Opinion
W.C. No. 4-345-673
October 25, 1999
FINAL ORDER
The claimant and the respondent seek review of a final order of Administrative Law Judge Wheelock (ALJ) which awarded permanent partial disability benefits based on a medical impairment rating of 16 percent of the whole person. The respondent contends the impairment rating should have been "apportioned" based on the claimant's pre-existing degenerative cervical condition. The claimant contends the impairment rating should have included a rating for tinnitus. We affirm.
The claimant sustained a compensable injury on April 9, 1996, when she was struck on the left side of her head by a basketball. Thereafter, the claimant experienced neck pain, headaches, some hearing loss, and tinnitus. The claimant reached maximum medical improvement in June 1997.
On June 16, 1997, the claimant was examined by Dr. Jenks for the purpose of assessing a medical impairment rating. Dr. Jenks determined the claimant has an overall 14 percent whole person impairment based on 10 percent impairment for lost range of motion in the cervical region, and 4 percent impairment for a specific disorder of the spine. However, Dr. Jenks reduced the rating to 7 percent of the whole person because he found 50 percent of the impairment was due to a pre-existing degenerative condition of the cervical spine. Dr. Jenks declined to assign any impairment for the claimant's hearing problems because the claimant's hearing specialist, Dr. Barrs, stated on November 26, 1996, that the claimant "does not have a ratable hearing loss since her pure tone average is within the normal range." Dr. Jenks later amended his rating to 9 percent of the whole person, stating that the claimant's pre-existing cervical condition caused a 5 percent impairment based on lost range of motion in the cervical spine.
In March 1998 the claimant underwent a Division-sponsored independent medical examination (IME) for the purpose of determining her medical impairment rating. The IME physician, Dr. Ridings, concluded the claimant has an overall impairment of 16 percent of the whole person attributable to lost range of motion in the cervical spine. However, he apportioned 50 percent of this impairment to the claimant's pre-existing degenerative joint disease and reduced the overall rating to 8 percent as a whole person. Dr. Ridings reaffirmed the 8 percent rating in a report dated April 24, 1998. In that report Dr. Ridings stated that he had not received any records, including the claimant's chiropractic treatment notes, which gave "any objective information regarding [claimant's] cervical range of motion prior to her injury on April 9, 1996." He also declined to assign any impairment for tinnitus, stating that the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition (Revised) (AMA Guides) contain no "mechanism" for rating tinnitus "that does not interfere with hearing in the ratable frequency range by audiometric testing."
Dr. Barrs expressed three separate opinions concerning whether or not the claimant is entitled to an impairment rating based on her hearing problems. As noted, Dr. Barrs assigned no impairment rating on November 26, 1996. On February 20, 1998, Dr. Barrs assessed a 5 percent whole person impairment rating for tinnitus "since it has been quite disabling and distracting to [the claimant] in her occupation as a teacher." On May 4, 1998, Dr. Barrs opined the AMA Guides, p. 173, permit a rating for tinnitus based on the "severity and importance" of the condition, and restated his February 20 opinion that the claimant has a 5 percent impairment attributable to tinnitus.
At the hearing, the claimant admitted she had undergone chiropractic treatments for cervical pain prior to the April 1996 industrial injury. However, she also testified that these problems did not impair her ability to work or engage in athletic activities until after the 1996 injury. Since the injury, the claimant testified that she has difficulty moving materials to modular classrooms and has trouble while leaning over to grade papers. The claimant is also limited in her athletic activities. (Tr. pp. 17-19).
Under these circumstances, the ALJ held the claimant is entitled to permanent partial disability benefits based on the overall 16 percent whole person impairment rating issued by the IME physician. The ALJ specifically determined the claimant overcame the IME physician's 8 percent "apportionment" by clear and convincing evidence. In support, the ALJ credited the claimant's testimony that any pre-existing cervical impairment did not affect her personal, social, or occupational pursuits. Thus, the ALJ concluded the claimant's pre-existing cervical impairment, if any, was not "disabling" within the meaning of Askew v. Industrial Claim Appeals Office, 927 P.2d 1333 (Colo. 1996). The ALJ further concluded that apportionment of the IME physician's impairment rating would be improper because there was "no objective evidence that the claimant suffered an impairment before her work-related injury measurable by objective means."
