W.C. No. 4-355-097Industrial Claim Appeals Office.
April 24, 2000
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Martinez (ALJ) which awarded permanent partial disability benefits. The claimant contends the ALJ erred in failing to award benefits based on 19 percent whole person impairment. We agree, and therefore, modify the ALJ’s order
The essential facts are undisputed. On January 1, 1996, the claimant suffered a work-related injury to her neck. The respondents admitted liability in W.C. No. 4-281-347. Dr. Woelfel placed the claimant at maximum medical improvement (MMI) on September 24, 1996 with 21 percent whole person impairment due to a specific disorder and range of motion deficits to the cervical spine. Dr. Woelfel assigned no rating for thoracic or lumbar spine impairment. The respondents filed a Final Admission of Liability for permanent partial disability benefits in accordance with Dr. Woelfel’s rating
On October 7, 1997, the claimant suffered new injuries which are the subject of this claim. On August 12, 1998, Dr. Hart placed the claimant at MMI with 3 percent whole person impairment due to a specific disorder and impaired range of motion to the thoracic spine. The respondents filed a Final Admission of Liability for benefits based on 3 percent whole person impairment The claimant objected and requested a Division-sponsored independent medical examination (IME)
Dr. Pinson, the IME physician, opined that the claimant suffered 13 percent whole person impairment due to a specific disorder and impaired range of motion to the cervical spine. He also found the claimant suffered 19 percent impairment due to range of motion deficits in the lumbar spine, for an “overall” rating of 30 percent whole person impairment from the 1996 and 1997 injuries. In a subsequent deposition, Dr. Pinson testified that he made no attempt to distinguish between impairment from the 1996 and 1997 injuries
The ALJ found that Dr. Pinson’s failure to distinguish between impairment caused by the 1996 and 1997 injuries is “clear and convincing” evidence that Dr. Pinson did not comply with the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition,(Revised) (AMA Guides) in rating the claimant’s impairment from the 1997 injury. Therefore, the ALJ rejected Dr. Pinson’s rating insofar as Dr. Pinson did not apportion the claimant’s impairment. However, the ALJ determined that “in all other aspects” Dr. Pinson’s impairment rating, “including the inference that the 1996 injury caused 21% whole person impairment and that the October 7, 1997, injury caused 9% additional impairment” is credible and persuasive. The ALJ determined that the claimant’s impairment is correctly apportioned by subtracting 21 percent impairment of the “spine” from Dr Pinson’s 30 percent rating of impairment to the “spine.” Consequently, the ALJ determined that the respondents are liable for medical impairment benefits based on 9 percent whole person impairment, less credit for previously paid benefits (Conclusions of Law 2)
On review, the claimant contends the ALJ erroneously determined that `the respondents overcame Dr. Pinson’s medical impairment rating. We disagree § 8-42-107(8)(c), provides that the IME physician’s impairment rating is binding unless overcome by “clear and convincing evidence.” As argued by the claimant, clear and convincing evidence has been defined as evidence which demonstrates that it is “highly probable” the IME physician’s rating is incorrect. Qual-Med, Inc., v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998); Metro Moving Storage Co v. Gussert, 914 P.2d 411 (Colo.App. 1995). In resolving this issue, the ALJ must consider the factual question of whether the IME physician properly applied the AMA Guides and other rating protocols. See Metro Moving Storage Co. v. Gussert, supra. We must uphold the ALJ’s determinations if supported by substantial evidence in the record. §8-43-301(8), C.R.S. 199 ; Metro Moving Storage Co. v. Gussert, supra.
The Rules of Procedure, Part XIX, 7 Code Colo. Reg. 1101-3 at 123 (Permanent Impairment Rating Guidelines) state that the rating physician shall apportion pre-existing permanent medical impairment using the AMA Guides where medical records or other objective evidence substantiate a pre-existing impairment Furthermore, Rule XIX provides that:
“Any such apportionment shall be made by subtracting from the injured workers’ impairment the pre-existing impairment as it existed at the time of the subsequent injury or occupational disease.”
Former § 8-42-104(2), C.R.S. 1998 [amended in 1999 for injuries which occur on or after July 1, 1999] allows for the apportionment of permanent medical impairment attributable to a prior industrial injury as long as the impairment is “disabling” at the time of the subsequent injury. Askew v. Industrial Claim Appeals Office, 927 P.2d 1333 (Colo. 1996)
Apparently, the parties do not dispute that the claimant’s permanent medical impairment from the 1996 injury constituted a “previous disability” for purposes of § 8-42-104(2) Therefore, we do not consider whether the ALJ erroneously failed to make specific findings of fact concerning the existence of a “previous disability.”
