W.C. No. 4-123-819Industrial Claim Appeals Office.
December 4, 1997
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Stuber (ALJ), insofar as it determined the date of maximum medical improvement (MMI), and claimant’s entitlement to permanent partial disability benefits. We affirm.
In an order dated December 19, 1996, the ALJ found that the claimant sustained a compensable back injury in February 1992, and underwent back surgery in April 1992. Although the claimant initially experienced pain relief following surgery, he testified that his condition has worsened since that time.
On April 20, 1994, the claimant’s “authorized treating and primary care physician” placed the claimant at MMI. The treating physician also opined that the claimant has a twenty-six percent whole person medical impairment, of which six percent is attributable to “pre-existing dysfunction.” This apportionment was apparently based on the claimant’s verbal history of pre-injury chiropractic treatments, although the treating physician did not examine any medical records supporting the apportionment.
Subsequently, the claimant underwent a Division-sponsored independent medical examination (IME). The IME physician agreed with the April 20, 1994 date of MMI. Further, the IME assessed the claimant as suffering from a twenty-four percent whole person impairment, and apportioned four percent to the preexisting condition. However, the ALJ found that the IME physician had “no medical documentation” of any preexisting condition, and instead relied on the claimant’s verbal history.
At the hearing, the respondents presented records from the claimant’s chiropractor demonstrating that the claimant received a number of chiropractic treatments from 1989 until 1992. These records reflect that the claimant had “chronic back problems” after falling from a telephone pole twenty years earlier. Further, the records document that the chiropractor advised the claimant he should change occupations because the pre-injury employment “was extremely hard on his back.”
The claimant’s treating physician was present at the hearing and testified concerning the apportionment issue. The physician admitted that, in July 1995, he authored an opinion stating that the 1994 apportionment was improper because he lacked adequate medical documentation of the preexisting condition. However, at the hearing, the treating physician examined the chiropractic records and testified that they provided an adequate basis for apportionment. The physician then opined that the claimant has a twenty-four percent whole person impairment, and that twenty percent of this impairment is attributable to the industrial injury. (Tr. pp. 40, 53).
The ALJ rejected the claimant’s assertion that he did not reach MMI on April 20, 1994. To the contrary, the ALJ found that the claimant failed to overcome the IME physician’s opinion concerning MMI by clear and convincing evidence. The ALJ explicitly discredited the testimony of the claimant and his wife finding it insufficient to overcome the opinions of the IME physician and the treating physician.
However, the ALJ found that the IME physician’s impairment rating was overcome by clear and convincing evidence. In this regard, the ALJ found that the IME physician failed to obtain adequate documentation of the claimant’s preexisting condition to justify the apportionment. Nevertheless, the ALJ found that the treating physician’s hearing testimony was persuasive that the claimant has a twenty-four percent impairment with four percent attributable to the preexisting condition. In this regard, the ALJ found that the treating physician’s apportionment was based on adequate documentation resulting from the chiropractic records. The ALJ further found that the chiropractic records indicated that the claimant suffered a preexisting “disability” because the chiropractor recommended that the claimant seek less strenuous work prior to the industrial injury.
I.
On review, the claimant first contends that the ALJ erred in accepting the treating physician’s hearing testimony concerning the apportioned impairment rating. Relying principally on Askew v. Industrial Claim Appeals Office, 927 P.2d 1333 (Colo. 1996), the claimant argues there is insufficient “objective evidence” to document the presence of a preexisting impairment. Further, the claimant argues there is insufficient evidence to support a finding that any preexisting impairment was “disabling.” Consequently, the claimant asserts that the ALJ should have adopted the impairment rating of the physician who examined the claimant at his own behest. We disagree with the claimant’s arguments.
In Askew v. Industrial Claim Appeals Office, supra, the supreme court concluded that it is proper to apportion permanent partial disability benefits under § 8-42-104(2), C.R.S. 1997, provided certain criteria are met. Adopting language from th American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition (Revised) (AMA Guides), the court held that apportionment is only proper “when a prior impairment, whether occupational or non-occupational, has been sufficiently identified, treated, or evaluated to be rated as a contributing factor in the subsequent disability.”927 P.2d at 1338. Further, the court indicated that a purely asymptomatic dormant condition does not qualify as a preexisting impairment under this test. See also, Rule of Procedure XIX(C), 7 Code Colo. Reg. 1101-3 at 123 (requiring apportionment to be based on “medical records or other objective evidence” of a preexisting impairment).
