W.C. No. 4-802-142.Industrial Claim Appeals Office.
March 28, 2011.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Cannici (ALJ) dated November 18, 2010, that awarded the claimant a 19 percent whole person impairment rating. We affirm.
The claimant sustained an admitted industrial injury to her lower back on February 17, 2009 while lifting a heavy floor mat. However, the claimant had an extensive history of lower back problems, including industrial and non-industrial injuries, prior to the February 17, 2009 industrial injury under consideration here. On August 5, 2009 Dr. Wunder determined that the claimant had reached maximum medical improvement (MMI) and opined that the claimant was entitled to a 19 percent whole person impairment rating. Dr. Wunder made no apportionment for the claimant’s pre-existing back conditions.
The respondents challenged Dr. Wunder’s impairment determination and sought a Division-sponsored independent medical examination (DIME). The DIME physician determined that the claimant had suffered a 17 percent impairment and apportioned a significant part of the impairment to a 1998 non-industrial motor vehicle accident and a December 11, 2005 industrial injury. The DIME physician assigned the claimant a one percent whole person impairment rating as a result of the February 17, 2009 industrial accident.
The ALJ determined that the claimant had produced clear and convincing evidence to overcome the opinion of the DIME physician. The ALJ found the DIME
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physician had erroneously apportioned part of the claimant’s 2009 impairment rating to her 1998 non-industrial motor vehicle accident and 2005 industrial injury. The ALJ found that the DIME physician’s apportionment was in error because the prior injuries did not involve the same body part as that involved in with the February 17, 2009 industrial injury.
The ALJ awarded the claimant a 19 percent whole person impairment rating as a result of the February 17, 2009 industrial injury. The respondents bring this appeal contending that the ALJ erred in determining that the claimant had successfully overcome the opinion of the DIME physician by clear and convincing evidence.
We note preliminarily that the DIME physician’s medical impairment rating is binding unless overcome by “clear and convincing evidence.” Section 8-42-107(8)(c), C.R.S. 2009; Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo. App. 1995). The Workers’ Compensation Act requires that all physical impairment ratings be conducted in accordance with the American Medical Association Guidelines to the Evaluation of Permanent Impairment, Third Edition, Revised (AMA Guides). The medical impairment rating of the DIME physician is binding on the parties and the ALJ unless overcome by clear and convincing evidence. § 8-42-107(8)(c), C.R.S. Clear and convincing evidence is evidence demonstrating that it is “highly probable” that the DIME physician’s rating is incorrect American Compensation Insurance Co. v. McBride, 107 P.3d 973, 980 (Colo. App. 2004). Such evidence must be unmistakable and free from serious or substantial doubt Leming v. Industrial Claim Appeals Office, 62 P.3d 1150 (Colo. App. 2002).
The question of whether the DIME physician’s rating has been overcome by “clear and convincing evidence” is a matter of fact for determination by the ALJ. Metro Moving Storage Co. v. Gussert, 914 P.2d. 411 (Colo. App. 1995). The standard of review is whether the ALJ’s findings of fact are supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. This standard of review is deferential and the scope of our review is “exceedingly narrow.” Metro Moving Storage Co. v. Gussert, supra.
In resolving the issue of whether the DIME physician’s rating has been overcome, the ALJ must consider the factual question of whether the DIME physician properly applied the AMA Guides and other rating protocols. See Metro Moving Storage Co. v. Gussert, supra.
The questions whether the DIME physician properly applied the AMA Guides in arriving at the rating, and ultimately whether the party challenging the rating has overcome it by sufficient evidence are issues of fact for the ALJ. McLane Western Inc. v. Industrial Claim Appeals Office, 996 P.2d 263 (Colo. App. 1999). Proof that a DIME physician deviated from the rating protocols of the AMA Guides does not compel the ALJ to find that the rating has been overcome by clear and convincing evidence.
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Rather, proof of such a deviation constitutes some evidence which the ALJ may consider in determining whether the challenge to the rating should be sustained. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo. App. 2003); Almanza v. Majestic Industries, W.C. No. 4-490-054 (Nov. 13, 2003); Smith v. Public Service Company of Colorado, W.C. No. 4-313-575 (May 20, 2002).
I.
