Summary
In McLane Western Inc. v. Industrial Claim Appeals Office, 996 P.2d 263 (Colo.App. 1999), the court concluded that, for purposes of Table 53II, "the AMA Guides do not require that the documented pain occur prior to MMI."
Summary of this case from In re Harrison, W.C. NoOpinion
No. 99CA0473.
December 9, 1999.
Review of Order from the Industrial Claim Appeals Office of the State of Colorado, WC No. 4-339-748.
ORDER AFFIRMED.
Treece, Alfrey, Musat Bosworth, P.C., James B. Fairbanks, Alyson A. Ray, Denver, Colorado, for Petitioner.
Ken Salazar, Attorney General, James E. Martin, Assistant Attorney General, Denver, Colorado, for Respondent Industrial Claim Appeals Office.
J.C. Castaneda, Janie C. Castaneda, Denver, Colorado for Respondent Nora Sheldon.
In this workers' compensation proceeding, McClane Western, Inc. (employer), a self-insured employer, seeks review of the final order issued by the Industrial Claim Appeals Office (Panel) awarding permanent partial disability benefits based upon a whole-person impairment of 9% to Nora Sheldon (claimant). We affirm.
Claimant sustained a compensable injury on April 4, 1997, which caused her lumbar back pain. Her treating physician placed her at maximum medical improvement (MMI) on September 11, 1997, and found no ratable impairment.
Claimant then underwent a division-sponsored independent medical examination (IME). The IME physician agreed with the date of MMI, but assessed a permanent whole-person impairment rating of 9%. The IME physician based the impairment rating partially on Table 53(II)(B) of the American Medical Association Guides to the Evaluation of Permanent Impairment (3d ed. 1990) (AMA Guides), which assigns a 5% rating when the claimant has suffered an "intervertebral disc or other soft tissue lesion" in the lumbar spine which is unoperated, "with medically documented injury and a minimum of six months of medically documented pain and rigidity with or without muscle spasm." (emphasis added)
Employer contested the results of the IME, asserting that claimant had failed to show a minimum of six months of medically documented pain. After an evidentiary hearing, however, the Administrative Law Judge (ALJ) found that: (1) the IME physician had examined claimant more than six months after her injury; (2) the claimant had expressed complaints of ongoing back pain at that time; and (3) the IME physician had correctly included a rating under Table 53 and had properly awarded claimant benefits in accordance with the overall rating assigned by that physician.
On review, the Panel affirmed the ALJ's order.
I.
Employer contends that because claimant did not suffer medically documented pain for the six months after her injury, and prior to MMI, no impairment rating could be assessed under Table 53 as a matter of law. In other words, employer maintains that the MMI date is determinative of whether a claimant has shown six months of documented pain for the purposes of applying Table 53. We disagree.
Section 8-40-201(11.5)(a), C.R.S. 1999, defines MMI as the date when any medically determinable physical or mental impairment caused by the injury becomes stable and no further treatment is reasonably expected to improve the condition. Thus, MMI serves as the point of demarcation between temporary and permanent disability. See Singleton v. Kenya Corp., 961 P.2d 571 (Colo.App. 1998).
Once a disability has become permanent, the resulting physical impairment must be determined in accordance with the AMA Guides. See 8-42-101(3.7), C.R.S. 1999. But, contrary to employer's contention, the AMA Guides do not require that the documented pain occur prior to MMI.
As the Panel observed, an injury could produce some determinable and stable medical impairment at a certain point, yet remain unratable under the AMA Guides because insufficient time had passed. The Panel further noted that to hold as employer urges would create an anomalous situation in which a group of claimants suffering the identical injury, but reaching MMI at different times, could become subject to different medical impairment ratings and different levels of disability compensation.
Nor does Golden Animal Hospital v. Horton, 897 P.2d 833 (Colo. 1995), require a different result as employer asserts. There, the supreme court interpreted the compensation scheme for permanently disabled minors. The court concluded that the phrase, "at the time of the determination of such permanency," contained in what is now 8-42-102(4), C.R.S. 1999, referred to the date on which permanency was determinable, which was when an employee has reached MMI. The court rejected the contention that permanency was determinable on the date of the hearing.
However, the court did not consider the language in the AMA Guides which is at issue here. Thus, the general holding in Golden Animal Hospital v. Horton, supra, is inapposite in determining how a "medically documented injury and a minimum of six months of medically documented pain" may be shown.
We therefore reject employer's contention that, as a matter of law, permanent impairment must be determined at the time of MMI, and cannot be assessed under Table 53 unless claimant shows that six months of documented pain occurred prior to MMI.
II.
The results of an IME performed by a division-selected physician are binding unless overcome by clear and convincing evidence. Sections 8-42-107(8)(b) (c), C.R.S. 1999. Whether the IME physician has properly applied the AMA Guides in ascertaining the impairment rating and whether that rating has been overcome by clear and convincing evidence are questions of fact to be determined by the ALJ. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
Here, employer does not challenge the ALJ's finding that claimant had complained to the IME physician of ongoing back pain. Thus, given our earlier conclusion that the IME physician correctly applied Table 53 of the AMA Guides, we perceive no basis for disturbing the ALJ's finding that employer failed to overcome the IME physician's rating.
Order affirmed.
JUDGE JONES concurs.
JUDGE BRIGGS specially concurs.