W.C. No. 4-255-539Industrial Claim Appeals Office.
September 24, 1998
FINAL ORDER
The respondents seek review of the final order of Administrative Law Judge Gandy (ALJ), which awarded permanent partial disability benefits and medical benefits. The respondents argue the ALJ erred in failing to apportion the claimant’s upper extremity impairment based on a prior injury. The respondents also contend there is no evidence that the claimant’s physician was “authorized.” We affirm.
This matter was before us previously. In our Order of Remand dated March 10, 1998, we directed the ALJ to determine whether or not the claimant incurred pronator teres syndrome (PTS) as an occupational disease prior to working for the respondent-employer Burris Company, Inc. (Burris). We also directed the ALJ to apply the “correct law pertaining to apportionment” once he resolved the factual issue.
On remand, the ALJ entered an order dated April 17, 1998. The ALJ found that, prior to his employment with Burris, the claimant contracted the compensable occupational disease of carpal tunnel syndrome (CTS). However, the ALJ credited Dr. Bussey’s report, dated August 15, 1994, which indicates that the CTS did not result in any permanent medical impairment as defined by th American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition (Revised) (AMA Guides). The August 15 report specifically states the following:
“[The claimant’s] strength index on the left was 0% and on the right was 6% which was less than the 10% required for permanent impairment.”
The ALJ further determined that the claimant sustained the second compensable disease of PTS while employed by Burris. In so doing, the ALJ also credited Dr. Bussey’s June 14, 1995, report stating that the PTS resulted in a ten percent permanent impairment of the right upper extremity. Concerning apportionment, Dr. Bussey stated that the PTS involves a “lesion in the forearm, proximal to the carpal tunnel and a separate site of entrapment.” Therefore, Dr. Bussey concluded that no apportionment was appropriate.
Based on Dr. Bussey’s opinions and resolution of conflicts in the evidence, the ALJ awarded benefits for PTS based on a ten percent impairment of the right upper extremity. The ALJ rejected the respondents’ argument that apportionment was appropriate based on the evidence that the claimant sustained an unratable loss of strength at the time he reached maximum medical improvement (MMI) for the CTS.
I.
On review, the respondents contend that the ALJ erred in failing to apportion the claimant’s upper extremity impairment rating for PTS based on the loss of strength noted at the time the claimant reached MMI for CTS. The respondents argue that it was not necessary for the CTS-related loss of strength to be “rated” in order to be considered a contributing factor in the claimant’s overall impairment following the development of PTS. We are not persuaded.
Initially, we note that this claim involves apportionment of a scheduled injury. Consequently, as we have held in the past, we conclude that the independent medical examination system for rating whole person medical impairments does not apply. Eg. Santistevan v. Colorado State University, W.C. No. 4-156-194
(February 2, 1995). Rather, we must uphold the ALJ’s award of benefits if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1997.
Section 8-42-104(2), C.R.S. 1998, provides for apportionment of awards of scheduled permanent partial disability benefits. The statute states:
“In case there is a previous disability, the percentage of disability for a subsequent injury shall be determined by computing the percentage of the entire disability and deducting therefrom the percentage of the previous disability as it existed as the time of the subsequent injury.”
In order to apportion based on a “previous disability,” the respondents must establish that the claimant had preexisting medical impairment (as measured by medical means), and that the medical impairment caused “disability” so as to affect the claimant’s ability to meet personal, social or occupational demands (as assessed by nonmedical means). Askew v. Industrial Claim Appeals Office, 927 P.2d 1333 (Colo. 1996); Lambert Sons, Inc. v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 97CA1774) (July 9, 1998). Further, the previous disability must be a “contributing factor” in the subsequent disability Lambert Sons, Inc. v. Industrial Claim Appeals Office, supra.
With regard to determining whether apportionment should occur based on an alleged preexisting impairment, the ALJ must consider whether the alleged condition was “sufficiently identified, treated, or evaluated to be rated as a contributing factor in the subsequent disability.” Askew v. Industrial Claim Appeals Office, supra. It is true that apportionment under §8-42-104(2) does not require that there have been an actual disability rating of the preexisting impairment. However, the AMA Guides state that:
“A conclusion that a factor did contribute to an impairment must rely on documentation of the circumstances under which the factor was present and verification that the type and magnitude of the factor were sufficient and bore the necessary temporal relationship to the condition. The existence of an impairment does not create a presumption of contribution by a factor with which the impairment is often associated.” AMA Guides, § 2.2 at 6-7 (emphasis in original).
