Opinion
W.C. No. 4-227-455
July 10, 1997
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Gandy (ALJ) which awarded permanent partial disability benefits in accordance with the medical impairment rating of Dr. Hughes. We set aside the order and remand the matter to the ALJ for the entry of a new order.
On September 5, 1994, the claimant suffered a compensable low back injury when she tripped over a wheelchair in the course of her employment as a registered nurse at the St Paul Health Center. The claimant had also suffered numerous prior injuries to her mid and lower back.
On January 4, 1995, the treating physician, Dr. Hemler, determined the claimant to be at maximum medical improvement with permanent medical impairment of 22 percent of the whole person. However, Dr. Hemler apportioned only 6 percent of the impairment to the 1994 injury.
On January 11, 1996, Dr. Hughes conducted a Division-sponsored independent medical examination (IME). Dr. Hughes opined that the claimant sustained a 7 percent impairment due to a specific disorder of the spine under Table 53 of the American Medical Association Guides to the Evaluation of Permanent Impairment (AMA Guides), and a 12 percent impairment due to loss of range of motion in the lumbar spine, for a total impairment of 18 percent of the whole person. However, Dr. Hughes determined that the claimant had pre-existing permanent medical impairment of 9 percent. Consequently, Dr. Hughes apportioned only 9 percent of the total impairment to the 1994 injury.
The claimant was also evaluated by Dr. Bralliar who rated the claimant's impairment as 27 percent of the whole person. His rating included 5 percent for range of motion deficits in the thoracic spine. Moreover, Dr. Bralliar declined to apportion the impairment based upon his opinion that the claimant did not suffer any permanent physical restrictions as a result of the prior injuries and had no pre-existing "disability."
Crediting the opinions of Dr. Hemler and Dr. Hughes over the contrary opinions of Dr. Bralliar, the ALJ found that the claimant failed to overcome Dr. Hughes' medical impairment rating by "clear and convincing evidence" as required by § 8-42-107(8)(c), C.R.S. (1996 Cum. Supp.). Therefore, the ALJ determined that the claimant is limited to permanent partial disability benefits in accordance with Dr. Hughes' opinion that the 1994 injury caused permanent medical impairment of 9 percent of the whole person.
On review, the claimant renews the arguments she made before the ALJ. The claimant contends that Dr. Hughes incorrectly applied the AMA Guides in measuring the loss of range of motion to her lumbar spine, and failing to assign a rating for impaired range of motion in her thoracic spine. The claimant also contends that unlike Dr. Bralliar, Dr. Hughes incorrectly based his apportionment on preexisting medical impairment. Therefore, the claimant argues that she overcame Dr. Hughes' rating by clear and convincing evidence in the opinions of Dr. Bralliar. Because the ALJ's findings indicate that he may have applied an erroneous legal standard, we must remand the matter for entry of a new order.
At the time of his order, the ALJ did not have the benefit of the Supreme Court's opinion in Askew v. Industrial Claim Appeals Office, 927 P.2d 1333 (Colo. 1996). In Askew, the court held that apportionment of medical impairment is only proper "when a prior disability, as defined by the AMA Guides, is a contributing factor to a subsequent industrial injury." 927 P.2d at 1339. The AMA Guides define "impairment" as "an alteration of an individual's health status." In contrast, the AMA Guides define "disability" as the "alteration of an individual's capacity to meet personal, social, and occupational demands." Askew v. Industrial Claim Appeals Office, 927 P.2d at 1337. As a result, a claimant who is impaired is not necessarily disabled under the AMA Guides.
Moreover, Askew holds that the apportionment of medical impairment is not proper unless the claimant's preexisting condition has been "sufficiently identified, treated, or evaluated to be rated as a contributing factor in the subsequent disability." In this respect the court concluded that a preexisting condition which is dormant before the industrial injury cannot be evaluated adequately for purposes of apportionment. 927 P.2d at 1338. Accordingly, in Askew the court rejected an IME physician's apportion of medical impairment between the effects of an industrial injury and a claimant's preexisting, a symptomatic back condition.
In finding that Dr. Hughes correctly applied the AMA Guides in apportioning the claimant's impairment, the ALJ credited Dr. Hughes' testimony that the AMA Guides allow an IME physician to apportion medical impairment to a pre-existing impairment and that disability is not relevant. See Finding of Fact 23. Similarly, the ALJ found that in view of the "pre-existing problems in the Claimant's thoracic spine," Dr. Hughes properly excluded a rating for the claimant's impaired range of motion in the thoracic spine.
However, Askew holds that evidence of a prior medical impairment is not sufficient to support the apportionment of permanent partial disability. Therefore, the ALJ's findings do not reflect his consideration of the applicable legal standard.
Furthermore, we are unable to ascertain how the ALJ would have resolved the conflict between Dr. Hughes and Dr. Bralliar had he been aware of the proper legal standard. Therefore, the matter must be remanded for such consideration.
On remand, the ALJ must redetermine whether the claimant overcame Dr. Hughes' impairment rating in view of the principles established in Askew, and shall issue a new order on the issue of permanent partial disability benefits in accordance with that determination. In his discretion, the ALJ may hold additional hearings if he determines that additional evidence is necessary to resolve the pertinent issues.
As a result of our disposition we have not considered the claimant's remaining arguments.
IT IS THEREFORE ORDERED that the ALJ's order dated July 26, 1996, is set aside and the matter is remanded to the ALJ for entry of a new order which is consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Kathy E. Dean
______________________________ Bill Whitacre
Copies of this decision were mailed July 10, 1997 to the following parties:
Cynthia J. Smith, 319 E. Brookside, Apt. 4, Colorado Springs, CO 80906
St. Paul Care Center, Attn: Terrylea Entsminger, NHA, 1667 St. Paul St., Denver, CO 80206
Lisa Cruz, Support Services, Inc., P.O. Box 22438, Denver, CO 80222
Alexsis Risk Management, Attn; Lucy Arguello, One Park Central Bldg., Ste. 410, 1515 Arapahoe St., Denver, CO 80202-2117
Martin J. Linnet, Esq., 4155 E. Jewel Ave., #500, Denver, CO 80222, (For the Claimant).
Bonnie J. McLaren, Esq. William A. Richardson, Esq., 1430 Larimer Square, #400, Denver, CO 80202, (For the Respondents).
BY: ________________________________