The respondents first contend that the applicable law and substantial evidence does not support the ALJ’s finding the claimant’s prior industrial impairment rating should not be apportioned from the current impairment rating. The respondents argue that the ALJ’s decision not to apportion any of the rating to the claimant’s prior industrial impairment is in violation of § 8-42-104(5)(a) C.R.S. We are not persuaded that the ALJ committed reversible error.
It is provided in § 8-42-104(5)(a) that in cases of permanent medical impairment, the employee’s award or settlement shall be reduced:
When an employee has suffered more than one permanent medical impairment to the same body part and has received an award or settlement under the `Workers’ Compensation Act of Colorado’ or a similar act from another state. The permanent medical impairment rating applicable to the previous injury to the same body part, established by award or settlement, shall be deducted from the permanent medical impairment rating for the subsequent injury to the same body part. (Emphasis supplied)
Here the ALJ determined that the DIME physician had erroneously apportioned the claimant’s 2009 impairment rating to her 1998 non-industrial motor vehicle accident and 2005 industrial injury because both the prior injuries did not involve the “same body part.” In coming to that conclusion the ALJ made extensive findings of fact, some of which we set forth below.
On December 11, 2005 the claimant suffered an admitted industrial injury to her lower back. The authorized treating physician (ATP) was Dr. Wunder. Dr. Wunder stated that the claimant had suffered a chronic lumbar strain with right sacroiliac (SI) joint dysfunction. On July 10, 2006 Dr. Wunder concluded that the claimant had reached MMI for the December 11, 2005 industrial injury. Dr. Wunder’s final diagnosis was that the claimant sustained a lumbar strain. Dr. Wunder determined that the claimant was entitled to a 20 percent whole person impairment rating. However, Dr. Wunder apportioned 13 percent of the claimant’s rating to her 1998 non-industrial motor vehicle accident. Dr. Wunder thus assigned the claimant a seven percent whole person impairment rating for her December 11, 2005 industrial lower back injury. The
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respondents filed a Final Admission of Liability based on Dr. Wunder’s seven percent whole person impairment rating. The claimant, following her February 17, 2009 industrial injury under review here, was again seen by Dr. Wunder for an evaluation on April 8, 2010. Dr. Wunder diagnosed the claimant with “right sacroiliac joint dysfunction versus right L4-5 facet dysfunction.” Dr. Wunder concluded that the claimant’s pain generator was the right sacroiliac joint and there should be no apportionment for the claimant’s previous lumbar fusion surgery and that the claimant was entitled to a 19 percent whole person impairment rating.
As noted above, the respondents challenged Dr. Wunder’s impairment determination and sought a DIME. The DIME physician determined the claimant had suffered a 17 percent whole person impairment, but apportioned the majority of the claimant’s impairment to her 1998 non-industrial motor vehicle accident and 2005 industrial injury, leaving a one percent whole person impairment rating attributable to the February 17, 2009 injury.
During the challenge to the opinion of the DIME physician the testimony of Dr. Wunder was taken. Dr. Wunder explained that the claimant sustained a right-side SI joint dysfunction as a result of the February 17, 2009 industrial injury. Dr. Wunder stated that the 1998 motor vehicle accident caused discogenic pain that was relieved by her lumbar fusion. Dr. Wunder also explained that the 2005 industrial injury involved an aggravation of her prior lumbar surgery. Dr. Wunder opined that the 2005 industrial injury did not involve the SI joint as the probable pain generator. Therefore Dr. Wunder concluded that the 1998 non-industrial injury and the 2005 industrial injury did not affect the same body part as the February 17, 2009 incident. Dr. Wunder testified that the DIME physician failed to distinguish the lumbar spine from the right-side SI joint as separate body parts. Dr. Watson acknowledged that the L5-S1 lumbar level and SI joint constituted different body parts. Watson Depo. at 22. The DIME physician also agreed that the sacroiliac joint is not the same body part as the lumbar spine. Reiss Depo. at 22. The ALJ was persuaded by Dr. Wunder’s explanation.
