Opinion
W.C. No. 4-247-644
January 18, 2000
FINAL ORDER
The respondents seek review of an order of former Administrative Law Judge Gandy (ALJ) which required them to pay medical impairment benefits based on 12 percent whole person impairment. The respondents contend the claimant is limited to scheduled disability benefits based on the partial loss of use the arm at the shoulder as provided by § 8-42-107 (2)(a), C.R.S. 1999. We affirm.
The claimant suffered work-related injuries to his right and left shoulders. The respondents admitted liability for both injuries. Ultimately, Dr. van den Hover conducted a Division-sponsored independent medical examination (IME). Dr. van den Hover opined the claimant sustained 13 percent impairment to the right upper extremity, and 6 percent impairment of the left upper extremity which he converted to 12 percent whole person impairment under the American Medical Association Guide to the Evaluation of Permanent Impairment, Third Edition, Revised (AMA Guides).
The claimant testified that as a result of the industrial injury he is functionally impaired from performing overhead work. He also stated that he suffers from headaches and pain and muscle spasms in his back and neck. The claimant denied he had any similar problems prior to the industrial injury.
Crediting the claimant's testimony, the ALJ found the claimant sustained functional impairment not listed on the schedule of disabilities. Furthermore, the ALJ determined that, insofar as IME report could be construed as assessing a scheduled disability rating, the claimant overcame the IME physician's opinion by "clear and convincing evidence." Therefore, the ALJ ordered the respondents to pay permanent partial disability benefits based on Dr. van den Hover's 12 percent whole person impairment rating.
On review, the respondents contend the ALJ erroneously found the claimant suffered functional impairment not listed on the schedule. In support, the respondents rely on Morris v. Industrial Claim Appeals Office, 942 P.2d 1343 (Colo.App. 1997). We disagree.
Section 8-42-107(1), C.R.S. 1999, 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), C.R.S. 1999. Strauch v. PSL Swedish Healthcare System, 917 P.2d 366 (Colo.App. 1996). Under § 8-42-107(2)(a), the partial "loss of an arm at the shoulder" 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. 1999. 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, 917 P.2d 366 (Colo.App. 1996).
The question of whether the claimant sustained a partial "loss of an arm at the shoulder" within the meaning of § 8-42-107(2)(a), or a whole person medical impairment compensable under § 8-42-107(8), 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." Langton v. Rocky Mountain Health Care Corp., 937 P.2d 883 (Colo.App. 1996) ; Strauch v. PSL Swedish Healthcare System, supra.
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. 1999, Langton v. Rocky Mountain Healthcare Corp., supra. This standard requires us to defer to the ALJ's resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences which he drew from the evidence.
In a series of cases we have held that pain and discomfort which limit a claimant's ability to use a portion of his body may be considered a "functional impairment" for purposes of determining whether an injury is on or off 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).
The claimant testified that, as a result of the industrial injury, he requires assistance to perform activities which require him to work with his arms extended or overhead. (Tr. pp. 5, 6). He also stated that he has pain in his back and shoulder blades, and gets neck spasms and headaches as a consequence of the injuries which "grossly affects" his activities. (Tr. pp. 7, 10). Thus, the claimant's testimony contains substantial evidence to support the ALJ's finding that the claimant sustained "functional impairment" beyond the "arm at the shoulder." See Valles v. Arrow Moving Storage, supra.
Furthermore, we have previously rejected the argument that Morris v. Industrial Claim Appeals Office, supra, warrants a different result in cases involving shoulder injuries. In Morris, the court held that a scheduled extremity rating may not be combined with a functional psychological impairment to create a single whole person rating without proof that the psychological impairment was "rateable" under the AMA Guides.
However , Morris does not concern itself with the situation in which an ALJ is making the initial determination of whether or not the claimant sustained a "functional impairment" which is off the schedule. Rather, Morris governs the situation in which an ALJ has already determined that the claimant sustained separate scheduled and non-scheduled functional impairments. In this situation Morris holds that the ALJ must determine whether the non-scheduled impairment is "rateable" under the AMA Guides before it may be combined with the scheduled impairment to create a single whole person impairment under Mountain City Meat Co. v. Oqueda, supra. [superseded by § 8-42-107(7)(b)(I), C.R.S. 1999 for injuries on or after July 1, 1999].
