Opinion
W.C. No. 4-344-430
October 5, 1999
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Connick (ALJ) which awarded permanent partial disability benefits based on 14 percent whole person medical impairment without apportionment. We affirm.
The claimant suffered industrial injuries on May 12, 1994. She was released to return to work with a 50-pound lifting restriction. In April 1995, Dr. Centeno determined that the claimant sustained permanent medical impairment of 5 percent of the whole person as a result of the 1994 injury.
In 1997, the claimant began employment with the respondent CHIPSEA. The claimant suffered admitted industrial injuries to her low back and hip on May 16, 1997, and these injuries are the subject of this claim. Dr. McLaughlin conducted a Division-sponsored independent medical examination (IME) on the issue of medical impairment. Dr. McLaughlin rated the claimant's total medical impairment as 14 of the whole person, but apportioned 5 percent of the impairment to the 1994 injury. Therefore, Dr. McLaughlin opined that the claimant sustained 10 percent permanent medical impairment from the 1997 injury. The respondents filed a Final Admission of Liability which admitted liability for permanent partial disability benefits consistent with Dr. McLaughlin's apportionment of medical impairment.
The sole issue before the ALJ was whether the claimant's permanent partial disability benefits are subject to apportionment for the 1994 medical impairment. The ALJ found the claimant proved by "clear and convincing" evidence that no apportionment was appropriate. In support, the ALJ found that Dr. McLaughlin provided no basis for his opinion the claimant "likely had preexistent low back problems" at the time of the 1997 injury. The ALJ also found that Dr. McLaughlin's opinions were not substantiated by any other evidence in the record. Instead, the ALJ found that the effects of the 1994 injury subsided by September 1996, and that the claimant did not require further medical treatment for the injury. The ALJ also found the claimant was asymptomatic and was fully capable of meeting the demands of her employment at the time of the 1997 injury.
On review, the respondents point out Dr. McLaughlin's statement that his apportionment was based upon a review of the claimant's prior medical records which revealed that the claimant's presentation during the IME was similar to her presentation when Dr. Centeno rated her impairment from the 1994 injury. Relying on this evidence, the respondents argue the ALJ erred in finding that Dr. McLaughlin provided no basis for his apportionment. The respondents also contend the claimant's testimony is not sufficient to overcome Dr. McLaughlin's apportionment of medical impairment because the claimant's testimony is inconsistent with the medical records which reveal a history of symptom magnification. Therefore, they contend the record does not support the finding that the claimant overcame Dr. McLaughlin's opinions on apportionment. We disagree.
Under the applicable law, permanent partial disability benefits are payable for permanent medical impairment. Section 8-42-107(8)(d), C.R.S. 1999. Former § 8-42-107(8)(c), C.R.S. 1997, which applies to this claim [amended in 1998], provides that the IME physician's medical impairment rating is binding unless overcome by "clear and convincing evidence." Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). It is now well established that the IME physician's opinion on the "cause" of the claimant's impairment is an inherent part of the rating process. Qual-Med, Inc., v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998). Thus, the IME physician's determination that part of the claimant's permanent medical impairment is attributable to a prior injury, is also binding unless overcome by "clear and convincing evidence." Lambert Sons, Inc. v. Industrial Claim Appeals Office, supra.
However, apportionment of permanent disability benefits is governed by § 8-42-104(2). Former § 8-42-104(2), C.R.S. 1998, [amended in 1999 for injuries occurring on or after July 1, 1999], 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. . . ." (Emphasis added).
In Askew v. Industrial Claim Appeals Office, 927 P.2d 1333 (Colo. 1996), the supreme court held that § 8-42-104(2) permits the apportionment of permanent partial disability benefits based on a preexisting condition, provided that the preexisting condition is disabling. In so doing, the Askew court distinguished between "impairment" and "disability." "Impairment" relates to an alteration of an individual's health status as assessed by medical means, while a disability pertains to a person's ability to meet personal, social, or occupational demands, and is assessed by non-medical means.
Further, an "impairment" may or may not be disabling. Thus, an IME physician's determination of preexisting medical impairment is not conclusive of whether the claimant has a "previous disability," for purposes of apportionment. Rather, the determination of whether the claimant suffers from a "previous disability" as defined by § 8-42-104(2), is a question of fact for resolution by the ALJ. Consequently, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1999.
Substantial evidence is not limited to medical evidence. To the contrary, a claimant's testimony that he or she was asymptomatic from the previous injury at the time of the subsequent injury may be sufficient to defeat the claim of a "previous disability." See Lambert Sons, Inc. v. Industrial Claim Appeals Office, supra.
