Opinion
W.C. No. 4-212-795
November 24, 1998
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Henk (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 a compensable injury to his left shoulder and underwent surgery. Eventually, a Division-sponsored independent medical examination (IME) physician rated the claimant as suffering a nine percent impairment of the upper extremity, which equated to a five percent whole person impairment. The IME physician noted that the claimant has aching in his shoulder and difficulty with overhead work.
The claimant testified that, although he has no pain in his left arm or hand, he experiences pain from the top of his shoulder to the base of his neck and into his shoulder blades. (Tr. pp. 9-10). The claimant also explained that he has difficulty doing overhead work which requires him to climb ladders and lift cases of oil onto a shelf. (Tr. p. 10).
Under these circumstances, the ALJ concluded that the claimant suffers from a functional impairment not found on the schedule of disabilities. Therefore, the ALJ awarded permeant disability benefits based on an impairment of five percent of the whole person.
On review, the respondents contend that 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 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 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), C.R.S. 1998, 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). Because the question is factual in nature, we must uphold the ALJ's order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1998.
Here, there is substantial evidence that the claimant sustained functional impairment beyond the arm at the shoulder. The evidence demonstrates that the claimant has difficulty lifting overhead, and this difficulty is associated with pain in his neck and back. As the ALJ noted, there is no evidence that the claimant's arm or hand is impaired. Consequently, there is substantial evidence in the record to support the ALJ's award of whole person medical impairment benefits. Cf. Beck v. Mile Hi Express, Inc., W.C. No. 4-238-483 (February 11, 1997).
Further, as the respondents recognize, we have previously rejected the argument that Morris v. Industrial Claim Appeals Office warrants a different result in cases involving shoulder injuries. Morris concerned circumstances under which separate scheduled and non-scheduled impairments may be combined into a single whole person impairment 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 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 American Medical Association Guides to the Evaluation of Permeant Impairment, Third Edition (Revised).
Here, in contrast, the claimant sustained a single injury which affected various structures of his upper extremity. The components of the claimant's injury were given a single upper extremity impairment rating, which was converted to a single whole person impairment rating. Thus, unlike the situation in Morris, there was no attempt to "combine" the claimant's upper extremity injury with a separate and unrated functional impairment of the whole person for purposes of creating a single whole person impairment rating. Cf. Valles v. Arrow Moving Storage, W.C. No. 4-265-129 (October 22, 1998); 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 concerning the applicability of Morris is 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 November 28, 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 November 24, 1998 to the following parties:
Martin G. Wiley, 947 J Street, Salida, CO 81201
Chris Nachtrieb, Salida Auto Salvage Inc., 7710 County Road, #150, Salida, CO 81201-8529
Curt Kriksciun, Esq., Colorado Compensation Insurance Authority — Interagency Mail
H. Clifford Potter, Esq., 115 E. Vermijo St., Suite 101, Colorado Springs, CO 80903 (For the Claimant)
Jennifer E. Bisset, Esq., 3464 S. Willow St., Denver, CO 80231-4566 (For the Respondents)
BY: ______________________