Opinion
W.C. No. 4-698-479.
May 27, 2008.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) dated January 31, 2008, that denied the claimant's claim for additional permanent partial disability (PPD) benefits. We affirm.
The ALJ's pertinent findings of fact are as follows. The claimant sustained an admitted work-related injury to his right elbow on July 19, 2006. On April 11, 2007, the treating physician found that the claimant was at maximum medical improvement and determined that the claimant had an eight percent upper extremity permanent impairment rating for his right elbow injury. The respondents filed an admission based on this rating and the claimant underwent a Division Independent Medical Examination (DIME) by Dr. Rook. The DIME physician found the claimant had an 18 percent upper extremity rating for loss of range of motion and a 30 percent impairment rating due to right hand grip strength loss. The DIME physician combined the range of motion and grip strength impairment to arrive at 43 percent upper extremity impairment. The claimant failed to prove by a preponderance of the evidence that he had a functional impairment not expressed on the schedule of disabilities. The situs of the claimant's functional impairment did not extend above his arm. The preponderance of the evidence demonstrated that the claimant suffered an eight percent impairment of the arm at the shoulder due to elbow range of motion loss, as determined by the treating physician. The ALJ denied the claimant's claim for additional PPD benefits.
The record contains no brief in support of the claimant's petition to review and therefore, the effectiveness of our review is limited. Ortiz v. Industrial Commission, 734 P.2d 642 (Colo.App. 1986). The petition to review contains two contentions of error.
The claimant first contends the ALJ erred in his determination that the claimant did not suffer a functional impairment of the whole person. We disagree. It is well established that the question of whether the claimant sustained a scheduled injury within the meaning of § 8-42-107(2)(a), C.R.S. 2007, or a whole person medical impairment compensable under § 8-42-107(8)(c), is one of fact for determination by the ALJ. Walker v. Jim Fuoco Motor Co., 942 P.2d 1390 (Colo.App. 1997); Kolar v. Industrial Claim Appeals Office, 122 P.3d 1075 (Colo.App. 2005). 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). A physician's rating is not dispositive of this question, although it is certainly relevant. Strauch v. 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. 2007. This standard of review requires us to defer to the ALJ's resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
Here the DIME physician found the claimant had an 18 percent upper extremity rating for loss of range of motion and a 30 percent impairment rating due to right hand grip strength loss. The DIME physician combined the range of motion and grip strength impairment to arrive at 43 percent upper extremity impairment or a 26 percent whole person impairment rating. However, Dr. Kistler used the claimant's right elbow range of motion test results to determine the claimant had an eight percent upper extremity permanent impairment rating for his right elbow injury. Exhibit C at 50. Dr. Kistler did not assign a permanent impairment rating or recommend maintenance care for the claimant's alleged right hand or sleep problems. A functional capacity evaluation indicated lack of full effort and low effort on the part of the claimant. Exhibit F at 143-44. Dr. Reasoner opined that the claimant's grip strength test results were invalid for impairment rating purposes and the impairment rating should remain the same as that given by Dr. Kistler for the elbow range of motion loss. Exhibit C at 54.
In addition, Dr. Lambden opined that the DIME physician's impairment rating was not valid or accurate and that his use of grip strength in calculating impairment is not recommended by the AMA Guides to the Evaluation of Permanent Impairment, Third Edition (Revised) (AMA Guides). Exhibit B at 17. Dr. Lambden explained that the DIME physician's grip strength rating of the hand was improper because the hand was not an injured entity, the grip strength test itself was invalid. Tr. at 51-54.
As noted by the ALJ the AMA Guides warn that "[I]n general, grip and pinch measurements are functional tests and are not to be used for evaluating impairment." Exhibit I at 195. The AMA Guides also warn that many factors, including the cooperation of the patient, influence the strength of the grip. Exhibit I at 195. Here the DIME physician relied on the first functional capacity evaluation, which contained invalid grip strength test results. Exhibit 3 at 8. In our opinion, there was ample support for the ALJ's determination that the claimant did not suffer a functional impairment of the whole person.
The claimant next contends that the ALJ erred in failing to award permanent partial disability benefits in accordance with the DIME physician's rating. We again disagree. Because the initial question of whether the claimant sustained a scheduled or non-scheduled rating is one of fact for determination by the ALJ, the ALJ here was not obligated to give presumptive effect to the DIME physician's opinion that the claimant sustained whole person impairment. Webb v. Circuit City Stores, Inc., W.C. No. 4-467-005 (August 16, 2002); Cass v. Kaiser-Hill Company, W.C. No. 4-491-465 (June 3, 2002). As noted above the medical opinions of Dr. Kistler, Dr. Reasoner and Dr. Lambden all support the ALJ's determination to deny the claimant's claim for additional permanent partial disability benefits. In addition, there was a good deal of evidence, again as noted above, challenging the opinions of the DIME physician. Moreover, the surveillance tape and the functional capacity evaluation also support the ALJ's determination. Exhibits U and F. In our opinion, the ALJ was not compelled to award permanent partial disability based on the DIME physician's opinions.
IT IS THEREFORE ORDERED that the ALJ's order issued January 31, 2008 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ John D. Baird
_______________________ Thomas Schrant
LUIS VARGAS, ARVADA, CO, (Claimant).
CAMPBELL ROOFING, INC., Attn: MR. DAN BALLARD, COLORADO SPRINGS, CO, (Employer).
PINNACOL ASSURANCE, Attn: HARVEY D FLEWELLING, ESQ., DENVER, CO, (Insurer).
WILLIAM A ALEXANDER, JR. PC, Attn: WILLIAM A ALEXANDER JR., COLORADO SPRINGS, CO, (For Claimant).
RUEGSEGGER SIMONS SMITH STERN LLC, Attn: VITO A RACANELLI, ESQ., DENVER, CO, (For Respondents).