W.C. Nos. 4-231-549, 4-130-123Industrial Claim Appeals Office.
May 6, 1996
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Erickson (ALJ) which awarded permanent partial disability benefits in W.C. No. 4-231-549. We affirm.
A brief procedural history of these consolidated claims is necessary to understand the issue on appeal. The claimant suffered an admitted shoulder injury on November 11, 1991, which is the subject of W.C. No. 4-130-123. In 1994, Dr. Sabin performed a Division-sponsored independent medical examination (IME) and determined that the claimant sustained 13 percent impairment of the whole body due to impairment of the neck and shoulder. The respondents filed a Final Admission of Liability in accordance with Dr. Sabin’s rating, and the claimant does not dispute the Final Admission.
The claimant subsequently experienced lowback pain and sought additional benefits in W.C. No. 4-130-123. In a Summary Order dated September 8, 1994, the claimant’s low back pain was determined to be unrelated to the 1991 injury, and the request for additional benefits was denied.
In a Summary Order dated April 13, 1995, issued by Administrative Law Judge Stuber (ALJ Stuber) in W.C. No. 4-231-549, the claimant was found to have suffered a separate injury to his low back on January 28, 1993. ALJ Stuber also determined that the injury was in the nature of an occupational disease which aggravated the claimant’s pre-existing cervical condition.
The parties agree that the occupational disease was treated by Dr. Centeno, who issued a rating of the claimant’s permanent impairment. Because neither party requested an IME, the parties further agree that Dr. Centeno’s medical impairment rating is binding for purposes of calculating the claimant’s permanent partial disability benefits in W.C. No. 4-231-549. However, the parties dispute the nature of Dr. Centeno’s opinion concerning the claimant’s medical impairment from the occupational disease.
Pursuant to Dr. Centeno’s May 25, 1995 report, the respondents contend that Dr. Centeno rated the claimant’s permanent impairment from the occupational disease as 20 percent impairment of the lumbar spine. The claimant does not dispute the respondents’ contention concerning Dr. Cennteno’s rating of his lumbar spine impairment, and argues that Dr. Centeno also determined that he sustained cervical impairment as a result of the occupational disease as rated in his report date December 16, 1993.
The ALJ determined that the claimant suffered cervical impairment as a result of the 1991 injury which was aggravated by the occupational disease. The ALJ also found that, in his December 16 report, Dr. Centeno rated the claimant’s cervical impairment from the occupational disease as 20 percent of the whole person. However, Dr. Centeno reduced the cervical impairment rating to 5 percent based upon the Fourth Edition of the American Medical Association Guides to the Evaluation of Permanent Impairment (AMA Guides). The ALJ determined that the Fourth Edition of the AMA Guides was not applicable and therefore, the ALJ determined that Dr. Centeno’s reduction was not binding.
Furthermore, the parties agreed that a 20 percent lumbar impairment and a 20 cervical impairment equal a 36 percent impairment of the whole person. Therefore, the ALJ ordered the respondents to pay permanent partial disability benefits in W.C. No. 4-231-549 based upon medical impairment of 36 percent of the whole person.
The sole issue on appeal is whether the ALJ erred in ordering the respondents to pay benefits for cervical impairment in W.C. No. 4-231-549. The respondents argue that Dr. Centeno’s December 16, 1993 cervical impairment rating pertained to the claimant’s impairment from the 1991 injury, and that the claimant has been compensated for this impairment in W.C. No. 4-130-123. Therefore, the respondents argue that the ALJ erroneously ordered them to pay permanent disability benefits in W.C. No. 4-231-549 based upon a medical impairment rating in W.C. No. 4-130-123. We disagree.
