Opinion
W.C. No. 3-105-402
September 17, 1996
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Martinez (ALJ) which awarded the claimant medical impairment benefits based upon a disability of twenty-two percent as a whole person. We affirm.
This case was before us previously. In an Order of Remand dated March 13, 1996, we remanded the matter to the ALJ to determine whether the American Medical Association Guides to the Evaluation of Permanent Impairment (AMA Guides) permit apportionment under the circumstances of this case, and if so, whether the apportionment rendered by the Division-sponsored Independent Medical Examiner (IME), Dr. Winkler, was appropriate.
On remand, the ALJ found that Dr. Winkler opined that the claimant suffers from a twenty-two percent impairment of the whole person resulting from injuries to the cervical spine, the lumbar spine, and the right shoulder. Dr. Winkler apportioned ten percent of the overall rating to preexisting spondylosis, and opined that the claimant has a fourteen percent whole person impairment attributable to the September 1992 industrial injury.
In his deposition, Dr. Winkler testified that he utilized the AMA Guides, Table 53(II)(B), in rating the claimant's spinal impairment. Dr. Winkler conceded that, under the provisions of Table 53, a degenerative condition is not rateable unless the condition causes symptoms. Moreover, the ALJ noted that Dr. Winkler "assumed" that the claimant experienced back symptoms prior to the industrial injury.
Despite Dr. Winkler's assumption, the ALJ credited the claimant's testimony that he did not have any symptoms from the preexisting condition at the time of the 1992 industrial injury. Under these circumstances, the ALJ found that the AMA Guides do not permit apportionment to the claimant's preexisting condition. Because the ALJ found that Dr. Winkler's apportionment was inconsistent with the AMA Guides, he also determined that Dr. Winkler's opinion was overcome by clear and convincing evidence, and that the claimant is entitled to medical impairment benefits based upon a disability of twenty-two percent of the whole person.
On review, the respondents contend that the ALJ erred in disregarding Dr. Winkler's apportionment because the claimant's preexisting spondylosis was not "industrial." Further, the respondents contend that the ALJ's finding that Dr. Winkler's apportionment was overcome by clear and convincing evidence is contrary to the record. We disagree with these arguments.
In Askew v. Sears Roebuck Co., 914 P.2d 416 (Colo.App. 1995), cert. granted, April 8, 1996, the Court of Appeals established principles governing the apportionment of pre-existing medical impairment. First, the court determined that, under § 8-42-107(8)(c), C.R.S. (1996 Cum. Supp.), the IME physician is required to rate the claimant's medical impairment in accordance with the AMA Guides. Both the impairment rating and the IME physician's apportionment of preexisting medical impairment are binding on the parties and the ALJ unless overcome by clear and convincing evidence. The question of whether an impairment rating has been overcome by clear and convincing evidence is a question of fact, and the ALJ's determination must be upheld if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1996 Cum. Supp.).
In determining whether the IME physician's rating and apportionment have been overcome by clear and convincing evidence, we may not substitute our judgement for that of the ALJ concerning the weight of the evidence, the credibility of the witnesses, or the inferences to be drawn from the record. To the contrary, we must defer to the ALJ's resolution of these issues, including his assessment of the weight of the medical evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
The respondents' argument notwithstanding, the mere fact that the claimant had pre-existing degenerative changes did not oblige the ALJ to conclude that these changes constituted a "medical impairment" which was subject to apportionment under § 8-42-107(8)(c) and the AMA Guides. To the contrary, the question of whether these degenerative changes constituted an impairment was a factual matter which the ALJ resolved against the respondents. Metro Moving Storage v. Gussert, supra, (question of whether physician properly applied AMA Guides is one of fact).
Further, the ALJ's determination that the apportionment was overcome by clear and convincing evidence constitutes a plausible interpretation of the evidence, including the testimony of the claimant and Dr. Winkler. Here, the claimant testified that he did not have any symptoms prior to the industrial injury. Further, Dr. Winkler conceded that under Table 53(II)(B) the existence of symptoms is a prerequisite to assessing rateable impairment. Thus, a plausible inference to be drawn from the evidence is that Dr. Winkler's apportionment to the preexisting condition was not in accordance with the applicable provisions of the AMA Guides.
It is true that some evidence, including portions of Dr. Winkler's testimony, would support a contrary finding and conclusion. However, it was for the ALJ to resolve the internal inconsistencies in Dr. Winkler's testimony, and we are not at liberty to interfere with that resolution. El Paso County Department of Social Services v. Donn, 865 P.2d 877 (Colo.App. 1993).
Insofar as the respondents have made other arguments, we find them to be without merit.
IT IS THEREFORE ORDERED that the ALJ's order dated May 2, 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 September 17, 1996 to the following parties:
David (Richard) Looper, 181 Coyote Dr., Pagosa Springs, CO 81147
Lance Logging Co., Inc., P.O. Box 898, Pagosa Springs, CO 81147-0898
Colorado Compensation Insurance Authority, Attn.: Marjorie J. Long, Esq. (Interagency Mail)
I.M.E. Unit, Attn: Faye Boyd (Interagency Mail)
Scot Houska, Esq., 744 Horizon Ct., Ste. 360, Grand Junction, CO 81506 (For the Respondents)
Gail Harriss, Esq., 572 E. Third Ave., Durango, CO 81301 (For the Claimant)
Office of Attorney General, Human Resources Section, 1525 Sherman St., 5th Flr., Denver, CO 80203
By: ___________________