This distinction is illustrated in Salaz v. Phase II et. al., where the claimant suffered bilateral shoulder injuries. At MMI the claimant was rated with impairment to both upper extremities which converted to 17 whole person impairment. The ALJ found that as a result of the injury the claimant suffered pain in the top of his shoulder and along the side of the neck which limited functioning. Therefore, the ALJ determined the claimant suffered functional impairment not listed on the schedule of injuries and awarded benefits based on 17 percent whole person impairment. The court of appeals upheld the award. In so doing the court concluded that Morris did not apply to the ALJ's determination of whether the claimant suffered non-scheduled functional impairment.
Here, unlike the circumstances in Morris, the claimant sustained a single injury which affected various structures of his upper extremity. The components of the claimant's injury were combined into a single upper extremity impairment rating, which was then converted to a single whole person impairment rating. See Gonzales v. City and County of Denver, W.C. No. 4-296-588 (September 10, 1998). Thus, unlike the situation in Morris, there was no attempt to "combine" the claimant's upper extremity injury with a separate and unrated impairment of the whole person for purposes of creating a single whole person impairment rating. See Eidy v. Pioneer Freightways, W.C. No. 4-291-940 (August 4, 1998) ; Bicknell v. Pinon Truck Stop, Inc., W.C. No. 4-159-683 (May 27, 1998); Morris v. Darrell W. Crank d/b/a DMI Collision, W.C. No. 4-231-195 (May 19, 1998). Thus, Morris v. Industrial Claim Appeals Office, supra, is inapposite.
Nevertheless, the respondents' contend that there is no evidence to establish an anatomic or physiological correlation of the claimant's head, neck and back pain. Consequently, they argue that the claimant's head, neck and back pain may not be the basis for the award of whole person impairment benefits.
Section 8-42-107(8)(c), C.R.S. 1999, states that the rating physician "shall not render a medical impairment rating" based on chronic pain without anatomic or physiologic correlation. Anatomic correlation must be based on objective findings. However, this language pertains to the basis for a "medical impairment rating" under § 8-42-107(8), and not the ALJ's determination of whether the claimant has an "injury" which must be rated in accordance with § 8-42-107(8). In fact, the determination of whether the claimant sustained functional impairment to the whole person is separate and distinct from the rating of that impairment under the AMA Guides. See Mountain City Meat Co. v. Oqueda, supra.
Moreover, in view of evidence that Dr. van den Hover assigned a 12 whole person impairment rating using the same rating chart [Upper Extremity Impairment Evaluation Record-Part 2 (Wrist, Elbow Shoulder)] that was completed by Dr. Britton in assigning a 13 percent upper extremity rating, the ALJ reasonably interpreted the IME report as reflecting Dr. van den Hover's opinion that the claimant suffered a 12 percent whole person impairment. Therefore, this is not a case where there is no whole person rating from which the ALJ could assess medical impairment benefits under § 8-42-107(8). Consequently, we do not consider the respondents' arguments concerning the ALJ's conclusion that the IME rating was overcome if the IME physician's report is construed as assessing a scheduled disability rating.
IT IS THEREFORE ORDERED that the ALJ's order dated August 30, 1999, 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, 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. 1999.
Copies of this decision were mailed January 18, 2000 to the following parties:
Robert Bryan Overcash, 16289 Weld Cty. Road 34, Platteville, CO 80651
EGG Rocky Flats, Inc., P.O. Box 464, Golden, CO 80402-0464
Dawn Thornton, Liberty Mutual Insurance Company, P.O. Box 3539, Englewood, CO 80155-3539
Michael P. Dominick, Esq., 250 Arapahoe Ave., #301, Boulder, CO 80302 (For Claimant)
Jonathan S. Robbins, Esq., 1120 Lincoln St., #1606, Denver, CO 80203 (For Respondents)
BY: L. Epperson