Opinion
W.C. No. 4-739-406.
November 4, 2009.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Friend (ALJ) dated May 27, 2009, that ordered the respondents to pay the claimant permanent partial disability (PPD) benefits based on an impairment of seven percent of the whole person. We affirm.
The claimant sustained an admitted industrial injury to his right shoulder while picking up a sheet of plywood. Eventually a Division-sponsored independent medical (DIME) examination was performed. The DIME physician assessed the claimant as having an 11 percent right upper extremity impairment rating which converts to a seven percent whole person impairment rating. The respondents admitted to the 11 percent extremity rating and the claimant applied for a hearing seeking conversion of the extremity rating to a whole person rating.
The ALJ found that the claimant testified as to pain in the shoulder area that went into the collarbone when he extended his arm away from his body. The ALJ noted that the medical records document complaints of pain in the shoulder. The ALJ determined that "[claimant's functional impairment is to his shoulder, not to his arm." The ALJ further determined that the claimant's impairment is not limited to the "loss of an arm at the shoulder." The ALJ concluded that the claimant's impairment was not limited to the schedule of disabilities at § 8-42-107(2) C.R.S. 2009 but rather the claimant's impairment must be calculated based on an impairment of seven percent of the whole person. The respondents filed a petition to review requesting that the ALJ's order be reversed.
We note preliminarily that in the context of permanent partial disability the term "injury" refers to the part or parts of the body which have been permanently, functionally impaired as a result of the injury, and not the physical situs of the injury. Walker v. Jim Fouco Motor Company, 942 P.2d 1390 (Colo. App. 1997); Langton v. Rocky Mountain Health Care Corp., 937 P.2d 883 (Colo. App. 1996). The courts have held that damage to structures of the "shoulders" may or may not reflect a "functional impairment" enumerated on the schedule of disabilities. See Walker v. Jim Fouco Motor Company, supra; Strauch v. PSL Swedish Healthcare System, 917 P.2d 366 (Colo. App. 1996); Langton v. Rocky Mountain Health Care Corp., supra; Johnson-Wood v. City of Colorado Springs, W. C. No. 4-536-198 (June 20, 2005). The term "injury," as used in § 8-42-107(1)(a)-(b), refers to the part or parts of the body which have been impaired or disabled, not the situs of the injury itself or the medical reason for the ultimate loss. Warthen v. Industrial Claim Appeals Office, 100 P.3d 581 (Colo. App. 2004); Strauch v. PSL Swedish Healthcare System, supra.
The respondents argue that the findings of fact are insufficient to permit appellate review because there are no findings regarding whether the pain in the claimant's shoulder restricts the ability to perform any activities and/or restricts the ability for any body part beyond the arm to function. The respondents, citing Henke v. United Airlines, W. C. Nos. 4-456-163 4-490-897 (September 10, 2003), contend that the ALJ applied the wrong legal standard in compensating the claimant's shoulder injury as a whole person impairment. Specifically the respondents contend that the ALJ misapprehended the law as requiring a functional impairment to the shoulder to be compensated as a whole person impairment.
In Henke v. United Airlines, the panel in summarizing the case law of Strauch v. PSL Swedish Healthcare System, supra; Langton v. Rocky Mountain Health Care Corp, supra; Walker v. Jim Fouco Motor Company, supra, stated as follows; "depending on the particular facts of a claim, damage to the structures of the `shoulders' may or may not reflect a `functional impairment' which is enumerated on the schedule of disabilities." The respondents contend that the ALJ's finding that "the claimant's functional impairment is to his shoulder, not to his arm" reflects a misunderstanding that a finding of functional impairment to the shoulder compels an award of medical impairment benefits based on whole person impairment.
We acknowledge that the ALJ stated that "the situs of the claimant's functional impairment is the shoulder and is not limited to the arm." However, as we read the order the ALJ based his determination on the particular facts of this claim and concluded that the damage to the claimant's shoulder reflected a "functional impairment" not enumerated on the schedule of disabilities."
Further, the ALJ is not held to a standard of absolute clarity in expressing findings of fact and conclusions of law. It is sufficient for the ALJ to enter findings concerning the evidence he considers dispositive of the issues, and evidence and inferences inconsistent with the order are presumed to have been rejected. Magnetic Engineering Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo. App. 2000). Further, the ALJ is presumed to have considered and applied the relevant legal principles. Shafer Commercial Seating, Inc. v. Industrial Claim Appeals Office, 85 P.3d 619 (Colo. App. 2003). We do not read the ALJ's order as reflecting an understanding that a functional impairment to the shoulder compels an award of medical impairment benefits based on whole person impairment. Therefore, a remand is not required.
The respondents further argue that the ALJ's order cannot be read as implicitly finding that the claimant has a functional impairment beyond the arm at the shoulder because such a finding would not be supported by substantial evidence. Because the issue is factual in nature, we must uphold the ALJ's resolution if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2009. This standard of review requires us to consider the evidence in a light most favorable to the prevailing party, and defer to the ALJ's resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo. App. 1995).
Here the record reflects and the ALJ found that the claimant testified that the pain in his shoulder area went into the collarbone when extending his arm away from his body. Tr. at 15. Additionally, the Panel has held that pain and discomfort which limit the claimant's ability to use a portion of his body may be considered "functional impairment" for purposes of determining whether an injury is on or off the schedule. Chavez v. Excel Corporation, W. C. No. 4-491-549 (February 05, 2004); Valles v. Arrow Moving Storage Co., W.C. No. 4-265-129 (October 22, 1998).
The respondents also cite Wiersema v. High Valley Environmental Inc., W. C. No. 4-178-272 (March 28, 1997). However, we note that in Wiersema the ALJ found that the claimant sustained "functional impairment which is not limited to the use of the arm but includes the shoulder." Therefore in Wiersema the ALJ determined that the claimant suffered functional impairment not on the schedule of disabilities, which must be compensated as impairment of the whole person, and the panel affirmed. In essence, that is what happened in the present case.
IT IS THEREFORE ORDERED that the ALJ's order dated May 27, 2009 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Thomas Schrant
CHARLES SPITZER, LOVELAND, CO, (Claimant).
CUSTOM ON SITE BUILDERS, INC., LOVELAND, CO, (Employer).
PINNACOL ASSURANCE, Attn: HARVEY D FLEWELLING, ESQ., DENVER, CO, (Insurer).
CATHLEEN A McEWEN, PC, Attn: CATHLEEN A McEWEN, ESQ., LOVELAND, CO, (For Claimant).
RITSEMA LYON — FORT COLLINS, Attn: DOUGLAS STRATTON, ESQ., FORT COLLINS, CO, (For Respondents).