The ALJ next concluded that the claimant failed to overcome the IME physician's rating insofar as the rating did not include any impairment attributable to tinnitus. In support of this conclusion the ALJ found the claimant had no hearing loss at regular decibel levels, there was evidence of pre-existing tinnitus in the right ear, and the claimant suffered no impairment in her speech discrimination.
I.
Relying on our decision in Esquibel v. Denver Public Schools, W.C. No. 4-329-119 (February 11, 1999), the respondent argues the ALJ erred in failing to analyze the consequences of the claimant's pre-existing degenerative condition as an issue of "causation" rather than one of "apportionment." If analyzed as an issue of causation, the respondents assert the ALJ was obliged to defer to the IME physician's 8 percent rating. We reject this argument.
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. Relying on Qual-Med, Inc. v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998), we held the question of whether a "particular impairment" was caused by the industrial injury is an inherent part of the rating process and the IME physician's finding on this issue is entitled to deference under § 8-42-107(8)(c), C.R.S. 1999. Because the issue concerned whether any of the lost range of motion was caused by industrial injury, the ALJ properly viewed the issue as one of causation. However, we also noted that Askew cites the AMA Guides for the proposition that "apportionment" may be defined as "the determination of the degree to which each of various occupational or nonoccupational factors has contributed to a particular impairment." (Emphasis added).
Subsequently, in Johnson v. Christian Living Campus, W.C. No. 4-354-266 (October 5, 1999), we stated that the definition of "apportionment" contained in Askew and the AMA Guides establishes the line of demarcation between issues of "apportionment" for purposes of § 8-42-104(2), C.R.S. 1998 [significantly amended in 1999 for injuries occurring on or after July 1, 1999], and issues of "causation" under § 8-42-107(8)(c). In Johnson, the IME physician assigned a 10 percent whole person impairment for specific disorders of the lumbar spine, but deducted 8 percent impairment because of a pre-existing surgically treated disc lesion with no residual signs or symptoms. We concluded that the issue was one of "apportionment" for purposes of § 8-42-104(2) because the issue involved the "relative contributions of occupational and nonoccupational factors to a particular component of the impairment."
Applying this reasoning here, we reject the respondent's assertion that the apportionment principles announced in Askew do not apply to this case. Here, the IME physician's entire impairment rating was based on lost range of motion in the cervical spine. Thus, the issue involves the degree to which various factors contribute to a particular impairment (lost range of motion in cervical spine). Further, the IME physician was attempting to determine the relative contributions of occupational and nonoccupational factors to this particular aspect of the claimant's overall impairment. Consequently, the issue is properly viewed as one of apportionment and the ALJ correctly applied the principles of Askew. Johnson v. Christian Living Campus, supra.
II.
Alternatively, the respondent contends the ALJ erred in determining that the claimant's pre-existing cervical condition does not constitute a "previous disability" for purposes of apportionment under § 8-42-104(2) and Askew v. Industrial Claim Appeals Office. Specifically, the respondent argues the medical records establish the claimant suffered from a pre-existing degenerative condition which was sufficiently diagnosed and treated to afford a basis for apportionment under Askew. The respondent further contends that, to the extent the statute permits awards based on impairment ratings, the existence of a pre-existing impairment necessarily translates into a prior "disability" for purposes of apportionment under § 8-42-104(2). We do not consider whether the evidence would support a finding of pre-existing "impairment" because we conclude the evidence supports the ALJ's determination that any pre-existing impairment was not "disabling" at the time of the April 1996 industrial injury.
The respondent's argument notwithstanding, it is well established that apportionment under § 8-42-104(2) is not appropriate merely because the claimant suffers from a documented pre-existing "impairment." Rather, as held in Lambert Sons, Inc. v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 97CA1774, July 9, 1998), Askew stands for the proposition that "impairment" and "disability" are separate concepts, and both must be present in order to apportion pre-existing impairment under § 8-42-104(2). As stated in Askew and Lambert, the term "impairment" relates to an individual's health status and is determined by medical means. In contrast, the term "disability" refers to a person's ability to meet personal, social, or occupational demands, and is assessed by non-medical means.