The court in Askew also held that the claimant’s preexisting medical impairment must have caused “disability” as that term is defined by the AMA Guides. Specifically, the court noted that a “disability” is measured by non-medical means and represents the alteration of a person’s “capacity to meet personal, social, or occupational demands.” In Baldwin Construction, Inc. v. Industrial Claim Appeals Office, 937 P.2d 895 (Colo.App. 1997), the court of appeals held that one type of “disability” is shown where the preexisting condition impaired the claimant’s “access to the labor market.” Further, th Baldwin court indicated that the existence of a disability is largely a factual issue to be determined by the ALJ.
Because the ALJ’s findings on the apportionment issue are supported by substantial evidence, they must be upheld on review. Section 8-43-301(8), C.R.S. 1997; Colorado Mental Health Institute v. Austill, 940 P.2d 1125 (Colo.App. 1997). The treating physician testified that his examination of the chiropractic records provides an adequate historical basis for apportioning the claimant’s overall impairment between the industrial injury and the preexisting degenerative back condition. Moreover, the treating physician testified that he relied on x-rays indicating the presence of preexisting degenerative back disease. (Tr. November 14, 1996, pp. 36-37).
The ALJ also inferred a preexisting disability because the chiropractor wrote that the claimant should not have been performing the heavy duties which resulted in the industrial injury. Further, the chiropractor noted that the claimant had complained to the employer that the work was “too heavy.” Under these circumstances, there is substantial evidence that, although the claimant performed the heavy work demanded by the employer, his preexisting impairment limited his access to the general labor market. Thus, we may not interfere with the ALJ’s finding of a preexisting disability. Section 8-43-301(8); Baldwin Construction, Inc. v. Industrial Claim Appeals Office, supra.
Under these circumstances, we reject the claimant’s contention that the ALJ erred in apportioning the claimant’s medical impairment benefits. Although the record might have supported contrary findings and conclusions, this fact affords no basis for relief on appeal. May D F v. Industrial Claim Appeals Office, 752 P.2d 589 (Colo.App. 1988).
II.
The claimant next contends that the ALJ erred in finding that he reached MMI on April 20, 1994. In support of this argument, the claimant points out that the ALJ entered a prior order on April 3, 1995. In the 1995 order, the ALJ denied the claimant’s request for permanent total disability benefits, stating that he had not reached the issue of the date of MMI. According to the claimant, the respondents continued to pay temporary disability benefits after the 1995 order. Consequently, the claimant states that he has now incurred a large “overpayment” of temporary disability benefits, and is precluded from recovering any permanent disability benefits due to the $60,000 “cap” found in § 8-42-107.5, C.R.S. 1997. We ascertain no legal justification for the claimant’s argument.
The date of MMI was determined in accordance with applicable law. See § 8-42-107 (8)(b), C.R.S. 1997. Further, we do not perceive how the claimant has been prejudiced by the “overpayment” of temporary disability benefits. Under the law applicable to this claim, the respondents have no right to seek “repayment” from the claimant, but are limited to claiming an offset against any future benefits to which the claimant may become entitled. This is true because the applicable statute, § 8-43-303(1), C.R.S. (1996 Cum. Supp.) [significantly amended for injuries occurring on or after July 1, 1997], provides that reopening may not affect an award “as to moneys already paid.” This provision has been interpreted to mean that claimants may not be ordered to repay funds, although their future benefits may be reduced so that respondents may recover prior overpayments. Kuziel v. Pet Fair, Inc., ___ P.2d ___ (Colo.App. No. 97CA0087, September 4, 1997); Cody v. Industrial Claim Appeals Office, 940 P.2d 1042 (Colo.App. 1996).
It follows that the effect of the ALJ’s failure to address MMI in the 1995 order, and the respondents’ willingness to continue paying temporary total disability benefits, is that the claimant received more benefits than he is entitled to receive. This fact does not entitle the claimant to any relief, including alteration of the date of MMI.
The claimant has raised no other issues concerning the date of MMI, and we have considered none.
IT IS THEREFORE ORDERED that the ALJ’s order dated December 19, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
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. 1997.
Copies of this decision were mailed December 4, 1997 to the following parties:
Robert T. Owrey, 1990 Billings St., Aurora, CO 80011
Leak-Tec, Inc., c/o Colorado Compensation Insurance Authority — Interagency Mail
Colorado Compensation Insurance Authority, Attn: Curt Kriksciun, Esq. (Interagency Mail)
McCrea Keck, L.L.C., 1777 S. Harrison, Ste. 1110, Denver, CO 80210 (For the Respondents)
Brad R. Irwin, Esq., 501 S. Cherry St., Ste. 500, Denver, CO 80222-1327 (For the Claimant)
By: __________________________