Opinion
W.C. No. 4-159-683
May 27, 1998
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Wheelock (ALJ), dated January 20, 1998, which awarded the claimant whole person medical impairment benefits for an injury to her shoulder. We affirm.
The ALJ's order was entered pursuant to our order of remand dated December 10, 1997. There, we set aside the ALJ's prior order which awarded whole person medical impairment benefits based on a finding that an unrated "sleep dysfunction" could serve to convert the claimant's extremity impairment to a single whole person impairment. Relying on Morris v. Industrial Claim Appeals Office, 942 P.2d 1343 (Colo.App. 1997), we concluded the ALJ's application of the law was erroneous. However, we remanded the matter because the record contains evidence from which it could be found the claimant's "shoulder injury" involved functional impairment not found on the schedule of disabilities.
Our order contains a statement of the facts, and we need not repeat them here. On remand, the ALJ found that the claimant's injury resulted in pain throughout her arm, shoulder, neck and chest areas. This pain precludes the claimant from raising her arm above her shoulder. Under these circumstances, the ALJ found that the claimant sustained functional impairment not listed in the schedule of disabilities, and is entitled to permanent partial disability benefits based on medical impairment of sixteen percent of the whole person.
On review, the respondents assert the claimant is not entitled to whole person medical impairment benefits. Relying on Morris v. Industrial Claim Appeals Office, supra, the respondents argue the claimant sustained no "rateable" impairment beyond that described in § 8-42-107(2)(a), C.R.S. 1997. We disagree.
It is now well established that the question of whether the claimant sustained a "loss of an arm at the shoulder," within the meaning of § 8-42-107(2)(a), or a whole person medical impairment rateable under § 8-42-107(8), 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 in view of the evidence presented. 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). The American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition (Revised) (AMA Guides) definition of where the arm ends and the torso begins is not dispositive of the question of whether the claimant sustained a scheduled loss of the arm at the shoulder. Nevertheless, a physician's rating under the AMA Guides "may be considered by the ALJ in determining whether the claimant's functional impairment is fully described on the schedule of disabilities." Strauch v. PSL Swedish Healthcare System, 917 P.2d at 368.
Because the issue is factual in nature, we must uphold the ALJ's order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1997. This standard requires us to defer to the ALJ's resolution of conflicts in the evidence, her credibility determinations and plausible inferences which she drew from the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
Here, the record contains substantial evidence to support the ALJ's finding that claimant sustained functional impairment beyond the arm at the shoulder. The claimant testified that she has pain extending into the neck and shoulder area, as well as her sternum. Moreover, she stated that this pain impairs her ability to perform various functions including reaching overhead and to the side. (Tr. p. 8). Moreover, Dr. Olson's conversion of the claimant's upper extremity impairment to a whole person impairment demonstrates that the consequences of the claimant's injury are "rateable" as a whole person under the AMA Guides.
The respondents' reliance on Morris v. Industrial Claim Appeals Office, supra, is misplaced. That case concerns the circumstances under which separate scheduled and nonscheduled injuries may be combined to create a single whole person impairment under the holding in Mountain City Meat Co. v. Oqueda, 919 P.2d 246 (Colo. 1996). In Morris, the court held that a scheduled extremity rating could not be combined with a functional psychological impairment to create a whole person medical impairment rating without proof that the psychological impairment was independently "rateable" under the AMA Guides.
Here, unlike the situation in Morris, the treating physician found that the claimant has an injury to her upper extremity caused by carpal tunnel syndrome and damage to the shoulder joint. Thus, the issue was whether the claimant's upper extremity injuries caused functional impairment beyond the arm at the shoulder, and the ALJ found they did. Thus, unlike the situation in Morris, and in contrast to the ALJ's first order in this case, there was no attempt to "combine" the claimant's upper extremity injury with a distinct and unrated functional impairment of the whole person for purposes of creating a single whole person impairment rating. Cf. Morris v. Darrell W. Crank d/b/a DMI Collision, W.C. No. 4-231-195 (May 21, 1998).
IT IS THEREFORE ORDERED that the ALJ's order dated January 20, 1998, 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. 1997.
Copies of this decision were mailed May 27, 1998 to the following parties:
Evie D. Bicknell, 18538 E. Whitaker Circle, #C, Aurora, CO 80015
Ms. Linda Hill Mr. Fred Koury, Pinion Truck Stop, Inc., 4803 I-25 North, Pueblo, CO 81008
Colorado Compensation Insurance Authority, Attn: Laurie A. Schoder, Esq. (Interagency Mail)
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909 (For the Claimant)
Frank M. Cavanaugh, Esq., 3464 S. Willow St., Denver, CO 80231-4566 (For the Respondents)
By: __________________________________________________