Opinion
W.C. No. 4-163-507
January 14, 1998
FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Friend (ALJ) insofar as it awarded permanent partial disability benefits based upon an 18 percent whole person impairment, and calculated at the rate of $404.61 per week. We affirm.
The following facts are undisputed. The claimant was employed as a seafood manager for the employer on February 23, 1988, when he suffered a low back injury. As a result of the injury, the claimant underwent a lumbar diskectomy at L5/S1. The claimant later resumed his job as a seafood manager.
On March 20, 1990, Dr. Belleville placed the claimant at maximum medical improvement (MMI) with a permanent medical impairment of 5 percent of the whole person. Dr. Belleville also restricted the claimant from lifting over forty pounds, and repetitive bending and twisting of the waist. The claim was closed by virtue of the respondent's filing of an uncontested Final Admission of Liability for the payment of permanent partial disability benefits in accordance with Dr. Belleville's impairment rating.
On January 13, 1993, the claimant reinjured his low back, and underwent further surgery at L5/S1. At MMI Dr. Fernandez rated the claimant's permanent impairment as 10 percent of the whole person. However, Dr. Fernandez apportioned one-tenth of the rating to preexisting impairment from the 1988 injury.
Thereafter, the respondent filed a Final Admission of Liability for the payment of medical impairment benefits. The Admission listed the claimant's temporary total disability rate as $404.61, based upon an average weekly wage of $606.92, which included the cost of health insurance.
Eventually, the claimant underwent a Division-sponsored independent medical examination (IME) by Dr. Woodcock. In his report dated November 7, 1995, Dr. Woodcock rated the claimant's impairment as 18 percent of the whole person. Of the total impairment, Dr. Woodcock opined that 90 percent was attributable to the 1993 injury and 10 percent was attributable to the 1988 injury.
The ALJ found that the claimant had rateable impairment, but no "disability" immediately prior to the 1993 injury. In support, the ALJ found that the claimant was pain free and had no symptoms immediately preceding the 1993 injury. The ALJ also determined that the claimant was able to engage in a variety of physical activities, did not require medical treatment, lost no time from work due to back problems and was able to work as a seafood manager without any limitation between March 1990 and January 13, 1993.
Based upon these findings, the ALJ determined that it was inappropriate to apportion the claimant's permanent impairment between the 1988 and 1993 injuries. Consequently, the ALJ ordered the respondent to pay medical impairment benefits based on an 18 percent whole person impairment.
The ALJ also rejected the respondent's argument that the claimant's average weekly wage, and resulting temporary total disability rate should not include the cost of health insurance. Therefore, the ALJ awarded medical impairment benefits calculated at the rate of $404.61 per week.
I.
On review the respondent first contends that the claimant had preexisting disability from the 1988 injury. Therefore, the respondent argues that the ALJ erred in refusing to apportion medical impairment in accordance with § 8-42-104(2), C.R.S. 1997. We disagree.
Section 8-42-104(2), 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."
As argued by the respondent, the application of § 8-42-104(2) is governed by the principles established in Askew v. Industrial Claim Appeals Office, 927 P.2d 1333 (Colo. 1996). In Askew, the Supreme Court held that when apportioning permanent partial disability benefits, "medical impairment" cannot be equated to "disability." In so doing, the Askew court relied on the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition (Revised) for the proposition that "impairment" relates to an alteration of an individual's health status as assessed by medical means, while "disability" pertains to a person's ability to meet "personal, social or occupational demands," and is assessed by non-medical means. Consequently, the court held that under § 8-42-104(2), apportionment is only appropriate if the preexisting condition constitutes a "disability."
The facts in Askew involved an IME physician's apportionment of medical impairment between an industrial back injury and the claimant's preexisting degenerative lumbar disc disease. Because the claimant's preexisting degenerative disc disease was "asymptomatic," had not been treated and "did not hinder [the claimant's] capacity to meet any demands" prior to an industrial back injury, the court in Askew concluded that the preexisting condition could not be considered a "previous disability" for purposes of § 8-42-104(2). Consequently, the court concluded as a matter of law that the IME physician's apportionment of medical impairment based on the existence of a preexisting disease was arbitrary and not supported by the record.
