Opinion
W.C. No. 4-192-596
October 30, 1996
FINAL ORDER
The claimant seeks review of a final order of Chief Administrative Law Judge Felter (ALJ) which awarded permanent disability benefits based on an impairment of eight percent of the whole person. We affirm.
This case concerns the question of whether the ALJ properly held that some of the claimant's medical impairment should be apportioned to preexisting hip problems. In March 1984, the claimant underwent a total hip replacement for reasons unrelated to her employment. In June 1992, she underwent a revision of the hip replacement, again due to non-work-related causes.
In June, 1993, the claimant sustained an industrial injury which necessitated a "second revision surgery." This surgery was performed by Dr. Evans, the authorized treating physician. In a note dated January 16, 1995, Dr. Evans opined that the 1993 industrial injury resulted in a "twenty percent impairment of the lower extremity" as defined by the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition (AMA Guides). As justification for this rating, Dr. Evans stated that the claimant's total impairment was forty percent of the lower extremity pursuant to Table 45, p. 72, of the AMA Guides. However, Dr. Evans stated that twenty percent of this impairment predated the industrial injury because the claimant had already undergone a "replacement arthroplasty in optimum position." Dr. Evans declined to attribute any impairment to reduced range of motion (ROM) because the claimant's ROM was "essentially the same" before the 1993 injury as it was after.
Subsequently, the claimant underwent a Division-sponsored independent medical examination (IME) by Dr. Phelps. Dr. Phelps concurred in Dr. Evans' rating "given the fact that her range of motion has not been adversely affected from the most recent revision surgery, according to Dr. Evans' notes." However, Dr. Phelps converted Dr. Evans' twenty percent lower extremity impairment rating to an eight percent whole person impairment rating.
The claimant also underwent an IME by Dr. Ciccone. Dr. Ciccone opined that the claimant has thirty-two percent impairment of the right lower extremity which is caused by reduced ROM. Dr. Ciccone converted this rating to a thirteen percent whole person impairment, and attributed all of it to the 1993 industrial injury.
The ALJ concluded that the IME rating of Dr. Phelps was not overcome by clear and convincing evidence. Consequently, the ALJ awarded medical impairment benefits based on an eight percent whole person impairment.
I.
On review, the claimant first contends that it was improper to apportion any of the claimant's medical impairment to the preexisting hip condition. The claimant asserts that, under § 8-42-104(2), C.R.S. (1996 Cum. Supp.), apportionment is proper only if the preexisting impairment is work-related. In support of this proposition, the claimant cites Lindner Chevrolet v. Industrial Claim Appeals Office, 914 P.2d 496 (Colo.App. 1995), and some of our prior decisions which concern apportionment of permanent total disability benefits.
The respondent argues, and we agree, that resolution of this issue is governed by the decision of the court of appeals in Askew v. Sears Roebuck Co., 914 P.2d 416 (Colo.App. 1995), cert. granted, April 8, 1996. In Askew, the court held that § 8-42-107(8)(c), C.R.S. (1995 Cum. Supp.), "has clearly delegated the decision to apportion to the IME physician by declaring the opinion of the IME physician binding . . . or binding to the extent that it can be overcome only by clear and convincing evidence." The court went on to hold that, "the ALJ's authority to apportion permanent partial disability under § 8-42-104(2) does not preclude the IME physician from apportioning medical impairment" under § 8-42-107(8)(c).
We are bound by published opinions of the court of appeals unless and until they are overruled by the supreme court. C.A.R. 35(f). Since we understand Askew to expressly authorize the apportionment which the ALJ upheld in this case, we decline the claimant's invitation to reach another result based on decisions which involve the apportionment of permanent total disability, and do not concern the apportionment of medical impairment benefits under § 8-42-107(8)(c).
II.
The claimant next contends that the record does not contain "objective evidence" sufficient to establish that the claimant's lost ROM predated the June 1993 injury. Specifically, the claimant contends that the AMA Guides contain a comprehensive system for measuring lost ROM, and that Dr. Evans and Dr. Phelps failed to utilize these procedures in determining the claimant's lost ROM. Moreover, the claimant contends that there was a lack of "objective evidence" to substantiate the existence of a preexisting ROM impairment, as required by Rule of Procedure XIX(C), 7 Code Colo. Reg. 1101-3 at 123. Again, we are not persuaded.
The essence of the claimant's argument is that, because the AMA Guides are incorporated into the Act, any rating which is not based on the specific measurement techniques prescribed by the AMA Guides is entirely invalid. However, in our view, this constitutes an unduly narrow interpretation of the apportionment provisions of the AMA Guides and Rule XIX(C).
As noted in Askew v. Sears Roebuck and Co., the AMA Guides state that where apportionment is needed, a "conclusion that a factor did contribute to an impairment must rely on documentation of the circumstances under which the factor was present and verification that the type and magnitude of the factor were sufficient and bore the necessary temporal relationship to the condition." Moreover, Rule XIX(C) provides that apportionment to a preexisting condition must be based on medical records or other "objective evidence" substantiating the preexisting impairment.
The claimant's argument notwithstanding, neither the AMA Guides, nor Rule XIX(C) requires that the preexisting impairment have been rated in accordance with the exacting standards of the AMA Guides. To the contrary, all that is required is that an apportionment, which occurs when rating the industrial injury, be based on "objective evidence" which satisfies the rating physician that the preexisting impairment can be fairly documented.
Here, Dr. Evans testified concerning his experience with hip replacements, and stated that hip replacements usually result in the "same global range of motion, whether its with a first hip surgery or a second." (Evans Depo., Dec. 7, 1995, p. 16). Moreover, Dr. Evans performed both the 1992 and 1993 hip replacements, and stated that he observed that the claimant's "hip range of motion was essentially typical of hip surgery, hip replacement surgery." Based on this testimony, the ALJ could logically determine that there was sufficient "objective evidence" to support the apportionment of Dr. Evans, and subsequently Dr. Phelps.
It follows that there is substantial evidence to support the apportionment, and there was no legal error. Since the ALJ's findings are supported by the evidence, they must be upheld. Section 8-43-103(8), C.R.S. (1996 Cum. Supp.). Moreover, the mere fact that Dr. Evans' testimony contained some inconsistencies affords no basis for relief on appeal. See Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968).
III.
The claimant's final argument is that, since there is not evidence to support the apportionment, the ALJ was obliged to utilize the combined values chart in the AMA Guides to award permanent impairment based on the claimant's lost ROM. However, as we have already determined, the record supports the ALJ's finding that Dr. Phelps' apportionment was not overcome. Since the apportionment is based on the opinion that no lost ROM is attributable to the industrial injury, it is unnecessary to utilize the combined values chart to combine the lost ROM and the other impairment.
IT IS THEREFORE ORDERED that the ALJ's order dated June 13, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Kathy E. DeanNOTICE
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. (1996 Cum. Supp.).
Copies of this decision were mailed October 30, 1996 to the following parties:
Laura Cummins, 816 G Street, Salida, CO 81201
Chaffee County, OHMS, Inc., Attn: Norma Sanchez, 700 Broadway, Ste. 1132, Denver, CO 80273
David J. Dworkin, Esq. Scott L. Evans, Esq., 3900 E. Mexico, Ste. 1300, Denver, CO 80210 (For the Respondent)
Joseph M. Goldhammer, Esq., 1563 Gaylord St., Denver, CO 80206 (For the Claimant)
By: ______________________