Opinion
W.C. No. 4-452-408
October 9, 2002
FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Jones (ALJ) which awarded permanent partial disability benefits based on medical impairment of 12 percent of the whole person. The respondent contends the ALJ erred by converting the claimant's upper extremity rating to a whole person rating. We affirm.
In February 2000, the claimant sustained a compensable right shoulder injury arising out of and in the course of his employment as a police officer. The diagnoses included a partial tear of the rotator cuff and vascular thoracic outlet syndrome.
As a result of the injury, the claimant underwent arthroscopic surgery on the shoulder, resection of the right first rib, and manipulation of the shoulder under anesthesia. On March 30, 2001, the treating physician assigned an impairment rating of 20 percent of the right upper extremity, which included impairment resulting from reduced range of motion of the shoulder and loss of sensation in the suprascapular and axillary nerves. At that time the physician noted the claimant has "decreased appreciation of pinprick over the scapula, in the axilla, and on the lateral side of the brachium." The treating physician converted the extremity rating to a 12 percent whole person rating. The respondents admitted liability for the extremity rating under the schedule of disabilities. (Office note and rating report, March 30, 2001).
The claimant sought a hearing seeking conversion of the extremity rating to a whole person rating. At the hearing, the claimant testified that when he reaches above his head, he experiences pain in the shoulder as well as pulling and stretching through the "lower torso area." As a result, the claimant's activity level has been decreased and he no longer engages in swimming, rock climbing, and backpacking. (Tr. Pp. 13, 16-17).
The ALJ credited the claimant's testimony and found the injury affected the claimant's "chest cavity" as well as the extremity. Consequently, the claimant's capacity to perform "normal exertional activities" and activities of daily living, including those mentioned above, has been reduced. Thus, the ALJ concluded the claimant sustained functional impairment beyond the shoulder and awarded medical impairment benefits based on the 12 percent whole person rating.
On review, the respondent contends the evidence does not support the ALJ's findings of fact concerning the claimant's functional impairment. The respondent points out the claimant testified that he can perform various activities provided he is willing to withstand the pain. The respondent also relies on evidence the claimant was released to return to work as a police officer without restriction. We find no error.
It is now well established that the question of whether the claimant sustained a "loss of the arm at the shoulder" within the meaning of § 8-42-107(2)(a), C.R.S. 2002, or a whole person medical impairment compensable under § 8-42-107(8)(c), C.R.S. 2002, 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, and the site of the functional impairment is not necessarily the site of the injury itself. 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). An impairment rating issued under the AMA Guides is relevant, but not dispositive of whether the claimant sustained a functional impairment beyond the schedule. Strauch v. PSL Swedish Healthcare System, supra. Further, we have held that pain which limits the claimant's ability to use a portion of the body may be considered functional impairment for purposes of determining whether an injury is on or off the schedule. Valles v. Arrow Moving Storage, W.C. No. 4-265-129 (October 22, 1998); Salaz v. Phase II Co., W.C. No. 4-240-376 (November 19, 1997), aff'd., Phase II Co. v. Industrial Claim Appeals Office, (Colo.App. No. 97CA2099, September 3, 1998) (not selected for publication).
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. 2002. This standard of review requires that we view the evidence in a light most favorable to the prevailing party, and defer to the ALJ's resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). The fact that some evidence might support a scheduled award affords no basis to interfere with an award based on whole person medical impairment. Walker v. Jim Fuoco Motor Co., 942 P.2d 1390 (Colo.App. 1997).
The respondent's argument notwithstanding, the record contains ample evidence, including the claimant's testimony, physical therapy notes, and medical reports documenting that the claimant experiences debilitating pain when performing activities which require him to reach overhead. The fact that the claimant may be physically capable of performing the motion of reaching overhead does not mean that he has sustained no "functional impairment." Indeed, as the ALJ found, the claimant experiences pain which discourages him from performing numerous activities that he performed before the injury. Cf. Valles v. Arrow Moving Storage, supra.
