Opinion
W.C. No. 4-442-919
May 17, 2002
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Stuber (ALJ) which awarded permanent partial disability benefits based on medical impairment of 28 percent to the whole person. We affirm.
In December 1999 the claimant suffered a compensable injury when he fell 20 to 30 feet through a hole in a building floor. The claimant was diagnosed with multiple rib fractures, bilateral scapular fractures and Grade I spondylolisthesis at L5-S1. Dr. Bergland explained that spondylolisthesis refers to a slippage of one of the vertebra on another vertebra. (Tr. p. 43).
In May 2000 Dr. Bergland placed the claimant at maximum medical improvement (MMI) and assigned a permanent impairment rating of 31 percent of the whole person. Insofar as pertinent, Dr. Bergland assigned 8 percent impairment for Grade I spondylolisthesis under Table 53(III)(A) of the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition, Revised (AMA Guides).
On September 12, 2000, Dr. Aschberger performed a Division-sponsored medical examination (DIME) under the provisions of § 8-42-107(8)(c), C.R.S. 2001. Dr. Aschberger assigned a total rating of 22 percent whole person impairment. Specifically, Dr. Aschberger assigned 9 percent impairment to the right upper extremity, and 8 percent impairment to the left upper extremity due to range of motion deficits. Dr. Aschberger also assigned 10 percent impairment for bilateral shoulder crepitation, for a total of 16 percent whole person impairment. Further, Dr. Aschberger assigned 5 percent for a soft tissue injury to the lumbar spine under Table 53(II)(B) of the AMA Guides, and 2 percent impairment for range of motion deficits to the lumbar spine. Dr. Aschberger did not assign a rating for spondylolisthesis.
At hearing, Dr. Bergland testified that Dr. Aschberger erroneously assumed the spondylolisthesis was pre-existing. Based upon the traumatic nature of the industrial accident, which was sufficient to cause fractured ribs in both scapula, and the absence of any indication of pre-existing spondylolisthesis, Dr. Bergland opined the spondylolisthesis was caused by the industrial accident. Therefore, Dr. Bergland testified that the resulting impairment was properly attributed to the industrial injury. (Tr. pp. 42, 43, 56, 76).
The respondents filed a Final Admission of Liability consistent with Dr. Aschberger's 22 percent impairment rating. The claimant objected and requested a hearing to overcome the DIME physician's rating. Relying on the opinions of Dr. Bergland, the claimant requested additional medical impairment benefits based on 8 percent impairment for Grade I spondylolisthesis.
The ALJ found the DIME physician's failure to include a rating for spondylolisthesis represented an issue of "apportionment," not "causation." Therefore, the ALJ determined the claim was governed by the apportionment provisions currently codified at § 8-42-104(2)(b), C.R.S. 2001, which applies to injuries on or after July 1, 1999. See 1999 Colo. Sess Laws, Ch. 141 at 410. As amended, § 8-42-104(2)(b) provides that:
"Where benefits are awarded pursuant to § 8-42-107, an award of benefits for an injury shall exclude any previous impairment to the same body part."
The ALJ also concluded that because the amendments to § 8-42-104(2) retained the apportionment/causation dichotomy, the respondents had the burden to prove by a preponderance of evidence that the claimant had "previous impairment to the same body part."
Crediting the testimony of Dr. Bergland, the ALJ found the mechanism of the injury was the cause of the claimant's spondylolisthesis. The ALJ also found there was no medical record or other evidence to substantiate pre-existing impairment from the spondylolisthesis. Consequently, the ALJ determined the DIME physician's rating was incomplete insofar as Dr. Aschberger failed to include an 8 percent rating for Grade I spondylolisthesis and that the respondents failed to sustain their burden to prove the claimant had pre-existing impairment from the spondylolisthesis. Therefore, the ALJ ordered the respondents to pay permanent partial disability benefits based on a combination of Dr. Aschberger's 22 percent rating and 8 percent for Grade I spondylolisthesis. The respondents timely appealed.
I.
On review the respondents contend the ALJ misinterpreted § 8-42-104(2)(b) as requiring the respondents to disprove the claimant's medical impairment was related to the industrial injury. The respondents argue that apportionment of medical impairment, as opposed to "disability," is an issue for determination by the DIME physician, and the DIME physician's apportionment is binding unless overcome by clear and convincing evidence. Although we agree with the respondents' interpretation of the statute, we conclude any error was harmless.
