Opinion
W.C. No. 4-456-440
July 29, 2002
FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Henk (ALJ) which awarded permanent partial disability benefits based on 12 percent whole person impairment and future medical benefits. We affirm the award of medical benefits, but modify the award of permanent partial disability benefits.
The claimant suffered a compensable injury which was diagnosed as degenerative osteoarthritis of the left hip. As a result of the injury, the claimant underwent a total hip replacement. Thereafter, the claimant's left leg was 3/8 inch shorter than the right leg.
The Division-sponsored independent medical examination (DIME) rated the claimant's permanent medical impairment as 29 percent of the lower extremity which he converted to 12 percent whole person impairment. The ALJ found the respondent failed to overcome the DIME physician's rating. Further, the ALJ found the claimant's functional impairment was not listed on the schedule of disabilities. In support, the ALJ found the claimant underwent a total hip replacement and that due to the left leg length discrepancy the claimant "occasionally experiences pain in his low back." Therefore, the ALJ ordered the respondent to pay medical benefits based on the DIME physician's 12 percent whole person impairment rating. The ALJ also awarded ongoing medical benefits as provided by Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988). On review, the respondent contends the award based on whole person impairment is not supported by the record. We agree that the ALJ's findings and the record do not support the award.
The applicable law is undisputed. Section 8-42-107(1), C.R.S. 2001, provides that the claimant is limited to a scheduled disability award if the claimant suffers an "injury or injuries" described in § 8-42-107(2). Strauch v. PSL Swedish Healthcare System, 917 P.2d 366 (Colo.App. 1996). Under § 8-42-107(2)(w) the "loss of a leg at the hip joint or near thereto as to preclude the use of an artificial limb" is a scheduled disability. Where the claimant suffers an injury or injuries not enumerated in § 8-42-107(2), the claimant is entitled to whole person impairment benefits under § 8-42-107(8), C.R.S. 2001. Mountain City Meat Co. v. Oqueda, 919 P.2d 246 (Colo. 1996). In the context of § 8-42-107(1), the term "injury" refers to the part or parts of the body which have been functionally impaired or disabled as a result of the injury. Strauch v. PSL Swedish Healthcare System, supra.
The question of whether the claimant's injury is fully enumerated on the schedule of disabilities is one of fact for determination by the ALJ which must be supported by substantial evidence in the record to be upheld on review. In resolving this question, the ALJ must determine the situs of the claimant's "functional impairment." Langton v. Rocky Mountain Health Care Corp., 937 P.2d 883 (Colo.App. 1996); Strauch v. PSL Swedish Healthcare System, supra.
We have previously held that pain and discomfort which restricts the use of a portion of the body may be considered a "functional impairment" for purposes of determining whether an injury is included in the schedule. Salaz v. Phase II et al., W.C. No. 4-240-376 (November 19, 1997), aff'd. Phase II v. Industrial Claim Appeals Office, Colo. App. No. 97CA2099, September 3, 1998 (not selected for publication); Wiley v. Salida Auto Salvage Inc., W.C. No. 4-212-795 (November 24, 1998); Valles v. Arrow Moving Storage, W.C. No. 4-265-129 (October 22, 1998); Beck v. Mile High Express, Inc., W.C. No. 4-238-483 (February 11, 1997). In Salaz v. Phase II, supra, we upheld an ALJ's finding that the claimant suffered impairment beyond the upper extremity from weakness in both shoulder joints, and pain in muscles on the top of the shoulder going up the side of his neck which limited the claimant's ability to perform many activities and resulted in limited mobility of both arms above the shoulder.
We assume, arguendo, that the ALJ's finding the claimant "occasionally experiences low back pain" as a result of the left leg length discrepancy is a plausible inference from the claimant's testimony. Nevertheless, the ALJ made no findings that the low back pain limited or impaired the function of the back.
Furthermore, the ALJ made no other findings to support her legal conclusion that the "situs of Claimant's functional impairment is not on the schedule of disabilities. (Findings of Fact 12). Specifically, there are no findings that the claimant's hip replacement impaired the function of his body beyond the "leg at the hip joint." Consequently, the ALJ's findings of fact do not support the conclusion the claimant is not limited to a scheduled disability award.
