W.C. No. 4-385-195Industrial Claim Appeals Office.
August 14, 2001
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Harr (ALJ) which awarded permanent partial disability benefits based on medical impairment of 25 percent of the whole person. The respondents contend the issue was one of “causation” rather than “apportionment” and, therefore, the ALJ improperly altered the impairment rating of the Division-sponsored independent medical examination (DIME) physician. We affirm.
The claimant, who was 50 years old at the time of the hearing in January 2001, sustained a compensable back injury on March 25, 1998. Many years prior to the injury, the claimant was diagnosed with spondylolisthesis, a condition involving forward slippage of the vertebrae. In approximately 1969, the claimant underwent an L4-5 diskectomy and L4-5 L5- S1 fusion to stabilize the spondylolisthesis. Thereafter, the claimant worked for 20 years as a barber, and was asymptomatic.
After the 1998 industrial injury the claimant was diagnosed with a recurrent herniated disc at L4-5, facet arthropathy and foraminal stenosis at L4-5, and chronic spondylolisthesis. Although one physician recommended re-fusion of the L4-5 and L5-S1 levels, the claimant declined to undergo this procedure. The claimant was placed at maximum medical improvement on February 25, 2000.
Ultimately, the claimant underwent a DIME on the issue of medical impairment. The DIME physician assigned a 25 percent whole person impairment rating for the claimant’s lumbar spine. This rating was comprised of the following elements: Using Table 53 of the American Medical Association Guides to the Evaluation Permanent Impairment, Third Edition (Revised) (AMA Guides), the DIME physician assigned 7 percent impairment for the “new-recurrent herniated disc L4-5 with mild radiculopathy” [Table 53 II (B)]; he assigned 13 percent impairment for “worsening spondylolisthesis-operated” [Table 53 IV (B C)]; and he assessed 7 percent impairment for reduced range of motion. However, after determining the total impairment of 25 percent, the DIME physician deducted 10 percent impairment based on the fusion surgery at L4-5 and L5-S1. The DIME physician calculated this preexisting impairment by using Table 53 II (A C), which assigns 9 percent impairment for operated spondylolisthesis, and adds 1 percent or “multiple levels.” Thus, the final DIME physician’s rating for the injury was 15 percent of the whole person.
The ALJ concluded the “preexisting impairment” found by the DIME physician, and the impairment sustained as a result of the industrial injury, “involve the same rateable component of claimant’s lumbar spine at the L4-5 and L5-S1 levels,” and the lumbar spine “is a unit of impairment which is individually rateable under the AMA Guides.” Thus, expressly relying on our decision in Nichols v. Denver Publishing Co.,
W.C. No. 4-248-693 (September 21, 2000) [copy in the record], the ALJ held that determination of the claimant’s medical impairment rating involves an issue of “apportionment” rather than “causation.” Because the ALJ found the claimant was not disabled by the preexisting impairment resulting from the back surgery at the time of the 1998 industrial injury, the ALJ concluded that “apportionment” of the DIME physician’s overall 25 percent rating was prohibited as a matter of law under former § 8-42-104(2), C.R.S. 1998 [subsequently amended for injuries arising on or after July 1, 1999]. Therefore, the ALJ awarded permanent partial disability benefits based on impairment of 25 percent of the whole person.
On review, the respondents do not dispute the ALJ’s conclusion that the preexisting impairment attributable to the back surgery was not “disabling” at the time of the industrial injury. Neither do the respondents dispute that § 8-42-104(2) would operate to prohibit apportionment of the DIME physician’s rating if the statute is applicable. Rather, the respondent argues the ALJ improperly characterized the issue as one of “apportionment” rather than “causation.” Citing the deposition testimony of the DIME physician, the respondents reason that an operation for spondylolisthesis constitutes a separately rateable “component” of the claimant’s impairment, and the ALJ was not permitted to interfere with the DIME physician’s opinion that this component was not “caused” by the industrial injury unless that determination was overcome by clear and convincing evidence. See §8-42-107(8)(c), C.R.S. 2000; Qual-Med, Inc., v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998). We disagree.
