Summary
In Johnson, we noted that Askew and the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition (Revised) (AMA Guides), define apportionment as "the determination of the degree to which each of various occupational and nonoccupational has contributed to a particular impairment."
Summary of this case from IN RE CUDO, W.C. NoOpinion
W.C. No. 4-354-266
October 5, 1999
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Corchado (ALJ) which awarded permanent partial disability benefits based on medical impairment of 10 percent of the whole person. The claimant contends the ALJ improperly apportioned the Division-sponsored independent medical examiner's (IME) 17 percent whole person impairment rating because any pre-existing impairment was not "disabling." We agree with the claimant, and therefore, modify the ALJ's order to provide for permanent partial disability benefits based on a 17 percent whole person impairment.
In April 1994 the claimant sustained a non-industrial back injury which required lumbar surgery. The ALJ found that the claimant "fully recovered from the surgery with no residuals." Further, the claimant was eventually released to "full duty employment" and returned to her regular job as a nursing assistant with the respondent-employer. (Findings of Fact 1, 9).
On August 18, 1997, the claimant sustained a compensable back injury. The claimant was treated conservatively for a back strain and placed at maximum medical improvement on March 25, 1998. The treating physician assessed a 10 percent whole person impairment. The claimant was dissatisfied with the rating and requested a Division-sponsored IME.
The Division IME physician assessed an overall impairment rating of 17 percent of the whole person. The rating was derived from a 10 percent whole person impairment rating for a specific disorder of the spine under Table 53 of the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition (Revised), (AMA Guides), a 2 percent whole person impairment for left leg radiculopathy, and a 6 percent whole person impairment rating for lost range of motion. However, the IME physician deducted 8 percent impairment from the overall rating because he determined that, under Table 53 II (D) of the AMA Guides, the claimant had a non-work-related and pre-existing impairment attributable to the 1994 injury and surgery. Consequently, the IME physician's injury-related impairment rating was 10 percent of the whole person.
At the hearing the claimant did not dispute the IME physician's numerical assessment of her impairment. Rather, the claimant argued the IME physician's deduction of the 8 percent constituted an improper "apportionment" because any impairment attributable to the 1994 injury was not "disabling" the time of the 1997 industrial injury.
However, the ALJ disagreed and concluded the claimant failed to overcome the Division IME physician's 10 percent impairment rating by clear and convincing evidence. The ALJ reasoned that the IME physician did not "apportion" the impairment rating, but instead determined that the 8 percent impairment attributable to the pre-existing condition was not causally related to the industrial injury. The ALJ concluded the IME physician's finding concerning the cause of the claimant's impairment could be overcome only by clear and convincing evidence, and the claimant failed to present sufficient evidence to show the Division IME misapplied Table 53.
On review, the claimant reiterates his contention that deduction of the 8 percent impairment for the prior back surgery constitutes an improper "apportionment" of the impairment rating because, under former § 8-42-104(2), C.R.S. 1998 [significantly amended in 1999 for injuries occurring on or after July 1, 1999], any prior impairment was not "disabling" at the time of the 1997 industrial injury. The claimant also argues the ALJ misapplied the burden of proof by requiring her to overcome the Division IME physician's rating by clear and convincing evidence on the issue of disability. For their part, the respondents argue the ALJ correctly characterized the issue as one of "causation" rather than "apportionment," and properly applied the burden of proof. We conclude the issue is correctly characterized as one of "apportionment," and the ALJ's findings of fact establish the claimant's pre-existing lumbar impairment was not disabling. Therefore, we hold as a matter of law that the claimant is entitled to permanent partial disability benefits based on the 17 percent whole person impairment.
Resolution of the issues in this case requires us to consider and harmonize two competing lines of cases which address the proper role of pre-existing conditions when rating medical impairment under § 8-42-107(8)(c), C.R.S. 1999. One line of cases, exemplified by Askew v. Industrial Claim Appeals Office, 927 P.2d 1333 (Colo. 1996), applies § 8-42-104(2) and holds that "apportionment" based on pre-existing impairment is not proper unless the impairment is independently disabling at time the industrial injury. See also, Lambert Sons, Inc, v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 97CA1774, July 9, 1998). Another line of cases, exemplified by Qual-Med, Inc. v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998), holds that a Division IME physician's determination concerning the "cause" of an impairment is binding unless overcome by clear and convincing evidence. See also, Egan v. Industrial Claim Appeals Office, 971 P.2d 664 (Colo.App. 1998).
We previously addressed the tension between these two lines of cases in Esquibel v. Denver Public Schools, W.C. No. 4-329-119 (February 11, 1999). In that case, the Division IME physician assessed a 38 percent whole person impairment attributable to specific disorders of the spine and to lost range of motion. The respondents presented medical evidence that the claimant suffered from a pre-existing degenerative disorder which was responsible for that portion of the impairment attributable to lost range of motion. The ALJ determined the respondents overcame the Division IME by clear and convincing evidence by proving the lost range of motion was not caused by the industrial injury, but rather by the pre-existing condition.
In Esquibel, we cited Qual-Med and upheld the ALJ's order because the evidence supported the determination that there was no causal relationship between the industrial injury and the lost range of motion. However, we also noted that Askew and the AMA Guides define apportionment as "the determination of the degree to which each of various occupational or nonoccupational factors has contributed to a particular impairment." (Emphasis added). Askew v. Industrial Claim Appeals Office, 927 P.2d at 1335, fn. 2.
