Opinion
W.C. No. 4-201-880
January 13, 1998
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Rumler (ALJ) which awarded permanent partial disability benefits based upon 38 percent whole person impairment. We affirm.
On January 19, 1994, the claimant suffered multiple injuries arising out of her employment. During the course of treatment the claimant was seen by Dr. Carbaugh, who diagnosed moderate depression and recommend individual psychotherapy.
On December 11, 1995 Dr. Lambden conducted a Division-sponsored independent medical examination (IME) on the issue of permanent impairment. Dr. Lambden recognized that the claimant received treatment for depression. However, he did not include a rating for psychological impairment. Dr. Lambden also noted the possibility that the industrial injury caused permanent impairment of the claimant's wrists. However, Dr. Lambden reported that he was unable to rate this impairment without review of the claimant's nerve conduction studies. Therefore, he did not include a rating for wrist impairment.
Further, Dr. Lambden apportioned 50 percent of the claimant's impairment to preexisting conditions. As a result, Dr. Lambden opined that the industrial injury caused impairment of the claimant's back, left knee and left shoulder resulting in a 15 percent whole person impairment.
In June 1996, Dr. McCranie rated the claimant's permanent psychological impairment as 8 percent of the whole person. Dr. McCranie apportioned 4 percent impairment to the industrial injury.
The claimant was then evaluated by Dr. Harder. In his report of September 8, 1996, Dr. Harder opined that the claimant suffered a whole person impairment of 35 percent due to impairment of the lumbar spine, left lower extremity, and upper extremities, including bilateral wrist impairment.
The ALJ concluded that Dr. Lambden's rating was "flawed" insofar as Dr. Lambden failed to include a rating for psychological impairment and permanent impairment of the wrists. The ALJ found that prior to the industrial injury, the claimant's preexisting carpal tunnel syndrome, and to a lesser extent her back and knee problems, affected her ability to perform the activities of daily living. Consequently, the ALJ determined that the claimant had "some disability" which would be appropriate to apportion under § 8-42-104(2), C.R.S. 1997. However, crediting the testimony of Dr. Harder, the ALJ found that Dr. Lambden incorrectly applied the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition, Revised (AMA Guides) in apportioning the preexisting impairment. Therefore, the ALJ determined that the claimant sustained her burden to overcome Dr. Lambden's impairment rating by "clear and convincing evidence."
The ALJ further found that, in the absence of Dr. Lambden's erroneous apportionment, there was insufficient evidence in the record properly to apportion the claimant's physical impairment. Therefore, the ALJ determined that apportionment of the claimant's physical impairment was inappropriate, and ordered the respondents to pay permanent partial disability benefits based upon a 38 percent whole person impairment (the combined ratings of Dr. Harder and Dr. McCranie).
I.
On review, the respondents first contend that the record does not support the ALJ's finding that Dr. Lambden's rating is "flawed." We disagree.
Medical impairment ratings must be made in accordance with the AMA Guides. Askew v. Industrial Claim Appeals Office, 927 P.2d 1333 (Colo. 1996). The determination of whether the IME physician has correctly applied the AMA Guides is one of fact for the ALJ. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). Consequently, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1997. Furthermore, application of the substantial evidence test requires that we defer to the ALJ's credibility determinations and plausible inferences drawn from the evidence. Metro Moving Storage Co. v. Gussert, supra.
Here, the ALJ found the opinions of Dr. Harder more persuasive than the opinions of Dr. Lambden. Unlike Dr. Lambden, Dr. Harder reviewed the claimant's EMG studies, and included a rating for wrist impairment.
Similarly, the ALJ's findings of fact reflect that she considered Dr. McCranie's rating of permanent psychological impairment sufficient to overcome the absence of a psychological impairment rating by Dr. Lambden. Under these circumstances, the ALJ could reasonably infer that Dr. Lambden's rating was "flawed" because it was incomplete.
