Summary
In Esquibel, the issue was whether the ALJ correctly ruled the respondents overcame by clear and convincing evidence the Division IME physician's opinion that the claimant's cervical impairment, attributable to lost range of motion, was caused by the industrial injury. The claimant argued the issue should have been viewed as one of "apportionment" under Askew, and therefore, the ALJ applied the wrong legal standard in finding that the respondents overcame the IME physician's finding of causation.
Summary of this case from In re Johnson, W.C. NoOpinion
W.C. No. 4-329-119
February 11, 1999.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Atencio (ALJ) which awarded permanent partial disability benefits based on medical impairment of nine percent as a whole person. The claimant argues the ALJ misapplied principles of apportionment in finding that the impairment rating of the division-sponsored independent medical examiner (IME) was overcome by clear and convincing evidence. The claimant also contends the ALJ erred in failing to award interest on the permanent partial disability benefits. We modify the order with respect to interest, and otherwise affirm.
The claimant sustained a compensable back injury in March 1994. The treating physician, Dr. Falecki, diagnosed a cervical thoracolumbar strain and provided conservative treatment. On May 16, 1994, Dr. Falecki placed the claimant at maximum medical improvement (MMI), noting the claimant had no tenderness in the cervical or lumbosacral areas. The claimant returned to work without restrictions.
The claimant returned to Dr. Falecki in September and October 1994 and reported ongoing neck and back pain. Dr. Falecki ordered spinal x-rays and reported that the x-rays revealed a "significant amount of degenerative changes," which accounted for the claimant's symptoms. Dr. Falecki opined that the degenerative changes constituted a preexisting condition.
In February 1998, the claimant underwent a division-sponsored IME by Dr. Pitzer. Dr. Pitzer opined the claimant has a thirty-eight percent whole person medical impairment. Dr. Pitzer attributed nine percent of the impairment to injury-related specific disorders of the spine. The remainder of the impairment was attributed to lost range of motion, which Dr. Pitzer conceded could have been caused by preexisting arthritis. Dr. Pitzer stated that this determination depended on whether the claimant's x-rays revealed "severe degenerative changes," and that he did not have an opportunity to review the x-rays.
At the hearing, the respondents offered the medical report of Dr. Hughes, an IME physician. Dr. Hughes opined that the claimant has nine percent injury-related medical impairment based on specific disorders of the cervical and lumbar spines. Dr. Hughes declined to include any impairment for the claimant's lost range of motion because he found, based on the claimant's x-rays and the reports of Dr. Falecki, that the lost range of motion was caused by preexisting degenerative changes.
The ALJ found that the respondents overcame by clear and convincing evidence the thirty-eight percent whole person impairment rating issued by Dr. Pitzer. Specifically, the ALJ credited the opinion of Dr. Hughes, and Dr. Pitzer's deposition testimony, which indicate that the claimant's lost range of motion was caused by degenerative arthritis and is not causally connected to the industrial injury. Consequently, the ALJ awarded permanent partial disability benefits based on medical impairment of nine percent of the whole person.
I.
On review, the claimant contends the ALJ improperly "apportioned" the claimant's medical impairment rating in light of Askew v. Industrial Claim Appeals Office, 927 P.2d 1333 (Colo. 1996). The claimant argues that the apportionment is improper under Askew because the preexisting degenerative back condition was undiagnosed and asymptomatic, and because any existing impairment was not disabling. The respondents argue that the ALJ's award is legally and factually correct because they overcame by clear and convincing evidence Dr. Pitzer's opinion that there was a causal relationship between the industrial injury and the claimant's range of motion impairment. We agree with the respondents and, therefore, affirm this portion of the ALJ's order.
In Askew v. Industrial Claim Appeals Office, supra, the Supreme Court addressed the issue of when it is proper to "apportion" a medical impairment rating between an industrial injury and a preexisting asymptomatic condition. In that case, the industrial injury was superimposed on a preexisting nonindustrial back condition. The court ruled that, in order to apportion impairment under § 8-42-104(2), C.R.S. 1998, it is necessary to prove that the preexisting condition was independently disabling at the time of the industrial injury, and that the preexisting condition was sufficiently identified, treated, or evaluated to be rated as a contributing factor in the subsequent disability. See also, Lambert Sons, Inc. v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 97CA1774, July 9, 1998).
In reaching this result, the Askew court noted that the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition (Revised) (AMA Guides), define apportionment as "the determination of the degree to which each of various occupational or nonoccupational factors has contributed to a particular impairment." (Emphasis added). However, the Askew court also stated that apportionment is appropriate "only when the prior disability, as defined by the AMA Guides, is a contributing factor to a subsequent industrial injury." Thus, Askew contemplates a distinction between apportionment and causation. See also, Mountain Meadows Nursing Center v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 98CA0469, February 4, 1999); AMA Guides p. 244 (causation concerns the issue of whether a factor that can cause impairment did cause impairment).