Moreover, there is not substantial evidence of any functional impairment to a part of the body beyond the leg at the hip. The claimant testified that the left leg length discrepancy causes low back pain which he controls by wearing an orthotic lift in his left shoe. (Tr. p. 17). However, when asked whether the injury has caused other problems, the claimant stated:
"Generally, no, I feel pretty good. I mean, my back — I mean my back was kind of messed up, I think because of the hip and since the hip has been replaced it's kind of — I think it's aligned me a little more. So I don't have this nagging back injury that I used to have."
The claimant also stated he performs stretching exercises in the morning and during his lunch break to keep his back loosened up. (Tr. p. 18). Consequently, the claimant's testimony does not contain sufficient evidence to support a finding that his minor back pain impairs a part of the body beyond the hip joint.
Further, none of the treating physicians noted any functional impairment beyond the lower extremity. Under these circumstances, the record is legally insufficient to support a finding of functional impairment to the whole person. Consequently, the ALJ erred in awarding whole person impairment benefits, and the order shall be modified accordingly to award benefits consistent with the DIME's lower extremity rating.
II.
The respondent also contends the ALJ erroneously awarded the cost of orthotics in the absence of evidence that orthotics provided "therapeutic relief" from the effects of the industrial injury. We disagree.
The respondent is required to provide medical services after maximum medical improvement "as may reasonably be needed" to relieve the effects of the industrial injury or prevent a deterioration of the claimant's condition. Section 8-42-101(1)(a), C.R.S. 2001; Grover v. Industrial Commission, supra; Stollmeyer v. Industrial Claim Appeals Office, 916 P.2d 609 (Colo.App. 1995). Based upon this statute employers have been required to provide services which are either medically necessary for the treatment of a claimant's injuries or incidental to obtaining medical treatment. Industrial Commission v. Pacific Employers, 120 Colo. 373, 209 P.2d 980 (1949); Sigman Meat Co. v. Industrial Claim Appeals Office, 761 P.2d 265 (Colo.App. 1988). For a particular apparatus to be a medical necessity it must provide "therapeutic relief" from the effects of the injury. Cheyenne County Nursing Home v. Industrial Claim Appeals Office, 892 P.2d 443 (Colo.App. 1995). The question of whether a particular treatment apparatus is reasonable and necessary is one of fact for resolution by the ALJ. Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo.App. 1997).
The existence of a medical prescription is neither required nor dispositive of the compensability of Grover-type medical benefits. Here, the claimant testified that to reduce the left leg length discrepancy caused by the hip replacement surgery, he wears an orthotic device in his left shoe. (Tr. p. 16). Further, he stated that without the orthotic his back pain would increase. (Tr. p. 17).
The ALJ expressly credited the claimant's testimony that use of an orthotic device reduced low back pain caused by the injury. (Finding of Fact 8). Accordingly, we reject the respondent's contention the ALJ failed to find the orthotic provided a therapeutic benefit. Furthermore, the ALJ's findings support her determination the orthotic apparatus is a compensable medical benefit.
The respondent's remaining arguments have been considered and do not alter our conclusions. The claimant admitted he wore orthotics in both shoes for 8 years prior to the injury to avoid falling arches. (Tr. p. 19). However, he stated that as a result of the injury he needed the orthotic to relieve the effects of the left leg length discrepancy caused by the hip replacement surgery. Consequently, the fact the claimant used the disputed apparatus prior to the industrial injury did not preclude the ALJ from finding the respondent is liable for the post-injury need for the apparatus.
IT IS THEREFORE ORDERED that the ALJ's order dated December 26, 2001, is modified to award scheduled disability benefits based on 29 percent impairment of the left lower extremity, rather than whole person impairment benefits. As modified, the order is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Bill Whitacre
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. 2001. 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, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed July 29, 2002 to the following parties:
Terence Fox, P. O. Box 2974, Vail, CO 81658
Vail Associates, P. O. Box 7, Vail, CO 81658
November James, LWP Claims, 575 Union Blvd., #310, Lakewood, CO 80228
John M. Connell, Esq. and Susan A. Kraemer, Esq., 6750 Stapleton Drive South, #200, Denver, CO 80216 (For Claimant)
Gregory B. Cairns, Esq., 1200 17th St., #1700, Denver, CO 80202 (For Respondent)
BY: A. Hurtado