Opinion
W.C. No. 4-417-093.
June 25, 2002.
FINAL ORDER
The respondents seek review of a supplemental order of Administrative Law Judge Coughlin (ALJ) which awarded the claimant permanent partial disability benefits based on medical impairment of 26 percent of the whole person. The respondents contend that under the facts of this case the claimant is restricted to an award under the schedule of disabilities. We affirm.
On March 25, 1999, the claimant sustained a crush injury to her right upper extremity. The injury resulted in fractures of the radius and ulna, and the claimant underwent surgery to repair these injuries. Ultimately, the claimant developed scars on the right upper extremity which the ALJ described as large, quite obvious, and "extraordinary."
A treating physician placed the claimant at maximum medical improvement on October 27, 1999. The treating physician assessed a 15 percent impairment of the right upper extremity. The rating was based on 11 percent impairment for reduced range of motion and 5 percent impairment for "other" upper extremity defects described as "pain and disfigurement from her fracture and scars."
The respondents filed a final admission of liability based on the treating physician's impairment rating, and the claimant sought a Division-sponsored independent medical examination (DIME) on the issue of medical impairment. The DIME physician assessed a 26 percent whole person impairment. This rating was based on 22 percent whole person impairment caused by reduced range of motion and loss of strength in the upper extremity, and 5 percent impairment for the scars located on the right upper extremity. The claimant was also examined by another independent medical examination (IME) physician who assessed a 22 percent whole person impairment, including 2 percent "related to skin residuals."
The ALJ concluded the respondents failed to overcome the DIME physician's impairment rating by clear and convincing evidence. Specifically, the ALJ found the respondents did not demonstrate the DIME physician incorrectly applied the AMA Guides in awarding whole person impairment for the scars. Consequently, the ALJ concluded the whole person rating for the skin impairment was properly combined with the whole person impairment rating for the claimant's upper extremity injury resulting in a 26 percent whole person impairment.
I.
On review, the respondents first contend the ALJ's findings of fact, as well as the evidence submitted at hearing, compel the conclusion the claimant sustained a single injury limited to the right upper extremity. Consequently, the respondents contend the ALJ incorrectly applied the law in requiring them to overcome the DIME physician's whole person impairment rating by clear and convincing evidence. According to the respondents, the ALJ should have found as a matter of fact whether the claimant's upper extremity injury resulted in functional impairment beyond the arm at the shoulder, and awarded benefits based on that determination. E.g. Strauch v. PSL Swedish Healthcare System, 917 P.2d 366 (Colo.App. 1996). Inherent in the respondents' argument is the assertion that, insofar as the scars caused any functional impairment, that impairment was limited to the claimant's upper extremity. We are not persuaded.
This case is governed by § 8-42-107 as it existed prior to the 1999 amendments. See 1999 Colo. Sess. Laws, ch. 103 at 298-300. Under § 8-42-107(1)(a), the claimant is limited to an award under the schedule if she sustains an injury or injuries enumerated therein. Under subsection (1)(b) she is entitled to an award of whole person medical benefits under subsection (8)(c) if she sustains an injury not listed on the schedule. Moreover, the Supreme Court held that if the claimant sustains an injury on the schedule, and an injury not found on the schedule, the rating for the scheduled injury is to be converted to its whole person equivalent and the two ratings combined to form a single whole person impairment rating. Mountain City Meat Co. v. Oqueda, 919 P.2d 246 (Colo. 1996).
The rating of medical impairment must be conducted in accordance with the provisions of the AMA Guides. Section 8-42-101(3.7), C.R.S. 2001; § 8-42-107(8)(c), C.R.S. 2001. In Gonzales v. Advanced Component Systems, 949 P.2d 569 (Colo.App. 1997), it was held that if an industrial injury to the eye causes functional impairment of vision which is rateable under the schedule, but also causes disfigurement of physical structures surrounding the eye, the claimant may have sustained two distinct "injuries" for the purpose of determining whether the claimant is entitled to benefits under the schedule or whole person provisions of subsection (8)(c). In Gonzales, the disfigurement of the structures around the eye caused ratable impairment under § 9.2 of the AMA Guides; therefore, the claimant was entitled to a single whole person impairment rating based on the combination of the whole person impairment rating for the loss of vision and the whole person impairment rating for the disfigurement. Id. at 574.
