Opinion
W.C. No. 4-159-683
December 10, 1997
ORDER OF REMAND
The respondents seek review of a final order of Administrative Law Judge Wheelock (ALJ) which awarded the claimant medical impairment benefits based on a disability of sixteen percent of the whole person. We set the order aside and remand for entry of a new order.
The claimant sustained a compensable injury when she was electrocuted in September 1992. The claimant reached maximum medical improvement on July 25, 1994, and was then evaluated for permanent impairment by her treating physician.
In a report dated October 13, 1994, the treating physician diagnosed the claimant as suffering from "left shoulder pain" with "elements of thoracic outlet and some impingement symptoms." He also found that she suffers from "carpal tunnel syndrome by electromyogram" with "varying symptoms on her left," but no residual symptoms in her right arm.
The treating physician opined that the claimant has a twenty-seven percent upper extremity impairment, which converts to a sixteen percent whole person impairment under the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition (Revised) (AMA Guides). The upper extremity impairment was based on nineteen percent impairment caused by reduced range of motion in the shoulder, and ten percent impairment attributable to the residual effects of mild carpal tunnel syndrome.
At the hearing, the claimant testified that she experiences extreme pain in her neck and sternum, and that the pain extends down her arm to her finger tips. (Tr. pp. 7-8). The claimant also testified that she has difficulty with lifting and cannot perform overhead work. Further, the claimant testified that her pain symptoms interfere with her sleep by waking her up "every other hour, or hour and a half." (Tr. p. 9).
The ALJ credited the claimant's testimony concerning her pain, and found that it renders the her "unable to engage in normal sleep functions." The ALJ determined that "sleep dysfunction is a whole person function," and therefore, entitles the claimant to whole person medical impairment benefits under § 8-42-107(8), C.R.S. 1997. In support of this conclusion, the ALJ stated that the claimant "does not complain of a separate and distinct sleep disorder," but instead complains that "pain in the injured arm affects her ability to sleep."
On review, the respondents contend that the ALJ misapplied the law in concluding that the claimant is entitled to permanent partial disability benefits based on a sixteen percent whole person medical impairment. Relying principally on Morris v. Industrial Claim Appeals Office, 942 P.2d 1343 (Colo.App. 1997), the respondents argue that the "functional impairment" caused by the "sleep dysfunction" cannot be combined with the claimant's upper extremity impairment so as to remove the case from the schedule of disabilities. See § 8-42-107(2), C.R.S. 1997. We agree with this argument.
In Morris v. Industrial Claim Appeals Office, supra, the court of appeals held that, where a claimant seeks to obtain a single whole person impairment rating by combining scheduled and non-scheduled impairments, the non-scheduled impairment must be "rateable" under the AMA Guides. In so doing, the Morris court stated that Mountain City Meat Co. v. Oqueda, 919 P.2d 246 (Colo. 1996), requires that, where a scheduled injury is combined with a non-scheduled injury to render a whole person impairment, the "scheduled injury must be converted to a whole person impairment rating and combined with the non-scheduled injury's whole person impairment rating." (Emphasis in original) 942 P.2d at 1344. Thus, the Morris court concluded that the mere existence of a "functional" but unratable psychiatric impairment was insufficient to remove an upper extremity impairment from the schedule.
Here, the treating physician gave no separate impairment rating for the claimant's alleged "sleep dysfunction." Further, there is no evidence in the record to indicate that the treating physician considered the "sleep dysfunction" to constitute a rateable impairment under the AMA Guides. To the contrary, the only rating in the record was explicitly based on lost range of motion in the shoulder, and damage to the peripheral nervous system based on mild carpal tunnel syndrome.
Under these circumstances, the ALJ's finding that the claimant has a "functional impairment" of the whole person caused by a "sleep dysfunction" is insufficient to remove the case from the schedule. We perceive no meaningful distinction between this case and Morris v. Industrial Claim Appeals Office, supra, where the court held that the alleged psychiatric effects of the industrial injury would have to be separately rateable in order to remove the extremity injury from the schedule.
Moreover, this case is distinguishable from Strauch v. PSL Swedish Healthcare System, 917 P.2d 366 (Colo.App. 1996), and Langton v. Rocky Mountain Health Care Corp., 937 P.2d 883 (Colo.App. 1996), relied on by the ALJ . In Strauch and Langton, the claimants sustained shoulder injuries which produced various symptoms ranging from the hands to the shoulder area. Physicians rated these claimants as suffering upper extremity impairments, which could be converted to whole person impairments under the AMA Guides.
Here, unlike the facts in Strauch and Langton, the claimant is alleging the existence of a whole person impairment based on symptoms which were not rated by the treating physician. Thus, there is no basis for finding the existence of a "rateable" impairment which may be combined with the claimant's upper extremity impairment, so as to justify an award under § 8-42-107(8). Cf. Divido v. John C. Ley, D.D.S., P.C., W.C. No. 4-288-357 (November 26, 1997).
In any event, the claimant asserts that the ALJ's order must be upheld because the ALJ found that the claimant suffered a "functional impairment of the whole person as a result of the pain extending into the chest area." However, in our view, the ALJ did not resolve this issue, and the matter must be remanded for entry of a new order.
The claimant testified to facts which could support a conclusion that she sustained a functional impairment of the body beyond the loss of an arm at the shoulder. See § 8-42-107(2)(a), C.R.S. 1997. The ALJ could infer that the symptoms involving the claimant's shoulder, neck and chest, as well as her inability to do overhead work, demonstrate a functional impairment of the whole person. See Chavero v. Denver Cedar Roofing, W.C. No. 4-207-023 (July 26, 1996); Garcia v. Advanced Components Systems, Inc., W.C. No. 4-817-720, (June 21, 1996).
However, the ALJ's written order does not specifically resolve this issue. Instead, the ALJ merely found that the claimant's pain caused a "sleep dysfunction."
On remand, the ALJ shall resolve the factual question of whether the claimant's upper extremity injury has resulted in a functional impairment beyond that contained in the schedule. Resolution of this question is for the ALJ, and we should not be understood expressing any opinion concerning the proper resolution of this factual issue. See Strauch v. PSL Swedish Healthcare System, supra.
We recognize that the ALJ made some oral remarks indicating that she resolved this issue in the claimant's favor. (Tr. p. 15). However, it is the ALJ's written order, not her oral comments, which are subject to review. See Wait v. Jan's Malt Shoppe, 736 P.2d 1265 (Colo.App. 1987).
IT IS THEREFORE ORDERED that the ALJ's order dated July 24, 1997, is set aside insofar as it awarded whole person medical impairment benefits based on the claimant's "sleep dysfunction." The matter is remanded for the entry of a new order which is consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
Copies of this decision were mailed December 10, 1997 to the following parties:
Evie D. Bicknell, 18538 E. Whitaker Circle, #C, Aurora, CO 80015
Linda Hill Fred Koury, Pinion Truck Stop, Inc., 4803 I-25 North, Pueblo, CO 81008
Colorado Compensation Insurance Authority, Attn: Curt Kriksciun, Esq. (Interagency Mail)
Frank Cavanaugh, Esq., 3464 S. Willow St., Denver, CO 80231 (For the Respondents)
William A. Alexander, Jr., Esq., 3608 Galley Road, Colorado Springs, CO 80909 (For the Claimant)
By: _______________________________