Opinion
W.C. No. 4-759-309.
October 6, 2009.
FINAL ORDER
The claimant and respondents seek review of an order of Administrative Law Judge Krumreich (ALJ) dated May 20, 2009 that ordered the respondents to pay the claimant for the permanent impairment of his hand and additional compensation for his disfigurement. The claimant challenges the ALJ's limitation of his permanent impairment award to his hand instead of to his upper extremity. The respondents challenge the amount of the disfigurement award, which exceeded $4,000 based on disfigurement to the claimant's partially amputated fingers. We affirm.
This matter proceeded to hearing on the extent of the claimant's scheduled impairment and disfigurement. The claimant contended that his impairment was to his upper extremity rather than only to his hand. The respondents had admitted liability for a 29% impairment of the claimant's hand at the wrist and for $800 in disfigurement benefits.
Several of the ALJ's findings of fact are summarized as follows. The claimant sustained an admitted injury on May 12, 2008 when his right hand got caught in a sod harvesting machine, thereby severing portions of two fingers and resulting in the fingers ending in stumps. The claimant underwent surgery for his hand and received postoperative treatment. A treating physician measured the claimant's impairment totaling 29% impairment to the hand due to the finger amputations, including decreased range of motion. The respondents filed a final admission of liability admitting for 29% impairment of the hand at the wrist. The claimant's injured hand is troubled by cold conditions and he has pain radiating to his arm if he hits his hand. He is also right hand dominant and has difficulties gripping, writing, and driving with his right hand. Furthermore, the claimant's right forearm tires with activities such as throwing a ball for more than 15 minutes and he senses his right arm falling asleep when he drives more than one-half hour. The claimant reported to a physician numbness and tingling in his hand through his elbow during the night and while driving. However, the claimant had no symptoms in his right arm at the time that the treating physician evaluated his impairment and the claimant failed to establish an impairment of his arm above the hand. Concerning his disfigurement, the claimant's right hand is disfigured due to the stumps of his amputations. The ALJ awarded the claimant benefits based on his 29% impairment to his right hand and $4,800 for disfigurement.
I.
The claimant asserts that he is entitled to a permanent impairment award for his upper extremity, rather than an award limited to his right hand. In support of his contention, the claimant refers to elements of pain and discomfort noted in the ALJ's findings and argues that the ALJ's determination to the contrary is not supported by those findings.
In the context of permanent partial disability the term "injury" refers to the part or parts of the body which have been permanently, functionally impaired as a result of the injury, and not the physical situs of the injury. Walker v. Jim Fouco Motor Company, 942 P.2d 1390 (Colo. App. 1997); Strauch v. PSL Swedish Healthcare System, 917 P.2d 366 (Colo. App. 1996); Johnson-Wood v. City of Colorado Springs, W. C. No. 4-536-198 (June 20, 2005). The claimant has the burden of showing the extent of his impairment by a preponderance of the evidence. Maestas v. American Furniture Warehouse, W.C. No. 4-662-369 (June 5, 2007); Johnson-Wood v. City of Colorado Springs, supra.
Section 8-42-107(1), C.R.S. 2009, provides that the claimant is limited to a scheduled disability award if the claimant suffers an "injury or injuries" described in subsection (2) of that provision. Strauch v. PSL Swedish Healthcare System, supra. Section 8-42-107(2) covers the loss of parts of fingers. § 8-42-107(2)(d)-(v). The extent of the claimant's functional impairment presents a factual question for the ALJ's resolution. Strauch, 917 P.2d at 368.
The claimant does not contest the ALJ's factual findings. Instead, he asserts that the ALJ's findings warrant impairment benefits for his entire extremity. As noted above, the ALJ found that the claimant experiences pain into his right arm if he hits his right hand. The claimant also has difficulties gripping, writing, and driving. Moreover, the claimant's arm feels like it falls asleep if he drives more than one-half hour and his right forearm tires with certain activities. In addition, the claimant reported numbness and tingling in his hand up to his elbow at certain times. Even so, the ALJ was not persuaded that the claimant established any functional impairment beyond his hand. In this regard the ALJ did not find that the claimant's symptoms restricted the use of his arm. However, the ALJ did consider the impairment of the claimant's ability to grip and write to establish an impairment beyond the fingers to the entire hand and awarded benefits, accordingly.
As asserted by the claimant, pain and discomfort may support a more extensive impairment rating. See Delaney v. Industrial Claim Appeals Office, 30 P.3d 691, 692 (Colo. App. 2000) (addressing extent of injury where treating physician assigned upper extremity rating due to diffuse shoulder girdle myofacial pain); see also, Garcia v. Advanced Component Systems, Inc., W.C. N. 4-187-720 (June 21, 1996) (pain and discomfort interfering with ability to use portion of body may constitute impairment). However, complaints of pain without corresponding restrictions of use do not necessarily require a greater impairment rating. See Jim Fuoco Motor Co., 942 P.2d at 1391-92 (upholding scheduled injury limited to upper extremity where treating physicians found impairment principally affected arm movements, notwithstanding claimant's complaints of pain into neck). However, the ALJ was not persuaded that the claimant's symptoms of numbness, tingling, or falling asleep in his upper right arm restricted the claimant's use of his arm.