Here, as the ALJ found, the DIME physician determined the claimant sustained separately ratable injuries consisting of impairment of the upper extremity and impairment of the skin caused by the scars. Provided the DIME physician properly applied the AMA Guides in arriving at the rating, the ALJ correctly concluded the ratings for these separate impairments should be combined to arrive at a single whole person impairment rating. This is true because impairment of the skin is not listed on the schedule of disabilities, and the rating for skin impairment is based on the effects of the scars on the claimant's overall behavior, not just use of the extremity. Gonzales v. Advanced Component Systems, supra.
The cases cited by the respondents, such as Strauch, are inapposite because they involve fact patterns where the claimant sustained a single ratable impairment. The issue in those cases was whether the single injury appeared on the schedule. The courts held determination of the issue is based on the situs of the functional impairment. In contrast, this case involves a combination of two impairments which are ratable under the AMA Guides. See Morris v. Industrial Claim Appeals Office, 942 P.2d 1343 (Colo.App. 1997).
II.
The respondents next contend the record compelled the ALJ to find the DIME physician's rating of the skin impairment was overcome. We disagree.
The DIME physician's rating of whole person medical impairment is binding unless overcome by clear and convincing evidence. Section 8-42-107(8)(c). It is now well established that the questions of whether the DIME physician properly applied the AMA Guides in arriving at the rating, and whether the rating itself has been overcome by clear and convincing evidence, are issues of fact for determination by the ALJ. McLane Western v. Industrial Claim Appeals Office, 996 P.2d 263 (Colo.App. 1999); Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
Because the issues are 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. 2001. 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, supra.
Here, the DIME physician reported and testified the scarring on the claimant's hand and arm constitute ratable impairment under § 13.4 and § 13.6 of the AMA Guides. Section 13.4 permits a rating of up to 5 percent whole person if signs of a skin disorder are present and "with treatment, there is no limitation, or minimal limitation, in the performance of the activities of daily living, although exposure to certain physical or chemical agents might increase limitation temporarily." Section 13.4 indicates that scars may become ratable because of "behavioral changes" caused by the scar. The DIME physician reported the claimant's scars are affected by and irritated by certain types of clothing and they cause such a high degree of embarrassment the claimant "tends to keep her arm covered." (DIME report, DIME physician's deposition, p. 6). This opinion was largely corroborated by the report of the other IME physician. Moreover, the ALJ was persuaded these difficulties were indeed caused by the scars. (Finding of Fact 7).
Consequently, there is substantial evidence that the DIME physician correctly applied the AMA Guides in assessing impairment of the claimant's skin, and the ALJ was certainly not compelled to find the DIME physician's rating was overcome by clear and convincing evidence. We recognize the treating physician opined the AMA Guides and "W.C. rules, would allow only `disfigurement' due to [the claimant's] scars." However, in contrast to the DIME physician, the treating physician did not cite the specific provisions on which he was relying as support for these assertions. Further, during closing argument, counsel for the respondents admitted he couldn't point to any specific violation of the AMA Guides which was committed by the DIME physician. (Tr. p. 17). Under these circumstances, there is no basis to interfere with the ALJ's factual finding that the DIME physician's impairment rating was not overcome.
Insofar as the respondents make other arguments, they are factual in nature and we find them to be without merit.
IT IS THEREFORE ORDERED that the ALJ's supplemental order dated February 14, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Kathy E. Dean
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 Street, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed June 25, 2002 to the following parties:
Matildo Kanyo, 10064 Grove Ct., Unit A, Westminster, CO 80031-6788
Kyle Green, Keebler Company, 5000 Osage, Denver, CO 80221
Keebler Company, P. O. Box 280100, Nashville, TN 37228-0100
Pam Moon, Gallagher Bassett Services, P. O. Box 4068, 7935 E. Prentice Ave., #305, Englewood, CO 80155-4068
John M. Connell, Esq., 6750 Stapleton South Drive, #200, Denver, CO 80216 (For Claimant)
Ted A. Krumreich, Esq., 950 17th St., 21st floor, Denver, CO 80202 (For Respondent)
By: A. Hurtado