Former § 8-42-104(2) C.R.S. 1998, provided that:
"In case there is a previous disability, the percentage of the disability for a subsequent injury shall be determined by computing the percentage of the entire disability and deducting therefrom the percentage of the previous disability as it exited at the time of the subsequent injury."
It is well established that application of former § 8-42-104(2) is governed by the principles announced in Askew v. Industrial Claim Appeals Office, 927 P.2d 1333 (Colo. 1996). The Askew court interpreted the statute as precluding any apportionment unless pre-existing medical impairment caused a "disability." In reaching this result, the court held that "medical impairment" cannot be equated to "disability." As authority, the court relied on the AMA Guides for the proposition that "impairment" relates to an alteration of an individual's health status as assessed by medical means, while "disability" pertains to a person's ability to meet "personal, social or occupational demands," and is assessed by non-medical means. In other words, "impairment" is a medical determination for physicians while "disability" is a non-medical determination to be made by an ALJ by application of the appropriate legal standard. See Lambert Sons, Inc. v. Industrial Claim Appeals Office, 984 P.2d 656 (Colo.App. 1998). Subsequently, in Public Service Company of Colorado v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 00CA1991, June 21, 2001), the court of appeals held that the question of whether a pre-existing impairment was "disabling" for purposes of the apportionment statute is one of fact. Consequently, the preponderance of the evidence standard applies to the determination of apportionment under the predecessor statute, and the DIME physician's opinion is not entitled to presumptive weight on the issue of pre-existing disability.
Furthermore, under former § 8-42-104(2), the definition of "apportionment" contained in Askew v. Industrial Claim Appeals Office, supra, and the AMA Guides, established the line of demarcation between cases requiring application of the apportionment principles embodied in § 8-42-104(2), and issues of "causation" under § 8-42-107(8)(c). Public Service Company of Colorado v. Industrial Claim Appeals Office, supra. The issue involved "apportionment" when the DIME physician was purporting to determine the relative contributions of occupational and non-occupational factors to a particular component of the claimant's overall impairment. The issue was one of "causation" if the DIME was determining whether an entire component of the claimant's's impairment was caused by the industrial injury. Public Service Company of Colorado v. Industrial Claim Appeals Office, supra; Johnson v. Christian Living Campus, W.C. No. 4-354-266 (October 5, 1999), aff'd., American Compensation Insurance Company v. Industrial Claim Appeals Office, (Colo.App. 99CA2058, August 3, 2000) (not selected for publication) However, we conclude this distinction between "apportionment" and causation is now immaterial in light of the 1999 amendments to § 8-42-104(2).
Under the new statute found in § 8-42-104(2)(b), apportionment of permanent partial disability benefits is no longer dependent on an ALJ's determination of whether a previous impairment was "disabling." Rather the 1999 amendments deleted all references to "disability" in cases involving medical impairment benefits and simply require a determination of whether there was a "previous impairment to the same body part." If so, § 8-42-104(2)(b) requires that the previous impairment be excluded from the permanent partial disability award.
As stated above, the existence of a "disability" was a question of fact for the ALJ. In contrast, the determination of "impairment" is a medical determination. Askew v. Industrial Claim Appeals Office, supra. Pursuant to § 8-42-107(8)(c), the DIME physician's findings concerning the degree of the claimant's medical impairment rating are presumed to be correct unless overcome by "clear and convincing evidence." Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). Furthermore, it is now well established that the DIME physician's determination of the "cause" of the claimant's impairment is an inherent element of the DIME physician's rating process. Qual-Med, Inc., v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998). In fact, one of the purposes of enacting the DIME provisions contained in § 8-42-107(8)(c) was to reduce the frequency of litigation concerning permanent disability by referring the determination of medical impairment to physicians, and treating a DIME physician's findings of impairment as binding in the absence of clear and convincing evidence to the contrary. Colorado AFL-CIO v. Donlon, 914 P.2d 396 (Colo.App. 1995). Thus, contrary to the ALJ's conclusions, the amendments to § 8-42-104(2) support the conclusion that the General Assembly intended to place "apportionment" of medical impairment in the hands of physicians, and require deference to the DIME physician's findings on the issue.
