W.C. No. 4-224-344Industrial Claim Appeals Office.
September 7, 2000
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Coughlin (ALJ) which awarded permanent partial disability benefits based on medical impairment of 34 percent of the whole person. The respondents contend the ALJ erred as a matter of fact and law in failing to apportion the claimant’s medical impairment rating based on a prior industrial injury. We affirm.
The claimant sustained a compensable injury to her right upper extremity, right shoulder, and the cervical region on September 25, 1992. At the time of the injury the claimant was employed as a home healthcare nurse, a job which required substantial repetitive work with her hands and the lifting of patients weighing as much as 200 pounds. The claimant was placed at maximum medical improvement (MMI) on April 8, 1999. She subsequently underwent a Division-sponsored independent medical examination (IME) performed by Dr. Gamble.
Dr. Gamble opined the claimant was suffering from a cervical sprain, injury to the right shoulder, neuropathy of the right median and ulnar nerves, TMJ syndrome, and a visual disturbance. Dr. Gamble assigned an overall impairment rating of 31 percent of the whole person based on injuries to the nerves of the right upper extremity and cervical impairment. However, Dr. Gamble apportioned 16 percent of the impairment to a prior industrial injury which the claimant sustained in April 1984. The apportionment was predicated on the reports of two physicians who treated the claimant for thoracic outlet syndrome (TOS) and carpal tunnel syndrome (CTS) after the 1984 injury. A second Division IME physician found the claimant was suffering from 5 percent impairment attributable to TMJ syndrome.
The claimant sought a hearing challenging Dr. Gamble’s Division IME rating. The ALJ found Dr. Gamble correctly rated the claimant’s overall impairment, but also found the claimant overcame Dr. Gamble’s apportionment by clear and convincing evidence. Specifically, the ALJ found there was no “persuasive evidence” the claimant was permanently disabled by the 1984 injury at the time of the 1992 injury. In support, the ALJ relied on the claimant’s testimony concerning the heavy work she performed between 1987 and 1992, the absence of any medical treatment between 1987 and 1992, and the medical reports of Dr. Franatovic, Dr. Albert, D.D.S., and Dr. Ring. The ALJ further found that Dr. Gamble’s apportionment was speculative because there was “insufficient information to accurately measure any change” in the claimant’s impairment rating between the 1984 injury and the 1992 injury. In support of this finding the ALJ relied on the testimony of Dr. Parry that the medical reports cited in Dr. Gamble’s report were insufficient to permit apportionment under the AMA Guides and Rule XIX(C), 7 Code Colo. Reg. 1101-3 at 123. Consequently, ALJ awarded permanent partial disability benefits based on the unapportioned medical impairment rating of 34 percent of the whole person.
On review, the respondents argue neither the evidence nor the law supports the ALJ’s refusal to apportion the claimant’s medical impairment rating under former § 8-42-104(2), C.R.S. 1998 [amended with respect to injuries occurring on or after July 1, 1999]. The respondents first argue that various medical reports establish the claimant was disabled by the 1984 injury at the time of 1992 injury, and that these medical reports overcame the claimant’s conflicting testimony as a matter of law. As a corollary to this argument the respondents contend the record lacks substantial evidence to support Findings of Fact 4 through 6 and 9 through 11. We find no error.
In Askew v. Industrial Claim Appeals Office, 927 P.2d 1333
(Colo. 1996), the Supreme Court established two criteria for apportionment of permanent partial disability benefits under §8-42-104(2). The first requirement is that impairment attributable to a preexisting condition must cause a “disability” as defined by the American Medical Association Guides To the Evaluation of Permanent Impairment, Third Edition (Revised) (AMA Guides). A “disability” is measured by non-medical means and represents the alteration of a person’s “capacity to meet personal, social, or occupational demands.” Id. at 1337. Further, under § 8-42-104 (2), the preexisting disability must be measured “as it existed at the time of the subsequent injury.” Consequently, apportionment is not appropriate if an employee has recovered from a past disability so that the prior injury does not contribute to the current disability. Mountain Meadows Nursing Center v. Industrial Claim Appeals Office, 990 P.2d 1090
(Colo.App. 1999); Lambert Sons, Inc. v. Industrial Claim Appeals Office, 984 P.2d 656 (Colo.App. 1998).
The question of whether a prior injury caused a disability at the time of the subsequent industrial injury is generally one of fact for determination by the ALJ. Mountain Meadows Nursing Center v. Industrial Claim Appeals Office, supra; Owrey v. Leak-Tec, Inc., W.C. No. 4-123-819 (December 4, 1997). Consequently, we must uphold the ALJ’s determination that the 1984 injury was not causing disability at the time of the 1992 injury if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2000. This standard of review requires us to defer to the ALJ’s resolution of conflicts in the evidence, her credibility determinations, and the plausible inferences she drew from the record. Mountain Meadows Nursing Center v. Industrial Claim Appeals Office, supra; Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
Applying these principles here, we find substantial evidence supports the ALJ’s determination that the claimant was not disabled by the 1984 injury at the time of the 1992 injury. The ALJ found the symptoms for the 1984 injury were essentially “asymptomatic and non-disabling” at the time of the 1984 injury. As noted in Findings of Fact 5 and 6, the claimant’s testimony establishes that between 1987 and 1992 she performed heavy physical labor in a house cleaning business and as a home healthcare nurse. The claimant performed these jobs without missing time from work, and without seeking medical attention for treatment of the 1984 injury.
