W.C. No. 3-105-402Industrial Claim Appeals Office.
March 14, 1996
ORDER OF REMAND
The claimant seeks review of a final order of Administrative Law Judge Martinez (ALJ) which awarded permanent partial disability benefits based upon a medical impairment rating of fourteen percent of the whole person. We set the order aside and remand for entry of a new order.
The ALJ found that the claimant sustained an industrial back injury in September 1992. The claimant had also sustained several prior back injuries, though he testified that “he did not have any ongoing problems from any of the previous injuries.”
Ultimately, the independent medical examiner (IME physician), Dr. Winkler, opined that the claimant had a twenty-two percent whole person impairment rating, of which ten percent was attributable to “pre-existing spondylosis” in the claimant’s cervical and lumbar regions.
The ALJ concluded that Dr. Winkler’s decision to apportion ten percent of the impairment to the pre-existing condition was “persuasive,” and that the claimant failed to overcome Dr. Winkler’s opinion by clear and convincing evidence. In reaching this result, the ALJ stated that “the Askew case clearly allows apportionment to a pre-existing degenerative condition of the spine which is asymptomatic and non-ratable.”
On review, the claimant contends that the ALJ erred as a matter of law in allowing apportionment of the pre-existing spondylosis because the evidence demonstrates that the condition was ” asymptomatic and non-ratable.” The claimant argues that Dr. Winkler admitted that, in order to apportion the spondylosis, the AMA Guides require that it cause pain and rigidity for six months. The claimant points to his testimony that he did not experience these symptoms, and that the ALJ did not discredit this testimony. Because the ALJ may have applied an incorrect standard in assessing the evidence, we remand for entry of a new order. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.) (panel may set aside an order not supported by applicable law).
In Askew v. Sears Roebuck Co., ___ P.2d ___ (Colo.App. No. 94CA1932, June 15, 1995), the Court of Appeals held that § 8-42-104(2), C.R.S. (1995 Cum. Supp.), allows an IME physician to apportion permanent medical impairment to a pre-existing condition, provided the apportionment is based upon the AMA Guides. The court went on to state the following:
“We therefore conclude that when, as here, an IME physician apportions a medical impairment rating between a pre-existing condition and the effects of an industrial injury, both the impairment rating and the apportionment are subject to the deference accorded by § 8-42-107(8)(c). Thus, when a Division-selected IME physician apportions an impairment rating, the applicable standard of proof for overcoming that rating is clear and convincing evidence.”
Moreover, the question of whether the ALJ has properly applied the AMA Guides is itself a question of fact. Askew v. Sears Roebuck Co., supra; Metro Moving Storage Co. v. Gussert, ___ P.2d ___ (Colo.App. No. 94CA1926, June 15, 1995).
In the Askew case, the Court of Appeals upheld an IME physician’s apportionment to a pre-existing back condition where the evidence showed that the “pre-existing condition was asymptomatic and non-ratable.” However, it must be recognized that in Askew there was conflicting medical evidence concerning whether, under the circumstances of the case, the AMA Guides permitted apportionment of the pre-existing condition. The court noted that the claimant presented the expert medical testimony which, if credited, could have supported “contrary results concerning the characterization of claimant’s industrial impairment and the effect of his pre-existing condition.” Nevertheless, the ALJ was not persuaded by the claimant’s evidence, and the court merely upheld the ALJ’s conclusion that the IME physician’s apportionment was not overcome by clear and convincing evidence.
Here, we agree with the claimant that the ALJ may have concluded that the Askew decision requires acceptance of an IME physician’s opinion that there be apportionment to “asymptomatic non-ratable” pre-existing conditions. However, this is an incorrect reading of Askew. The case recognizes that the AMA Guides are not entirely clear concerning apportionment of pre-existing conditions, and that medical experts may hold conflicting opinions concerning apportionment in particular cases. Thus, Askew merely holds that the evidence in that particular case was sufficient to support the apportionment, not that there must always be apportionment of “asymptomatic non-ratable” pre-existing conditions.
In this case, Dr. Winkler gave some testimony which permits the inference that the AMA Guides do not allow apportionment of pre-existing spondylosis unless the claimant experiences six months of pain and rigidity. (Winkler depo pp. 11, 18-19). Dr. Winkler also stated that he “assumed” the claimant experienced these symptoms, though the claimant may not have recognized them as such. (Winkler depo pp. 19-20). However, the claimant’s testimony could support a finding that the claimant did not have these symptoms. Under these circumstances, the matter must be remanded for entry of a new order which applies the correct legal standard in resolving the factual issue of apportionment. Specifically, the ALJ shall determine, based on the evidence in this case, whether the AMA Guides permit apportionment, and thus, whether Dr. Winkler’s opinion is consistent with the AMA Guides. In reaching this conclusion we should not be understood as holding that the ALJ must credit the claimant’s testimony, or that he is required to find that the claimant overcame Dr. Winkler’s rating by clear and convincing evidence.
In light of this disposition we need not reach the other issues raised by the claimant.
IT IS THEREFORE ORDERED that the ALJ’s order dated September 26, 1995, is set aside, and the matter is remanded for entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEAL PANEL
Copies of this decision were mailed March 14, 1996 to the following parties:
Richard Looper, 181 Coyote Drive, Pagosa Springs, CO 81147
Lance Logging Co., Inc., P.O. Box 898, Pagosa Springs, CO 81147-0898
Colorado Compensation Insurance Authority, Attn: Marjorie J. Long, Esq. (Interagency Mail)
Independent Medical Exam Unit, Attn: Sharon Elenberg (Interagency Mail)
Scot Houska, Esq., 744 Horizon Ct., Ste. 360, Grand Junction, CO 81506
(For the Respondents)
Gail Harriss, Esq., 572 E. Third Ave., Durango, CO 81301 (For the Claimant)
By: _____