W.C. No. 4-210-334Industrial Claim Appeals Office.
February 14, 1997
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Gandy (ALJ) which required them to pay permanent partial disability benefits based upon medical impairment of 24 percent of the whole person. We affirm.
The pertinent facts are undisputed. The claimant suffered a compensable back injury in 1994. The treating physician, Dr. Donaldson, rated the claimant’s permanent impairment as 24 percent of the whole person, and did not apportion any part of the impairment to the claimant’s pre-existing degenerative disc disease. Dr. Ritsick conducted a Division-sponsored independent medical exam (IME) pursuant to the provisions of §8-42-107(8)(c), C.R.S. (1995 Cum. Supp.) [substantially amended in 1996]. Dr. Ritsick concurred with Dr. Donaldson’s 24 percent rating, but apportioned 25 percent of the claimant’s impairment to the pre-existing degenerative disc disease. Therefore, Dr. Ritsick rated the claimant’s impairment from the industrial injury as 18 percent of the whole person.
Finding that the degenerative disc disease had been asymptomatic and that the claimant had no prior disability or lost time from work from this condition, the ALJ determined that the claimant sustained his burden to overcome Dr. Ritsick’s apportioned rating by “clear and convincing evidence.” The ALJ also found that Dr. Donaldson’s rating was the proper measure of the claimant’s impairment from the industrial injury. Therefore, the ALJ ordered the respondents to pay medical impairment benefits in accordance with Dr. Donaldson’s rating of 24 percent impairment of the whole person.
The respondents contend that the ALJ misapplied the law in rejecting Dr. Ritsick’s apportionment. In support, the respondents rely on Askew v. Sears Roebuck Co., 914 P.2d 416
(Colo.App. 1995), cert. granted, April 8, 1996.
However, subsequent to the filing of the respondents’ brief, the Supreme Court announced its opinion in Askew v. Industrial Claim Appeals Office, 927 P.2d 1333 (Colo. 1996). The facts as determined by the ALJ in this claim are almost identical to the facts in Askew. Therefore, we conclude that the Supreme Court’s conclusions are dispositive of the respondents’ appellate argument. Furthermore, Askew
compels the conclusion that the ALJ properly rejected Dr. Ritsick’s apportionment.
Askew involved an IME physician’s apportionment of medical impairment between an industrial back injury and the claimant’s pre-existing degenerative lumbar disc disease. The ALJ in Askew determined that the IME physician properly applied the American Medical Association Guides to the Evaluation of Permanent Impairment (AMA Guides) in apportioning the claimant’s medical impairment. Therefore, the ALJ determined that the IME physician’s medical impairment rating was binding. We affirmed the ALJ’s determination, and the Court of Appeals affirmed our order.
The Supreme Court reversed, concluding that the apportionment of medical impairment is proper only when a preexisting condition has been “sufficiently identified, treated, or evaluated to be rated as a contributing factor in the subsequent disability.” The court reasoned that §8-42-104(2), C.R.S. (1996 Cum. Supp.), allows for the apportionment of a “previous disability,” and although the statute does not define that term, the Act requires all medical impairment ratings to be in accordance with the AMA Guides, which recognize a distinction between “impairment” and “disability.” Specifically, the court relied upon the fact that the AMA Guides define “impairment” as the alteration of an individual’s health status that is assessed by medical means. In contrast, the AMA Guides provide that “impairment gives rise t disability only when the medical condition limits the individual’s capacity to meet the demands of life’s activities (emphasis added).”
Because the claimant’s pre-existing degenerative disc disease in Askew was “asymptomatic,” had not been treated and “did not hinder [the claimant’s] capacity to meet any demands” prior to the industrial injury, the court concluded that the pre-existing condition could not be considered a “previous disability” for purpose of apportionment under § 8-42-104(2). Consequently, the court concluded as a matter of law that the IME physician’s apportionment based on the pre-existing disease was arbitrary and not supported by the record.
Here, the ALJ made almost identical findings which are amply supported by the record. Therefore, those findings must be upheld. Section 8-43-301(8), C.R.S. (1996 Cum. Supp.); Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). Moreover, the findings support the conclusion that the claimant’s pre-existing degenerative disc disease is not a “previous disability” for purposes of apportionment.
Contrary to the respondents’s further argument, the ALJ’s finding that Dr. Ritsick provided no medical explanation or medical basis for his apportionment is a plausible interpretation of Dr. Ritsick’s testimony. Dr. Ritsick testified that his apportionment was based upon the claimant’s prior history of back pain, degenerative changes in the claimant’s back, the fact that the claimant underwent a spinal fusion for treatment of the industrial injury, and the significant back problems suffered by the claimant’s father. (Transcript pp. 30-31, 46, 49). However, Dr. Ritsick admitted that the claimant did not have any “disability” from the pre-existing condition at the time of the industrial injury. (Tr. p. 51). Dr. Ritsick also stated that he did not utilize any specific test in assigning 6 percent of the claimant’s total impairment to the pre-existing condition. Rather, he admitted that the 6 percent was an “arbitrary judgment” based upon his past experience. (Tr. p. 49). Under these circumstances, we perceive no error in the ALJ’s assessment.
IT IS THEREFORE ORDERED that the ALJ’s order dated July 3, 1996, 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, 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 this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1996 Cum. Supp.).
Copies of this decision were mailed February 14, 1997
to the following parties:
Brian J. Wallace, 2200 S. Flower St., Lakewood, CO 80227
Brian J. Wallace, 4654 S. Estes St., Littleton, CO 80123
American Awning Company, Attn: Ted Snyder, 77 Kalamath St., Denver, CO 80223
Colorado Compensation Insurance Authority, Attn: Curt Kriksciun, Esq. (Interagency Mail)
Richard L. Ott, Esq., 598 S. Gilpin St., Denver, CO 80209 (For the Claimant)
BY: _______________________