Furthermore, the respondents reliance on the Rule of Procedure, Part XIX(C), 7 Code Colo. Reg. 1101-3 at 123 (1996), is misplaced. Rule XIX(C) provides that a physician should not attempt to apportion medical impairment under the AMA Guides if "there is insufficient information to measure the change" between a preexisting condition and the affects of the industrial injury with accuracy. Because Rule XIX(C) concerns the apportionment of medical impairment and not the rating of a medical impairment, it does not support Dr. Lambden's refusal to assign an impairment rating to the claimant's wrists.
II.
The respondents also argue that, in view of the ALJ's finding that the claimant had "some disability" from her preexisting condition, she ALJ should have apportioned the claimant's physical impairment under § 8-42-104(2). We disagree.
Under § 8-42-104(2), an ALJ may apportion permanent partial disability if the claimant has suffered a "previous disability," and sustains additional disability from a subsequent injury. In Askew v. Industrial Claim Appeals Office, supra, the court held that the term "previous disability" refers to a condition which impairs the claimant's ability to meet the demands of daily life including occupational demands. However, there must also be preexisting impairment which is to be determined by medical means. Askew v. Industrial Claim Appeals Office, supra.
Here, the ALJ determined that the claimant had a "previous disability" for purposes of apportioning medical impairment under § 8-42-104(2). However, she determined that Dr. Lambden's apportionment was inconsistent with the AMA Guides, and this determination is supported by the testimony of Dr. Harder.
Dr. Harder testified that under the AMA Guides it is proper to apportion impairment if there is adequate objective information to support an apportionment. (Tr. pp. 16, 25). For example, he stated that range of motion deficits cannot be apportioned if there is no objective measure of the claimant's range of motion prior to the industrial injury. (Tr. pp. 20, 21).
Based upon his determination that the medical information was insufficient to adequately measure the claimant's preexisting impairment, Dr. Harder opined that it was not appropriate to apportion the claimant's medical impairment. However, he did not state that the AMA Guides preclude apportionment unless a medical impairment "rating" has been assigned to the preexisting condition. (Tr. p. 36). Rather, he stated that the absence of a prior medical impairment rating is one factor which must be considered in determining whether the preexisting condition has been sufficiently documented to support a finding that it contributed to the claimant's disability. (Tr. p. 37, 38).
Insofar as Dr. Harder failed to obtain a thorough medical history from the claimant and did not read "all" of the medical reports which were provided to him those factors go to the weight of his opinions. Thus, the mere existence of these factors did not preclude the ALJ from crediting Dr. Harder's opinions, and we may not substitute our judgment for that of the ALJ concerning the probative value or sufficiency of Dr. Harder's opinions. See Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
Moreover, Dr. Harder's opinions support the ALJ's determination that there is insufficient evidence in the record to accurately determine the extent of the claimant's preexisting disability for purposes of apportionment. Under these circumstances, the ALJ did not err in refusing to apportion the claimant's medical impairment.
The respondents remaining arguments have been considered and do not alter our conclusions. Specifically, it is immaterial whether the record supports the ALJ's finding that Dr. Harder "testified" to Dr. Lambden's error in failing to rate the claimant's psychological impairment because the ALJ found Dr. McCranie's psychological impairment rating persuasive. See A R Concrete Construction v. Lightner, 759 P.2d 831 (Colo.App. 1988). (error which is not prejudicial will be disregarded).
IT IS THEREFORE ORDERED that the ALJ's order dated March 27, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL _______________________________ David Cain _______________________________ Kathy E. DeanNOTICE
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. 1997.
Copies of this decision were mailed January 13, 1998 to the following parties:
Marge Botero, 4665 Elliot, Denver, CO 80211
Rick Urhlaub, City County of Denver, WC Claims, 1445 Cleveland Pl., #200, Denver, CO 80202
City County of Denver, Attn: Olivia Hudson Smith, Esq., 1445 Cleveland Pl., #200, Denver, CO 80202
Pepe J. Mendez, Esq., 700 Broadway Ste. 1101, Denver, CO 80203 (For the Claimant)
Division of Workers' Comp, Attn: Faye Boyd, Coordinator (IME) (Interagency Mail)
BY: ________________________________