Opinion
W.C. No. 4-227-455
December 19, 1997
FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Gandy (ALJ) insofar as the ALJ failed to apportion permanent medical impairment benefits in accordance with § 8-42-104(2), C.R.S. 1997. We affirm.
Section 8-42-104(2), 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."
It is undisputed 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." The Askew court relied on the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition (Revised), (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. The court held that the apportionment of medical impairment under § 8-42-104(2) is only appropriate if a preexisting condition constitutes a "disability."
In this case, the claimant sustained a compensable low back injury in September 1994, while employed as a nurse. The claimant suffered additional back injuries before and after 1994.
Dr. Bralliar rated the claimant's permanent medical impairment as 27 percent of the whole person. Dr. Bralliar testified that he did not apportion the medical impairment between the effects of the 1994 injury and the prior back injuries because the claimant recovered from the prior injuries and returned to work without restrictions until the 1994 injury.
The claimant underwent a Division-sponsored independent medical examination (IME) under the provisions of § 8-42-107(8)(c), C.R.S. 1997. The IME physician, Dr. Hughes, rated the claimant's permanent impairment as 18 percent of the whole person. However, Dr. Hughes apportioned all but 9 percent of the impairment to pre-existing back problems.
The ALJ determined that the claimant had prior back injuries, including a 1990 low back injury which was treated by Dr. Crosby. However, the ALJ found that Dr. Crosby released the claimant to return to her regular employment in September 1990, and that the claimant was performing her regular employment at the time of the 1994 injury. The ALJ also credited the claimant's testimony that she had no problems with her back immediately preceding the 1994 industrial injury.
Under these circumstances, the ALJ found that the claimant's pre-existing lumbar problems did not constitute a "disability" for purposes of § 8-42-104(2). Therefore, the ALJ determined that the claimant sustained her burden of proof under § 8-42-107(8)(c), to overcome Dr. Hughes' apportionment by "clear and convincing evidence," and awarded medical impairment benefits of 23 percent of the whole person without apportionment.
On review, the respondent argues that the ALJ misapplied Askew to the facts of this claim. In support, the respondent relies upon the language in Askew which states that apportionment is proper if the pre-existing condition has "been sufficiently identified, treated, or evaluated to be rated as a contributing factor in the subsequent disability." The respondent argues that the claimant's prior back injuries were sufficiently identified, treated, and evaluated to support Dr. Hughes opinion that they contributed to the claimant's disability from the 1994 injury. Therefore, they assert that the ALJ erred in finding that apportionment was not appropriate. We disagree.
The issue before the ALJ was whether the claimant presented "clear and convincing evidence" to overcome Dr. Hughes' opinion that the claimant's medical impairment is subject to apportionment. Section 8-42-107(8)(c). "Clear and convincing evidence" is evidence which supports a finding that it is "highly probable" that the IME physician incorrectly apportioned the claimant's impairment. See Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
The claimant in Askew suffered an industrial back injury superimposed on a pre-existing back injury. However, the pre-existing back injury was dormant, did not require treatment and did not "hinder" the claimant's work prior to an industrial back injury. Accordingly, the court held that the pre-existing condition was not a "previous disability" for purposes of § 8-42-104(2). Further, the court stated that it is not proper to apportion medical impairment if the preexisting condition has not been "sufficiently identified, treated, or evaluated to be rated as a contributing factor in the subsequent disability."
Assuming, arguendo, that the claimant's preexisting back injuries were identified, treated and evaluated, the pertinent issue is whether the prior injuries constitute a previous "disability," as that term is defined in Askew. Baldwin Construction, Inc. v. Industrial Claim Appeals Office, 937 P.2d 895 (Colo.App. 1997). Because that determination is generally one of fact for resolution by the ALJ, we must uphold the ALJ's finding if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1997.
The claimant admitted that she suffered a low back injury in 1985 and was awarded permanent partial disability benefits. However, the claimant testified that the 1985 back injury resolved by 1987. (Tr. p. 9).
With regard to the 1990 back injury, the claimant testified that in August 1990 Dr. Crosby released her to return to her regular employment as a nurse, and she felt capable of performing her regular employment. (Tr. pp. 6, 7. 18). She also stated that, she had no low back problems and was not subject to any medical restrictions between August 1990 and September 1994. (Tr. p. 18). In fact, she stated that her regular employment duties involved heavy lifting which she continued to perform until the 1994 injury. (Tr. pp. 12, 17).
In addition the claimant testified that the injuries she sustained in 1991 affected her hip and right knee, not her back. Further, she stated that the injury she sustained in 1993 was to her upper back, not her lower back. (Tr. pp. 7, 13).
Insofar as the claimant's testimony is inconsistent with some of her medical records the ALJ implicitly resolved the conflict in the claimant's favor by crediting the testimony of the claimant and Dr. Crosby. We cannot substitute our judgment for that of the ALJ in this regard. Metro Moving Storage Co. v. Gussert, supra.
Moreover, substantial evidence is not limited to medical evidence. Apache Corp. v. Industrial Commission, 717 P.2d 1000 (Colo.App. 1986); Savio House v. Dennis, 665 P.2d 141 (Colo.App. 1983). Therefore, the record contains substantial evidence to support the ALJ's finding that the claimant's pre-existing back injuries did not constitute a "previous disability" for purposes of applying § 8-42-104(2).
In any case, Dr. Hughes admitted that his rating was based upon pre-existing medical impairment, not disability. (Tr. pp. 52, 60, 62). In fact, he stated that he disagreed with Dr. Bralliar's testimony that apportionment of medical impairment is not proper unless the impairment results in a disability. (Tr. p. 58). Consequently, Dr. Hughes testified that the claimant`s return to regular work was immaterial to the apportionment of her impairment between the effects of the 1994 injury and the prior injuries. (Tr. p. 59).
In view of Dr. Hughes' testimony the ALJ could, and did, reasonably find that the claimant presented clear and convincing evidence that it was "highly probable" Dr. Hughes erroneously apportioned her permanent medical impairment. Further, this finding supports the ALJ's order. Thus, we need not consider whether the ALJ's order is also supported by the testimony of Dr. Bralliar, and do not address the respondents' challenge to Dr. Bralliar's credibility.
IT IS THEREFORE ORDERED that the ALJ's order dated August 21, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. DeanNOTICE
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, 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 this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1997.
Copies of this decision were mailed December 19, 1997 to the following parties:
Cynthia J. Smith, 319 E. Brookside, Apt. 30, Colorado Springs, CO 80906
St. Paul Care Center, Attn: Terrylea Entsminger, NHA, 1667 St. Paul St., Denver, CO 80206
Support Services, Inc., Attn: Lisa Cruz, P.O. Box 22438, Denver, CO 80206
Martin J. Linnet, Esq., 4155 Jewel Ave., #500, Denver, CO 80222 (For the Claimant)
Bonnie J. McLaren, Esq. William A. Richardson, Esq., 1430 Larimer Square, Ste. 400 Denver, CO 80202 (For the Respondent)
BY: __________________________