In Nichols v. Denver Publishing Co., supra, and a series of cases cited therein, we held the definition of “apportionment” contained i Askew v. Industrial Claim Appeals Office, 927 P.2d 1333 (Colo. 1996), and the AMA Guides, establishes the line of demarcation between cases requiring the application of apportionment principles embodied in §8-42-104(2) and Askew, and issues of “causation” under § 8-42-107(8)(c) and the Qual- Med decision. Thus, we have concluded the issue is one of apportionment if it involves a determination of “the degree to which each of various occupational or non-occupational factors has contributed to a particular impairment.” In contrast, the issue is one of causation if it involves a determination that “an entire component of the claimant’s overall impairment” is or is not related to the industrial injury. Hence, in Qual-Med, the issue involved causation because the DIME was required to determine the cause of a cervical impairment which was distinct from the claimant’s injury-related upper extremity impairments caused by carpal tunnel syndrome.
In Nichols, we further refined the definition of a “component” of impairment. Based on the AMA Guides provision that the “spine consists of three major regions: cervical, thoracic, and lumbar,” we concluded that a rateable “component” of a claimant’s overall impairment refers to the regional impairment, not the ratings for individual diagnosis-based or range of motion impairments which must be combined to calculate the total regional impairment. Indeed, § 3.3a of the AMA Guides states the first step in rating spinal impairment is to “select the primarily impaired region (cervical, thoracic, or lumbar).” Nichols also recognized that the AMA Guides provide the rating of spinal impairment “involves both diagnosis-related factors, such as structural abnormalities, and musculoskeletal or neurologic factors that require physiological measurements.” In other words, proper functioning of each region of the spine is dependent on the interaction of multiple factors. Consequentl Nichols held that it would be “inconsistent with the AMA Guides to permit apportionment of a regional impairment rating based on the “cause” of a particular pathology underlying the rating, except where the requirements of § 8-42-104(2) and Askew are met. Finally we noted that the scheme for rating spinal impairments contained in the AMA Guides sometimes provides that the rating for an injury to one structure of the spine may be increased based on prior injury to other structures within the same spinal region. [See Table 53 II (F); Table 53 IV (C)]. Hence, practical difficulties arise if apportionment is predicated on determining the “cause” of individual pathologies underlying a regional impairment rating.
We agree with the ALJ that our holding in Nichols is dispositive of the issue presented here. The respondents argue that because Table 53 IV (A) provides an individual diagnosis- based rating for operated spondylolisthesis, Table 53 IV (A) represents a separate “component” of the claimant’s overall impairment rating. However, as we held i Nichols, the relevant “component” is the total regional impairment of the lumbar spine, not the individual diagnostic categories for which some degree of regional impairment may be assigned.
In any event, the DIME physician’s own report and testimony establish the practical difficulty with treating “spondylolisthesis operated” as an “entire component” of the claimant’s impairment for purposes of differentiating between apportionment and causation. The DIME physician’s report and testimony reflect he assigned a 13 percent impairment for “spondylolisthesis-operated” under Table 53 (IV). Although 10 percent of the impairment could be classified as “preexisting” because it was attributable to the surgery, the DIME physician testified that he added an additional 3 percent because, after the industrial injury, the claimant’s “previous back problems become more symptomatic from asymptomatic [sic].” (Tr. 13). Thus, the industrial injury aggravated the claimant’s preexisting spondylolisthesis so as to render that impairment symptomatic. Preexisting asymptomatic impairments which are rendered symptomatic by the industrial injury are not subject to apportionment. See Askew v. Industrial Claim Appeals Office, supra Wackenhut Corp. v. Industrial Claim Appeals Office, 17 P.3d 202
(Colo.App. 2000)
IT IS THEREFORE ORDERED that the ALJ’s order dated January 26, 2001, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to §8-43-301(10) and § 8-43-307, C.R.S. 2000. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed August 14, 2001 to the following parties:
Robert Aragon, 1012 Robinson, Trinidad, CO 81082
Wal-Mart Stores, Inc., 2921 Topal Dr., Trinidad, CO 81082
American Home Insurance, 160 Water St., New York, N Y 10038
Karen Goad, Claims Management, Inc., P. O. Box 1288, Bentonville, AR 72712-1288
James L. LeClair, Esq., 155 S. Madison, #330, Denver, CO 80209 (For Claimant)
Richard A. Bovarnick, Esq., and Harvey D. Flewelling, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For Respondents)
BY: A. Pendroy