W.C. No. 4-122-303Industrial Claim Appeals Office.
December 17, 1997
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Wheelock (ALJ) which awarded permanent total disability benefits, and future medical benefits. We affirm.
The claimant sustained an admitted low back injury on December 26, 1991, and as a result, developed psychological problems. In a report dated August 19, 1996, Dr. Hughes opined that the physical injury caused 16 percent impairment of the whole person and that the psychological injury caused 10 percent whole person impairment. However, Dr. Hughes apportioned 50 percent of the claimant’s psychological impairment to pre-existing and non-occupational factors.
The ALJ found, and it is undisputed that the claimant is restricted to sedentary employment as a result of the physical injury. The ALJ also found that the claimant cannot return to any employment she previously performed, and has no transferrable skills. Further, the ALJ relied upon the “Permanent Mental Impairment Report Work Sheet” prepared by Dr. Hughes to find that the effects of the psychological injury have limited the claimant’s ability to concentrate, and impaired her ability for conceptual reasoning, problem solving, completing tasks in a timely manner, maintaining and initiating social contacts, negotiating, managing conflicts and interacting, and actively participating in group activities.
Based upon these findings, the ALJ determined that the combined effects of the physical and psychological injuries preclude the claimant from earning any wages. Consequently, the ALJ concluded that the claimant is permanently and totally disabled.
The ALJ also determined that the claimant requires ongoing medical care to maintain maximum medical improvement (MMI). Therefore, the ALJ awarded medical benefits after MMI.
I.
First, we reject the respondents’ contention that the ALJ erred in referring to Dr. Hughes as the physician who performed a Division-sponsored independent medical examination (IME). At hearing, the respondents expressly asserted that Dr. Hughes’ permanent disability rating was a Division IME. (Tr. p. 31). Accordingly, on appeal the respondents may not complain of an error they invited the ALJ to make. See Jacobs v. Commonwealth Highland Theaters, Inc., 738 P.2d 6 (Colo.App. 1986).
In any case, insofar as the ALJ erred in finding that Dr. Hughes conducted a Division-sponsored IME, the error is harmless. Section 8-42-107(8)(c), C.R.S. 1997, provides that the Division-sponsored IME physician’s medical impairment rating is binding unless overcome by clear and convincing evidence. See Metro Moving Storage Co. v. Gussert, 914 P.2d 411
(Colo.App. 1995). The statute also provides that the uncontested impairment rating of an “authorized treating physician” is binding. However, the provisions of § 8-42-107(8)(c) govern permanent partial disability and do not apply to permanent total disability. Consequently, for purposes of permanent total disability benefits, it is immaterial whether Dr. Hughes was an “authorized treating physician” or a Division-sponsored IME physician.
II.
Next, the respondents contend that the ALJ erroneously construed the mental impairment listed on Dr. Hughes’ “Permanent Mental Impairment Report Work Sheet” as psychiatric “restrictions.” We disagree.
The “Permanent Mental Impairment Report Work Sheet” lists mild impairment in areas of social interaction, cognitive functioning, and adaptation skills. The ALJ referred to the claimant’s mental impairment as psychological “restrictions,” and psychological “limitations.”
We do not read the ALJ’s findings to reflect a determination that Dr. Hughes imposed “medical restrictions” prohibiting the claimant from performing certain social and cognitive functioning. Instead, we understand the ALJ as finding that the mental impairment restricts the claimant’s abilities in some areas of social and cognitive functioning.
The respondents also argue that the ALJ erroneously found that the claimant’s mental impairment constitutes a “disability.” Again we disagree.
As argued by the respondents, impairment is not synonymous with disability. “Impairment” is the alteration of an individual’s health status that is assessed by medical means. A “disability” limits the individual’s capacity to meet the demands of life’s activities including occupational demands. See Askew v. Industrial Claim Appeals Office, 927 P.2d 1333 (Colo. 1996) Colorado Mental Health Institute v. Austill, 940 P.2d 1125 (Colo.App. 1997).
Permanent total disability is the inability to earn wages, not the existence of permanent medical impairment. Baldwin Construction Inc., v. Industrial Claim Appeals Office, 937 P.2d 895 (Colo.App. 1997). The determination of whether a particular medical impairment has caused a “disability” is a question of fact for the ALJ. Baldwin Construction Inc., v. Industrial Claim Appeals Office, supra. Therefore, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1997. In this regard, we must defer to the ALJ’s credibility determinations, her resolution of conflicts in the evidence, and plausible inferences she drew from the record. Christie v. Coors Transportation Co., 933 P.2d 1330
(Colo. 1997).
Admittedly, Dr. Hughes’ “Permanent Mental Impairment Report Work Sheet” pertains to impairment rather than disability. However, there is substantial evidence in the record to support the ALJ’s inference that the specific areas of mental functioning which have been impaired as a result of the psychological injury, impair the claimant’s ability to meet the occupational demands of sedentary employment.
