Opinion
W.C. No. 4-253-807
January 30, 2001
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Mattoon (ALJ) which awarded the claimant medical impairment benefits based on a 29 percent whole person impairment. The respondents contend the ALJ erred in failing to apportion some of the impairment to the claimant's preexisting hepatitis C (HVC). We affirm.
The claimant sustained a compensable back injury on February 7, 1995, and was diagnosed with a myofascial pain syndrome. The claimant sustained a prior industrial injury in November 1994, when she was stuck with a needle and contracted HVC. However, the HVC was not diagnosed until April 8, 1995.
The treating physician for the 1995 injury placed the claimant at maximum medical improvement (MMI) in April 1996. The treating physician assigned a 27 percent whole person medical impairment based on specific disorders of the cervical, thoracic, and lumbar spine and reduced range of motion in these regions. However, the treating physician opined that half of the claimant's condition is attributable to HVC; therefore, he assigned a 14 percent impairment rating for the 1995 injury.
The claimant underwent a Division-sponsored independent medical examination (DIME) on the issue of medical impairment. The DIME physician assigned a 27 percent whole person impairment rating for specific disorders of the spine and reduced range of motion. The DIME physician also assigned 3 percent impairment for the claimant's depression. Consequently, the overall rating was 29 percent of the whole person. The DIME physician declined to apportion any of the claimant's impairment to the HVC. In support, the DIME physician noted the claimant "stated that she was asymptomatic with regards to neck and back pain prior to the occupational injury." However, the DIME physician also mistakenly stated the needle stick occurred after the industrial back injury.
The ALJ denied the respondents' request to apportion 50 percent of the claimant's impairment to HVC. In support, the ALJ stated that, although the DIME physician incorrectly believed the claimant contracted HVC after the 1995 back injury, the "relevant fact" is that the claimant was "symptom-free until the February 7, 1995 injury." Further, the ALJ found the treating physician's 50 percent apportionment was "conclusory" and did not show a high probability that the DIME physician's rating was incorrect. The ALJ specifically found that the treating physician "neither describes the symptoms which he ascribes to the hepatitis, nor what portion of his range of motion test results he ascribes to hepatitis." Further, the ALJ noted the treating physician did not "explain the common symptoms of hepatitis, or whether they are similar to or different from what can be expected from the neck and back injury."
On review, the respondents contend that ALJ erred in failing to apportion the claimant's medical impairment rating based on the symptoms of HVC. First, the respondents assert the ALJ was "mistaken" in concluding that HVC "does not produce symptoms similar to those" attributed to the 1995 back injury. The respondents point out that the treating physician provided care for both HVC and the back injury, and that Dr. Brooke stated HVC can cause "flu like symptoms with aching and chills and tiredness." The respondents further argue that it is irrelevant whether the claimant suffered any HVC symptoms prior to the February 1995 injury because the development of HVC symptoms coincided with the claimant's injury-related symptoms. We are not persuaded.
Under the law applicable to this injury, apportionment is determined by "computing the percentage of the entire disability and deducting therefrom the percentage of the previous disability as it existed at the time of the subsequent injury." Section 8-42-104(2), C.R.S. 1998 [amended for injuries occurring on or after July 1, 1999]. In Askew v. Industrial Claim Appeals Office, 927 P.2d 1333 (Colo. 1996), the court interpreted this statute to mean that apportionment based on an asymptomatic preexisting condition is not proper unless the preexisting condition was "disabling" at the time of the subsequent injury. Further, the Askew court held that apportionment of pre-existing impairment is not proper unless the impairment has been "sufficiently identified, treated, or evaluated to be rated as a contributing factor in the subsequent disability." In Askew, the later criterion was not fulfilled because the preexisting degenerative arthritis was not diagnosed before the industrial injury; therefore, there was no medical basis to establish the level of impairment prior to the industrial accident.
Ultimately, the question of whether there is a sufficient medical record to establish a basis for apportionment is an issue of fact for determination by the DIME physician. Consequently, the ALJ may not interfere with the DIME physician's opinion concerning apportionment unless it is a overcome by clear and convincing evidence. We must uphold the ALJ's finding if supported by substantial evidence in the record. Wackenhut Corp. v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. 00CA0061, October 26, 2000). The substantial evidence test requires us to defer to the ALJ's resolution of conflicts in the evidence, her credibility determinations, and the plausible inferences she drew from the record. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). Further, the ALJ is not held to a standard of absolute clarity in expressing findings of fact so long as the basis of the award is clear from the order. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).
Here, we find no error in Finding of Fact 9 where the ALJ stated the treating physician failed to explain the common symptoms of HVC and compare them to symptoms caused by the back injury. Read in connection with Conclusion of Law 4, we understand the ALJ to have found that although HVC can cause back pain, neither the treating physician nor any other physician set forth a clear and understandable basis for determining what portion of the claimant's back pain is attributable to HVC and what portion is attributable to the industrial injury. As the ALJ found, the treating physician set forth no detailed explanation of the basis of his apportionment, and did not cite medical records justifying the apportionment.
Moreover, the record supports the ALJ's conclusion that the respondents failed to overcome the DIME physician's refusal to apportion. The respondents are incorrect in stating that it is "irrelevant" whether, as a result of HVC, the claimant developed back symptoms prior to February 7, 1995. As held in Askew, apportionment based on a preexisting condition is not appropriate unless the preexisting condition has been identified, treated, or evaluated so as to provide a basis for apportionment. Here, the DIME physician noted the claimant gave no history of back pain before the industrial injury. In fact, HVC was not even diagnosed until after the industrial injury. Further, the treating physician did not explain how his apportionment is supported by the medical records. Therefore, the record justifies the ALJ's determination that the respondents failed to present sufficient evidence to overcome the DIME physician's rating with regard to apportionment.
IT IS THEREFORE ORDERED that the ALJ's order dated June 14, 2000, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Dona Halsey
NOTICE
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, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2000. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed January 30, 2001 to the following parties:
Tammy Manzanares, 2029 S. Corona, Colorado Springs, CO 80906
Quality Linen and Supply, Central Uniform Linen, 802 Wahsatch Ave., Colorado Springs,
CO 80903-4115
Brian Siegal, Liberty Mutual Insurance Company, 13111 E. Briarwood Ave., #100, Englewood, CO 80112
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909-4349 (For Claimant)
David G. Kroll, Esq., 1120 Lincoln St., #1606, Denver, CO 80203 (For Respondents)
BY: A. Pendroy