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In re Rutherford, W.C. No

Industrial Claim Appeals Office
Jun 6, 2003
W.C. No. 4-464-456 (Colo. Ind. App. Jun. 6, 2003)

Opinion

W.C. No. 4-464-456.

June 6, 2003.


FINAL ORDER

The respondents seek review of an order of Administrative Law Judge Henk (ALJ) which awarded medical impairment benefits based on 17 percent whole person impairment without apportionment. We affirm.

On February 14, 2000, the claimant suffered a compensable shoulder injury which was diagnosed as a rotator cuff tear. The claimant subsequently underwent surgery involving an open revision rotator cuff repair, an open inferior acromioplasty, an open distal clavicle excision, and an arthroscopic labral debridement. The claimant later underwent a second open rotator cuff debridement, but the tear was irreparable.

A Division-sponsored independent medical examination (DIME) physician assigned an upper extremity rating of 16 percent for range of motion deficits. The claimant applied for a hearing to overcome the DIME physician's rating, and requested an award of whole person impairment benefits.

The claimant suffered a previous rotator cuff tear in 1991. The ALJ found the claimant was assigned a 7 percent upper extremity rating after the 1991 injury.

The ALJ also found the claimant overcame the DIME physician's medical impairment rating insofar as the DIME physician failed to include a rating for distal clavicle excision and either crepitus or "other musculoskeletal defects." Instead, the ALJ credited the opinions of Dr. Ryan and Dr. Shaw that the claimant sustained 10 percent impairment for distal clavicle resection and 6 percent for crepitus for a total of 29 percent impairment to the upper extremity which converts to 17 percent whole person impairment. Based on the ALJ's further determination that the claimant suffered functional impairment and limitations proximal to the glenohumeral joint, the ALJ awarded medical impairment benefits based on 17 percent whole person impairment. The respondents timely appealed.

On review, the respondents do not dispute the ALJ's finding that the claimant overcame the DIME physician's rating. Instead, the respondents contend the ALJ erroneously shifted the burden of proof in requiring the respondents to overcome the DIME physician's failure to apportion the claimant's preexisting impairment. We disagree.

The Workers' Compensation Act requires that all physical impairment ratings be conducted in accordance with the American Medical Association Guides to the Evaluation of Permanent Impairment Third Edition, Revised (AMA Guides). Section 8-42-101(3.7). C.R.S. 2002. Further, the DIME physician's medical impairment rating is binding unless overcome by "clear and convincing evidence." Section 8-42-107(8)(c), C.R.S. 2002 ; Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). "Clear and convincing evidence" is evidence which proves that it is "highly probable" the DIME physician's opinion is incorrect. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).

The clear and convincing evidence standard also applies to the DIME physician's opinion on the cause of the impairment. This is true because causation is an inherent part of the diagnostic assessment which comprises the DIME process of rating permanent medical impairment. Qual-Med, Inc., v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998).

The determination of whether the DIME physician's opinion has been overcome is a question of fact for resolution by the ALJ. Consequently, we must uphold the ALJ's determinations if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2002; Qual-Med, Inc. v. Industrial Claim Appeals Office, supra.

Admittedly, we have previously concluded that once an ALJ determines the DIME physician's rating has been overcome, the question of the claimant's correct medical impairment rating becomes a question of fact for the ALJ. Garlets v. Memorial Hospital, W.C. No. 4-336-566 (September 5, 2001); cf . Postlewait v. Midwest Barricade, 905 P.2d 21 (Colo.App. 1995) (statute only requires deference to treating physician's opinion of medical impairment in the absence of a DIME). However, we have also concluded that the ALJ is not required to reject every component of a DIME physician's rating where a party is successful in proving that one component of the impairment rating is incorrect. Rather, if the DIME physician's rating is based upon multiple regional impairments, the ALJ may assess the accuracy of each regional impairment separately under the clear and convincing evidence standard. We adhere to our conclusions.

