Opinion
W.C. No. 4-467-734.
January 22, 2004.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Jones (ALJ Jones) which awarded permanent partial disability benefits in the amount of $100,900.80 based on 33 percent whole person impairment. We modify the order and, as modified, affirm it.
In October 1999 the claimant suffered compensable injuries to his right shoulder while moving a 500 pound refrigerator. A Division-sponsored medical examination (DIME) physician opined the claimant sustained 18 percent impairment of the upper extremity due to range of motion deficits in the shoulder and a distal clavicular resection. The DIME physician also assigned a 14 percent upper extremity rating due to ulnar neuropathy. The DIME physician combined the upper extremity ratings which converts to 24 percent whole person impairment. The DIME physician also assigned a 15 whole person rating for impairment to the cervical spine, and 5 percent for mental impairment. The DIME physician's combined whole person impairment rating was 33 percent.
In an order dated August 16, 2001, ALJ Stuber determined the claimant's average weekly wage to be $735, which results in a temporary disability rate of $490.02 per week ($735 x .6667). ALJ Stuber also determined the claimant's functional impairment for ulnar nerve pathology is fully compensated by the DIME physician's upper extremity rating by a scheduled disability award for 14 loss of use of the arm at the shoulder. In contrast, ALJ Stuber determined the functional impairment underlying the 18 percent upper extremity impairment rating is not fully enumerated on the schedule of disabilities. Further, the ALJ determined the respondents failed to overcome the DIME physician's whole person impairment ratings. Therefore, ALJ Stuber determined the claimant is entitled to benefits based on the whole person conversion for the DIME physician's 18 percent upper extremity rating combined with the 15 percent cervical impairment rating. However, ALJ Stuber did not determine the actual whole person conversion or the combined rating. Nor did ALJ Stuber determine the monetary value of the benefits due on account of the 5 percent mental impairment rating.
The respondents appealed ALJ Stuber's order. However we dismissed the appeal for lack of a final order because ALJ Stuber did not determine the monetary amount of the award.
On September 9, 2003, ALJ Jones construed ALJ Stuber's order as an award of benefits based on 33 percent whole person impairment, for a monetary value of $100,900.80 (.33 x the age factor of 1.56 x 400 weeks x $490.02). See 8-42-107(8)(d), C.R.S. 2003.
I.
On review the respondents contend ALJ Stuber erroneously awarded benefits based on the whole person conversion of the DIME physician's 18 percent upper extremity rating. The respondents contend the evidence fails to support ALJ Stuber's finding that the claimant suffered functional impairment not listed on the schedule of disabilities. We disagree.
Section 8-42-107(1), C.R.S. 2003, 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. 2003. Strauch v. PSL Swedish Healthcare System, 917 P.2d 366 (Colo.App. 1996). In the context of § 8-42-107(1), the term "injury" has been defined to refer to the manifestation in a part or parts of the body which have been functionally impaired or disabled as a result of the industrial accident. Strauch v. PSL Swedish Healthcare System, supra. Where the claimant suffers an injury not enumerated in § 8-42-107(2), the claimant is entitled to whole person impairment benefits under § 8-42-107(8).
Sections 8-42-107(7)(b)(I) (II), 2003 [1999 Colo. Sess. Laws, Ch. 103 at 298, effective for injuries after July 1, 1999], which apply to this October 1999 injury claim, govern circumstances where the claimant sustains both scheduled and nonscheduled injuries from the same industrial accident. See Jesmer v. Porter Care Hospital, W.C. No. 4-442-706 (March 27, 2002). The statute requires that without combining or adding individual impairment ratings the scheduled disability is to be compensated as a scheduled disability and the non-scheduled injury be compensated as whole person impairment.
However, we have previously held that § 8-42-107(7)(b) did not alter the process for determining whether an "injury" is on or off the schedule of disabilities. Lewis v. ACR Specialists Inc., W.C. No. 4-517-426 (January 13, 2004); Guzman v. KBP Coil Coaters, Inc., W.C. No. 4-444-246 (January 10, 2003), aff'd., Guzman v. Industrial Claim Appeals Office (Colo.App. No. 03CA0233, December 31, 2003) (not selected for publication); see also City Market, Inc. v. Industrial Claim Appeals Office, 68 P.3d 601 (Colo.App. 2003). We adhere to our prior conclusions.
We note that in Walker v. Jim Fouco Motor Co., 942 P.2d 1390 (Colo.App. 1997) ; Strauch v. PSL Swedish Healthcare System, supra, and Langton v. Rocky Mountain Health Care Corp., 937 P.2d 883 (Colo.App. 1996), the court held that the determination of the situs of "injury" is not the situs of the initial harm but the situs of functional impairment. However, there is no requirement that functional impairment take any particular form in order to be compensable under § 8-42-107(8). Evidence of pain and discomfort beyond an extremity which interferes with the claimant's ability to use a portion of the body may be considered functional impairment. See Strauch v. PSL Swedish Healthcare System, supra; Guillotte v. Pinnacle Glass Company, W.C. No. 4-443-878 (November 20, 2001), aff'd., Pinnacle Glass Company v. Industrial Claim Appeals Office, (Colo.App. No. 01CA2386, August 22, 2002) (not selected for publication); Mader v. Popejoy Construction Co., Inc., W.C. No. 4-198-489 (August 9, 1996), aff'd., Popejoy Construction Co., Inc., (Colo.App. No. 96CA1508, February 13, 1997) (not selected for publication); 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).