The Court of Appeals recognized the distinctive nature of the causation issue in Qual-Med, Inc. v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998). In Qual-Med, the IME physician opined that the portion of the claimant's rating attributable to cervical impairment was causally connected to the industrial injury and, therefore, the physician included it in the overall rating. The respondents argued that causation is a factual determination for the ALJ, and thus the ALJ was not bound by the "clear and convincing evidence" standard found in § 8-42-107(8)(c), C.R.S. 1998. However, the court ruled that the IME physician must "identify and evaluate all losses and restrictions which result from the industrial injury." Consequently, the court held that the causation issue is an inherent part of the IME process, and the IME physician's finding about the cause of an impairment must be accorded the special deference required by § 8-42-107(8)(c). Cf. Egan v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 98CA0821, November 13, 1998) (special deference accorded treating physician's finding of causation of impairment in the absence of an IME).
It follows that we find no error in the ALJ's failure to apply the apportionment principles discussed in Askew. As the ALJ found, Dr. Pitzer rendered a thirty-eight percent rating because the doctor could not exclude the possibility that the claimant's range of motion impairment was injury-related. However, relying on the report of Dr. Hughes, as well as Dr. Pitzer's deposition testimony, the ALJ found by clear and convincing evidence that the range of motion impairment is solely attributable to the claimant's preexisting arthritis. Thus, the ALJ was not attempting to apportion the range of motion impairment between a preexisting condition and the industrial injury, but rather to determine whether there was any relationship at all between the industrial injury and the lost range of motion.
Insofar as the claimant is asserting that the evidence does not support the ALJ's finding that the respondents overcame Dr. Pitzer's IME rating by clear and convincing evidence, we disagree. The issue of whether the respondents carried their burden of proof is one of fact for determination by the ALJ. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). Consequently, we must uphold the ALJ's order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1998. This standard of review requires us to defer to the ALJ's resolution of conflicts in the evidence, her credibility determinations, and plausible inferences she drew from the evidence. Metro Moving Storage Co. v. Gussert, supra.
Here, based on the reports of Dr. Falecki, Dr. Hughes opined that the industrial injury resulted in soft tissue sprains of the cervical and lumbar spines. Moreover, Dr. Hughes reported that the claimant's x-rays revealed long-standing degenerative arthritis which is the cause of the lost range of motion. As the ALJ recognized, Dr. Pitzer's deposition testimony offers support for Dr. Hughes's opinions. Under these circumstances, we are in no position to interfere with the ALJ's resolution of the conflicts in the evidence and her determinations concerning the credibility of the medical experts.
II.
The claimant next contends of the ALJ erred in failing to award interest on the permanent partial disability benefits from the date of MMI. The respondents argue that an award of interest is not proper because the ALJ did not fix the date for the commencement of permanent partial disability benefits. We agree with the claimant.
Section 8-43-410(2), C.R.S. 1998, provides that "an employer shall pay interest at the rate of eight percent per annum upon all sums not paid upon the date fixed by the award." Interest is a statutory right and applies automatically on the date payment is due. Beatrice Foods Co., Inc. v. Padilla, 747 P.2d 685 (Colo.App. 1987). Interest is designed to secure to claimants the value of the benefits to which they are entitled. Subsequent Injury Fund v. Industrial Claim Appeals Office, 809 P.2d 1098 (Colo.App. 1991). The date payment is due is the date on which the claimant becomes entitled to the benefits, not the date of the ALJ's order. Subsequent Injury Fund v. Industrial Claim Appeals Office, 899 P.2d 220 (Colo.App. 1994); Fuentez v. Hewlett Packard, W.C. No. 4-201-920 (December 18, 1998).
Here, the ALJ determined that the claimant reached MMI on May 16, 1994. Consequently, permanent partial disability benefits became due and owing on that date. Section 8-42-107(8)(d), C.R.S.; Fuentez v. Hewlett Packard, supra. Although the ALJ did not expressly determine a specific date for the commencement of permanent partial disability benefits, that date is determined by operation of law and is implicit in the order. Thus, interest must be awarded on the permanent partial disability benefits commencing May 16, 1994. We have reviewed the authorities cited by the respondents and find them inapposite to these facts.
IT IS THEREFORE ORDERED that the ALJ's order dated August 7, 1998, is modified to provide for the payment of interest as stated herein.
IT IS FURTHER ORDERED that the ALJ's order is otherwise affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Kathy E. Dean
NOTICE
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. 1998.
Copies of this decision were mailed February 11, 1999 to the following parties:
Daniel R Esquibel, 4985 Steele Street, Denver, CO 80216
Denver Public Schools, 900 Grant Street, Denver, CO 80203-2907
Brandee DeFalco Galvin, Esq., Colorado Compensation Insurance Authority (Interagency Mail) (For Respondents)
Martin J. Linnet, Esq., 4155 E. Jewell Avenue, Suite 500, Denver, CO 80222 (For Claimant)
Timothy L. Nemechek, Esq., 999 18th Street, Suite 3100, Denver, CO 80202
By: _______________