Here, Dr. Bussey rated the claimant after the 1994 CTS injury as well as the 1995 PTS injury. Dr. Bussey was unwilling to attribute any of the claimant’s 1995 upper extremity impairment to the 1994 injury because he believed that the PTS incurred at Burris “caused the difficulties that [the claimant] is now being evaluated and rated upon,” and because the claimant’s 1995 lesion was “in the forearm, proximal to the carpal tunnel.” Under these circumstances, Dr. Bussey’s June 14, 1995, report may be read as indicating that, if the claimant had any residual impairment from the 1994 injury, the medical records do not sufficiently document that this impairment is of the “type and magnitude” or bears the “necessary temporal relationship” to the 1995 impairment to be considered as a contributing factor to the 1995 impairment. Thus, Dr. Bussey’s opinions provide substantial evidence to support the ALJ’s denial of apportionment under § 8-42-104(2).
It is true that some evidence in the record, including the report of Dr. Lynch, might support a contrary conclusion. However, we are not at liberty to substitute our judgment for that of the ALJ concerning the relative weight to be accorded the opinions of the medical experts. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
II.
The respondents next contend that the findings are insufficient to establish that the medical benefits awarded by the ALJ are “authorized, reasonable or necessary.” The respondents specifically argue that the ALJ erred “in failing to determine whether the claimant’s care obtained from Dr. Bussey was authorized.” We find no error.
The respondents’ assertions notwithstanding, the ALJ credited the opinions of Dr. Bussey as reflected in the medical reports. It may be logically inferred from Dr. Bussey’s medical records that he believes the treatment provided to the claimant was reasonable and necessary to cure and relieve the effects of the claimant’s injury. This determination was within the ALJ’s province as fact-finder. Suetrack USA v. Industrial Claim Appeals Office, 902 P.2d 854 (Colo.App. 1995).
Insofar as the respondents now assert that authorization of treatment was an issue, they waived any such argument. The respondents’ Response to Application for Hearing does not indicate that they intended to contest the question of whether Dr. Bussey’s treatment was authorized. Further, at the commencement of the hearing, the respondents did not state their intent to litigate the issue of authorization, and the ALJ does not appear to have understood them to be contesting the issue. Rather, it appears the respondents’ position was that no injury occurred while they were on the risk, or that if any injury occurred, they were not liable for treatment of it. (Tr. pp. 3-4). Because the issues were narrowed at the commencement of the hearing, we conclude the respondents waived the issue of authorization by failing to raise it. See Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076 (Colo.App. 1990).
In any event, we agree with the claimant that the record supports the conclusion that Dr. Bussey’s treatment was authorized. The claimant testified that, when he notified the employer of his condition, the employer did not refer him to a physician. (Tr. p. 12). Consequently, the right to select Dr. Bussey passed to the claimant. See Rogers v. Industrial Claim Appeals Office, 740 P.2d 565 (Colo.App. 1987).
III.
The respondents have also raised an issue concerning the period of temporary disability benefits. In his brief, the claimant conceded the issue, and the ALJ subsequently issued an order correcting the period of temporary disability. Consequently, we do not consider this issue.
IT IS THEREFORE ORDERED that the ALJ’s order dated April 17, 1998, 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. 1998.
Copies of this decision were mailed September 24, 1998 to the following parties:
Dennis C. Stitt, 4490 Yosemite Dr., Greeley, CO 80634
George Bristol, Burris Co., Inc., P.O. Box 1747, Greeley, CO 80632
Janet Taylor, AIGCS Claim Services, P.O. Box 32130, Phoenix, AZ 85018
Miguel Martinez, Esq., 1102 5th St., Ste. A, Greeley, CO 80631 (For the Claimant)
Clyde E. Hook, Esq. Harvey D. Flewelling, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For the Respondents)
BY: _______________________