Former § 8-42-104(2), C.R.S. 1998, [amended 1999 Colo. Sess. Laws, ch. 141, at 410, for injuries occurring on or after July 1, 1999], provides that:

"In case there is a previous disability, the percentage of disability for a subsequent injury shall be determined by computing the percentage of the entire disability and deducting therefrom the percentage of the previous disability as it existed at the time of the subsequent injury. . . ." (Emphasis added).

In Askew v. Industrial Claim Appeals Office, 927 P.2d 1333 (Colo. 1996), the Supreme Court held that § 8-42-104(2) permits the apportionment of permanent partial disability benefits based on a preexisting condition, provided the preexisting condition is disabling at the time of the subsequent injury. In so holding, the Askew court distinguished between "impairment" and "disability." Specifically, the court relied on the AMA Guides to find that impairment relates to an alteration of an individual's health status as assessed by medical means, while a disability pertains to a person's ability to meet personal, social, or occupational demands, and is assessed by non-medical means. Because an "impairment" may or may not be disabling, the court held, evidence of preexisting medical impairment is not conclusive of whether the claimant had a "previous disability" for purposes of apportionment under the prior statute.

However, the claimant's injury occurred after July 1, 1999, and thus, the apportionment issue is governed by the 1999 amendments which are currently codified at § 8-42-104(2)(b), C.R.S. 2002. That statute provides as follows:

"When benefits are awarded pursuant to section 8-42- 107, an award of benefits for an injury shall exclude any previous impairment to the same body part."

In Campbell v. Department of Corrections, W.C. No. 4-446-238 (November 19, 2002), we held that because this new statute refers to "previous impairment" rather than "disability," the intent of the 1999 amendment was to alter the impact of Askew in apportionment cases so that preexisting medical impairment, if sufficiently documented, may support apportionment regardless of whether such impairment was also "disabling" at the time of the industrial injury. See also Public Service Co. of Colorado v. Industrial Claim Appeals Office, 40 P.3d 68 (Colo.App. 2001). We adhere to our previous conclusions.

Here, the claimant disputed the DIME physician's rating insofar as the physician only assigned a rating for range of motion impairment. Accordingly, the ALJ correctly required the claimant to overcome the DIME physician's failure to include a rating for crepitus and the clavicle excision. However, the ALJ found no error in the DIME physician's rating for impaired range of motion. Further, it was the respondents who disputed the DIME physician's failure to apportion the claimant's impairment from the 1991 injury. Under these circumstances, the ALJ did not err in concluding that the DIME physician's opinion on apportionment was binding in the absence of the respondents' presentation of clear and convincing evidence to the contrary.

Nevertheless, the respondents contend the Division of Workers' Compensation computer printout which indicated a 7 percent upper extremity rating was assigned for the 1991 injury (Respondents' exhibit E), compelled the ALJ to apportion the award of partial disability benefits. Again, we disagree.

Section 2.2 of the AMA Guides provides that a physician:

"who reevaluates an individual's impairment must be aware that change may have occurred, even though a previous evaluator considered the impairment to be `permanent.' For instance, the condition may have become worse as a result of aggravation or clinical progression or it may have improved. . . . Valid assessment of a change in impairment rating will depend on the reliability of the previous rating. If there was no valid previous evaluation, information about the condition still could be used to estimate a rating according to Guides criteria. However, if there is insufficient information to measure the change accurately, the evaluator should not attempt to do so and should provide an explanation of that decision."

That section also states that: "If `apportionment' is needed, the analysis must consider the nature of the impairment and its possible relationship to each alleged factor, and it must provide an explanation of the medical basis for all conclusions and opinions."

Similarly, the Rules of Procedure XIX(C), 7 Code Colo. Reg. 1101-3 at 123, provide that in accordance with § 8-42-104(2), the DIME physician shall apportion the rating based on preexisting medical impairment "where medical records or other objective evidence substantiate" preexisting impairment. It follows that apportionment is a medical determination and the DIME physician's opinion that apportionment is not appropriate must be upheld unless the party disputing the DIME physician's opinion proves it is highly probably the rating should be apportioned. Consequently, we reject the respondents contention that the computer printout compelled apportionment by the ALJ.

