W.C. No. 4-446-238Industrial Claim Appeals Office.
November 19, 2002
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ) which determined the claimant failed to overcome the medical impairment rating of the Division-sponsored independent medical examination (DIME) physician by clear and convincing evidence. We affirm.
The claimant sustained a compensable back injury on December 29, 1999. He was later diagnosed with a herniated disc of the lumbar spine, which was surgically repaired in April 2000. A treating physician assessed a 15 percent whole person impairment.
The claimant underwent a DIME on the issue of impairment. The DIME physician assessed a combined 18 percent whole person impairment. This rating included 10 percent impairment for a specific disorder of the lumbar spine (one level disc surgery), 4 percent impairment for reduced range of motion, and 5 percent impairment for neurological impairment. However, after extensively reviewing the claimant’s medical history, including a history of medical treatment for low back pain in 1998 and 1999, the DIME physician apportioned 5 percent of the specific disorder impairment and 2 percent of the range of motion impairment to a preexisting condition. Hence, the apportioned impairment rating was 12 percent of the whole person.
The ALJ concluded the claimant failed to overcome the apportioned impairment rating by clear and convincing evidence. Therefore, the ALJ determined the claimant’s impairment rating is 12 percent as a whole person.
On review, the claimant asserts there is no basis for apportionment of his medical impairment rating. The claimant acknowledges pre-injury medical treatment for low back pain, but he argues that a chiropractor’s note from December 29, 1999, shows he “felt good” the week before the industrial injury. The claimant also asserts impairment is inappropriate because there were no pre-injury functional capacity evaluations or range of motion measurements. We find no error.
Because the claimant’s injury occurred after July 1, 1999, the apportionment issue is governed by § 8-42-104(2)(b), C.R.S. 2002. That statute provides as follows:
When benefits are awarded pursuant to section 8-42-107, an award of benefits for an injury shall exclude any previous impairment to the same body part.
We have previously held that because this new statute refers to “previous impairment” rather than “disability,” the intent of the 1999 amendment was to alter the impact of Askew v. Industrial Claim Appeals Office, 927 P.2d 1333 (Colo. 1996), in apportionment cases. Hence, if preexisting medical impairment is sufficiently documented apportionment may occur regardless of whether such impairment was also “disabling” at the time of the industrial injury. McClure v. Stresscon Corp., W.C. No. 4-442-919 (May 17, 2002).
Askew also held that, regardless of disability, apportionment of preexisting medical impairment is not proper if, as provided in the AMA Guides, the preexisting impairment has not been sufficiently identified, treated or evaluated to be rated as a contributing factor in the subsequent disability. In Askew, apportionment was improper because the claimant’s preexisting condition was asymptomatic and undiagnosed. Therefore, the court ruled apportionment could not be made other than on an “arbitrary” basis. 927 P.2d at 1338-1339.
However, we have held that where the DIME physician identifies a medical history sufficient to justify apportionment, the DIME physician’s decision to apportion is binding unless overcome by clear and convincing evidence. Section 8-42-107(8)(c), C.R.S. 2002. This is true because the question of whether to apportion a medical impairment rating based on documentation of preexisting medical problems is a medical question inherent in the identification of losses resulting from the industrial injury. See Public Service Co. v. Industrial Claim Appeals Office, 40 P.3d 68, 71 (Colo.App. 2001) (apportionment of impairment under AMA Guides pertains to causation issues inherently present as part of the DIME rating protocols); Manzanares v. Quality Linen and Supply, W.C. No. 4-253-807 (October 30, 2001); Spence v. Porter Memorial Hospital, W.C. No. 4-224-344 (September 7, 2000). Our interpretation of the statutory scheme and the requirements of Askew is supported by Rule of Procedure XIX(C), 7 Code Colo. Reg. 1101-3 at 123, which provides that in accordance with § 8-42-104(2) the DIME physician “shall” apportion the rating based on preexisting medical impairment “where medical records or other objective evidence substantiate” preexisting impairment. The rule requires the DIME physician to “fully explain” the basis of the apportionment and cautions against apportionment if there is insufficient information “to measure the change [in impairment] accurately.”
Because apportionment based on preexisting medical impairment is inherent in the rating process, the DIME physician’s apportionment must be overcome by clear and convincing evidence. McLane Western Inc. v. Industrial Claim Appeals Office, 996 P.2d 263 (Colo.App. 1999). The only exception is if there is no evidentiary basis for apportionment, in which case the issue is one of law. Askew v. Industrial Claim Appeals Office, supra; McClure v. Stresscon Corp., supra.
Further, we must uphold the ALJ’s determination that the DIME physician’s apportionment was not overcome if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2002. This standard of review is narrow and requires us to view the evidence in a light most favorable to the prevailing party. We must defer to the ALJ’s credibility determinations, resolution of conflicts in the evidence and plausible inferences drawn from the record. Metro Moving and Storage Co. v. Gussert, 914 P.d 411 (Colo.App. 1995).
Here, the DIME physician carefully documented the claimant’s history of back problems prior to the industrial injury. The history involved previous low back injuries and active treatment for low back pain from February through April 1998. The claimant also received chiropractic treatment following an October 29, 1999 injury when he hit a pipe with a sledgehammer. The chiropractic treatments continued through December 20, 1999, and the claimant also visited his regular physician on December 1, 1999. Based on this history, the DIME physician determined that the claimant’s preexisting condition was sufficiently documented to justify apportionment. Although some evidence was presented to the contrary, including the unapportioned rating of the treating physician and evidence the claimant did not experience symptoms the week before the industrial injury, the ALJ did not find this evidence persuasive. On the record here we may not substitute our judgment for that of the ALJ concerning the weight of the evidence pertaining to the apportionment issue.
The fact the claimant did not undergo a functional capacities evaluation or range of motion testing prior to the industrial injury does not change the result. Rule XIX (C) does not require any particular type of documentation to justify apportionment so long as the medical record or other objective evidence is sufficient to support apportionment. Moreover, it appears the DIME physician’s apportionment was based on the guidelines taught as part of the Level II accreditation program sanctioned by the Director of the Division of Workers’ Compensation.
IT IS THEREFORE ORDERED that the ALJ’s order dated July 3, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________
David Cain
___________________________________
Bill Whitacre
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. 2002. 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 Street, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed _______November 19, 2002_____ to the following parties:
Stuart Campbell, 1523 Sherman Ave., Canon City, CO 81212
Department of Corrections, c/o W.C. Liaison, Payroll Dept., P. O. Box 1010, Canon City, CO 81212
Curt Kriksciun, Esq., Pinnacol Assurance — Interagency Mail (For Respondents)
James A. May, Esq., 1401 Court St., Pueblo, CO 81003 (For Claimant)
H. Scott Schiff, Esq., 111 S. Tejon St., #700, Colorado Springs, CO 80903
By: A. Hurtado