IN THE MATTER OF THE CLAIM OF MAXINE MEDINA-WEBER, Claimant, v. DENVER PUBLIC SCHOOLS. and Employer, SELF-INSURED, Insurer, Respondents.

W.C. No. 4-782-625.Industrial Claim Appeals Office.
May 24, 2010.

ORDER OF REMAND
The respondents seek review of an order of Administrative Law Judge Henk (ALJ) dated January 28, 2010, that ordered the respondents to pay the claimant permanent partial disability (PPD) benefits. We set the order aside and remand for entry of a new order.

The claimant .suffered two industrial injuries while working for the employer. The first injury occurred on July 21. 2006 (W.C. 4-694-444), which included but was not limited to the claimant’s neck. The claimant’s authorized treating physician placed the claimant at maximum medical improvement (MMI) with no impairment and no restrictions on her physical activities. The respondents filed a Final Admission of Liability (FAL) admitting for no PPD benefits. The claimant objected and a Division-sponsored independent medical examination (DIME) took place. The DIME physician opined the claimant had 11 percent impairment of the upper extremity for thoracic outlet syndrome and 10 percent whole person impairment because of a cervical injury. The respondents challenged the DIME physician’s impairment ratings and ALJ Felter in an order dated April 2008 concluded that the DIME physician’s impairment ratings were incorrect and ordered that “any and all claims for permanent partial disability benefits are hereby denied and dismissed.” The respondents filed an FAL on February 10, 2009 for zero percent permanent partial disability.

The claimant suffered a second industrial injury while working for the employer on May 5, 2008 (W.C. 4-782-625). A student collided with the claimant causing her head and neck to snap to the left. Dr. Dunkle, an authorized treating physician, assessed the claimant as having an aggravation of cervical, thoracic, scapular and upper extremity

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pain. Dr. Dunkle placed the claimant at MMI. Dr. Dunkle found the claimant had 14 percent impairment because of restricted range of motion and a seven percent whole person rating because of a specific disorder under Table 53 of the AM A Guides to the Evaluation of Permanent Impairment (AMA Guides). However, Dr. Dunkle found the claimant’s range of motion was unreliable and did not provide an impairment rating for the specific disorder because the claimant had a previous work related injury with no changes. The respondents filed an FAL for zero percent PPD. The claimant objected and a DIME was performed on claim numbered W.C. 4-782-625 (DIME II). The DIME 11 physician opined that the claimant had a whole person impairment rating of 13 percent of the whole person. However, the DIME II physician apportioned ten percent of his whole person rating to the first injury. The respondents sought to overcome the DIME II physician’s opinion.

ALJ Henk determined that the respondents had overcome by clear and convincing evidence the opinion of the DIME II physician as to permanent medical impairment. ALJ Henk credited the testimony of Dr. Dunkle that the claimant’s range of motion rating using the valid measurements of the DIME physician was five percent. Therefore, ALJ Henk found the claimant sustained a five percent permanent impairment for range of motion deficits.

ALJ Henk determined that respondents failed to prove by clear and convincing evidence that the DIME II physician’s four percent Table 53 specific disorder of the spine was incorrect. Dr. Dunkle opined that the rating should be seven percent. However, because there were no changes between the MRL report taken after the first injury and the MRI report taken after the second, no pathology was due to the second injury and therefore no impairment resulted from that injury. ALJ Henk determined that, although there was a difference of opinion among the doctors, it did not rise to the level of clear and convincing evidence:

ALJ Henk noted that both the DIME II physician and Dr. Dunkle apportioned the claimant’s permanent impairment to her first injury. Dr. Dunkle apportioned the claimant’s seven percent impairment to her first injury and the DIME physician apportioned ten percent to the prior injury. However, ALJ Henk found that as a matter of law there was no apportionment of permanent medical impairment for the first injury. ALJ Henk found that ALJ Felter in his order had found that the claimant sustained no permanent impairment as a result of the first injury. Therefore, as a matter of law there was no permanent medical impairment related to the first injury to apportion. ALJ Henk determined that pursuant to ALJ Felter’s order, the claimant did not sustain any impairment to her neck as a result of the first injury so there was no apportionment to be made in the second claim.

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Therefore, ALJ Henk concluded that the claimant sustained a four percent impairment under Table 53 for specific disorder of the spine and 5 percent loss of range of motion. ALJ Henk awarded the claimant PPD benefits of nine percent. The respondents appeal contending ALJ Henk erred in failing to apportion the impairment rating which pre-existed the claimant’s second injury.

On appeal the respondents argue that there is undisputed evidence that the claimant had a diagnosed symptomatic impairment to the same parts of her body that were injured in the second injury. Therefore, the respondents contend that § 8-42-104 required that the claimant’s impairment attributable to her prior pathology must be apportioned and her rating reduced. Regarding ALJ Felters order, the respondents contend that he merely found that the claimant sustained no permanent impairment as a result of the July 21, 2006 injury. The respondents argue that the claimant did suffer impairment although not as a result of the July 21, 2006 injury.