The claimant testified that due to her memory deficiencies and concentration problems, she didn’t think she could learn or perform a new job. (Tr. pp. 20, 21). Further, Ms. Wheatley-Herman testified that she went through the list of “vocational temperaments” listed in the Dictionary of Occupational Titles, and upon consideration of the claimant’s impaired ability to deal with people, reduced patience, poor memory, and concentration deficiencies, concluded that the claimant is unemployable in sedentary work. (Tr. pp. 110-112). Therefore, insofar as the ALJ relied upon Dr. Hughes’ mental impairment worksheet as support for her finding of permanent total disability, we perceive no reversible error.
III.
Alternatively, the respondents contend that the ALJ erred in failing to apportion the permanent total disability in accordance with Dr. Hughes’ opinion. Again we perceive no error.
Section 8-42-104(2), C.R.S. 1997, provides that:
“[i]n case there is a previous disability, the percentage of disability for a subsequent injury shall be determined by computing the percentage of the entire disability and deducting therefrom the percentage of the previous disability as it existed at the time of the subsequent injury.”
In Askew, the court held that apportionment under §8-42-104(2) is only appropriate for a “prior disability.” Thus, an impairment which does not affect the claimant’s ability to meet the demands of employment may not be apportioned.
Based upon Askew, the courts in Baldwin Construction Inc., v. Industrial Claim Appeals Office, supra, and Colorado Mental Health Institute v. Austill, supra, held that apportionment between the effects of an industrial injury and a pre-existing, non-occupational medical problem is not appropriate unless the pre-existing problem limited the claimant’s ability to work, or impacted the claimant’s future access to the job market prior to the industrial injury.
Here, the ALJ found that the claimant had psychological problems which pre-existed the industrial injury. However, expressly relying upon the legal standard set forth in Askew,
the ALJ found that the problems were not disabling prior to the industrial injury. Because the ALJ’s determination is a plausible inference from the claimant’s testimony, it must be upheld. (See Tr. pp. 17, 19). Furthermore, the ALJ’s determination supports the order denying apportionment.
In reaching this conclusion, we recognize that the examining physician’s apportionment is an inherent part of the physician’s medical impairment rating. See Askew v. Industrial Claim Appeals Office, supra. However, as stated above, Dr. Hughes’ medical impairment rating was not binding on the issue of permanent total disability.
IV.
Lastly, the respondents contest the ALJ’s award of future medical benefits. The respondents point out that on June 11, 1996, the ALJ issued an order which denied the claimant’s request for certain psychological counseling after MMI. Thus, the respondents argue that the claimant’s entitlement to future psychological treatment has already been decided. Consequently, they contend that the ALJ’s order must clarified to exclude future psychological treatment. We disagree.
A claimant is entitled to medical benefits after MMI where there is substantial evidence in the record to support a determination that further medical treatment will be reasonable and necessary to cure and relieve the effects of an industrial injury or prevent further deterioration of the claimant’s condition. See Grover v. Industrial Commission, 759 P.2d 705
(Colo. 1988); Stollmeyer v. Industrial Claim Appeals Office, 916 P.2d 609 (Colo.App. 1995). In Milco Construction v. Cowan, 860 P.2d 539, 542 (Colo.App. 1992), the court held that where the record supports an award of continuing medical benefits, the ALJ should enter a “general order” similar to the order entered in Grover, which required the respondent to “pay for the necessary and reasonable medical surgical and hospital expenses to cure and relieve the effects of the Claimant’s injury and/or prevent his present condition from deteriorating.”
Here, the respondents do not dispute the ALJ’s finding that ongoing medical care is necessary to maintain the claimant at MMI. Therefore, the ALJ properly entered a general award for ongoing medical benefits.
Further, the ALJ’s order does not require the respondents to pay for any specific medical or psychological treatment. To the contrary, the respondents remain free to contest the reasonableness or necessity of any particular medical or psychological treatment, see Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo.App. 1997), and are free to raise preclusion defenses if the claimant seeks payment for treatment that has already been denied. Under these circumstances, we are not persuaded that the order is inconsistent with the June 11 order.
To the extent the claimant has other arguments, they have been considered and do not alter our conclusions.
IT IS THEREFORE ORDERED that the ALJ’s order dated March 17, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Kathy E. Dean
______________________________ Dona Halsey
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, 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 this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1997.
Copies of this decision were mailed December 17, 1997 to the following parties:
Doris Blackwell, 207 Campfield Church Road, Ellenboro, NC 28040
Michael Walsh, Advanced Concepts, P.O. Box 1492, Castle Rock, CO 80104
Cassandra Berks, Union Insurance Co., 3641 Village Dr., Lincoln, NE 68516-4721
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909 (For the Claimant)
Lynn P. Lyon, Esq., 999 18th St., Ste. 3100, Denver, CO 80202 (For the Respondents)
By: _______________________________