Here, no medical reports were produced concerning the nature of the 1991 injury, or the diagnosis and treatment of the injury. Nor was any medical impairment evaluation for the 1991 injury submitted. As a result, the DIME physician did not apportion the claimant's impairment. The DIME physician's implicit determination is supported by the opinions of Dr. Paz, Dr. Ryan, and Dr. Shaw, who also did not apportion the claimant's impairment.

In explanation, Dr. Ryan testified that apportionment is not determined simply from the existence of a prior impairment rating. (Tr. pp. 53). Dr. Ryan added that there was no information of what kind of injury the claimant had in 1991, what the 1991 rating was based upon, and no information of how improved the claimant's condition became prior to the 2000 injury. (Tr. p. 100). Consequently, he opined it would be speculative to say the 2000 impairment rating should have been apportioned. (Tr. p. 101). Similarly, Dr. Shaw stated that apportionment under the AMA Guides requires an examination of whether the claimant's condition worsened or improved after the prior rating was assigned. (Tr. p. 87). Under these circumstances, the record contains substantial evidence to support the ALJ's implicit determination that the respondents failed to prove it was highly likely the DIME physician erroneously failed to apportion the claimant's medical impairment.

Furthermore, the ALJ explicitly recognized that apportionment is a medical determination, and did not purport to determine whether the claimant had a "previous disability" within the meaning of the predecessor statute. Rather, she determined that the DIME physician's opinions on apportionment were buttressed by evidence that the claimant's shoulder was asymptomatic and the claimant did not seek shoulder treatment from 1991 to 2000, and was able to perform heavy labor without restrictions.

The respondents also contend there is insufficient evidence to support the ALJ's finding that the claimant suffered functional impairment beyond the upper extremity. Therefore, the respondents argue the ALJ erroneously compensated the claimant's loss as whole person impairment. Again, we disagree.

Section 8-42-107(1), C.R.S. 2002, limits the claimant to a scheduled disability award if the injury results in permanent medical impairment enumerated on the schedule of disabilities in § 8-42-107(2). Mountain City Meat Co. v. Oqueda, 919 P.2d 246 (Colo 1996). Where the claimant suffers functional impairment which is not listed on the schedule, the claimant is limited to medical impairment benefits for whole person impairment calculated in accordance with § 8-42-107(8)(c), C.R.S. 2002.

In the context of permanent partial disability, the term "injury" refers to the part or parts of the body which have been permanently, functionally impaired as a result of the injury, and not the physical situs of the injury. Walker v. Jim Fouco Motor Company, 942 P.2d 1390 (Colo.App. 1997); Langton v. Rocky Mountain Health Care Corp., 937 P.2d 883 (Colo.App. 1996). The loss of use of the arm at the shoulder is enumerated on the schedule of disabilities.

The courts have held that damage to structures of the "shoulders" may or may not reflect a "functional impairment" which is enumerated on the schedule of disabilities. See Walker v. Jim Fouco Motor Company, supra; Strauch v. PSL Swedish Healthcare System, 917 P.2d 366 (Colo.App. 1996); Langton v. Rocky Mountain Health Care Corp., supra. For example, Strauch involved a claimant whose shoulder injury was diagnosed as a rotator cuff tear and shoulder impingement syndrome. The Court of Appeals concluded that the record supported an ALJ's finding that the claimant's functional impairment from the "shoulder injury" was limited to the use of the claimant's arm. Consequently, the Strauch court upheld the ALJ's determination that the claimant was limited to a scheduled disability award.

In Langton, an ALJ found that the claimant's functional impairment was limited to the use of her arm, even though she experienced a loss of range of motion in her shoulder, impairment of the peripheral nervous system, and shoulder pain with overhead work. The Langton court concluded that the ALJ's determination was supported by substantial evidence in the record, and therefore, upheld the ALJ's determination that the claimant was limited to a scheduled disability award.

