W.C. No. 4-295-995Industrial Claim Appeals Office.
July 10, 1998
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Gandy (ALJ), which denied apportionment of the claimant’s permanent partial disability benefits. The respondents contend apportionment was mandated because the claimant had preexisting medical impairment. We affirm the ALJ’s order.
The claimant sustained a compensable hernia in 1996, and underwent surgical repair. The claimant had sustained a prior hernia in 1995, which was surgically repaired by Dr. Johnson. Ultimately, Dr. Johnson released the claimant without restrictions.
The claimant underwent a Division-sponsored independent medical examination (IME) for the purpose of rating his medical impairment attributable to the 1996 hernia. The IME physician opined the claimant suffered from a ten percent whole person impairment, but apportioned fifty percent of the impairment to the effects of the claimant’s 1995 hernia. In an attempt to overcome the IME physician’s rating, the claimant argued apportionment was improper because the preexisting impairment did not “disable” him.
Citing Askew v. Industrial Claim Appeals Office, 927 P.2d 1333 (Colo. 1996), the ALJ held that the IME physician’s apportionment was overcome by clear and convincing evidence. Specifically, the ALJ credited evidence that the claimant was released to full duty after repair of the 1995 hernia, and was not “occupationally disabled” by the 1995 injury.
On review, the respondents contend the ALJ misinterprete Askew v. Industrial Claim Appeals Office in overturning the IME physician’s apportioned rating. The respondents argue that Askew
permits apportionment of either preexisting disability or preexisting medical impairment. Since the claimant had preexisting medical impairment, the respondents reason that the ALJ was obliged to accept the IME physician’s rating. We disagree.
The arguments raised by the respondents are identical to those presented in the case of Lambert Sons, Inc. v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 97CA1774, July 9, 1998). There, the Court of Appeals held that apportionment is not proper under Askew v. Industrial Claim Appeals Office unless the preexisting medical impairment was independently disabling at the time of the industrial injury. In support, the court noted that § 8-42-104(2), C.R.S. 1997, and Askew itself, take into account the possibility that, for purposes of apportionment, a previous disability may no longer exist at the time of the subsequent industrial injury.
Here, the ALJ found that the medical impairment caused by the 1995 hernia was not independently disabling at the time the claimant sustained the 1996 injury. Consequently, the ALJ properly applied Askew in declining to apportion permanent partial disability based on the preexisting impairment. Lambert Sons, Inc. v. Industrial Claim Appeals Office, supra.
IT IS THEREFORE ORDERED that the ALJ’s order dated August 26, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
NOTICE This Order is final unless an action to modify or vacate theOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, Colorado 80203, by filing a petition to reviewwith the court, with service of a copy of the petition upon theIndustrial Claim Appeals Office and all other parties, withintwenty (20) days after the date the Order was mailed, pursuant to§§ 8-43-301(10) and 307, C. R. S. 1997.
Copies of this decision were mailed July 10, 1998 to the following parties:
Gregory A. Clewes, 1209 North Cleveland, Loveland, CO 80538
Paul’s Plumbing Heating, Inc., P.O. Box 1556, Loveland, CO 80539-1556
Colorado Compensation Insurance Authority, Attn: Curt Kriksciun, Esq. (Interagency Mail)
Robert A. Garcin, Esq., 903 N. Cleveland, Ave., Ste. A, Loveland, CO 80537 (For the Claimant)
By: _______________________