Opinion
W.C. No. 4-740-966.
March 10, 2009.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Henk (ALJ) dated October 30, 2008, that determined the Division-sponsored independent medical examination (DIME) physician properly apportioned the claimant's pre-existing back condition. We affirm.
The ALJ's following findings of fact are not in dispute. The claimant suffered an admitted industrial injury to his low back in the course of his employment with the employer on May 18, 2007. The claimant had a history of low back problems and in 1991 underwent a laminectomy. In 1999, he underwent a two level lumbar fusion and received permanent lifting restrictions. The claimant alleged that the prior back problems were due to non-industrial conditions and that he never had prior workers' compensation claims or impairment ratings. A treating physician placed the claimant at maximum medical improvement (MMI) for the industrial injury in January 2008. The treating physician rated the claimant's medical impairment and apportioned eleven percent to preexisting conditions leaving six percent whole person impairment attributable to this industrial injury. The respondents filed an admission based on the rating from the treating physician and the claimant timely requested a DIME. The DIME physician rated the clamant as having a 29 percent whole person impairment out of which he apportioned the claimant's previous spinal fusion leaving nine percent whole person impairment attributable to the industrial injury.
The claimant sought to overcome the DIME physician's opinion regarding permanent medical impairment. The ALJ determined that the claimant did not meet his burden of proof and that the DIME physician had properly apportioned the claimant's pre-existing impairment.
On appeal, the claimant contends the ALJ erred in apportioning permanent partial disability benefits because the claimant never had any prior workers' compensation claim or impairment ratings. The claimant argues that apportionment to any pre-existing non-industrial condition is error. We are not persuaded that the ALJ erred.
We first note that the injury here occurred before the passage of Senate Bill (S.B.) 08-241 which became effective on July 1, 2008, and which significantly amended § 8-42-104, C.R.S. 2008 the statute governing the effect of previous injury or compensation.
The claimant argues that Workers' Compensation Rule of Procedure 12-3, 7 Code Colo. Reg 1101-3 allows apportionment only for prior work-related injuries. We disagree. Rule of Procedure 12-3(A) provides as follows:
For claims with a date of injury prior to July 1, 2008, a Level II accredited physician ("the Physician") shall apportion any preexisting medical impairment, whether work-related or non work-related, from a work-related injury or occupational disease using the AMA Guides, 3rd Edition, Revised, where medical records or other objective evidence substantiate a preexisting impairment to the same body part. Any such apportionment shall be made by subtracting from the injured worker's impairment the preexisting impairment as it existed at the time of the subsequent injury or occupational disease. The physician shall explain in their written report the basis of any apportionment. If there is insufficient information to measure the change accurately, the physician shall not apportion.
Here the ALJ specifically noted Rule of Procedure 12-3 and found that supporting grounds for apportionment existed and that the DIME physician properly apportioned the claimant's pre-existing back condition. The ALJ made the uncontested factual findings noted above regarding the claimant's history of low back problems. In our view, this constitutes substantial evidence to support the ALJ's findings.
Moreover, contrary to the contentions of the claimant, the ALJ properly determined that the claimant's burden of proof increased to clear and convincing evidence to overcome the opinions of the DIME physician's opinion concerning permanent medical impairment. A DIME physician is required to rate impairment in accordance with the AMA Guides. It is now well established that a medical impairment rating inherently includes the physician's determination of the cause of the impairment and whether the impairment is subject to apportionment. Askew v. Industrial Claim Appeals Office, 927 P.2d 1333 (Colo. 1996); Qual-Med, Inc., v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998); See also Infante v. Colorado Compensation Insurance Authority, W. C. No. 4-277-692 (February 08, 2000). Under the AMA Guides, the determination of whether to apportion impairment requires the IME physician to "consider the nature of the impairment" and the possible relationship between any preexisting impairment and the subsequent impairment. Askew v. Industrial Claim Appeals Office, supra. Apportionment of medical impairment constitutes a medical determination, which when made by the DIME physician is subject to the clear and convincing standard of § 8-42-107(8). Martinez v. Industrial Claim Appeals Office, 176 P.3d 826, (Colo.App. 2007).