Because the determination of functional impairment is a question of fact, we must uphold ALJ Stuber's findings of fact if supported by substantial evidence in the record. Strauch v. PSL Swedish Healthcare System, supra. Substantial evidence is that quantum of probative evidence which a rational fact-finder would accept as adequate to support a conclusion, without regard to the existence of conflicting evidence. Durocher v. Industrial Claim Appeals Office, 905 P.2d 4 (Colo.App. 1995). In applying the substantial evidence test, we may not substitute our judgment for that of the ALJ concerning the credibility of the witnesses or the sufficiency and probative weight of the evidence. Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993); Martinez v. Regional Transportation District, 832 P.2d 1060 (Colo.App. 1992). Further, substantial evidence is not limited to medical evidence. Rather, the claimant's testimony, if credited, may be sufficient to support an ALJ's finding on the nature and extent of the claimant's functional impairment. Savio House v. Dennis, 665 P.2d 141 (Colo.App. 1983).
Here, the claimant testified that as a result of the industrial injury he experienced neck pain and sharp migraines in the back of his head. (Tr. August 9, 2001, p. 21). Similarly, Dr. Fall's report notes significant postoperative pain in the claimant's neck causing headaches. In addition, the DIME physician stated that the distal clavicular resection which involved removing the end of the clavicle to allow greater movement in the shoulder following the industrial injury, was of limited success. (Tr. August 9, 2001, p. 40). This testimony amply supports ALJ Stuber's determination that the shoulder injury caused functional impairment beyond the arm at the shoulder which can not be fully compensated except as whole person impairment.
In reaching our conclusions we reject the respondents' assertion that ALJ Stuber confused the situs of functional impairment with the situs of the claimant's permanent medical impairment. ALJ Stuber's order reflects his consideration and application of the appropriate legal standard. ( See also Tr. August 9, 2001, p. 52); CAN-USA Construction, Inc. v. Gerber, 767 P.2d 765 (Colo.App. 1988), rev'd on other grounds at 783 P.2d 269 (1989) (the ALJ's oral findings may be considered to interpret the ALJ's written findings).
Moreover it is undisputed that 18 impairment of the upper extremity equals 11 percent whole person impairment. The parties also agree that 11 percent whole person impairment combined with the DIME physician's 15 percent impairment to the cervical spine equals 24 percent whole person impairment. The parties also agree the monetary value of the award is calculated as follows; 24% x age factor of 1.56 x 400 weeks x temporary disability rate, and that produces a monetary value of $73,385.40.
II.
However, we agree with the respondents that ALJ Jones misread ALJ Stuber's order as an award of benefits based on 33 percent whole person impairment. ALJ Stuber expressly declined to determine the exact amount of the award because there was no determination of the whole person conversion for 18 percent upper extremity impairment. Rather, ALJ Stuber contemplated the ultimate value of the award would be "approximately the same 33% impairment rating" determined by the DIME physician. However, he found that "clearly, claimant cannot receive an award of benefits simply for the entire 33% rating of the Division IME." (Conclusion of Law 5). Indeed if ALJ Stuber had awarded benefits based on 33 percent whole person impairment, it would not have been necessary for him to defer a determination of whether the claim was subject to the $60,000 benefit cap in § 8-42-107.5 for impairment ratings of 24 percent or less.
To the contrary, ALJ Stuber expressly found that the claimant's functional impairment due to ulnar nerve neuropathy is fully enumerated on the schedule of disabilities as a 14 loss of use of the arm at the shoulder. Consequently, ALJ Stuber determined the claimant is limited to a scheduled disability rating for this impairment. (Finding of Fact 14, Conclusions of Law 2). It follows that ALJ Jones erroneously calculated the award based on the DIME physician's whole person conversion of the 14 percent upper extremity impairment. Further, the parties agree that a 14 percent loss of use of the arm at the shoulder entitles the claimant to an award of $5,125.12, and the order is modified accordingly.
III.
Finally, the respondents argue that pursuant to § 8-41-301(2)(b), C.R.S. 2003, the claimant is only entitled to 6 weeks of mental impairment benefits because the claimant received 6 weeks of temporary disability benefits. We disagree.