The ALJ and the respondents both cited Nunez-Talavera v. Pipeline Industries, Inc. W.C. No. 4-679-964 (January 04, 2008). In Nunez, the Panel noted that the statutory reference to the term “body part” implicates the AMA Guides. Section 8-42-101(3.5)(a)(II), C.R.S. requires the Director of the Division of Workers’ Compensation to establish medical impairment rating guidelines “for impairment ratings as a percent of the whole person or affected body part” based on the AMA Guides. W.C. Rule of Procedure 12-3, 7 Code Colo. Reg. 1101-3, provides for the apportionment of permanent impairment ratings for pre-existing permanent medical impairment as it existed at the time of the subsequent injury. However, the Panel in Nunez was unable to find any definition of “body part” and again no party here has directed us to such a definition. To
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the extent that the term “body part” is ambiguous, the Panel i Nunez noted that the legislative intent of the 1999 amendments to § 8-42-104 was an effort to eliminate claimants from essentially being paid twice for their impairments.
In our opinion the evidence does not compel the conclusion that the claimant here received double payment for her impairment. The respondents argue that for purposes of determining the “body part” that was injured the spine is divided into three regions consisting of the cervical, thoracic, and lumbar. We acknowledge that the spine, according to the AMA Guides, consists of three major regions: cervical, thoracic and lumbar. However, we are not persuaded that § 8-42-104 requires that injuries to the SI joint, which is a body part adjacent to the general lumbar spine area, must be considered as the same “body part” as the lumbar spine for purposes of the apportionment of the pre-existing permanent medical impairment.
In this context we note that the respondents have cite Nichols v. Denver Publishing Co., W.C. No. 4-248-693 (September 21, 2000). In Nichols, the claimant, prior to his industrial injury, had undergone a discetomy and fusion of the cervical spine at C6-7. Following the industrial injury the claimant underwent a discetomy and fusion of the cervical spine at C5-6. The DIME physician apportioned the claimant’s overall 19 percent whole person impairment rating and opined that the claimant had ten percent whole person impairment due to the industrial injury. The ALJ found that even though the claimant had a prior impairment, that impairment was not disabling at the time of the subsequent industrial injury and awarded the claimant 19 percent whole person impairment with no apportionment. In Nichols the Panel rejected the respondents’ argument that each “level” of the claimant’s cervical impairment constituted a separate “component” of the impairment and therefore the ALJ was required to defer to the DIME physician on the issue of “causation.” The Panel held that a particular “component” of impairment refers to a unit of impairment which was individually ratable under the AMA Guides. I Nichols the ratable components of the claimant’s overall impairment involved specific disorders of the cervical spine. Therefore, the Panel held that the case involved the relative contributions of occupational and nonoccupational facts to the claimant’s cervical impairment, not a determination of whether an entire component of the claimant’s impairment was unrelated to the industrial injury. Thus, the provisions of the apportionment statute applied and the Panel found that the ALJ properly applied § 8-42-104 because the claimant’s pre-existing impairment attributable to the spinal fusion was asymptomatic and not disabling at the time of the industrial injury and apportionment was inappropriate as a matter of law. We note that Nichols
involved a 1995 date of injury. We further note that § 8-42-104 was amended in 1999 for injuries occurring after 1999 and was again substantially amended for in 2008 for injuries occurring after 2008. See Colo. Sess. Laws, 2008, Ch. 357 at 1676; and Colo. Sess. Laws, 1999, Ch. 141 at 410. In Nichols the Panel noted that the result was consistent with the AMA Guides
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principles for rating spinal impairment. As noted above, the AMA Guides state that the spine consists of three regions: cervical, thoracic, and lumbar. Ratings for separate regional impairment of the spine are combined when rating the overall spinal impairment. Thus, the AMA Guides treat the cervical spine as a single unit for purpose of rating impairment.
In contrast to Nichols, which involved injuries to the cervical spine at two locations, one at C6-7 and the other at C5-6, here, Dr. Wunder testified that that the body part involved in the 2009 industrial injury was not the same body part that was involved in the 1998 motor vehicle accident. Wunder Depo. at 13-14. Dr. Wunder explained that the low back pain from the auto accident was discogenic low back pain and the 2009 injury was not discogenic. Rather, the 2009 accident did not result in pain localized at the lumbar disk levels, but involved the sacroiliac joint. Wunder Depo. at 13-15, 17. Dr. Wunder did not think that the claimant’s pain related to her previous injury or surgery. Wunder Depo. at 13-15, 19. Dr. Wunder, following impairment rating “Tips from the Division of Workers’ Compensation,” found a SI joint dysfunction would be rated under Table 53 II(B). Plaintiffs Exhibit 18; Wunder Depo. at 19-20. Dr. Wunder opined that the DIME physician erred by not rating the SI joint dysfunction as a separate body part. Wunder Depo. at 31-32.