The question of whether the DIME physician's rating has been overcome by "clear and convincing evidence" is a matter of fact for determination by the ALJ. Metro Moving Storage Co. v. Gussert, 914 P.2d. 411 (Colo.App. 1995). In resolving this issue, the ALJ must consider the factual question of whether the DIME physician properly applied the AMA Guides and other rating protocols. See Metro Moving Storage Co. v. Gussert, supra. Moreover, the question whether the claimant has overcome the DIME report remains essentially a factual one despite the elevated standard of proof required to overcome a DIME: "[I]rrespective of whether the standard of proof at the administrative adjudicatory level of proceedings is clear and convincing, beyond a reasonable doubt, or merely a preponderance of the evidence, it is solely for the trier of fact to determine the persuasive effect of the evidence and whether the burden of proof has been satisfied." Id., 914 P.2d at 414. Therefore, the standard of review remains whether the ALJ's findings of fact are supported by substantial evidence in the record. Id.; § 8-43-301(8), C.R.S. 2008.
Substantial evidence is that quantum of probative evidence which a rational fact finder would accept as adequate to support a conclusion without regard to the existence of conflicting evidence. Metro Moving Storage Co. v. Gussert, supra. This standard of review is deferential and the scope of our review is "exceedingly narrow." Metro Moving Storage Co. v. Gussert, supra. As noted above in our view there is substantial evidence supporting the ALJ's determination.
The claimant cites Stahl v. Durango Fire and Rescue Auth, W.C. No. 4-560-612 (October 18, 2006) affd Durango Fire and Rescue Authority v. Industrial Claim Appeals Office (Colo.App. No. 06 CA226, September 20, 2007) (not selected for publication) for the proposition that it is not permissible to apportion impairment attributable to a non-industrial pre-existing physical condition. However, Stahl is not dispositive of the question presented here. The Panel's observation in Stahl that the question of apportionment of certain compensation was "unsettled" referred to the line of cases apportioning temporary total disability benefits and medical benefits. See State Compensation Insurance Fund v. Industrial Commission, 697 P.2d 807 (Colo.App. 1985); University Park Care Center v. Industrial Claim Appeals Office, 43 P.3d 637 (Colo.App. 2001); Duncan v. Industrial Claim Appeals Office, 107 P.3d 999 (Colo.App. 2004). Here, the apportionment was to preexisting permanent impairment and was done pursuant to a DIME report. There is express statutory and regulatory apportionment for this form of apportionment. See § 8-42-104(2)(b), C.R.S. 2008; Rule of Procedure 12-3(A). The Panel also determined in Stahl that the ALJ was without jurisdiction to award permanent partial disability benefits pending the respondents' compliance with statutory procedure for DIME. Here, in contrast to Stahl we note that the DIME report had been received, the ALJ determined that the DIME physician's apportionment was not overcome by clear and convincing evidence, and by implication, the DIME doctor complied with the AMA Guides and the relevant law in apportioning the permanent partial disability benefits. We do not read Stahl as compelling the conclusion that the ALJ erred here. We perceive no reason to interfere with the ALJ's order.
IT IS THEREFORE ORDERED that the ALJ's order issued October 30, 2008 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant
THAYNE DIMMICK, 2537 MOUNTAIN VIEW, LONGMONT, CO, (Claimant), AMERICAN INSURANCE GROUP/SEDGEWICK CMS, INC., Attn: DOREEN MILLER/TAMMY WILLIAMS, LEXINGTON, NY, (Insurer), CAMERON W TYLER ASSOCIATES, PC, Attn: CAMERON TYLER, ESQ., 2969 BASELINE ROAD, SECOND FLOOR, BOULDER, CO, (For Claimant).
DWORKIN, CHAMBERS, WILLIAMS, YORK, BENSON EVANS, Attn: DAVID J DWORKIN, ESQ., DENVER, CO, (For Respondents).