Opinion
W.C. No. 4-806-129.
December 7, 2011.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Kimberly A. Alegretti dated August 9, 2011, which awarded the claimant a 7 percent whole person rating for her shoulder injury.
A hearing was held on the issues of permanent partial disability and disfigurement. After hearing the ALJ entered factual findings which for purposes of review can be summarized as follows. The claimant sustained an admitted injury to her right shoulder on October 9, 2009. The claimant was initially diagnosed with a fracture of the humerus and later, rotator cuff tendonitis with a rotator cuff tear and a type IV SLAP tear. The claimant had surgery and was eventually placed at maximum medical improvement and given a 6 percent upper extremity rating which converts to 4 percent whole person rating. The claimant subsequently underwent a Division Independent Medical Exam (DIME) with Dr. Beatty. Dr. Beatty gave the claimant an 11 percent upper extremity rating which converts to a 7 percent whole person rating.
The claimant testified at hearing that she continues to experience pain and loss of range of motion since her injury. The claimant testified that she has pain and a pulling sensation from the top of her shoulder, around the bottom of her arm and frequently on her shoulder and also up across her shoulder, close to her neck. The claimant also testified at length as to the changes she made in her activities of daily living and how she performs her job. The claimant stated that she avoids activities which involve overhead reaching or reaching behind her back.
The ALJ found the claimant's testimony credible and substantiated by the medical records. Based on this testimony, the ALJ determined that the claimant suffered a functional impairment not listed on the schedule of disabilities. The ALJ further found that the respondents failed to overcome Dr. Beatty's rating by clear and convincing evidence and, therefore, the claimant was entitled to a 7 percent whole person rating. Finally, the ALJ awarded disfigurement benefits. The respondents now appeal.
On appeal the respondents allege the ALJ's order is not supported by substantial evidence because the claimant has no permanent physical restrictions as a result of this injury. We are not persuaded that the ALJ committed reversible error.
The question of whether the claimant sustained a "loss of an arm at the shoulder" within the meaning of schedule of disabilities in § 8-42-107(2)(a), C.R.S., or a whole person rating under § 8-42-107(8)(c), C.R.S., is one of fact for determination by the ALJ. Strauch v. PSL Swedish Healthcare System, 917 P.2d 366 (Colo. App. 1996). 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, supra.
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. This standard of review requires us to consider 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. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo. App. 2003).
Here, the ALJ expressly credited, with record support, the claimant's testimony concerning the location of her pain and her physical limitations as a result of her injury. The ALJ found that the claimant suffered pain in her arm, shoulder, chest wall and pain such that the claimant is unable or limited in her ability to engage in actions requiring overhead movement or movement behind her back, among other things. The ALJ further found that the claimant's impairment requires her to make adaptations in the performance of work duties and to forego participation in sports and other activities in which she previously engaged on a regular basis. ALJ Order at 12.
The ALJ further found that the claimant's testimony was substantiated by the medical records. Dr. Zickfoose stated that the claimant had difficulty with tasks that require her to reach behind her back and that when the claimant sleeps on her right shoulder for too long, it wakes her up. Claimant's Exhibit at 1. Dr. Beatty testified that the claimant's complaints of shoulder and neck pain to other doctors were consistent with the pathology revealed by her MRI. Beatty Depo. at 24-26. Dr. Bisgard's written report states that the claimant, "reports pain over the top of her shoulder over the glenohumeral joint. At times she has pain into her anterior chest wall, which she stated is a pulling sensation from her anterior portal." Claimant's Exhibit at 16 p. 88. Similarly, Dr. Weinstein notes that the claimant continues to have complaints of "pain diffusely in her shoulder and in the right side of her neck. Any shoulder level and overhead activity exacerbates her symptoms." Respondents Exhibit at D p. 29-31.
In our view this constitutes substantial evidence in the record supporting the ALJ's determination that the claimant be awarded a whole person rating. Therefore, we must uphold that determination. Section 8-43-301(8), C.R.S.
Initially, the respondents argue that the ALJ erred in concluding that the claimant has functional impairment of any kind because the claimant has not been given permanent restrictions from a doctor. According to the respondents, if the claimant does not have any permanent restrictions as a result of this injury, "then she simply cannot have any kind of functional impairment." Respondents' Brief at 5-6. We disagree that permanent restrictions imposed by a physician are required, as a matter of law, in order to find functional impairment.