Compensable mental impairment is defined in § 8-41-301(2)(a), C.R.S. 2003 as:
"a recognized, permanent disability arising from an accidental injury arising out of and in the course of employment when the accidental injury involves no physical injury and consists of a psychologically traumatic event that is generally outside of a worker's usual experience and would evoke significant symptoms of distress in a worker in similar circumstances." (Emphasis added)
Section 8-41-301(2)(a) was first enacted in 1991 in an effort to eliminate frivolous "stress" claims by establishing a stricter standard for injuries resulting from an emotional stimulus. See 1991 Colo. Sess. Laws, Ch., 219, at 1294; Davison v. Industrial Claim Appeals Office, 72 P.3d 389 (Colo.App. 2003); Tomsha v. City of Colorado Springs, 856 P.2d 13 (Colo.App. 1992). Then in 1999, the legislature amended the statute to provide that the term "mental impairment" also includes "a disability arising from an accidental physical injury that leads to a recognized permanent psychological disability." Section 8-41-301(2)(a.5), C.R.S. 2003.
Section 8-41-301(2)(b), provide that:
" where a claim is by reason of mental impairment, the claimant shall be limited to twelve weeks of medical impairment benefits which shall be in an amount not less than one hundred fifty dollars per week and not more than fifty percent of the state average weekly wage, inclusive of any temporary disability benefits. (Emphasis added).
In interpreting meaning of § 8-41-301(2)(b), the primary objective of statutory construction is to give effect to the legislative intent. City of Thornton v. Replogle, 888 P.2d 782 (Colo. 1995). Further, the entire statutory scheme must be construed in a manner that gives consistent, harmonious and sensible effect to all of its parts. Mountain City Meat Co. v. Oqueda, 919 P.2d 246 (Colo. 1996). Applying these principles in City of Thornton v. Replogle, 888 P.2d at 785, the court concluded that the phrase "inclusive of temporary disability benefits" means:
"that the dollar amount of any temporary disability benefits which the claimant receives for any mental impairment must be offset, against the weekly dollar amounts authorized for permanent disability benefits under § 8-42-301."
Accordingly, we conclude that § 8-41-301(2)(b) contemplates an examination of the reason for the temporary disability benefits and only temporary disability benefits paid on account of mental impairment are subject to the offset against permanent disability benefits.
In contrast, the respondents' argument supposes that a claimant who suffers no temporary disability as a result of the industrial injury would be entitled to the full 12 weeks of benefits for permanent mental impairment. However, a claimant who suffers no temporary disability because of mental impairment, but sustains several weeks of temporary disability from the effects of the physical injury, would receive less than 12 weeks of benefits for permanent mental impairment. This result is inconsistent with the legislative intent of § 8-41-301(2) and raises equal protections concerns. Because statutes are presumed to be constitutional and we must strive to construe the statute as constitutional, we reject the respondents' theory. See Kinder v. Industrial Claim Appeals Office, 976 P.2d 295 (Colo.App. 1999); BCW Enterprises, Ltd. v. Industrial Claim Appeals Office, 964 P.2d 533 (Colo.App. 1997).
We also note that here the "claim" was not by reason of mental impairment. Instead, the claim was by reason of the shoulder injury and the claimant did not allege compensable mental impairment until he reached maximum medical improvement when the "permanency" requirement of the mental impairment statute could be established. See Chavarria v. Dayton Hudson Corporation, W.C. No. 4-492-078 (June 5, 2003) (requirements of § 8-41-301(2)(a) are not applicable unless the claimant is alleging a "permanent" recognized mental disability).
Here, ALJ Stuber found that although the claimant received 6 weeks of temporary total disability benefits, he received no temporary disability benefits due to the psychological injury. (Finding of Fact 17). ALJ Stuber's finding is a plausible inference from the medical records which indicate the claimant underwent shoulder surgery in December 1999, together with the respondents' Final Admission of Liability which admits liability for temporary disability benefits from December 20, 1999 through January 30, 2000. Therefore, the finding must be upheld on review.
The respondents concede that 6 weeks of mental impairment benefits entitles the claimant to $1843.59. It follows, that 12 weeks of mental impairment benefits entitles the claimant to $3,687.18.
In summary the monetary value of the permanent partial disability benefits awarded by ALJ Stuber is $73,385.40 based on 24 percent whole person impairment; scheduled disability benefits of $5,125.12 for a 14 percent impairment of the arm at the shoulder and $3,687.18 for 5 percent mental impairment. The combined value of the award is $82,197.70 and ALJ Jones order is modified accordingly.
IT IS THEREFORE ORDERED that the order of ALJ Jones dated September 2, 2003, is modified to provide that the claimant is entitled to permanent impairment benefits in the amount of $82,197.70, and as modified the order 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. 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, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed January 22, 2004 to the following parties:
Pete Ramos, 3435 S. Ammons St., Bldg. #30-1, Lakewood, CO 80227
Sears Distribution Center, 1701 W. 6th Ave., Denver, CO 80204-4902
Rita Allen, Liberty Mutual Fire Insurance Company, P. O. Box 168208, Irving, TX 75016-8205
John A. Sbarbaro, Esq., 226 W. 12th Ave., Denver, CO 80204-3625 (For Claimant)
David G. Kroll, Esq., 1120 Lincoln St., #1606, Denver, CO 80203 (For Respondents)