Opinion
W.C. No. 4-282-941
May 20, 1998
FINAL ORDER
The respondents seek review of the final order of Administrative Law Judge Gandy (ALJ), which awarded the claimant permanent partial disability benefits based on a medical impairment rating of fifteen percent of the whole person. We affirm.
The claimant, a nurse's aide, sustained a compensable back injury in January 1996. The treating physician placed the claimant at maximum medical improvement (MMI) on July 12, 1996, and opined she sustained a six percent whole person medical impairment.
The claimant sought a Division-sponsored independent medical examination (IME) on the issue of medical impairment, and the IME physician examined the claimant in October 1996. The IME physician found a five percent impairment based on specific disorders of the spine. He also found that the claimant had an overall impairment of ten percent due to lost range of motion, but apportioned fifty percent of this impairment to "aging changes." Thus, the apportioned rating was ten percent of the whole person.
Subsequently, the IME physician was contacted by representatives of the Division of Workers' Compensation (Division), and the representatives advised the physician that his decision to apportion the rating was contrary to Rule IX of the Rules of Procedure, and to principles announced by the Supreme Court in Askew v. Industrial Claim Appeals Office, 927 P.2d 1333 (Colo. 1996). Thus, on December 9, 1996, the IME physician issued a revised, unapportioned impairment rating of fifteen percent of the whole person.
The evidence also reveals that the claimant sustained a back injury in the 1970's while employed by RTD. However, the ALJ credited the claimant's testimony that, although she lost the job with RTD, her duties as a nurse's aide were heavier than those at RTD, and she successfully performed the work as a nurse's aide for 15 years. The ALJ found the claimant was "completely functional" as a nurse's aide.
Under these circumstances, the ALJ concluded that it was the IME physician's fifteen percent whole person impairment rating which the respondents were required to overcome pursuant to § 8-42-107(8)(c) C.R.S. 1997. However, the ALJ found that the respondents failed to overcome the rating by clear and convincing evidence because "there was insufficient medical documentation to accurately establish the extent of the claimant's previous impairment, if any." Further, the ALJ found that for "15 years the claimant's capacity to meet the demands of her life's activities was not limited, even though she was working at a heavier duty job" as a nurse's aide. Thus, the ALJ awarded permanent partial disability benefits based on a medical impairment of fifteen percent of the whole person.
On review, the respondents contend the ALJ erred in placing the burden of proof upon them to overcome the IME physician's impairment rating of fifteen percent of the whole person. The respondents argue the IME physician's initial impairment rating, which apportioned the impairment rating based on the preexisting degenerative condition, is the appropriate rating and the one which must be overcome by clear and convincing evidence. The respondents also assert that the record contains sufficient objective evidence for the IME physician to apportion to the claimant's preexisting condition. We disagree with these arguments because the evidence supports the ALJ's finding that, even if there was preexisting impairment, it did not rise to the level of an apportionable disability.
In Askew v. Industrial Claim Appeals, supra, the Supreme Court addressed apportionment of preexisting conditions in cases where the claimant seeks an award of permanent partial disability benefits. The court concluded that apportionment of a preexisting "disability" is governed by § 8-42-104(2), C.R.S. 1997. Apportionment is proper only if there was a preexisting "medical impairment," as defined by the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition (Revised) (AMA Guides), and only if the impairment was "disabling" in that it impaired the claimant's capacity to meet personal, social, or occupational demands.
Insofar as the respondents are suggesting that apportionment of preexisting impairment is proper under § 8-42-107(8)(c), even if the impairment is not "disabling" in the sense described by Askew, we disagree. In fact, the theory that § 8-42-107(8)(c) and the AMA Guides permit apportionment of "impairment" regardless of "disability" and § 8-42-104(2) was the position taken by the Court of Appeals in the Askew case. See Askew v. Sears Roebuck Co, 914 P.2d 416 (Colo.App. 1995). However, the Supreme Court repudiated that position and determined that apportionment is controlled by § 8-42-104(2), and also by the definitions of "impairment" and "disability" contained in the AMA Guides.
It follows that, regardless of whether the ALJ correctly determined the claimant had no prior medical impairment, we must uphold the order if the ALJ properly found that the claimant was not "disabled" by any preexisting impairment. Resolution of this question is a factual matter for the ALJ. See Baldwin Construction, Inc. v. Industrial Claim Appeals Office, 937 P.2d 895 (Colo. 1997); Blair v. King Soopers, Inc., W.C. No. 4-163-507 (January 14, 1998); Owrey v. Leak-Tech, Inc., W.C. No. 4-123-819 (December 4, 1997). Because the issue is factual in nature, we must uphold the ALJ's order if supported by substantial evidence in the record. Section 8-43-301(8) C.R.S. 1997. This standard of review requires us to defer to the ALJ's resolution of conflicts and the evidence, his credibility determinations, and the plausible inferences he drew from the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
Here, there is substantial evidence to support the ALJ's finding that any medical impairment which predated the January 1996 injury was not "disabling." Although the claimant may have experienced intermittent symptoms following the 1970's injury, the evidence indicates she was subsequently able to perform relatively heavy work as a nurse's aide. In fact, the duties as a nurse's aide were more demanding than those the claimant performed at the time she was working for RTD. Moreover, there is no evidence the claimant sustained any substantial loss of access to the labor market as a result of the earlier injury.
It follows that the evidence supports the ALJ's determination that the claimant was not disabled at the time of the 1996 injury. Baldwin Construction, Inc., v. Industrial Claim Appeals Office, supra. Moreover, since the claimant's preexisting condition, if any, was not disabling, it is irrelevant whether the ALJ was correct in finding insufficient evidence to demonstrate the existence of an apportionable preexisting medical impairment.
IT IS THEREFORE ORDERED that the ALJ's order dated July 11, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL ___________________________________ Dave Cain ___________________________________ Bill WhitacreNOTICE 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 May 20, 1998 to the following parties.
Clothilde R. Sydnor, 1625 E. 3rd Ave., Denver, CO 80218
Laurel Ditson, Visiting Nurse Association, 3801 E. Florida Ave., Ste. 800, Denver, CO 80210
Colorado Compensation Insurance Authority, Attn: Laurie A. Schoder, Esq. (Interagency Mail)
Thomas J. Roberts, Esq., 1650 Emerson St., Denver, CO 80218 (For the Claimant)
Glen B. Goldman, Esq., 999 18th St., #3100, Denver, CO 80202 (For the Respondents)
By: _______________________________