Furthermore, it is undisputed the claimant had 21 percent permanent medical impairment of the cervical spine as of September 24, 1996, when her permanent impairment was evaluated by Dr Woelfel, and the claimant concedes that her cervical impairment is subject to apportionment. The record therefore supports the ALJ’s determination that it is highly probable Dr. Pinson’s rating incorrectly failed to apportion the claimant’s medical impairment rating between the 1996 and 1997 injuries
However, the claimant contends that the ALJ erroneously apportioned her medical impairment benefits for lumbar spine impairment. The claimant argues that because there is no evidence of any pre-existing lumbar impairment, she is entitled to the full value of Dr. Pinson’s 19 percent lumbar spine impairment rating We agree
Initially, we note that there is not substantial evidence to support the ALJ’s finding that Dr. Pinson made an “inference that the 1996 injury caused 21% whole person impairment” or that the 1997 injury caused 9 percent impairment. (Finding of Fact 6) Rather, Dr. Pinson explicitly stated that his rating was an “overall” rating for the 1996 and 1997 injuries and that he did not attempt to determine the total impairment attributable to the 1996 injury. (Pinson depo. pp. 7, 11). Dr. Pinson also stated that if the claimant suffered no permanent lumbar impairment from the 1996 injury, all of the lumbar impairment is attributable to the 1997 injury. (Pinson depo. p. 13). Therefore, the ALJ’s erroneous finding must be stricken
Furthermore, the ALJ explicitly determined that Dr. Pinson’s rating was correct. It follows that the ALJ accepted Dr. Pinson’s 19 percent lumbar spine impairment rating
There is no finding or assertion that the claimant suffered any permanent medical impairment to the lumbar spine as a result of the 1996 injury. Therefore, the claimant had no pre-existing lumbar spine impairment which could possibly be apportioned against the claimant’s 19 percent lumbar spine impairment from the 1997 injury. Under these circumstances, the claimant is entitled to benefits based on the full 19 percent lumbar spine impairment rating
In reaching our conclusions, we note that the AMA Guides do not treat the “spine” as a single rating unit. Rather, the “spine” is composed of three separate areas and each is rated separately Only after the “regional impairment” of the spine is determined, is the total body impairment determined by using the “Combined Value Chart.” (See Dr. Pinson report November 17, 1998) Therefore, the ALJ’s determination that the claimant’s 1996 impairment to the “spine” should be subtracted from the 1997 “spine” impairment, is not consistent with the AMA Guides. See also § 8-42-104(2)(b), C.R.S. 1999 (scheduled disability benefits shall exclude “any previous impairment to the same body part.”)
Moreover, in Askew v. Industrial Claim Appeals Office, 927 P.2d 1333
(Colo. 1996), the Supreme Court recognized that a claimant’s impairment from a prior injury may improve over time and thus, no longer be subject to apportionment. Here, the ALJ accepted Dr. Pinson’s opinion that the claimant suffered no more than 13 percent whole person impairment from the 1996 and 1997 cervical injuries. Therefore, the claimant’s impairment from the 1996 injury must have improved. However, the effect of the ALJ’s calculation is to deprive the claimant of compensation for lumbar spine impairment based upon a cervical spine impairment which no longer existed. We perceive no reason why the claimant’s compensation for lumbar impairment caused by the 1997 injury should be reduced by cervical impairment from the 1996 injury that subsequently subsided
IT IS THEREFORE ORDERED that the ALJ’s order dated September 23, 1999, is modified to provide that the respondents shall pay permanent partial disability benefits based upon 19 percent whole person impairment, less credit for permanent partial disability benefits previously paid in this claim. As modified, the ALJ’s order is affirmed
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ Kathy E. Dean
________________________________ Dona Halsey
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. 1999 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 April 24, 2000 to the followingparties:
Gail Thompson, P. O. Box 188, Debeque, CO 81630
Department of Human Services, Grand Junction Regional Center, 2800 D Rd., Grand Junction, CO 81501
Susan Warren, I.M.E. Unit, Division of Workers’ Compensation —
Interagency Mail
Curt Kriksciun, Esq., Colorado Compensation Insurance Authority dba Pinnacol Assurance —
Interagency Mail (For Respondents)
Gudrun Rice, Esq., 101 So. 3rd St., #265, P. O. Box 3207, Grand Junction, CO 81502
(For Claimant)
Andrew Bantham, Esq., Creekside Two Building, 2629 Redwing Rd., #330, Ft. Collins, CO 80526
BY: A. Pendroy