Moreover, § 8-42-104(2) requires that apportionment be based on the percentage of disability "as it existed at the time of the subsequent injury." Therefore, the statute contemplates that a medical impairment or previous disability may no longer exist at the time of the subsequent injury. Lambert Sons, Inc. v. Industrial Claim Appeals Office, supra.
In Askew, the claimant's preexisting degenerative back condition was asymptomatic at the time of a subsequent back injury, and had not been sufficiently identified, treated or evaluated to be rated as a contributing factor in the disability from the subsequent injury. Under these circumstances, the court concluded that the preexisting degenerative back condition was not a "previous disability" and apportionment of permanent partial disability benefits was not appropriate.
Here, the claimant's testimony, which the ALJ expressly found credible, contains substantial evidence to support the ALJ's finding that the claimant's medical impairment from the 1994 injury was not disabling at the time of the 1997 injury. The claimant testified that symptoms from the 1994 injury subsided in September 1996, which was several months before she began working at CHIPSEA. (Tr. pp. 12, 14).
Further, evidence of the claimant's "symptom magnification" does not compel a conclusion that her testimony of improvement from the 1994 injury is incredible. In fact, if the evidence of symptom magnification is accurate, the claimant would be expected to inflate, not deflate, the residual effects of the 1994 injury.
In addition, we perceive no inconsistency between the claimant's testimony and Dr. Centeno's statement of the claimant's medical history. In his report dated April 27, 1995, Dr. Centeno lists a history of pain in the right hip, neck and shoulder area. Dr. Centeno also indicated that at the time of the exam the claimant complained of headaches, and bilateral upper trapezius and low back pain. The claimant testified that the 1994 industrial accident injured the right side of her hip, shoulder and neck, and that the 1997 injury affected the "left" side. (Tr. p. 13). However, the claimant did not deny experiencing back pain from the 1994 injury. (Tr. p. 10). She merely stated that the back pain subsided before the 1997 injury. (Tr. p. 14).
We also agree with the ALJ that the lifting restrictions which were imposed after the 1994 injury are not conclusive of whether the claimant's ability to meet personal, social, or occupational demands were impaired at the time of the 1997 injury. The claimant testified that she received no treatment for the 1994 injury between April 1995 and the 1997 injury. Further, the claimant stated that she did not understand the restrictions to be permanent and that her condition improved before she became employed at CHIPSEA, and therefore, she did not inform CHIPSEA that she had any medical restrictions. (Tr. pp. 16, 17). Based on this testimony the ALJ could reasonably infer that the lifting restrictions were not necessary at the time of the 1997 injury, but had not been removed because there was no occasion for the treating physician to release the claimant to regular employment.
Moreover, the ALJ reasonably inferred that the record does not support Dr. McLaughlin's opinion that the claimant had "preexistent low back problems" at the time of the 1997 injury. Because there is no evidence of medical treatment between April 1995 and May 1997, similarities between the claimant's presentation on or before April 1995 and after the 1997 injury do not explain or substantiate Dr. McLaughlin's opinion that the claimant had low back problems immediately preceding the 1997 injury.
In any case, the issue was not whether the claimant had preexisting back problems but whether those problems were "disabling" as of May 16, 1997, and the ALJ resolved that issue in favor of the claimant. Therefore, the ALJ did not err in refusing to apportion the claimant's permanent disability benefits.
In view of our disposition, we do not consider the claimant's contention that the apportionment of permanent partial disability benefits is governed by the "preponderance of evidence" standard, and that the ALJ erroneously required her to prove by "clear and convincing evidence" that apportionment was not appropriate. Because the ALJ found that the evidence satisfied the higher standard of "clear and convincing evidence," any error in this regard was harmless.
IT IS THEREFORE ORDERED that the ALJ's order dated February 23, 1999, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Bill Whitacre
NOTICE
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. 1999.
Copies of this decision were mailed October 5, 1999 to the following parties:
Angelina Zagal, 380 N. 6th Ave., Brighton, CO 80601
Chipsea, 13847 Washington St., Broomfield, CO 80020-9244
American Protection Insurance Co., Kimberly Nelson, Kemper Insurance Co., P.O. Box 5347, Denver, CO 80217-5347
Robert P. Koehler, Esq., 681 Grant St., Denver, CO 80203 (For Claimant)
John H. Sandberg, Esq., 950 17th St., 21st Floor, Denver, CO 80202 (For Respondents)
BY: A. Pendroy