It was solely the responsibility of the ALJ to weigh the competing evidence, to determine its probative value, and to draw reasonable inferences from the evidence found by the ALJ to be persuasive. Harrison Western Corp. v. Claimants in re Death of Hicks, 185 Colo. 142, 522 P.2d 722 (1974). The ALJ's findings are supported by the record and are, therefore, binding on review. Section 8-43-301(8), C.R.S. 2009; Cary v. Chevron U.S.A., Inc., 867 P.2d 117 (Colo.App. 1993). The ALJ made a reasonable inference from the evidence and his corresponding findings that the site of the claimant's functional impairment does not extend beyond his hand and we consider the ALJ's determination of the extent of the claimant's impairment to be binding on review. See Ellison v. People's Nat'l Bank, W.C. No. 4-449-392 (January 7, 2002) (reviewing pertinent case law regarding ALJ's determination that situs of functional impairment did not extend beyond shoulder despite periodic radiation of pain into neck and upper back).
II.
The respondents challenge the ALJ's decision to award the claimant $4,800 for disfigurement. Disfigurement benefits are provided for in § 8-42-108 C.R.S., 2009 as follows:
If an employee is seriously, permanently disfigured about the head, face, or parts of the body normally exposed to public view, in addition to all other compensation benefits provided in this article and except as provided in subsection (2) of this section, the director may allow compensation not to exceed four thousand dollars to the employee who suffers such disfigurement.
If an employee sustains any of the following disfigurements, the director may allow up to eight thousand dollars as compensation to the employee in addition to all other compensation benefits provided in this article other than compensation allowed under subsection (1) of this section:
(a) Extensive facial scars or facial burn scars;
(b) Extensive body scars or burn scars; or
( c) Stumps due to loss or partial loss of limbs.
(Emphasis added)
The ALJ based the disfigurement award on the stumps due to the claimant's amputations at the fingers of his right hand. The respondents assert that the disfigurement award for the finger stumps do not constitute "stumps due to loss or partial loss of limbs" as contemplated by the statute. We are not persuaded to disturb the ALJ's disfigurement award.
When interpreting statutes the objective is to implement the legislative intent. In order to do so, we must first examine the statutory language and afford the words their plain and ordinary meanings. Weld County School District v. RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998); see also, White v. Industrial Claim Appeals Office, 8 P.3d 621 (Colo. App. 2000) (in absence of statutory definition word given its dictionary meaning). Furthermore, it is presumed that a statute is intended to effect a just and reasonable result. § 2-4-201(1)(c), C.R.S. 2009.
The term "limb" is otherwise used in the Workers' Compensation Act, §§ 8-40-101 to 8-47-209, C.R.S. 2009, in the context of artificial limbs. See §§ 8-42-107(2)(w), (8)(c.5), C.R.S. 2009. Certain prosthetic devices, in turn, include "artificial members." § 8-42-101(1)(b), C.R.S. 2009. Moreover, the list of scheduled injuries is characterized as addressing the "loss of use of any member." § 8-42-107(7)(b)(II); see also, Reynolds v. Industrial Claim Appeals Office, 794 P.2d 1080, 1083 (Colo. App. 1990) (discussing general provision of a prosthesis to "treat the affected member"). A "member" is synonymous with an "appendage." See Roget's International Thesaurus 1 (5th ed. 1992). The term "limb" generally refers to an appendage used for locomotion or grasping. See, e.g., Webster's II New College Dictionary 636 (1995) (defining "limb" as "[a]n animal's jointed appendage, used for locomotion or grasping, as an arm. . . ."); Dorland's Illustrated Medical Dictionary 872 (25th ed. 1974) (defining "limb" as "one of the paired appendages of the body used in locomotion or grasping. In man, an arm or a leg with all its component parts."). We decline to limit the application of § 8-42-108((2)(c) to upper extremities above the wrist and conclude that the stump of an amputated finger is within the scope of the term "limb" as used in the disfigurement statute.
IT IS THEREFORE ORDERED that the ALJ's order dated May 20, 2009 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ John D. Baird
______________________________ Thomas Schrant
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DANIEL LEWIS, 320 PARK AVENUE, EATON, CO, (Claimant).
GLEN LEFFLER DBA SKYLINE SOD, Attn: GLEN LEFFLER, AULT, CO, (Employer).
PINNACOL ASSURANCE, Attn: HARVEY D FLEWELLING, ESQ., DENVER, CO, (Insurer).
THE LAW OFFICES OF REGINA M WALSH-ADAMS, Attn: MICHAEL D MULLISON, ESQ., GREELEY, CO, (For Claimant).
PINNACOL ASSURANCE, Attn: DEBRA CURFMAN, DENVER, CO, (Other Party).