Opinion
W.C. No. 4-265-129
October 22, 1998
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Wells (ALJ), which awarded permanent partial disability benefits based on a medical impairment of five percent of the whole person. The respondents contend the claimant's benefits should have been awarded under the schedule of disabilities based on a nine percent loss of the arm at the shoulder. We affirm.
The claimant sustained an injury to his shoulder and underwent surgery described as "an arthroscopic debridement of his glenoid labrum and rotator cuff tear with subacromial decompression of the left shoulder." On November 8, 1996, Dr. Matthews opined that, under the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition (Revised) (AMA Guides) the claimant had a "nine percent impairment of the upper extremity which is a five percent impairment of the whole person." The impairment rating was based on the finding that the claimant had a full range of motion but mild weakness in the deltoid.
At the hearing, the claimant testified that he has difficulty doing overhead work. If he attempts overhead work he is left with stiffness in the left side of his neck. If he attempts to lift more than 25 pounds he experiences pain from the left side of his neck all the way down the arm. (Tr. pp. 5-6).
The ALJ credited the claimant's testimony concerning neck pain and difficulties with overhead work. Further, he stated that injury to the claimant's "shoulder joint" is not found on the schedule of disabilities. Consequently, the ALJ determined that the claimant suffered a functional impairment not listed on the schedule, and awarded whole person medical impairment benefits under § 8-42-107(8), C.R.S. 1998.
On review, the respondents contend the ALJ erred in awarding benefits based on a whole person medical impairment. Citing Morris v. Industrial Claim Appeals Office, 942 P.2d 1343 (Colo.App. 1997), the respondents argue that there is no evidence the claimant sustained rateable impairment beyond his arm at the shoulder. Consequently, the respondents reason that the claimant's impairment rating must be restricted to nine percent loss of the arm at the shoulder as provided in § 8-42-107(2)(a), C.R.S. 1998. We disagree.
It is now well established that the question of whether the claimant sustained a "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," 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, 917 P.2d 366 (Colo.App. 1996).
The AMA Guides' definition of where the arm ends and where the torso begins is not dispositive of whether the claimant sustained a scheduled loss of the arm at the shoulder. Nevertheless, a physician's rating under the AMA Guides "may be considered by the ALJ in determining whether the claimant's functional impairment is fully described on the schedule of disabilities." Strauch v. PSL Swedish Healthcare System, 917 P.2d at 368. Further, we have held that pain and discomfort which limits 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. Eg. Beck v. Mile Hi Express, Inc., W.C. No. 4-238-483 (February 11, 1997).
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. 1998; Langton v. Rocky Mountain Health Care 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. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
Here, the claimant's testimony concerning difficulty with overhead work and pain extending all the way from his neck into his arm supports the inference that he has a "functional impairment" beyond the "arm at the shoulder." Moreover, Dr. Matthews's impairment rating is not limited to the "arm at the shoulder," but encompasses the claimant's entire "upper extremity." Since, as the respondents concede, the AMA Guides define the shoulder as being located beyond the arm, it was proper for the ALJ to consider this fact in determining the situs of the functional impairment. Strauch v. PSL Swedish Healthcare System, supra. Thus, we decline the respondents' invitation to substitute our judgement for that of the ALJ concerning the location of the claimant's functional impairment.
Moreover, we disagree with the respondents' assertion that this case is controlled by Morris v. Industrial Claim Appeals Office, supra. As we have previously noted, Morris addresses the circumstances in which distinct scheduled and non-scheduled impairments may be combined into a single whole person rating for purposes of Mountain City Meat Co. v. Oqueda, 919 P.2d 246 (Colo. 1996). In Morris, the court held that a scheduled extremity rating could not be combined with a psychological impairment to create a single whole person medical impairment rating without proof that the psychological impairment was "rateable" under the AMA Guides.
Here, in contrast, the claimant sustained a single injury which affected various structures of his upper extremity. The claimant was given a single upper extremity rating which was then converted to a single whole person impairment rating. Thus, unlike the situation in Morris, there was no attempt to "combine" the upper extremity impairment with a separate and unrated functional 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. Pinion Truck Stop, Inc., W.C. No. 4-159-683 (May 27, 1998).
In their brief, the respondents state that the issue under consideration was before the Court of Appeals in the case of Phase II Co. v. Industrial Claim Appeals Office (Colo.App. No. 97CA2099, September 3, 1998) (not selected for publication). We note that the appeal in Phase II Co. was resolved adversely to the respondents.
IT IS THEREFORE ORDERED that the ALJ's order dated August 27, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to 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 the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. 1998.
Copies of this decision were mailed October 22, 1998 to the following parties:
Reyes Valles, 2634 Glenwood Dr., Colorado Springs, CO 80906
Arrow Moving Storage, % Dartco Moving Services, 2755 Delta Pl., Colorado Springs, CO 80910-1016
Laurie A. Schoder, Esq., Colorado Compensation Insurance Authority — Interagency Mail
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909 (For Claimant)
BY: _______________________