Opinion
W.C. No. 4-181-336
June 5, 1996
ORDER OF REMAND
The respondent seeks review of an order of Administrative Law Judge Wheelock (ALJ) which awarded medical impairment benefits of $8,736. We set aside the order, and remand for entry of a new order.
On appeal it is undisputed that the claimant sustained an occupational disease on January 29, 1993. According to Dr. Labosky, the injury resulted in permanent impairment of the wrist which "impairs the extremity by 15 percent." Dr. Hall rated the claimant's permanent impairment as "28 percent of the upper extremity." The respondent filed a Final Admission of Liability for the payment of scheduled disability benefits based upon a "28 percent impairment of the upper extremity at the elbow." The claimant objected and sought benefits based upon a 28 percent impairment of the arm at the shoulder.
Giving the greatest weight to the medical impairment rating of Dr. Hall, the ALJ awarded benefits for permanent impairment of "28% of the upper extremity." Implicitly based upon § 8-42-107(2)(a), C.R.S. 1993 (Cum. Supp.), the ALJ calculated the claimant's benefits as $8,736 (28 percent "loss of an arm at the shoulder," x $150 per week x 208 weeks).
On appeal, the respondent contends that the claimant has no functional impairment beyond the elbow. Therefore, the respondent argues that the ALJ erred in awarding benefits under § 8-42-107(2)(a). We conclude that the ALJ's findings are insufficient to permit appellate review, and thus, remand the matter for additional findings.
Section 8-42-107(1)(a), C.R.S. (1995 Cum. Supp.) provides that where an "injury" results in permanent medical impairment and the "injury" is enumerated on the schedule of disabilities, the claimant "is limited to medical impairment benefits as specified" in the schedule of disabilities. (Emphasis added. ) Colorado AFL-CIO v. Donlon, 914 P.2d 396 (Colo.App. 1995). In Mountain City Meat Co. v. Industrial Claim Appeals Office, 904 P.2d 1333 (Colo.App. 1995), cert. granted, October 30, 1995, the court concluded that in the context of § 8-42-107(1) the term "injury" has two meanings. When it is first used it means the industrial accident or event. The second use of the term 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," or in other words, refers to the claimant's functional impairment.
In Strauch v. PSL Swedish Healthcare System, ___ P.2d ___ (Colo.App. No. 95CA1042, March 21, 1996), the court stated that the determination of the claimant's functional impairment is "distinct from, and should not be confused with, the treating physician's rating of physical impairment" under the American Medical Association Guides to the Evaluation of Permanent Impairment (AMA Guides). In fact, the court has noted that the physical impairment ratings contemplated by the AMA Guides are "inconsistent with the scheduled injury impairment ratings contained in § 8-42-107(2)." Mountain City Meat Co. v. Industrial Claim Appeals Office, 904 P.2d at 1337. Consequently, in Strauch, the court held that a physician's medical impairment rating is some but not dispositive evidence of the claimant's functional loss.
Similarly, in Advanced Component Systems v. Gonzales, ___ P.2d ___ (Colo.App. No. 95CA0768, April 4, 1996), the court stated that prior to the ALJ's reference to the AMA Guides' "rating" of the claimant's impairment, the ALJ must determine whether the claimant has suffered a "permanent medical impairment" and the nature of that impairment. In Advanced Component Systems, supra, the court added that no benefits can be awarded under § 8-42-107(1)(a) absent the ALJ's determination that the claimant sustained "permanent medical impairment" which is listed on the schedule. Advanced Component Systems defined "medical impairment" as conditions which "interfere or otherwise have an impact upon a person's physical functions."
Here, the ALJ did not make any specific finding concerning the nature of the claimant's functional impairment or the "physical functions" which are permanently impaired as a result of the occupational disease. Instead, the ALJ determined that the claimant's medical impairment rating under the AMA Guides is 28 percent of the upper extremity.
However, the AMA Guides rating for loss of the "upper extremity" is inconsistent with § 8-42-107(2) which provides for the "loss of an arm at the shoulder" or "loss of the forearm at the elbow." Consequently, the ALJ's finding that the claimant suffered a 28 percent impairment of the "upper extremity" under the AMA Guides is insufficient for us to ascertain the basis of the ALJ's determination concerning the location of the claimant's "functional impairment."
Moreover, the record contains some evidence which suggests that the claimant did not sustain functional impairment above the elbow. For example, the claimant testified that her residual problems from the occupational disease involve the wrist. (Tr. pp. 24, 25, 32).
Similarly, Dr. Labosky testified that the claimant's complaints are mainly in her "right dominant wrist" with some forearm pain. Dr. Labosky stated that he based his medical impairment rating on a loss of range of motion in the wrist, even though the AMA Guides required him to issue a rating based upon impairment of the upper extremity, and then convert that rating to impairment of the whole person. (Labosky depo. pp. 16, 17); see also Dr. Labosky letter dated February 7, 1995.
Furthermore, Dr. Hall reported that at the time of his rating, the claimant presented complaints of wrist, thumb and finger pain. Therefore, we cannot say as a matter of law, that the claimant suffered a loss of the arm "at the shoulder."
On remand the ALJ shall determine the nature of the claimant's functional impairment, and make specific findings of fact concerning the evidence she relied upon in reaching that determination. The ALJ shall then award medical impairment benefits consistent with that determination.
As a result of our disposition, it is premature to consider the respondent's remaining contentions of error.
IT IS THEREFORE ORDERED that the ALJ's order dated June 20, 1995, is set aside and the matter is remanded to the ALJ for entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. DeanNOTICE
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. (1995 Cum. Supp.).
Copies of this decision were mailed June 5, 1996 to the following parties:
Lisa Rotondo, 4372 Hawks Lookout Ln., Colorado Springs, CO 80916
Cindy Bauer, SCI Systems, Inc., 5525 Astrozon Blvd., Colorado Springs, CO 80916
SCI Systems, Inc., P.O. Box 260729, Lakewood, CO 80226-0729
Mary Wilson, Gay Taylor, 6 Concourse Pkwy., Ste. 2220, Atlanta, GA 30328
Steven Waldmann, Esq., 303 S. Circle Dr., Ste. 202, Colorado Springs, CO 80910-3000 (For the Claimant)
Karl A. Schulz, Esq., 102 S. Tejon, Ste. 1100, Colorado Springs, CO 80903 (For the Respondents)
BY: _______________________