Further, there is ample evidence the claimant's injury affected physiological structures beyond the arm at the shoulder. The claimant testified concerning the pulling and stretching in the torso when he reaches with his arm. Also, the treating physician noted decreased sensation beyond the shoulder joint and assessed medical impairment based on injury to the suprascapular and axillary nerves. The surgeon who performed the thoracic outlet procedure noted on November 16, 2000, that the claimant had hypoesthesias of the axilla and "some intercostal nerve irritation."
It is true that Dr. Striplin opined the AMA Guides don't require conversion of extremity ratings to whole person ratings "except in instances where impairments from more than one extremity must be combined or in instances where an extremity impairment must be combined with an impairment from another body system." (Striplin report, November 14, 2001). However, as noted, the test for determining whether the schedule of disabilities applies is the location of the functional impairment, and a rating under the AMA Guides is not dispositive of this issue. This is true because the schedule of disabilities does not describe a shoulder injury, and ratings under the AMA Guides are based on the "upper extremity," which includes structures proximal to the shoulder. Strauch v. PSL Swedish Healthcare System, supra. Thus, the ALJ was not bound by Dr. Striplin's opinion.
The respondent also challenges the sufficiency of the evidence to support the ALJ's finding that, in addition to the problems affecting the upper extremity, the injury caused the claimant to suffer pneumonia which limits his "lung capacity." (Finding of Fact 10). However, even if we were to conclude the evidence is insufficient to support this finding, the error is harmless. The ALJ's remaining findings of fact, particularly those regarding pain with overhead lifting, support the conclusion the claimant sustained functional impairment beyond the arm at the shoulder even if Finding of Fact 10 is not supported by substantial evidence. Thus, deletion of Finding of Fact 10 would not alter the result and the respondent's substantial rights are not, under the facts of this case, affected by the finding. Section 8-43-310, C.R.S. 2002.
The respondent next contends the ALJ erred in converting the scheduled impairment to a whole person impairment because the AMA Guides don't contain a provision for "a conversion to whole person from the rib resection procedure." The respondent cites Morris v. Industrial Claim Appeals Office, 942 P.2d 1343 (Colo.App. 1997), as authority for this proposition. We find no error.
In Morris, the claimant sought to combine a scheduled impairment rating with a functional, but unratable, psychiatric impairment for the purpose of obtaining a single whole person rating under Mountain City Meat Co. v. Oqueda, 919 P.d 246 (Colo. 1996). The Morris court held that before such a combination may occur, the non-scheduled functional impairment must be ratable under the AMA Guides.
Unlike the situation in Morris, the claimant here was not seeking to combine a scheduled impairment with a non-scheduled impairment. Indeed, such a combination may no longer be permitted under § 8-42-107(7)(b)(II), C.R.S. 2002. Rather, the claimant alleged, and the ALJ found, the claimant sustained a single injury which affected various structures of the upper body. This injury resulted in a single impairment rating for the upper extremity, which was converted to a single whole person impairment rating. Consequently, Morris is not pertinent. Smith v. Neoplan USA Corp., W.C. No. 4-421-202 (October 1, 2002); Eidy v. Pioneer Freightways, W.C. No. 4-291-940 (August 4, 1998).
IT IS THEREFORE ORDERED that the ALJ's order dated February 8, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Dona Halsey
NOTICE
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, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2002. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe Street, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed October 9, 2002 to the following parties:
Terry A. Brown, 8633 S. Woody Way, Highlands Ranch, CO 80126
City of Aurora, 1470 S. Havana St., #302, Aurora, CO 80012-4014
Virginia Loughner, Risk Management, City of Aurora, 1470 S. Havana St., #302, Aurora, CO 80012
Neil D. O'Toole, Esq., 226 W. 12th Ave., Denver, CO 80204-3625 (For Claimant)
Charles W. Hemphill, Esq., 8441 W. Bowles Ave., #250, Littleton, CO 80123 (For Respondents)
By: ___A. Hurtado___