We are not persuaded that the ALJ’s refusal to allow reduction of the claimant’s present impairment ratings in this case by approving the DIME physician’s apportionment of the claimant’s impairment would resulted in multiple compensation for the same impairment. The ALJ’s order reflects that he considered the competing evidence in the record and applied the correct burdens of proof, although we might have decided the case differently had we been sitting as the ALJ. Mosley v. Industrial Claim Appeals Office, 78 P.3d 1150, 1153 (Colo. App. 2003).
In our view, the ALJ’s determination is also consistent to the Panel’s decision in Mireles v. R.R. Donnelley Sons, W. C. No. 4-262-587 (February 26, 2002). In Mireles, the Panel noted that the AMA Guides sometimes provide that the rating for an injury to one structure of the spine may be increased based on prior injury to other structures within the same spinal region. However, here we understand the ALJ to have found that the 2009 industrial injury had caused a SI joint dysfunction, which was a separate injury to a different body part than the injury to the lumbar spinal unit, which occurred in the previous injury 2005 industrial injury and 1998 nonindustrial motor vehicle injury.
The determination of whether the 2009 industrial caused an injury to a different body part than the injury to the lumbar spinal unit, which occurred in the previous 2005 industrial injury, is a finding of fact to be made by the ALJ. Because the issue is factual in nature, we must uphold the ALJ’s determination if supported by substantial evidence
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in the record. Section 8-43-301(8), C.R.S. As noted above, this standard of review requires us to consider the evidence in a light most favorable to the prevailing party, and defer to the ALJ’s credibility determinations, resolution of conflicts in the evidence, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, supra. In our view there is substantial evidence, outlined above, that is in the record to support the ALJ’s determination.
II.
The respondents next contend that applicable law and substantial evidence does not support the ALJ’s finding that the claimant’s prior non-industrial impairment rating should not be apportioned from the current impairment rating. We again are not persuaded that the ALJ committed reversible error.
It is provided in § 8-42-104(5)(b) that in cases of permanent medical impairment, the employee’s award or settlement shall be reduced:
When an employee has a nonwork-related previous permanent medical impairment to the same body part that has been identified, treated, and, at the time of the subsequent compensable injury, is independently disabling. The percentage of the nonwork-related permanent medical impairment existing at the time of the subsequent injury to the same body part
shall be deducted from the permanent medical impairment rating for the subsequent compensable injury. (Emphasis supplied)
In coming to the conclusion that the DIME physician had erroneously apportioned part of the claimant’s impairment rating to the 1998 non-industrial motor vehicle accident the ALJ essentially made the findings of fact we set forth above in discussing the prior industrial injury. The ALJ was persuaded by the testimony of Dr. Wunder and found that the 1998 non-industrial motor vehicle accident did not involve the same body part as the February 17, 2009 industrial accident involved here. Therefore, the ALJ found that the claimant had produced clear and convincing evidence to overcome the DIME physician’s impairment rating for the claimant’s February 17, 2009 injury. We again are bound by the ALJ’s determination that the 1998 non-industrial motor vehicle accident did not involve the same body part as the February 17, 2009 industrial accident. Because the ALJ’s factual finding is supported by substantial evidence we are bound by it. Section 8-43-301(8), C.R.S.
IT IS THEREFORE ORDERED that the ALJ’s order dated November 18, 2010 is affirmed.
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INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Thomas Schrant
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TERI KING, P O BOX 368, DRAKE, CO, (Claimant).
STARBUCKS, FORT COLLINS, CO, (Employer).
ZURICH AMERICAN INSURANCE COMPANY, Attn: DAVE REED, C/O: GALLAGHER BASSETT SERVICES, INC., ENGLEWOOD, CO, (Insurer).
HOGGATT LAW OFFICE, PC, Attn: DARBY L. HOGGATT, ESQ., FORT COLLINS, CO, (For Claimant).
THOMAS, POLLART MILLER, LLC, Attn: ILENE H. FELDMEIER, ESQ./BRAD J. MILLER, ESQ., GREENWOOD VILLAGE, CO, (For Respondents).
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