Opinion
W.C. Nos. 3-978-506; 4-156-244
August 8, 1996
FINAL ORDER
In these consolidated workers' compensation cases the claimant seeks review of a final order of Administrative Law Judge Stuber (ALJ). The claimant argues that the ALJ erred in applying former § 8-42-110(3), C.R.S. (1990 Cum. Supp.) (reemployment statute) so as to limit the award of permanent disability benefits in W.C. No. 3-978-506. The claimant also argues that, in W.C. No. 4-156-244, the ALJ erred in awarding benefits under the schedule of disability periods found at § 8-42-107(2)(a), C.R.S. (1995 Cum. Supp.). We affirm the order in part, set it aside in part, and remand for entry of a new order.
The ALJ's findings of facts may be summarized as follows. On March 2, 1990, the claimant suffered a right shoulder injury, and the resulting claim is designated as W.C. No. 3-978-506. On March 2, the respondent-employer was insured by respondent Wausau Insurance Companies (Wausau).
Following shoulder surgery, the claimant's treating physician, Dr. Brugioni, released the claimant to return to work at full duties effective June 11, 1990. On June 20, 1990, Dr. Brugioni issued a report stating that the claimant had reached maximum medical improvement (MMI) and that no permanent impairment was anticipated as long as the claimant continued "to perform his regular duty without difficulty." The claimant did not receive a copy of the June 20 report.
Following the release, the claimant returned to work and performed his pre-injury job as a "ramp agent." The claimant experienced some difficulties with his right shoulder, but performed the job adequately until he suffered an industrial injury to his left shoulder on November 24, 1992. At the time of the left shoulder injury the respondent-employer was insured for workers' compensation by Pacific Employers Insurance Company (Pacific).
By December 11, 1992, the claimant was also complaining of symptoms in his upper back, and was diagnosed with a tear of the rotator cuff and fray in the deltoid muscle. The claimant underwent three surgeries to repair his left shoulder.
The ALJ further found that the claimant left the employ of Delta Air Lines on May 15, 1993, prior to the third surgery. The claimant reached MMI on December 29, 1993, and the treating physician, Dr. McDonough, assessed the claimant as suffering from an impairment of eight percent of the left upper extremity due to "slight loss of range of motion and because of loss of strength in the auxillary distribution."
Subsequently, on May 11, 1994, the claimant was again examined by Dr. Brugioni for his right shoulder. Although Dr. Brugioni did not recommend further surgery, he prescribed ice, stretching, and over-the-counter medications. At this time, Dr. Brugioni opined that the claimant had a medical impairment of ten percent of the upper extremity, which was equal to a six percent impairment of the whole person.
With respect to the 1990 shoulder injury, the ALJ concluded that the claimant's recovery of permanent partial disability benefits was limited by the reemployment statute. Specifically, the ALJ determined that, because the claimant was returned to work on the date of MMI, and received the pre-injury rate of pay and the usual wage adjustments, the claimant's recovery was limited to an award of ten percent "of the arm as measured at the shoulder." In support of this result, the ALJ stated that MMI triggered the reemployment statute because the claimant's permanent impairment and permanent restrictions could have been determined on that date.
The ALJ also concluded that Pacific properly admitted for a scheduled impairment with respect to the 1992 left shoulder injury. The ALJ stated that the determination of whether an injury appears on a schedule, or is subject to a whole person rating under § 8-42-107(8)(d), C.R.S. (1995 Cum. Supp.), is a question of fact. Relying principally on the report of Dr. McDonough, the ALJ found that the claimant's impairment is limited to the arm, and therefore, appears on the schedule.
I.
On review, the claimant contends, inter alia, that the ALJ erred in applying the reemployment statute in W.C. No. 3-978-506 because the degree of permanent disability was not determined until Dr. Brugioni issued his report in May 1994. Because we conclude that this argument is essentially correct, we remand for a redetermination of the claimant's entitlement to permanent partial disability benefits on account of the right shoulder injury.
The reemployment statute, former § 8-42-110(3), provides that a claimant's award of permanent partial disability benefits is limited to the lesser of permanent medical impairment or a payment under § 8-42-107 "where an employer reemploys or continues the disabled employee at work in the employment of the employer at the employee's pre-injury rate of pay and extends to the employee the usual wage adjustments." The statute further provides that it does not apply if the claimant is permanently unable to perform the duties offered by the employer. Finally, a claimant is entitled to a "redetermination" of his impairment if, during the two years following the date of return to work or reemployment," he quits or is dismissed as a result of his permanent disability.
