IN THE MATTER OF THE CLAIM OF JUDITH L. ABBOTT, Claimant, v. ELEVENTH HOUR PERSONNEL OF COLORADO, INC., Employer, and COLORADO COMPENSATION INSURANCE AUTHORITY, Insurer, Respondents.

W.C. No. 4-247-147Industrial Claim Appeals Office.
February 5, 1997

FINAL ORDER

The respondents seek review of a final order of Administrative Law Judge Rumler (ALJ) which declined to apportion the claimant’s permanent partial disability benefits between the effects of the industrial injury and a preexisting condition. We affirm.

The claimant sustained a compensable right knee injury on November 15, 1994. The claimant’s treating physician, Dr. Stull, performed a surgery described as a “meniscectomy.” During the course of the surgery Dr. Stull discovered that the claimant had significant preexisting arthritis.

After the claimant reached maximum medical improvement, Dr. Stull issued an impairment rating on June 7, 1995. He opined that the claimant suffered a ten percent lower extremity impairment due to the meniscectomy, and an additional ten percent impairment attributable to arthritis. The combined impairment was nineteen percent of the extremity. Later, Dr. Stull indicated that the industrial injury had aggravated the preexisting arthritis, and that “the more significant (greater than fifty percent)of the rating for the arthritis was due to the work-related injury.”

Dr. Stull also issued a report on January 9, 1996. He then stated that his apportionment was a “rough estimate,” and that it was “very hard for me to determine, to an exact degree, the amount of arthritis that was present in [the claimant’s] knee prior to this injury.” Moreover, the parties stipulated that the claimant’s right knee was “asymptomatic” prior to the industrial injury, and that she had “no impairment or disability” prior to the injury.

Under these circumstances, the ALJ concluded that the claimant is entitled to medical impairment benefits based on a nineteen percent impairment of her lower right extremity. Relying on Lindner Chevrolet v. Industrial Claim Appeals Office, 914 P.2d 496 (Colo.App. 1995), the ALJ concluded apportionment is inappropriate because the industrial injury precipitated the claimant’s disability, and because § 8-42-104(2), C.R.S. (1996 Cum. Supp.) does not permit apportionment of preexisting non-industrial disabilities.

On review, the respondents contend that the ALJ erred in failing to apportion the claimant’s scheduled disability award based on the preexisting arthritis. The respondents argue that the claimant’s preexisting condition constitutes a separate and identifiable cause of the claimant’s overall impairment, and therefore, should have been apportioned under the case law and § 8-42-104(2). We disagree.

In our view, Askew v. Industrial Claim Appeals Office, 927 P.2d 1333 (Colo. 1996), is dispositive of respondents’ argument. In Askew, the court rejected an IME physician’s apportionment of medical impairment between an asymptomatic preexisting back condition and the effects of the claimant’s industrial injury. Relying on § 8-42-104(2), and the apportionment provisions of the AMA Guides, the court held that apportionment of medical impairment is proper only when a preexisting condition has been “sufficiently identified, treated, or evaluated to be rated as a contributing factor in the subsequent disability.” Moreover, the court indicated that preexisting conditions which are “dormant or asymptomatic prior to an industrial injury cannot be evaluated adequately for purposes of apportionment.” Finally, the court reasoned that preexisting asymptomatic conditions do not constitute “disabilities,” for purposes of § 8-42-104(2), because they do not hinder the a claimant’s capacity “to meet the demands of life’s activities.” Because the preexisting back condition was asymptomatic prior to the claimant’s industrial injury, the court determined as a matter of law that the IME physician’s apportionment was arbitrary and not supported by the record.

Here, the respondents stipulated that the claimant’s knee arthritis was asymptomatic and not disabling before the industrial injury. It follows that the preexisting arthritis did not constitute a “disability” for purposes of § 8-42-104(2), nor was it sufficiently identifiable to be apportioned. Therefore, the ALJ did not err in refusing to apportion between the effects of the industrial injury and the preexisting arthritis. Cf. Kardokus v. Mathews Furniture Co., Inc.,
W.C. No. 3-108-286, January 14, 1997.

In view of this result, we need not consider whether §8-42-104(2) distinguishes between preexisting industrial and preexisting non-industrial disabilities for purposes of apportionment.

IT IS THEREFORE ORDERED that the ALJ’s order dated June 10, 1996, is affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

______________________________ David Cain
______________________________ Dona Halsey

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. (1996 Cum. Supp.).

Copies of this decision were mailed February 5, 1997 to the following parties:

Judith L. Abbott, 1090 S. Parker Rd., #A-318, Denver, CO 80231

Eleventh Hour Personnel of Colorado, 3100 E. Arapahoe Rd., Ste. 311, Englewood, CO 80112-1395

Colorado Compensation Insurance Authority, Attn: Curt Kriksciun, Esq. (Interagency Mail)

Douglas R. Phillips, Esq., 155 S. Madison, Ste. 330, Denver, CO 80209 (For the Claimant)

Rick Stillwell, Esq., 3464 South Willow St., Denver, CO 80231 (For the Respondents)

By: ______________________________________