W.C. No. 4-357-836Industrial Claim Appeals Office.
December 20, 1999
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Jones (ALJ) which determined they failed to overcome the Division-sponsored independent medical examination (IME) rating of 14 percent of the whole person. The respondents argue the ALJ should have “apportioned” the impairment rating based on an impairment rating assigned for a prior injury. We affirm.
The claimant sustained a compensable injury on October 8, 1997. The injury affected the claimant’s low back, right knee, and right foot. On May 28, 1998, one of the claimant’s treating physicians, applying Table 53 (II) (B) of the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition (Revised) (AMA Guides), opined the claimant sustained permanent medical impairment of 5 percent of the whole person based on a specific disorder of the lumbar spine. However, on July 13, 1998, the same physician noted the claimant had received an impairment rating of 14 percent of the whole person for a prior injury. The prior rating included 7 percent whole person impairment for a specific disorder of the lumbar spine. Consequently, the physician opined the claimant is not entitled to any additional impairment on account of the 1997 industrial injury.
The claimant underwent a Division-sponsored IME. On December 9, 1998, the IME physician diagnosed the claimant as suffering from right sacroiliac dysfunction, right knee chondromalacia, and right plantar fascitis. The IME physician assigned an overall impairment rating of 14 percent of the whole person, which included 12 percent impairment for the claimant’s low back condition. Specifically, the IME physician assessed 5 percent impairment for a specific disorder of the lumbar spine under Table 53 (II) (B), and 7 percent impairment for reduced range of motion. However, the IME physician declined to apportion the impairment rating based on the claimant’s prior injury because he found the prior injury was “quite different” from the 1997 industrial injury. Specifically, the IME physician stated that medical records established the claimant’s previous injury affected the “thoraco-costal,” and facet areas, the left cervical region, and the left sacroiliac joint. (Berenbeim Report, p. 6; Berenbeim Depo. pp. 16-17). In contrast, the 1997 injury was to the right sacroiliac area.
The ALJ found the respondents failed to present clear and convincing evidence that the IME physician misapplied the AMA Guides in declining to apportion the claimant’s impairment rating based on the previous rating. In support, the ALJ explicitly credited the IME physician’s report and testimony.
I.
On review, the respondents contend the ALJ erred in upholding the IME physician’s impairment rating because it did not apportion based on the prior rating of the lumbar spine. The respondents argue the IME physician admitted in his deposition that failure to apportion based on the prior impairment rating for the lumbar spine means the claimant was “rated twice” for the same area. Further, the respondents contend that because the lumbar spine constitutes a single region under Table 53 of the AMA Guides, it was improper to distinguish between left and right sacroiliac injuries for purposes of apportionment. We are not persuaded.
We do not dispute that impairment ratings must be determined in accordance with the AMA Guides. Section 8-42-107(8)(c), C.R.S. 1999. However, the statute also mandates that the impairment rating of the IME physician is binding unless overcome by clear and convincing evidence. The impairment rating of the IME physician necessarily includes the “diagnostic” determination of whether a particular component of the overall impairment was caused by the industrial injury. Egan v. Industrial Claim Appeals Office, 971 P.2d 664 (Colo.App. 1998); Qual-Med, Inc. v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998). Indeed, the rating physician must be convinced that a prior impairment has been sufficiently identified, treated or rated to be considered a “contributing factor in the subsequent disability.” Askew v. Industrial Claim Appeals Office, 927 P.2d 1333 (Colo. 1996). The AMA Guides themselves state that an evaluator should be aware that prior impairments may have become worse or improved, and the evaluator should not attempt to measure change if there is not sufficient information to do so accurately. AMA Guides, § 2.2 at 6.
The questions of whether the IME physician properly applied the AMA Guides, and whether the rating was overcome by clear and convincing evidence, are issues of fact for determination by the ALJ. McLane Western Inc., v. Industrial Claim Appeals Office,
___ P.2d ___ (Colo.App. No. 99CA0473, December 9, 1999); Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). Consequently, we must uphold the ALJ’s findings if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1999. This standard of review requires us to defer to the ALJ’s resolution conflicts the evidence, her credibility determinations, and the plausible inferences she drew from the record. Metro Moving and Storage Co. v. Gussert, supra.
Here, the IME physician explained that the impairment which he observed during his examination could not be connected definitively to the claimant’s prior injury, but was instead attributable to the distinctly different injury which the claimant incurred in October 1997. This conclusion was supported by medical records establishing that the claimant’s prior injury affected substantially different physiological structures than the 1997 injury, and the claimant’s own testimony concerning the differences between the injuries. Indeed, no range of motion impairment was rated in the evaluation of the prior injury. Thus, the IME physician was of the opinion that there was no documented basis to apportion any impairment to the prior injury. The respondents failed to produce any expert opinion which directly refutes the IME physician’s opinion and application of the AMA Guides, and we decline to substitute our judgment for that of the ALJ concerning the relative weight to be assigned the IME physician’s rating and that of the treating physician.
II.
The respondents also contend the ALJ’s failure to apportion violates § 8-42-104(2), C.R.S. 1998 [amended in 1999 for injuries occurring on or after July 1, 1999]. The respondents note the statute provides for apportionment and states the apportionment “shall” be determined by deducting from the total disability the “percentage of the previous disability as it existed that the time of the subsequent injury.”
However, apportionment under § 8-42-104(2) requires the existence of pre-existing medical impairment, and that the impairment be “disabling” at the time of the subsequent injury Askew v. Industrial Claim Appeals Office, supra; Lambert Sons, Inc., v. Industrial Claim Appeals Office, 984 P.2d 656
(Colo.App. 1998). Here, the ALJ determined the respondents failed to overcome the IME physician’s determination that the medical record was insufficient to establish an apportionable pre-existing impairment. Consequently, the first element of apportionment is absent, and there was no violation of the statute.
IT IS THEREFORE ORDERED that the ALJ’s order dated August 6, 1999, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Bill Whitacre
NOTICE This Order is final unless an action to modify or vacatethe Order is commenced in the Colorado Court of Appeals, 2 East14th Avenue, Denver, Colorado 80203, by filing a petition toreview with the court, with service of a copy of the petitionupon 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. 1999.
Copies of this decision were mailed December 20, 1999 to the following parties:
William Gegenwarth, 7196 Cherry St., Commerce City, CO 80022
Jennifer Woods, Wackenhut Corporation, P.O. Box 109603, Palm Beach Gardens, FL 33410
Tina Gustafson, AIG Claim Services, P.O. Box 32130, Phoenix, AZ 85064
Neil D. O’Toole, Esq., 226 W. 12th Ave., Denver, CO 80204-3625 (For Claimant)
James B. Fairbanks, Esq., and Alyson A. Ray, Esq., 999 18th St., #1600, Denver, CO 80202 (For Respondents)
BY: A. Pendroy