The physician’s opinion concerning the “cause” of the claimant’s permanent impairment is an inherent part of the physician’s medical impairment rating. Navas v Tower Corp., W.C. No. 4-113-479, July 19, 1994 cf. Askew v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 94CA1932, June 15, 1995), cert. granted, April 8, 1996 [IME physician’s apportionment subject to special weight under § 8-42-107(8)]. However, where there is a factual dispute concerning the physician’s opinion on causation, it is for the ALJ to resolve the dispute. See Fagan v. Ferguson Electric Corp., W.C. No. 4-17 2-750, aff’d Ferguson Electric Corp. v. Industrial Claim Appeals Office, (Colo.App. No. 95CA0167, July 6, 1995) (not selected for publication) (ALJ must resolve conflict and determine attending physician’s opinion on maximum medical improvement); Long v. Miller Brands, Inc., W.C. No. 4-164-929, July 6, 1994. Because, this determination is factual in nature, we must uphold the ALJ’s determination if supported by substantial evidence in the record and the ALJ’s plausible inferences. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.); Metro Moving Storage Co. v. Gussert, ___ P.2d ___ (Colo.App. No. 94CA1926, June 15, 1995), cert. denied April 15, 1996; Dow Chemical Co. v. Industrial Claim Appeals Office, 843 P.2d 122 (Colo.App. 1992).
Here the evidence is subject to conflicting inferences concerning whether Dr. Centeno’s cervical impairment rating pertains to impairment from the 1991 injury or the 1993 occupational disease. For example, Dr. Centeno’s December 16, 1993 “Discharge Report/Impairment Rating” of the claimant’s shoulder and cervical impairment indicates that the subject of the report is the 1991 injury. It also states that Dr. Centeno did not include a rating for the claimant’s lumbar impairment because the claimant did not experience low back pain until several months after the 1991 injury, and thus, Dr. Centeno concluded that the low back pain was not attributable to the 1991 injury.
In contrast, the May 25, 1995 report indicates that the subject is the 1991 and 1993 injuries. The report states the rating for claimant’s “shoulder and neck” impairment was set forth in December 16, 1993 report, and that the claimant also has a 20 percent lumbar impairment as discussed in the doctor’s March 13, 1995 deposition.
However, at the time of Dr. Centeno’s December 16, 1993 report there was no workers’ compensation claim for a 1993 injury. Similarly, at the time of Dr. Centeno’s deposition, there had been no adjudication that the claimant suffered an occupational disease which caused low back pain and aggravated his pre-existing cervical condition.
We also note that Dr. Centeno did not begin to treat the claimant until September 1993, which was several months after the onset of the claimant’s occupational disease which was determined to have aggravated the claimant’s pre-existing cervical problems. (Centeno depo. p. 4). Therefore, unlike the low back pain, the record supports the ALJ’s implicit determination that Dr. Centeno treated the claimant for cervical problems resulting from the 1993 injury.
Under these circumstances, and in view of the undisputed fact that Dr. Centeno determined the claimant to be at maximum medical improvement from the occupational disease on December 15, 1993, the ALJ could, and did, infer that Dr. Centeno’s December 16, 1993 cervical impairment rating reflected Dr. Centeno’s opinion concerning the claimant’s cervical impairment from the occupational disease. Therefore, the record does not compel a conclusion that the ALJ awarded benefits in the 1993 injury claim based upon a medical impairment rating in the 1991 injury claim.
In reaching this conclusion, we are mindful of Dr. Sabin’s opinion that the claimant’s cervical problems are “somewhat related” to the 1991 shoulder injury, and thus, included a rating of cervical impairment for the 1991 injury. However, the ALJ determined that the occupational disease aggravated the claimant’s pre-existing cervical impairment. Therefore, the fact that the respondents admitted liability for cervical impairment in the 1991 injury claim, did not preclude the ALJ from awarding additional benefits for cervical impairment in the 1993 injury claim.
IT IS THEREFORE ORDERED that the ALJ’s order dated November 16, 1995, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate this Order iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO80203, by filing a petition for review with the court, with service of acopy of the petition upon the Industrial Claim Appeals Office and allother parties, within twenty (20) days after the date this Order ismailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed May 6, 1996 to the following parties:
James Wyatt, 4273 Salida Way, #9, Aurora, CO 80013
Interstate Distributor Co., P.O. Box 45999, Tacoma, WA 98445-0999
TIG Insurance Co., Attn: Nancy Rostad, 6400 S. Fiddlers Green Circle, #1300, Englewood, CO 80111
Jeanne M. LaBuda, Esq., 6400 S. Fiddlers Green Circle, #1270, Englewood, CO 80111 (For the Respondents)
Susan D. Phillips, Esq., 155 S. Madison, #330, Denver, CO 80209-3014 (For the Claimant)
BY: _______________________