim Appeals Office, 780 P.2d 72 (Colo.App. 1989). Therefore, it is immaterial whether the respondents were served with a petition containing a postmark date of April 9, 1997.
II.
On review the claimant contends that she is entitled to whole person impairment benefits because she has a sleep disorder which impairs the function of her whole body. She also contends that she has a bilateral "cumulative trauma disorder," which is not the equivalent of a scheduled loss of "the arm at the shoulder," in § 8-42-107(2)(a). Further, the claimant contends that under the Rules of Procedure, Part XIX(G)(2), 7 Code Colo. Reg. 1101-3 at 126-127, a cumulative trauma disorder is to be compensated as a whole person impairments.
We rejected similar arguments in Divido v. John C. Ley, D.D.S., P.C., W.C. No. 4-288-357 (November 26, 1997), where we upheld an order denying a request for whole person impairment benefits in connection with a bilateral injury to the upper extremities. The claimant's arguments do not persuade to depart from our conclusions in Divido. Furthermore, the pertinent facts in this claim are virtually identical to the facts presented in Divido. Therefore, we perceive no basis to treat this claim differently, and adhere to the conclusions stated in Divido.
Section 8-42-107(1), C.R.S. 1997, limits a claimant to scheduled disability benefits if the industrial injury results in permanent medical impairment enumerated on the schedule of disabilities in § 8-42-107(2). Mountain City Meat Co. v. Oqueda, 919 P.2d 246 (Colo 1996); CFI Steel Corp. v. Industrial Commission, 650 P.2d 1332 (Colo.App. 1982) (term injury encompasses both accidental injuries and occupational diseases). Where the claimant suffers functional impairment which is not listed on the schedule, the claimant is entitled to medical impairment benefits for impairment of the whole person as provided by § 8-42-107(8), C.R.S. 1997.
The question of whether the claimant has sustained impairment not listed on the schedule is generally one of fact for resolution by the ALJ. Langton v. Rocky Mountain Health Care Corp., 937 P.2d 883 (Colo.App. 1996). Consequently, the ALJ's pertinent findings of fact must be upheld if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1997. In this regard we are bound by the ALJ's resolution of conflicts in the evidence, her credibility determinations and the plausible inferences she drew from the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
Further, the ALJ is not required to credit the claimant's testimony, or expert medical testimony, even if unrefuted. Levy v. Everson Plumbing Co., Inc., 171 Colo. 468, 468 P.2d 34 (1970). Rather, the ALJ is free to credit all, part or none of a witness' testimony. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968).
As stated above, it is the claimant's functional impairment, and not the "diagnosis" of the particular injury which is determinative of whether the claimant has suffered a scheduled disability. Consequently, regardless of whether the claimant's injury may be characterized as a "cumulative trauma disorder," it is the residual functional impairment from the injury which is pertinent.
In this case, ALJ expressly recognized the multiple diagnoses Dr. Tyler assigned to the injury. (Finding of Fact 4). However, the ALJ was not persuaded that the claimant's neck, shoulder and upper back pain is the result of the industrial injury. Similarly, the ALJ rejected the claimant's testimony of functional impairment beyond the arm at the shoulder. Instead the ALJ credited the claimant's testimony that her pain from the injury stops at the wrist. (Tr. p. 15; Conclusions of Law 3).
Further, the medical records do not contain a rating of permanent impairment for a sleep disturbance. Under these circumstances, the ALJ could reasonably infer that the claimant does not have functional impairment of the whole person based on sleep problems. See Morris v. Industrial Claim Appeals Office, 942 P.2d 1343 (Colo.App. 1996) [injury must be "rateable" under AMA before it can be impairment of whole person under 8-42-107(8)]
Next, we reject the claimant's contention that the General Assembly intended to compensate a bilateral loss of the arms at the shoulder as impairment of the whole person. As found by the ALJ, § 8-42-107(7)(a), C.R.S. 1997, provides that:
"When an injured employee sustains two or more injuries coming under this schedule, the disabilities specified in sections (1) to (5) of this section shall be added, and the injured employee shall receive the sum total thereof."
Further, in Mountain City Meat Co. v. Oqueda, supra, the court stated that "section 8-42-107(7)(a) mandates that the disabilities be added, and [that] the injured employee shall receive the sum total thereof." 919 P.2d at 252. Consequently, the statute reflects a legislative intent not to compensate bilateral upper extremity injuries under § 8-42-107(8).
We also reject the claimant's argument that her "cumulative trauma disorder" must be compensated as a whole person impairment pursuant to Rule XIX(G)(2). Admittedly, Rule XIX(G)(2)(f) permits bilateral upper extremity impairments to be converted to a single whole person rating in certain circumstances. However, Rule XIX(G)(1) states that the Cumulative Trauma Disorder rating system is designed for "disorders that primarily involve muscular, tendinous, ligamentous and bony structures" consistent with section 3.1j of the AMA Guides. The rule adds that vascular and neurologic disorders are rated by other sections of the AMA Guides. Further, Rule XIX(G)(2) states that the rule applies only where the Level II physician has calculated the applicable impairments from "motion, neurologic and/or vascular findings, or other disorders," and "no impairment exists under these sections of the AMA Guides."
Here, Dr. Tyler determined that the claimant's impairment is primarily to the peripheral nervous system. Dr. Tyler also determined that the AMA Guides provide a rating for impairment of the peripheral nervous system. Consequently, the conditions for an application of Rule XIX(G)(2) do not exist in this case.
Finally, the claimant argues that permitting bilateral upper extremity injuries to be converted to whole person impairment ratings in some types of cases, but not others, creates an equal protection problem. However, as the claimant recognizes, resolution of this question is beyond our jurisdiction. Kinterknecht v. Industrial Commission, 175 Colo. 60, 485 P.2d 721 (1971).
IT IS THEREFORE ORDERED that the ALJ's order dated March 17, 1997, 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. 1997.
Copies of this decision were mailed December 11, 1997 to the following parties:
Patricia Wallace, 6255 Blazing Star Dr., Colorado Springs, CO 80922
Homeclub, Inc. A Delaware Corporation, 2855 S. Academy Blvd., Colorado Springs, CO 80916-3001
Waban, Inc., 1050 W. Hampden Ave., Englewood, CO 80110-2118
Continental Casualty Co., — CNA Ins. Co., P.O. Box 17369, T.A., Denver, CO 80217
Reliance National Indemnity, 4 Penn Center Plaza, Philadelphia, PA 19103
Crawford Co., Attn: Tambra Redlin, 4570 Hilton Parkway, #202, Colorado Springs, CO 80907
Joan A. Goldsmith, Esq., 6665 Delmonico, Ste. D, Colorado Springs, CO 80919 (For the Respondents)
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909 (For the Claimant)
BY: __________________________