Opinion
W.C. No. 4-240-315
June 11, 1998
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Stuber (ALJ) which awarded permanent partial disability benefits based upon 21 percent impairment of the whole person. We affirm.
The claimant suffered compensable injuries on February 3, 1995. Eventually, the claimant underwent a Division-sponsored independent medical examination (IME) under the provisions of § 8-42-107(8)(c), C.R.S. 1997. In a report dated May 8, 1997, the IME physician, Dr. Struck, opined that the claimant sustained permanent medical impairment of 35 percent of the upper extremity which equals 21 percent impairment of the whole person.
The parties do not dispute Dr. Struck's rating. Rather, the parties disagree on whether the claimant is limited to permanent partial disability benefits based upon a scheduled disability or whole person impairment.
The ALJ found that the claimant's "functional impairment" is not limited to the upper extremity. Instead, the ALJ found that the claimant suffered functional impairment to the shoulder joint, resulting in a loss of range of motion and right shoulder subluxation. The ALJ also determined that impairment of the shoulder joint is not listed on the schedule of disabilities in § 8-42-107(2), C.R.S. 1997.
Further, the ALJ found that the claimant sustained a loss of range of motion in the cervical spine, which is "rateable" under the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition, (Revised) (AMA Guides). Therefore, the ALJ determined that the claimant's permanent impairment must be compensated in accordance with Dr. Struck's 21 percent whole person impairment rating.
On review the respondents contend that the ALJ erred in taking judicial notice of the AMA Guides. We conclude that the ALJ's error, if any was harmless.
Section 8-42-107(1), C.R.S. 1997, limits the claimant to a scheduled disability award if the 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). Where the claimant suffers impairment which is not listed on the schedule, the claimant is limited to medical impairment benefits for whole person impairment calculated in accordance with § 8-42-107(8)(c), C.R.S. 1997. The "loss of an arm at the shoulder" is a scheduled disability. Section 8-42-107(2)(a), C.R.S. 1997.
The question of whether the claimant's impairment can be fully compensated as a "loss of an arm at the shoulder" within the meaning of § 8-42-107(2)(a), is a factual determination to be made by the ALJ. Furthermore, it is now well established that the resolution of this question requires the ALJ to determine the situs of the claimant's "functional impairment." Langton v. Rocky Mountain Healthcare Corp., 937 P.2d 883 (Colo.App. 1996); Strauch v. PSL Swedish Healthcare System, 917 P.2d 366 (Colo.App. 1996).
Because the question of whether the claimant's functional impairment appears on the schedule is one of fact, we must uphold the ALJ's order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1997, Langton v. Rocky Mountain Healthcare Corp., supra. This standard requires that we defer to the ALJ's resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences he drew from the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
The ALJ found that the claimant suffered functional impairment to the shoulder joint, and that permanent impairment of the shoulder joint is not listed on the schedule of disabilities. The respondents do not dispute these findings. Furthermore, these findings are alone sufficient to support the ALJ's conclusion that the claimant suffered an impairment which cannot be compensated as a scheduled disability.
Accordingly, it is immaterial whether the ALJ found "additional evidence" of whole person impairment, due to a loss of range of motion in the cervical spine. If follows that even if the ALJ erroneously took "judicial notice" of the AMA Guides to find that impairment of the cervical spine is "typically" rateable as a whole person impairment, the error was harmless. Section 8-43-310 C.R.S. 1997; A R Concrete Construction v. Lightner, 759 P.2d 831 (Colo.App. 1988). (error which is not prejudicial will be disregarded).
The respondents' arguments notwithstanding, our conclusion is not contrary to the principles established in Morris v. Industrial Claim Appeals Office, 942 P.2d 1343 (Colo.App. 1997). In Morris, the court held that a scheduled extremity rating may not be combined with a psychological impairment to create a single whole person medical impairment rating without proof that the psychological impairment was "rateable" under the AMA Guides.
Here, the ALJ found that the claimant's shoulder injury cannot be rated as a scheduled disability. Consequently, unlike Morris, this case does not involve a combination of scheduled and non-scheduled impairments. See Bicknell v. Pinion Truck Stop, Inc., W.C. No. 4-159-683 (May 27, 1998); Morris v. Crank d/b/a DMI Collision, W.C. No. 4-231-195 (May 21, 1998). Further, Dr. Struck's conversion of the claimant's upper extremity impairment to a whole person impairment demonstrates that the consequences of the claimant's shoulder injury are "rateable" as a whole person under the AMA Guides. Therefore, the ALJ's finding that the cervical impairment is also a "rateable" whole person impairment under the AMA Guides was not reversible error.
The respondents also contend that because the claimant did not expressly argue for a whole person impairment rating due to right shoulder subluxation, they had no notice the ALJ would award permanent partial disability benefits based on right shoulder subluxation. Therefore, the respondents contend they were denied due process.
Due process of law requires the parties be afforded notice and the opportunity to confront adverse witnesses and present evidence in support of their position. Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076 (Colo.App. 1990). We perceive no due process violation in this case.
The respondents do not deny that they had Dr. Struck's IME report in advance of the October 1997 hearing on permanent disability. In the IME report, Dr. Struck's noted that during his examination the claimant demonstrated right shoulder subluxation. Thus, the respondents had advanced notice of the underlying physical findings which formed the basis for Dr. Struck's permanent impairment rating. Further, at the commencement of the hearing, the claimant expressly asserted that he sought compensation based upon Dr. Stuck's whole person impairment rating. Under these circumstances, the respondents were provided adequate notice that the ALJ might consider the right shoulder subluxation in assessing whether the claimant sustained a non-scheduled disability.
IT IS THEREFORE ORDERED that the ALJ's order dated November 20, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL ____________________________________ Kathy E. Dean ____________________________________ Bill WhitacreNOTICE 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 June 11, 1998 to the following parties:
Michael T. Bolin, 302 East Park, Fowler, CO 81039
Lester Wacholtz, 409 W. 7th St., Pueblo, CO 81003-3001
Colorado Compensation Insurance Authority, Attn: Curt Kriksciun (Interagency Mail)
Douglas Thomas, Esq., 1700 Broadway, #1700, Denver, CO 80290-1701 (For the Respondents)
William A. Alexander, Jr., 3608 Galley Road, Colorado Springs, CO 80909 (For the Claimant)
BY: _______________________