Further, the question of whether a particular impairment was "disabling" at the time of the industrial injury is one of fact for determination by the ALJ. The mere fact that a pre-existing impairment may have caused some symptoms does not compel the conclusion that the impairment was "disabling" for purposes of § 8-42-104(2). Rather, an apportionable disability is one which adversely impacts the claimant's ability to perform his job, or limits the claimant's access to other jobs in the labor market. See Absolute Employment Services, Inc. v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 98CA1200, September 16, 1999); Baldwin Construction, Inc. v. Industrial Claim Appeals Office, 937 P.2d 895 (Colo.App. 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. 1999. This standard of review requires us to defer to the ALJ's resolution conflicts in the evidence, her credibility determinations, and the plausible inferences she drew from the record. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
Here, the record contains substantial evidence in support of the ALJ's finding that the claimant's pre-existing impairment, if any, was not disabling. Although the claimant occasionally received chiropractic treatments prior to April 1996, she testified that she was not hindered in performing any of her athletic or work-related duties. The respondent presented no evidence that the alleged pre-existing impairment "disabled" the claimant by precluding her from performing her regular duties or obtaining alternative employment. Under these circumstances we decline to substitute our judgment for that of the ALJ concerning the claimant's credibility and the inferences to be drawn from the record.
In light of this disposition we need not reach the issue of whether the record supports the ALJ's conclusion that there was insufficient evidence of a pre-existing impairment.
III.
The claimant contends she is entitled to benefits based on Dr. Barrs' 5 percent impairment rating for tinnitus. In support of this argument the claimant points out that page 173 of the AMA Guides permits the assignment of an impairment rating for tinnitus. Therefore, the claimant argues the IME physician incorrectly stated that the AMA Guides do not contain a "mechanism" for rating impairment attributable to tinnitus. Consequently, the claimant argues that we should adopt the 5 percent rating issued by Dr. Barrs. We disagree.
Under § 8-42-107(8)(c) the claimant was required to overcome the IME physician's impairment rating by clear and convincing evidence. The questions of whether the IME physician properly applied the AMA Guides, and whether his rating was overcome, are matters of fact for determination by the ALJ. Metro Moving Storage Co. v. Gussert, supra. The mere fact that an IME physician has deviated from the AMA Guides in arriving at the rating does not necessarily compel a conclusion that the rating itself was incorrect, nor does it compel the ALJ to a adopt a rating issued by some other physician. Eg., HBE Corp. v. Industrial Claim Appeals Office, (Colo.App. No. 98CA2345, August 12, 1999) (not selected for publication).
Here, the claimant argues the IME physician's impairment rating is contrary to the AMA Guides, § 9.1 at 173-174. That provision specifically provides that disturbances of the ear such as "tinnitus are not measurable and, therefore, the physician should assign a degree of impairment that is based on severity and importance, and is consistent with established values."
Initially, we do not agree with the claimant that the ALJ was compelled to find the IME physician misapplied the AMA Guides when he stated they do not contain a "mechanism" for rating tinnitus which does not "interfere with hearing in the ratable frequency range." To the contrary, the AMA Guides themselves concede that tinnitus is not "measurable." Therefore, the IME physician could plausibly interpret this statement to mean there is no formal "mechanism" for rating tinnitus.
In any event, even if § 9.1 could be construed as a "mechanism" for rating impairment caused by tinnitus, that fact did not compel the ALJ to find the IME physician's refusal to rate tinnitus was overcome by clear and convincing evidence. To the contrary, the ALJ specifically noted the tinnitus has not interfered with the claimant's hearing at regular decibel levels and has not impaired her speech discrimination. These findings are supported by Dr. Barrs' report of May 16, 1996. Consequently, the ALJ need not have been persuaded that the claimant's tinnitus was serious enough to warrant a rating under the very general, and apparently subjective, principles of § 9.1 of the AMA Guides. This is particularly true in light of the apparent inconsistencies in Dr. Barrs' reports.
It is true that some evidence in the record would have supported a contrary finding and conclusion. However, we decline the claimant's invitation to interfere with the ALJ's findings of fact and rule as a matter of law that the IME physician's rating was overcome by clear and convincing evidence.
IT IS THEREFORE ORDERED that the ALJ's order dated December 3, 1998, is 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. 1999.
Copies of this decision were mailed October 25, 1999 the following parties:
Maureen Johnson, P.O. Box 540, Woodland Park, CO 80866-0540
Jean Houston, El Paso County School District No. 11, 1115 El Paso St., Colorado Springs, CO 80903
Joan A. Goldsmith, Esq., 6665 Delmonico, Ste., D, Colorado Springs, CO 80919 (For Claimant)
Gregory B. Cairns, Esq., Lew M. Harstead, Esq., 1775 Sherman St., Ste. 1075, Denver, CO 80203 (For Respondent)
BY: A. Pendroy