Opinion
W.C. No. 4-308-569
March 31, 1999.
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Martinez (ALJ) which apportioned permanent partial disability benefits. We set aside the order and remand the matter for entry of a new order.
The claimant suffered a compensable back injury on August 13, 1996, and reached maximum medical improvement on June 10, 1997. Dr. Draznin performed a Division-sponsored independent medical examination (IME) on the issue of medical impairment. Dr. Draznin rated the claimant as suffering a 14 percent impairment of the lumbar spine and a 5 percent psychological impairment, for 18 percent total impairment. Dr. Draznin did not apportion the impairment. However, Dr. Draznin testified that if the claimant had preexisting low back problems which had not resolved before the industrial injury he would apportion 5 percent of the claimant's medical impairment to the preexisting problems.
The claimant admitted that she had preexisting back problems. However, she testified that they were fully resolved at the time of the industrial injury.
The ALJ was not persuaded that the claimant's preexisting low back symptoms had fully resolved before the industrial injury. Under these circumstances, the ALJ determined that the respondents proved Dr. Draznin erred in failing to apportion the claimant's medical impairment, and that they overcame Dr. Draznin's rating by "clear and convincing" evidence. Consequently, the ALJ apportioned the claimant's medical impairment and awarded permanent partial disability benefits based on 13 percent whole person impairment.
On review, the claimant contends the ALJ misapplied the law in apportioning her permanent partial disability benefits. Because the ALJ failed to make sufficient findings concerning the claimant's preexisting "disability," we remand the matter for the entry of a new order. Section 8-43-301(8), C.R.S. 1998.
Section 8-42-104(2), C.R.S. 1998 allows an ALJ to apportion permanent partial disability benefits. That statute provides that:
"In case there is a previous disability, the percentage of 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 existed at the time of the subsequent injury."
The parties concede that the proper application of § 8-42-104(2) is governed by Askew v. Industrial Claim Appeals Office, 927 P.2d 1333 (Colo. 1996). In Askew, the Supreme Court held that when apportioning permanent partial disability benefits, "medical impairment" cannot be equated to "disability." In so doing, the Askew court relied on the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition (Revised) 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. Furthermore, there can be medical "impairment" without "disability." Lambert Sons, Inc. v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 97CA1774, July 9, 1998). The Askew court held that apportionment of permanent partial disability under § 8-42-104(2) is appropriate only if the claimant has a preexisting medical "impairment" which was "sufficiently identified, treated, or evaluated to be rated as a contributing factor in the subsequent disability, and the preexisting medical impairment was independently disabling at the time of the subsequent injury. In other words, there must be a threshold showing that the preexisting impairment was "disabling" before apportionment of the impairment is appropriate. Lambert Sons, Inc. v. Industrial Claim Appeals Office, supra.
The facts in Askew involved an IME physician's apportionment of medical impairment between an industrial back injury and the claimant's preexisting degenerative lumbar disc disease. Because the claimant's preexisting degenerative disc disease was "asymptomatic," had not been treated and "did not hinder [the claimant's] capacity to meet any demands" prior to an industrial back injury, the court in Askew concluded that the preexisting condition could not be considered a "previous disability" for purposes of § 8-42-104(2). Consequently, the court concluded as a matter of law that the IME physician's apportionment of medical impairment did not support an apportionment of permanent disability benefits.
Here, the record also contains evidence which, if credited, could support a finding that the claimant's pre-existing condition was "disabling" immediately preceding the industrial injury. See (Tr. pp. 18, 21; Dr. Reicks' reports June 14, 1996-July 15, 1996). The record could also support a contrary finding. However, the ALJ made no findings concerning whether the preexisting condition constituted a "previous disability" as defined by Askew. Consequently, the ALJ's findings do not reflect his application of the proper legal standard, and his findings do not support the order. Cf. Mountain Meadows Nursing Center v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 98CA469, February 4, 1999) (preexisting impairment was not a contributing cause of claimant's subsequent permanent total disability).
On remand the ALJ must determine whether the claimant's pre-existing condition was independently disabling at the time of the industrial injury. Based upon that determination the ALJ shall enter a new order concerning the claimant's entitlement to permanent disability benefits.
In remanding the matter we should not be understood as expressing any opinion on the probative value of the evidence. Resolution of the conflicts in the evidence is a matter for the ALJ. We merely conclude that the ALJ's findings do not reflect his consideration of the applicable legal standard, and thus, his order is not consistent with the law.
IT IS THEREFORE ORDERED that the ALJ's order dated September 11, 1998, is set aside and the matter is remanded to the ALJ for the entry of a new order which is consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Kathy E. Dean
Copies of this decision were mailed March 31, 1999 the following parties:
Ruth M Moore, PO Box 385, Paradox, CO 81429
Colorado State University, Sandra Trissell, 122 Johnson Drive, Fort Collins, CO 80525-1454
Colorado Compensation Insurance Authority, Attn: Laurie Schoder, Esq., (Interagency Mail)
Erica Moore, Esq, 3900 East Mexico, No. 1300, Denver CO 80210 (For Claimant)
Thomas W. Blake, Esq., 415 Brach Drive, Grand Junction, CO 81503 (For Respondents)
BY: ______________