The purpose of this statute was to encourage employers to retain permanently disabled employees by limiting permanent disability awards which would otherwise be paid for loss of earning capacity. Lerner v. Wal-Mart Stores, Inc., 865 P.2d 915 (Colo.App. 1993). Thus, in Lerner, the court held that the statute did not limit the claimant's recovery where he voluntarily left work with the respondent-employer prior to the date of MMI. The court reasoned that the "incentive for employers to retain permanently disabled workers" did not exist until "the employer knew whether, and to what extent, a worker had been permanently disabled."
In Monfort, Inc. v. Gonzalez, 855 P.2d 19 (Colo.App. 1992), the court utilized a rationale similar to that set forth in Lerner where the claimant voluntarily left employment prior to reaching MMI. However, the Gonzalez court went on to state the following:
"Furthermore, when read as a whole, the [reemployment] statute required the employee to be reemployed when permanent disability is awarded. The use of the present tense, "reemploys or continues," indicates that the employment had to be ongoing when permanent partial disability was determined. And, the provision for redetermination of permanent partial disability based on loss of earning capacity for employees who are dismissed or resign because of the disability shows that an initial determination of permanent partial disability must have preceded the end of the employment." (Emphasis added for "awarded," in the original for "redetermination").
The Gonzalez decision reflects the court's conclusion that not only must the claimant be reemployed at the time of MMI, but must continue to be employed at the time permanent disability is administratively determined. The court reads the statute to mean that a determination of whether a claimant is permanently "disabled" does not occur until such time as the ALJ reviews the pertinent evidence and "awards" permanent disability benefits.
It follows that we disagree with the ALJ's holding that, merely because the claimant reached MMI in June 1990, the reemployment statute was triggered. To the contrary, there was never an administrative determination of whether the claimant was permanently disabled from the 1990 injury until the ALJ issued his order on January 10, 1995. By then, the claimant was no longer employed by the respondent-employer, and therefore, the reemployment statute does not apply.
Under these circumstances, the matter must be remanded to the ALJ for a redetermination of the claimant's entitlement to permanent partial disability benefits without regard to the reemployment statute. In view of our disposition, we need not consider the claimant's other arguments concerning the applicability of the reemployment statute.
II.
The claimant's next argument is that the ALJ erred in approving Pacific's admission of liability for a scheduled impairment of eight percent of the left upper extremity in W.C. No. 4-156-244. The claimant argues that, since he had cervical and back pain, the ALJ was obliged to conclude that he had impairment beyond that listed on the schedule. We are not persuaded.
The ALJ correctly held that the question of whether an impairment appears on the schedule or is rateable under § 8-42-107(8) is a question of fact. Strauch v. PSL Swedish Healthcare System, 917 P.2d 366 (Colo.App. 1996). The issue is not what part of the body sustained the injury, but what part of the body is functionally impaired as a result of the injury. In this regard, the ALJ may consider, but is not bound by, the medical impairment ratings issued by the examining physicians. Strauch v. PSL Swedish Healthcare System, supra.
Because the issue is factual in nature, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.). In this regard, we must defer to the ALJ's resolution of conflicts in the evidence, his credibility determinations and the plausible inferences which he drew from the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
Here, the ALJ was persuaded by Dr. McDonough's impairment rating which is limited to the "upper extremity" and does not assess any medical impairment for cervical or back problems. The ALJ could logically infer from this evidence that the actual impairment resulting from the industrial injury affects only the claimant's arm, and does not represent any functional impairment to other parts of the body.
It is true that some evidence in the record, including portions of the claimant's testimony, might support a contrary finding and conclusion. However, we decline the claimant's invitation to substitute our judgment for that of the ALJ concerning this factual issue.
IT IS THEREFORE ORDERED that the ALJ's order dated January 10, 1995, is set aside insofar as it determined that the claimant is entitled to permanent partial disability benefits based upon a disability of ten percent of the right upper extremity in W.C. No. 3-978-506. The matter is remanded for entry of a new order consistent with the views expressed herein.
IT IS FURTHER ORDERED that the ALJ's order is otherwise 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 August 8, 1996 to the following parties:
Daniel H. Ayon, 2223 Irving St., Denver, CO 80211
Delta Air Lines, Inc., Workers' Compensation Administration, Dept. 845, Atlanta, GA 30320
Wausau Ins. Co., Attn: George Fairbanks, 9110 E. Nichols Ave., #100A, Englewood, CO 80112
CIGNA Ins. Co., Attn: Gale Trottnow, P.O. Box 2941. Greenwood Village, CO 80150-0941
Shelley P. Dodge, Esq., 1763 Franklin St., Denver, CO 80218 (For the Claimant)
William M. Sterck, Esq., 679 Grant St., Denver, CO 80203 (Wausau Respondents)
Julie D. Swanberg, Esq., 4582 S. Ulster St., #906, Denver, CO 80237 (For the Pacific Respondents)
By: ______________________