Opinion
W.C. No. 4-250-626
September 23, 1997
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Gandy (ALJ), insofar as the ALJ did not apportion the claimant's medical impairment benefits. We affirm.
The ALJ found that the claimant sustained a compensable back injury on April 24, 1995, while performing heavy construction work for the respondent-employer. The claimant reached maximum medical improvement on August 28, 1995, and he was referred for a Division-sponsored independent medical examination (IME).
The IME physician opined that the claimant had a twelve percent whole person impairment "secondary to his current injury." However, the IME physician noted that the claimant had suffered a prior back injury, and stated that "apportionment should be rendered by substraction of the pre-existent impairment from the current impairment with the residual impairment representing the sequela of the 4-24-95 injury." However, the physician stated that he was unable to apportion between the two injuries because medical records from the prior injury were not available.
Subsequently, the parties deposed the IME physician. At that time, he testified that he had reviewed a medical report giving the claimant a twelve percent whole person impairment for a 1993 back injury. Based on that report, the IME physician testified that, "I would have to say that Mr. Monsen's [twelve percent] level of impairment was preexistent." (Leimbach depo., p. 5).
At the hearing, the claimant testified that prior to the 1995 injury he was asymptomatic from the 1993 back injury, and was able to perform heavy construction work. Further, the claimant testified that he has been unable to perform heavy work since the 1995 injury. The ALJ credited the claimant's testimony on these points.
Under these circumstances, the ALJ concluded that it would be improper to apportion the claimant's medical impairment between the 1995 and 1993 injuries. Specifically, the ALJ determined that the respondents failed to "overcome by clear and convincing evidence" the twelve percent impairment rating issued by the IME physician. In support of this conclusion, the ALJ stated that the respondents offered "insufficient documentation" to be persuasive concerning the apportionment issue. The ALJ further stated that because the claimant was asymptomatic prior to the 1995 injury it is inappropriate to apportion liability.
On review, the respondents contend that the ALJ erred in requiring them to "overcome" the Division-sponsored IME physician's twelve percent impairment rating because the IME physician apportioned all of the rating in his deposition testimony. Further, the respondents assert that the record contains sufficient documentation of the claimant's preexisting medical impairment, and therefore, the impairment was apportionable under Askew v. Industrial Claim Appeals Office, 927 P.2d 1333 (Colo. 1996). We uphold the ALJ's order, but for reasons different than those stated by the ALJ.
In Askew v. Industrial Claim Appeals Office, supra, the court held that § 8-42-104(2), C.R.S. 1997, permits apportionment of permanent disability benefits based on a preexisting condition, provided that the preexisting condition is "disabling." In so doing, the court differentiated between the terms "disability" and "impairment." Relying on definitions contained in the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition (Revised) (AMA Guides), the court stated that "disability" is assessed by nonmedical means, and represents the "alteration of an individual's capacity to meet personal, social, or occupational demands." In contrast, "impairment" is assessed by medical means, and represents "an alteration of an individual's health status." Thus, the court recognized that it is possible for a person to have a preexisting "impairment" which is not "disabling." Askew v. Industrial Claim Appeals Office, 927 P.2d at 1337.
The Askew court went on to identify specific requirements for the apportionment of preexisting medical impairment. Again relying on the AMA Guides, the court held that apportionment to a preexisting medical impairment "is only appropriate when a prior impairment, whether occupational or nonoccupational, has been sufficiently identified, treated, or evaluated to be rated as a contributing factor in the subsequent disability." Id. at 1338.
Here, the respondents' arguments center on whether the ALJ correctly held that there was insufficient evidence to support the existence of a preexisting "medical impairment" from the 1993 injury. However, even if we assume that there was sufficient evidence to establish that the 1993 injury caused permanent medical impairment, and that the impairment was still in existence in 1995, the award must upheld because the ALJ implicitly found that the 1993 injury was not "disabling" in 1995.
In Baldwin Construction, Inc. v. Industrial Claim Appeals Office, 937 P.2d 895 (Colo.App. 1997), the Court of Appeals interpreted Askew as holding that a preexisting medical condition is not "disabling" for purposes of § 8-42-104(2) unless it independently causes a significant loss of access to the labor market. In Baldwin, the claimant's preexisting hypertension, alcoholism, and depression did not preclude the claimant from performing heavy work prior to the injury. Therefore, the court held that these conditions were not "disabling," and the respondents were not entitled to apportionment. See also, Colorado Mental Health Institute v. Austill, 940 P.2d 1125 (Colo.App. 1997).
Here, the ALJ has expressly credited the claimant's testimony that any residual effects of the 1993 injury did not preclude him from returning to heavy work in the construction field. Further, the ALJ believed that the claimant was fully able to perform this employment until he suffered the 1995 industrial injury.
We are bound by these factual determinations of the ALJ. Section 8-43-301(8), C.R.S. 1997. Further, we hold that these findings establish as a matter of law that the 1993 injury was not causing any "disability" at the time of the claimant's 1995 injury. This is true because the claimant was able to return to his regular employment which required heavy physical activity. Baldwin Construction, Inc. v. Industrial Claim Appeals Office, supra. It follows that, regardless whether the 1993 injury caused documented permanent impairment, it was not "disabling" within the meaning of § 8-42-104(2) when the claimant sustained the 1995 injury. Thus, the ALJ's findings support denial of apportionment, and the order must be upheld. Askew v. Industrial Claim Appeals Office, supra. IT IS THEREFORE ORDERED that the ALJ's order dated January 28, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. DeanNOTICE 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. 1997.
Copies of this decision were mailed September 23, 1997 to the following parties:
Eduardo Monsen, 1360 Pacific Ct., Ft. Lupton, CO 80621
Lambert Sons, Inc., 155 Bridge St., Brighton, CO 80601-2802
Colorado Compensation Insurance Authority, Attn: Brandee DeFalco-Galvin, Esq. Interagency Mail
John G. Taussig, Jr., Esq., 1919 14th St., Ste. 805, Boulder, CO 80302 (For the Claimant)
By: _______________________________