However, there is no requirement that functional impairment take any particular form in order to be compensable under § 8-42-107(8). Garcia v. Advanced Component Systems, Inc., W.C. No. 4-187-720, (June 21, 1996). Accordingly, we have previously concluded that pain and discomfort which interferes with the claimant's ability to use a portion of the body may be considered "impairment." Mader v. Popejoy Construction Co., Inc., W.C. No. 4-198-489 (August 9, 1996); Garcia v. Advanced Component Systems, Inc., supra; Elwood v. Sealy Corporation, W.C. Nos. 4-175-456, 4-178-995 (June 23, 1995). Specifically, in Mader, we concluded the ALJ did not err in finding functional impairment of the whole person where the claimant experienced pain in his shoulders, chest, back, and neck, which restricted his ability to perform overhead activities. Our conclusion was upheld in Mader v. Popejoy Construction Co., Inc., Colo. App. No. 96CA1508, February 13, 1997 (not selected for publication).

The question of whether an injury has resulted in functional impairment listed on the schedule of disabilities is a question of fact for resolution by the ALJ, which must be upheld if supported by substantial evidence in the record. Walker v. Jim Fouco Motor Company, supra; Strauch v. PSL Swedish Healthcare System, supra; Langton v. Rocky Mountain Health Care Corp., supra. Substantial evidence is not limited to medical evidence. Moreover, application of the substantial evidence test requires that we defer to the ALJ's credibility determinations and assessment of the probative value of the evidence. Metro Moving Storage Co. v. Gussert, supra; Dow Chemical Co. v. Industrial Claim Appeals Office, 843 P.2d 122 (Colo.App. 1992).

Here, the ALJ found the claimant has pain in the neck, the upper portion of his back, and in the cervicothoracic, trapezius and supraspinatus regions which are proximal to the arm. ( See Finding of Fact 6). The respondents' arguments notwithstanding, the ALJ's findings are supported by substantial evidence in the testimony of the claimant, Dr. Ryan, and Dr. Shaw. ( See Tr. pp. 10, 28-29, 35). Further, impairment to the neck and cervicothoracic region are not listed on the schedule of disabilities. Therefore, the record supports the ALJ's finding that the claimant sustained functional impairment beyond the arm at the shoulder, and that finding supports the award of whole person impairment benefits.

IT IS THEREFORE ORDERED that the ALJ's order dated August 29, 2002, is affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

__________________________________ Kathy E. Dean

__________________________________ Dona Halsey

NOTICE

This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2002. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.

Copies of this decision were mailed June 6, 2003 to the following parties:

Franklin Rutherford, 4725 S. Acoma St., Englewood, CO 80110

Gale/Sutton Insulation Company, 5220 W. 3rd Ave., Lakewood, CO 80226-2439

Travelers Indemnity Company of Illinois, c/o Renessa Jensen, The Travelers Companies, P. O. Box 173762, Denver, CO 80217-3762

Erica West, Esq., 837 E. 17th Ave., #102, Denver, CO 80218 (For Claimant)

Lawrence D. Blackman, Esq. and Lynda S. Newbold, Esq., 999 18th St., #1755, Denver, CO 80202 (For Respondents)

BY: A. Hurtado


Summaries of

In re Rutherford, W.C. No

Industrial Claim Appeals Office
Jun 6, 2003
W.C. No. 4-464-456 (Colo. Ind. App. Jun. 6, 2003)
Case details for

In re Rutherford, W.C. No

Case Details

Full title:IN THE MATTER OF THE CLAIM OF FRANKLIN RUTHERFORD, Claimant, v…

Court:Industrial Claim Appeals Office

Date published: Jun 6, 2003

Citations

W.C. No. 4-464-456 (Colo. Ind. App. Jun. 6, 2003)