To the contrary, the panel has repeatedly held that "functional impairment" need not take any particular form. See Nichols v. LaFarge Construction, W.C. No. 4-743-367 (October 7, 2009); Aligaze v. Colorado Cab Co., W.C. No. 4-705-940 (April 29, 2009); Martinez v. Albertson's LLC, W.C. No. 4-692-947 (June 30, 2008). Functional impairment may be evidenced by pain that limits use of a part of the body. Spitzer v. Custom On Site Builders, W.C. No. 4-739-406 (November 4, 2009). Chavez v. Excel Corporation, W. C. No. 4-491-549 (February 05, 2004); Valles v. Arrow Moving Storage Co., W.C. No. 4-265-129 (October 22, 1998).
We know of no authority for the proposition that the existence of permanent restrictions imposed by a doctor is controlling on whether a claimant has functional impairment as a result of an injury. In our view, "functional impairment" is not merely assessed by medical means but rather can involve an overall assessment of the effect the injury has had on the claimant's ability to function in terms of movement and in the performance of activities at work and daily living.
The term "injury" as used in the schedule of disabilities refers to the manifestation in a part or parts of the body which have been impaired or disabled as a result of the industrial accident. Strauch v. PSL Swedish Healthcare System, supra. Therefore, when evaluating functional impairment it is appropriate for an ALJ to look at, not only the alteration of the claimant's abilities by medical means, but also by non-medical means of the impact the injury has had on the claimant's capacity to meet personal, social and occupational demands. See, Askew v. Industrial Claim Appeals Office, 927 P.2d 1333 (Colo. 1996). The existence of permanent restrictions imposed by a doctor is some evidence which the ALJ may consider in determining the nature and extent of the claimant's functional impairment. See, Strauch v. PSL Swedish Healthcare System, supra. An ALJ may or may not find the existence of permanent restrictions to be persuasive when balanced against other evidence concerning the claimant's ability to function.
Here, the ALJ found the claimant's testimony and medical records to be more persuasive concerning her complaints of pain and limitations in her work and daily life activities. Additionally, the claimant's functional capacity evaluation (FCE) supported the claimant's testimony concerning the limitations on her ability to move, lift and reach overhead, regardless of whether permanent restrictions were imposed. Claimant's Exhibit at 19. This determination is properly left within the discretion of the ALJ. Strauch, 917 P.2d at 368.
The respondents contend that even if the claimant does have functional impairment, the ALJ erred in determining that the situs of the functional impairment is off the schedule of disabilities because the claimant failed to establish that the functional limitation is caused by structures proximal to the glenohumeral joint as testified to by respondents' expert. Respondents' Brief at 6. We disagree.
Damage to the structures of the "shoulders" may or may not reflect a "functional impairment" that is enumerated on the schedule of disabilities. See Walker v. Jim Fuoco Motor Company, supra; Strauch v. PSL Swedish Healthcare System, supra; Langton v. Rocky Mountain Health Care Corp. supra. The determination of whether a claimant's impairment falls within the schedule of disabilities is ultimately left to the ALJ. Id. A physician's testimony on the demarcation of where the torso stops and the extremity begins, is irrelevant under the situs of the functional impairment test. Langton v. Rocky Mountain Health Care Corp., supra.
In any event, here, it was reasonable for the ALJ to infer from the claimant's testimony and corroborating medical reports that the pain she experiences in her shoulder, back and neck cause her functional impairment beyond the schedule of disabilities. Accordingly, we are bound by the ALJ's determinations. Section 8-43-301(8), C.R.S.; F.R. Orr v. Rinta, 717 P.2d 965 (Colo. App. 1985).
IT IS THEREFORE ORDERED that the ALJ's order issued August 9, 2011, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Brandee DeFalco-Galvin
____________________________________ John D. Baird
PUEBLO COUNTY SHERIFF'S OFFICE, Attn: CATHY ICABONE, STREET, PUEBLO, CO, (Employer).
COUNTY TECHNICAL SERVICES, INC., Attn: KATHLEEN BEBEE, DENVER, CO, (Insurer).
FOGEL KEATING WAGNER POLIDORI SHAFNER, Attn: LAURENCE J. FREE, ESQ., DENVER, CO, (For Claimant).
DWORKIN, CHAMBERS, WILLIAMS, YORK, BENSON EVANS, P.C., Attn: GREGORY K. CHAMBERS, ESQ., DENVER, CO, (For Respondents).