The 1999 amendments to § 8-42-104 did not alter the rule that the DIME physician's opinion concerning the "cause" of a claimant's impairment is binding unless overcome by "clear and convincing" evidence. Thus, regardless of whether the DIME physician's failure to include a rating for spondylolisthesis is viewed as a determination of apportionment or causation, it is a medical determination by the DIME which is binding unless overcome by clear and convincing evidence to the contrary. It follows that the party who disputes the DIME physician's decision to exclude impairment because of a pre-existing condition bears the burden to overcome the DIME physician's determination by clear and convincing evidence.
The fact the General Assembly amended § 8-42-104 rather than § 8-42-107(8)(c) does not persuade us that it intended the apportionment of "impairment" be a factual determination for the ALJ separate from the DIME physician's determination of "medical impairment." To the contrary, we read § 8-42-104(2)(b) to reflect the General Assembly's intent to eliminate the effect of Askew by rendering the apportionment of permanent partial disability benefits solely dependent on the presence of pre-existing medical impairment without regard to whether the pre-existing impairment was disabling. By doing so, the legislature aligned the Colorado Workers' Compensation Act with the apportionment provisions of the AMA Guides. See PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995) (rules of statutory construction requires that a statutory scheme be construed in manner that gives consistent, harmonious and sensible effect to all of its parts).
Here, the claimant disputed the DIME physician's medical impairment rating, including the refusal to assign impairment for spondylolisthesis. Therefore, the ALJ erroneously required the respondents to disprove the existence of a "previous impairment." However, under the facts of this case, the error was harmless.
Section 8-42-107(8)(c) requires that all whole person impairment ratings be conducted by Level II accredited physicians in accordance with the AMA Guides. As stated in Askew v. Industrial Claim Appeals Office, supra, the AMA Guides allow physicians to apportion medical impairment where the previous impairment "has been sufficiently identified, treated, or evaluated to be rated as a contributing factor in the subsequent disability." 927 P.2d at 1338.
In Askew, the claimant's pre-existing degenerative back condition was and always had been asymptomatic prior to the industrial injury. Nevertheless, the DIME physician determined that 50 percent of the claimant's permanent impairment was attributable to pre-existing degenerative changes which were detected by x-ray. Apart from the "disability" issue, the court noted that the AMA Guides prohibit apportionment for pre-existing conditions unless sufficient information is available to accurately measure the change in the impairment. In Askew, the record revealed the claimant had no pre-injury back pain, and was not previously treated for any back condition. Therefore, the court concluded the DIME physician's apportionment could not be justified by the medical record other than on an arbitrary basis, and was improper as a matter of law. Askew v. Industrial Claim Appeals Office, 927 P.2d at 1339. Hence, the court established the rule that, under the AMA Guides, apportionment of medical impairment is not proper unless the prior impairment has been "sufficiently identified, treated, or evaluated to be rated as a contributing factor in the subsequent disability." Id. at 1338.
Nothing in the amendments to § 8-42-104(2)(b) suggests the General Assembly intended to abandon this aspect of the Askew decision. Indeed, § 8-42-107(8)(c) still provides that impairment ratings are to be based on the AMA Guides. Furthermore, the circumstances presented here are not appreciably distinguishable from the facts in Askew.
Table 53(III)(A) [copy in record as Respondents' Hearing Submission C], requires that an impairment rating for Grade I spondylolisthesis to the lumbar spine cannot be assigned in the absence of evidence of a "minimum of six months of medically documented pain and rigidity with or without muscle spasm." In this case, the ALJ found the claimant had no pre-existing problem with spondylolisthesis and no prior diagnosis of that condition. The ALJ also determined there was no medical or objective evidence that substantiated a pre-existing impairment at the time of the industrial injury. (Finding of Fact 3, 4, 11).
Although the claimant suffered a previous back injury in 1996, it was diagnosed as a "lumbar strain," not spondylolisthesis. Further, the record supports the ALJ's finding that the 1996 injury was treated with physical therapy for one month after which the claimant was placed at MMI, without permanent impairment and released to return to his regular employment.
We have reviewed the record and are unable to find any medical records which reflect the spondylolisthesis was sufficiently identified or treated prior to the industrial injury. Nor is there evidence an impairment rating was previously assigned to the spondylolisthesis, or that the claimant suffered six months of medically documented pain and rigidity prior to the industrial injury.