The respondents’ assertion notwithstanding, the claimant’s testimony was not overcome as a matter of law by conflicting medical evidence. It is true that in 1986 Dr. Levisohn predicted the claimant would be unable to return to work as a nurse, and in 1987 reported the claimant had a “50 to 75 percent loss of function of the right upper extremity.” Further, in 1994 Dr. Hughes reported the claimant gave a history of “continuing complaints of pain and weakness related to this old [1984] injury.” Similarly, in a report dated October 3, 1994, Dr. Bralliar reported the claimant had difficulty performing heavy lifting after 1987, and “learned to compensate with the left upper extremity.” However, in a report dated October 5, 1992, Dr. Franotovic reported the claimant gave a history of being “in fairly good general health” after successful treatment for TOS. In a report dated September 10, 1994, Dr. Albert reported the claimant “did not have any of her current head, neck, and shoulder pain” prior to the 1992 injury. In a report dated October 7, 1996, Dr. Ring stated the claimant gave a history of “minimal and variable” TOS symptoms prior to the 1992 injury. Under these circumstances, the medical records contain conflicting evidence concerning the claimant’s condition immediately prior to the 1992 injury, and we must defer to the ALJ’s decision to resolve the conflicts in favor of the claimant.
Thus, viewing the evidence in a light most favorable to the claimant, the record supports the ALJ’s pertinent findings of fact and her decision to credit the claimant’s testimony. The fact that the claimant received a prior permanent partial disability award did not rule out the possibility that her condition subsequently improved to the point it was no longer disabling Lambert Sons, Inc. v. Industrial Claim Appeals Office, supra. Therefore, the findings support the conclusion that the claimant was not disabled at the time of the 1992 injury, and apportionment is improper under § 8-42-104(2).
The respondents also dispute the ALJ’s determination that the claimant overcame the Division IME physician’s apportionment by clear and convincing evidence because there was “insufficient information to accurately measure” the change between the claimant’s residual impairment from the 1984 injury and the permanent impairment attributable to the 1992 injury. Again, we perceive no error.
The second criteria for apportionment established by Askew v. Industrial Claim Appeals Office, supra, is that the preexisting impairment must have been “sufficiently identified, treated, or evaluated to be rated as a contributing factor in the subsequent disability.” Similarly, Rule XIX (C) provides that if there is “insufficient information” for the IME physician to measure the change between preexisting medical impairment and impairment related to the industrial injury, the “physician shall not attempt to do so.”
Section 8-42-107(8)(c), C.R.S. 2000, provides the Division IME physician’s “finding” of medical impairment “shall be overcome only by clear and convincing evidence.” Admittedly, Askew can be read to mean that the clear and convincing standard does not apply to any questions involving apportionment, including the issue of documentation of preexisting impairment. However, we understand subsection 8(c) applies to the IME physician’s decision of whether to apportion an overall impairment rating based on preexisting medical impairment. See Lambert Sons, Inc. v. Industrial Claim Appeals Office, supra; Estes v. Sutherland’s Home Improvement Center, W.C. No. 4-300-659 (October 9, 1998). This is true because apportionment of impairment, as opposed to disability, is a medical question inherent in the rating process under the AMA Guides. Cf. Qual-Med, Inc. v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998). Thus, we uphold the ALJ’s determination that the Division IME physician’s apportionment of medical impairment has been overcome if supported by substantial evidence in record. Metro Moving Storage Co. v. Gussert, supra.
In some cases, the issue will be one of law if there is absolutely no documentation to support apportionment to a preexisting impairment. Askew v. Industrial Claim Appeals Office, supra.
Here, none of the medical records cited by the respondents in support of the Division IME physician’s apportionment contain a medical impairment rating attributable to the 1984 injury. Dr. Parry opined that the two reports cited by the Division IME physician are not sufficient to support apportionment because they were issued prior to maximum medical improvement, do not purport to apportion the claimant’s impairment, and are so indefinite in their measurements that they do not provide a basis for discerning an impairment. We cannot say the ALJ erred in relying on Dr. Parry’s testimony as establishing clear and convincing evidence that the Division IME physician’s apportionment was improper for lack of documentation.
Insofar as the respondents make additional arguments we find them to be without merit.
IT IS THEREFORE ORDERED that the ALJ’s order dated December 26, 1999, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Robert M. Socolofsky
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. 2000. 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, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed September 7, 2000 to the following parties:
Kathleen Spence, 8126 S. Ogden St., Littleton, CO 80122
Porter Memorial Hospital, 2525 S. Downing St., Denver, CO 80210-5817
Rocky Mountain Adventist Healthcare, Occupational Healthcare Mgmnt. Service, P.O. Box 173682, Denver, CO 80217-3682
Beverly Mandery, OHMS, P. O. Box 173682, Denver, CO 80217-3682
Susan D. Phillips, Esq., 155 S. Madison, #330, Denver, CO 80209 (For Claimant)
Pamela Musgrave, Esq., 1410 Grant St., #C206, Denver, CO 80203 (For Respondent)
BY: A. Pendroy