Opinion
W.C. No. 3-108-286
January 14, 1997
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Martinez (ALJ) which declined to apportion the claimant's permanent partial disability benefits between the effects of the industrial injury and a preexisting condition. We affirm.
The ALJ found that the claimant sustained a compensable back injury in April 1992. At least one of the claimant's physicians, Dr. Macon, opined that the claimant sustained an industrial aggravation of her underlying condition, which he described as "spondylolisthesis of the L5 vertebra on the S1 vertebra."
Following attainment of maximum medical improvement, the claimant's degree of medical impairment was evaluated by a Division-sponsored independent medical examiner (IME) Dr. Winkler. Dr. Winkler opined that the claimant had an eleven percent medical impairment of the whole person attributable to "pathology in her lumbosacral spine." However, utilizing the American Medical Association Guides to the Evaluation of Permanent Impairment, 3rd Edition, Revised (AMA Guides), Dr. Winkler apportioned six percent of the impairment to the claimant's preexisting spondylolysis and spondylolisthesis.
The ALJ concluded that Dr. Winkler's apportionment was overcome by clear and convincing evidence. In support of this determination, the ALJ credited the claimant's testimony that, although she occasionally experienced sore back muscles prior to the industrial injury, she had never experienced muscle spasms, pain or rigidity for a six-month period of time. The ALJ also relied on a portion of Dr. Winkler's deposition testimony in which he stated that the AMA Guides do not permit apportionment to preexisting spondylolysis or spondylolisthesis absent "a minimum of six months of medically documented pain and rigidity, with or without muscle spasm." Consequently, the ALJ awarded the claimant permanent partial disability benefits based on medical impairment of eleven percent as a whole person.
On review, the respondents assert that the ALJ erred in failing to apportion the claimant's award of medical impairment benefits based upon her preexisting non-industrial conditions. In essence, the respondents argue that claimant's preexisting conditions constitute a separate and identifiable cause of the claimant's overall impairment, and therefore, should have been apportioned in accordance with Dr. Winkler's IME report. We disagree.
In our view, Askew v. Industrial Claim Appeals Office, ___ P.2d ___ (Sup.Ct. No. 95SC489, December 3, 1996), is dispositive of the respondents' argument. In Askew, the court rejected an IME physician's apportionment of medical impairment between an asymptomatic preexisting back condition and the effects of the claimant's industrial injury. Relying on § 8-42-104(2), C.R.S. (1996 Cum. Supp.), and the apportionment provisions of the AMA Guides, the court held that 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." Moreover, the court indicated that preexisting conditions which are "dormant or asymptomatic prior to an industrial injury cannot be evaluated adequately for purposes of apportionment." Because Askew's preexisting back condition was asymptomatic prior to the industrial injury, the court determined as a matter of law that apportionment was arbitrary and not supported by the record.
Here, as in Askew, the record indicates that the claimant's preexisting back conditions were dormant and asymptomatic prior to the industrial injury. Moreover, the ALJ credited Dr. Winkler's testimony that the claimant's preexisting back conditions would not have been rateable under the AMA Guides unless she had sustained six months of medically documented pain or rigidity. Since the ALJ has found that the claimant had no such symptoms prior to her injury, he correctly determined that the record does not support apportionment.
IT IS THEREFORE ORDERED that the ALJ's order dated August 8, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Dona HalseyNOTICE 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. (1996 Cum. Supp.).
Copies of this decision were mailed January 14, 1997 to the following parties:
Melanie Kardokus, 618 E. 4th St., Cortez, CO 81321
Mathews Furniture Co., Inc., 720 E. Coal Ave., Gallup, NM 87301
Colorado Compensation Insurance Authority, Attn: Michael J. Steiner, Esq. (Interagency Mail)
I.M.E. Unit, Attn: Faye Boyd (Interagency Mail)
Scot Houska, Esq., 744 Horizon Ct., Ste. 360, Grand Junction, CO 81506 (For the Respondents)
Gail Harriss, Esq., 572 E. Third Ave., Durango, CO 81301 (For the Claimant)
By: ______________________________________________