In our view, the definition of "apportionment" contained in Askew and the AMA Guides establishes the line of demarcation between issues of "apportionment" for purposes of § 8-42-104(2), and issues of "causation" under § 8-42-107(8)(c). Thus, the ALJ must determine whether the IME physician is purporting to determine the relative contributions of occupational and nonoccupational factors to a particular aspect of the claimant's overall impairment, or whether the IME physician is purporting to determine whether an entire component of the overall impairment is or is not related to the industrial injury. If the ALJ determines the IME physician is attempting to ascertain the relative contributions of occupational and nonoccupational factors to a particular component of the impairment the issue is one of "apportionment" subject to § 8-42-104(2). Conversely, if the IME is determining whether an entire component of the impairment is or is not related to the industrial injury the issue is one of causation, and the IME physician's determination is entitled to deference under § 8-42-107(8)(c).
This theoretical distinction serves to explain the differences in the published case law. In Askew, which was adjudicated under § 8-42-104(2), the issue concerned whether or not the claimant's impairment of the back should be "apportioned" between the effects of the industrial injury and a pre-existing asymptomatic osteoarthritis. Similarly, in Lambert Sons the issue concerned whether or not the claimant's back impairment was the result of the industrial injury or a prior industrial injury. In contrast, the claimants in Qual-Med and Egan were assigned ratings based on separate upper extremity and cervical impairments. The issue in those cases concerned whether or not the distinct cervical impairments were causally related to the industrial injuries.
Further, this analysis is consistent with the concept of "apportionment" set down by Askew. Askew explicitly recognizes that "impairment" and "disability" are distinct concepts. Impairment pertains to a person's health status and is assessed by medical means. Disability pertains to a person's capacity to meet personal, social, or occupational demands, and is assessed by nonmedical means. Thus, an impairment may exist without causing any disability. Askew v. Industrial Claim Appeals Office, 927 P.2d at 1337; Baldwin Construction Inc. v. Industrial Claim Appeals Office, 937 P.2d 895 (Colo.App. 1997). Askew necessarily contemplates that where occupational and nonoccupational factors contribute to a particular component of the claimant's overall impairment, the claimant is entitled to benefits based on the entire impairment rating unless the pre-existing impairment was independently disabling at the time of the subsequent injury.
It is true, as the respondents argue, that under Askew a claimant may receive compensation based on impairment which is, to some degree, not causally related to an industrial injury. However, the formula established by Askew recognizes that some pre-existing impairments, which are not causally related to the industrial injury, have no impact whatsoever on the claimant's earning capacity and do not produce any "disability" unless aggravated or exacerbated by a subsequent industrial injury. Similarly, pre-existing impairment which was once disabling may improve to the point that it is no longer disabling. Such pre-existing impairments may again become disabling when aggravated by a subsequent industrial injury. Thus, the Askew formula does no more than recognize the traditional workers' compensation principle that when an industrial injury precipitates disability from a latent pre-existing condition the entire disability is compensable. Askew v. Industrial Claim Appeals Office, 927 P.2d at 1338; Subsequent Injury Fund v. Thompson, 793 P.2d 576 (Colo. 1990).
Applying these principles, we conclude the ALJ erred as a matter of law in determining that the IME physician was considering an issue of "causation" rather than "apportionment" when he deducted the 8 percent impairment from the claimant's overall 17 percent impairment rating. Here, the IME physician utilized Table 53 of the AMA Guides to assign an overall 10 percent impairment for specific disorders of the lumbar spine. The IME physician also used Table 53 as the basis for deducting 8 percent impairment because of the claimant's pre-existing "surgically treated disc lesion with no residual signs or symptoms." Consequently, the IME physician was determining the relative contributions of occupational and nonoccupational factors to a particular component (specific disorders of the lumbar spine) of the claimant's overall impairment. As we have held, determination of the relative contributions of occupational and nonoccupational factors to a particular component of impairment constitutes "apportionment" subject to the dictates of § 8-42-104(2).
Further, we conclude that the ALJ's findings of fact compel the legal conclusion that apportionment is not appropriate. The question of whether the pre-existing impairment was "disabling" of the time of the industrial injury is usually one of fact for determination by the ALJ. See Absolute Employment Services, Inc. v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 98CA1200, September 16, 1999). However, if the evidence shows that the claimant's pre-existing condition was asymptomatic and not disabling, apportionment is improper as a matter of law. Askew v. Industrial Claim Appeals Office, supra. Here, the ALJ found that the claimant suffered no "residuals" and "fully recovered" from surgery after the 1994 injury. The ALJ also found the claimant's condition was "mostly asymptomatic" until August 18, 1997, and that she was returned to "full duty employment" after the 1994 injury. In light of these factual findings the ALJ implicitly determined that, by the time of the 1997 injury, any impairment resulting from the 1994 injury was not disabling because it did not adversely affect the claimant's ability to perform her job, or otherwise limit her access to the labor market. Absolute Employment Services, Inc. v. Industrial Claim Appeals Office, supra.
In light of this determination, we need not consider the claimant's assertion that the ALJ misapplied the burden of proof. Regardless of the burden of proof, the ALJ's findings of fact compel the conclusion that apportionment is not proper.
IT IS THEREFORE ORDERED that the ALJ's order dated February 28, 1999, is modified to provide that the claimant is entitled to receive permanent partial disability benefits based on a 17 percent whole person medical impairment rating.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to 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 the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. 1999.
Copies of this decision were mailed October 5, 1999 the following parties:
Cathy Johnson, 404 Indian Bay Dr., Sherwood, AR 72120
Christian Living Center, 5000 E. Arapahoe Rd., Littleton, CO 80122-2302
American Compensation Insurance, RTW Colorado, Inc., Attn: Lynn Estes, P.O. Box 6541, Englewood, CO 80155-6541
William J. Macdonald, Esq., 1890 Gaylord St., Denver, CO 80206 (For Claimant)
Douglas A. Thomas, Esq., 600 17th St., #1600N, Denver, CO 80202 (For Respondents)
BY: A. Pendroy