Moreover, Dr. Aschberger admitted that if the claimant's x-rays from a previous back injury did not show spondylolisthesis, "an impairment specifically for the spondylolisthesis for this injury would be reasonable." No x-rays for the previous back injury were ever produced. Under these circumstances, the record is legally insufficient to support Dr. Aschberger's opinion the spondylolisthesis constituted a previous impairment under § 8-42-104(2)(b). Cf. Kardokus v. Mathews Furniture Co., Inc., W.C. No. 3-108-286 (January 14, 1997). Therefore, the ALJ properly awarded permanent partial disability benefits based on 28 percent whole person impairment, and the ALJ's misapplication of the burden of proof was harmless error. See A R Concrete Construction v. Lightner, 759 P.2d 831 (Colo.App. 1988). (error which is not prejudicial will be disregarded)
II.
The respondents also contend the ALJ erroneously "converted" Dr. Aschberger's upper extremity rating to a rating of whole person impairment. The claimant contends this argument was waived. We agree with the claimant.
Initially, we note the ALJ did not "convert" Dr. Aschberger's upper extremity rating to a whole person impairment rating. Rather, Dr. Aschberger converted the combined upper extremity impairment ratings to a whole person rating.
Section 8-42-107(1)(a), C.R.S. 2001, provides that permanent disability benefits are limited to benefits under the schedule of disabilities where the claimant suffers an injury or injuries described in § 8-42-107(2). Mountain City Meat Co. v. Oqueda, 919 P.2d 246 (Colo 1996). Subsection (1)(b) provides that permanent disability is limited to medical impairment benefits under § 8-42-107(8) where the claimant suffers an injury or injury not described in the schedule of disabilities. In this context, the term "injury," refers to the manifestation in a part or parts of the body which have been functionally impaired or disabled as a result of the industrial accident. Walker v. Jim Fouco Motor Company, 942 P.2d 1390 (Colo.App. 1997). Where the parties dispute whether the claimant suffered an injury on or off the schedule of disabilities, the situs of the claimant's functional impairment is a question of fact for resolution by the ALJ. Strauch v. PSL Swedish Healthcare System, 917 P.2d 366 (Colo.App. 1996) ; Langton v. Rocky Mountain Health Care Corp., supra.
Here, there is no indication either in the pleadings or the transcript that the respondents were asserting the argument raised on appeal. ( See Tr. pp. 20-23). At the commencement of the hearing, the respondents' attorney denied the respondents were disputing the DIME physician's rating [ see Tr. p. 5], and the respondents' hearing brief, dated May 8, 2001, requested the ALJ to uphold the DIME physician's 22 percent whole person impairment rating.
Furthermore, as argued by the claimant, the respondents did not ask the medical experts about the situs of the claimant's shoulder injuries. Therefore, we cannot say the issue of whether the claimant's upper extremity injuries resulted in impairment fully enumerated on the schedule of disabilities was implicitly litigated. See Cody v. Fraser, 122 Colo. 252, 222 P.2d 422 (1950) ; cf. Robbolino v. Fischer-White Contractors, 738 P.2d 70 (Colo.App. 1987). This conclusion is buttressed by the fact the ALJ did not make written findings of fact concerning the situs of the claimant's functional impairment. The absence of such findings suggests that the ALJ did not consider the issue, and awarded medical benefits based upon the assumption there was no dispute the claimant's functional impairment to the upper extremities was not listed on the schedule of disabilities. Under these circumstances, we decline to consider the respondents' argument which was raised for the first time on appeal. See Compensation Insurance. Authority v. Industrial Claim Appeals Office, 884 P.2d 1131 (Colo.App. 1994).
IT IS THEREFORE ORDERED that the ALJ's order dated May 29, 2001, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
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. 2001. 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 May 17, 2002 to the following parties:
Walter E. McClure, 1038 Rancher Dr., Fountain, CO 80817
Craig C. Eley, Esq., Robert J. Erickson, Esq., 3515 S. Tamarac Dr., Suite 200, Denver, CO 80237 (For Claimant)
Stresscon Corp., P.O. Box 15129, Colorado Springs, CO 80935-5129
Curt Kriksciun, Esq., Colorado Compensation Insurance Authority d/b/a Pinnacol Assurance — Interagency Mail (For Respondents)
Lisa A. Simons, Esq., 600 Seventeenth St., Suite 1600N, Denver, CO 80202
BY: A. Hurtado