In coming to her conclusions on apportionment ALJ Henk first noted that the date of the July 21, 2006 injury occurred before the July 2008 change to § 8-42-104 C.R.S that significantly altered the law on apportionment. It appears to be undisputed that the 2008 changes to apportionment do not apply here. ALJ Henk further noted that § 8-42-I04(2)(b) at the relevant time provided that when benefits are awarded pursuant to § 8-42-107. an award of benefits for an injury shall exclude any previous impairment to the same body part. ALJ Henk concluded that because ALJ Felter had found the claimant had not sustained any impairment to her neck as a result of the first injury there could be no apportionment in the second claim.

The employer citing Lambert Sons, Inc. v. Industrial Claim Appeals Office, 984 P.2d 656 (Colo. App. 1998) and Askew v. Industrial Claim Appeals Office, 927 P.2d 1333 (Colo. 1996). contends that § 8-42-104 mandates apportionment when a prior impairment has been sufficiently identified and evaluated to be rated as a contributing factor in the subsequent disability, as long as the previously diagnosed condition was disabling and not asymptomatic. In our opinion it is necessary to remand the matter.

Section 8-42-104(2)(b), C.R.S. was added in 1999 and applied to injuries suffered on or after July 1, 1999 (Colo. Sess Laws 1999, ch. 141′ at 410). At the relevant time here § 8-42-107, C.R.S, provided that an award of benefits shall “exclude any previous impairment to the same body part.” This statutory change renders immaterial the distinction drawn i Pub. Serv. Co. v. Indus. Claim Appeals Office, 40 P.3d 68, 71 (Colo. App. 2001), Lambert Sons, Inc. v. Industrial Claim Appeals Office, supra, an Askew v. Industrial Claim Appeals Office, supra, between the type of apportionment authorized under former § 8-42-104(2) and the type of apportionment required by the AMA Guides as part of the rating process. The Colorado Court of Appeals has explained that under

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§ 8-42-104(2)(b), at the time here under consideration, apportionment did not depend on the ALJ’s determination of whether a previous impairment was disabling at the time of the current injury Martinez v. Industrial Claim Appeals Office 176 P.3d 826 (Colo. App. 2007). At the time in question, apportionment of medical impairment constituted a pure medical determination, which when made by the DIME physician is subject to the clear and convincing standard of § 8-42-107(8). Martinez v. Industrial Claim Appeals Office supra.

Here ALJ Henk noted that the DIME II physician had, after apportioning 10 percent of the whole person rating to the prior injury, anticipated that this particular apportionment would very likely need to be argued based on non-medical grounds by the parties to this claim through appropriate counsel. ALJ Henk found that the DIME physician had anticipated the appropriateness of his apportionment would have to be determined on legal grounds. ALJ Henk-then determined that as a matter of law there could be no apportionment of permanent medical impairment for the first injury because ALJ FeJter had found that the claimant sustained no permanent impairment as a result of the first injury.

Because apportionment of medical impairment under Martinez v. Industrial Claim Appeals. Office, supra constitutes a medical determination, which when made by the DIME physician is subject to the clear and convincing standard of § 8-42-107(8) the question of whether the DIME physician’s rating has been overcome by “clear and convincing evidence” is a matter of fact for determination by the ALJ. Metro Moving Storage Co. v. Gussert, 914 P.2d. 41 I (Colo. App. 1995). See Dimmick v. Home Depot USA, INC.
W.C. No. 4-740-966 (March 10, 2009). Here ALJ Henk appears to have been under the misapprehension that the issue could be resolved as a matter of law based upon ALJ Felter’s determination. Under these circumstances, because the ALJ may have misapplied the law, we set aside the order and remand for the entry of a new order. Section 8-43-301(8), C.R.S. On remand, the ALJ shall enter a new order and determine whether the opinion of the DIME II physician on apportionment had been overcome by clear and convincing evidence. In reaching this result, we should not be understood as expressing any opinions concerning the factual issue, which the ALJ must now resolve.

IT IS THEREFORE ORDERED that the ALJ’s order dated January 28; 2010 is set aside, and the matter is remanded for entry of a new order consistent with the views expressed herein.

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INDUSTRIAL CLAIM APPEALS PANEL

_______________________ Curt KriKfsciun

_______________________ Thomas Schrant

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MAXINE MEDINA-WEBER, 11078 WEST POLK PLACE, LITTLETON, CO, (Claimant).

DENVER PUBLIC SCHOOLS, Attn: MS KAREN BRIGHT/MS ANNETTE SOLANO, DENVER, CO, (Employer).

FOGEL, KEATING, WAGNER, Attn: BRADLEY UNKELESS, ESQ., C/O: POLIDORI SHAFNER, DENVER, CO, (For Claimant).

NATHAN, BREMER, DUMM MYERS, P.C, Attn: ANNE SMITH MYERS, ESQ., DENVER, CO, (For Respondents).

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