The respondent contends that this claim is distinguishable from the facts in Askew because the claimant's 1988 back injury required surgical treatment, and resulted in the imposition of permanent work restrictions. They also contend that the ALJ is bound by the Final Admission of Liability filed in the 1988 claim which reflects permanent partial disability from that injury. We are not persuaded.
There is no dispute that the claimant was rated as having permanent medical impairment from the 1988 injury, and that the respondent paid permanent partial disability benefits in that claim. However, the issue before the ALJ was whether the 1988 back injury constituted a previous "disability," as that term is defined in Askew "at the time of the subsequent injury." Therefore, the ALJ was required to determine whether the effects of the 1988 back injury limited the claimant's ability to perform his work immediately preceding the 1993 injury. Baldwin Construction, Inc. v. Industrial Claim Appeals Office, 937 P.2d 895 (Colo.App. 1997); Colorado Mental Health Institute v. Austill, 940 P.2d 1125 (Colo.App. 1997).
Because the resolution of this issue is essentially factual, we must uphold the ALJ's determinations if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1997. Substantial evidence is not limited to medical evidence. See Savio House v. Dennis, 665 P.2d 141 (Colo.App. 1983). Furthermore, in determining whether the ALJ's findings are supported by the record, we may not substitute our judgment for that of the ALJ concerning the credibility of the witnesses, and his resolution of conflicts in the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
Here, the claimant testified that, between March 1990 and January 13, 1993, he had no trouble performing his job duties, even the duties which exceeded the restrictions imposed by Dr. Belleville. (Tr. p. 27). Specifically, he stated that despite Dr. Belleville's restrictions he lifted over 100 pounds and engaged in repetitive bending and twisting of the waist at work. (Tr. pp. 17, 19-20, 26). In this regard, the claimant's testimony is consistent with Dr. Woodcock's testimony that the claimant did not have "functionally significant pain, rigidity and muscle spasms" immediately preceding the 1993 injury. (Woodcock depo. p. 17).
Regardless of evidence that the respondent admitted liability for permanent partial disability benefits in the 1988 claim, the claimant's testimony amply supports the ALJ's finding the effects of the 1988 injury were not disabling at the time of the 1993 injury. Moreover, this inference supports the ALJ's determination that the 1988 injury did not constitute a previous "disability" for purposes of § 8-42-104(2). Therefore, the ALJ did not err in refusing to apportion the claimant's medical impairment.
II.
Section 8-42-107(8)(d), C.R.S. 1997, requires that medical impairment benefits be calculated at the "temporary total disability rate specified in § 8-42-105." Insofar as pertinent § 8-42-105(1), C.R.S. 1997, provides that a claimant's temporary disability rate is sixty-six and two-thirds percent of the claimant's average weekly wage.
Moreover, for purposes of calculating average weekly wage, § 8-40-201(19)(b), C.R.S. 1997, provides that the term "wages" includes:
"[T]he amount of the employee's cost of continuing the employer's group health insurance plan, and upon termination of the continuation, the employee's cost of conversion to a similar or lesser insurance plan . . ."
It follows that § 8-42-107(8)(d), required that the ALJ calculate the amount of medical impairment benefits based upon the temporary total disability rate which results from the claimant's average weekly wage of $606.92.
However, the respondent asserts that the claimant refused an offer of reemployment after MMI, which included health insurance. Under these circumstances, the respondent contends that it is not fair to include the cost of health insurance in the claimant's average weekly wage for purposes of calculating the claimant's temporary total disability rate.
As argued by the claimant, § 8-42-107(8)(d), contains no exceptions to the requirement that medical impairment benefits be based upon the claimant's temporary total disability rate, and we may not read nonexistent provisions into the statute. Schelly v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 97CA0775, December 26, 1997). We also note that whether the claimant returned to work for the respondent before MMI is immaterial to the calculation of the claimant's temporary total disability rate for purposes of awarding medical impairment benefits. See Broadmoor Hotel v. Industrial Claim Appeals Office, 939 P.2d 460 (Colo.App. 1996) (whether claimant received temporary total disability benefits immaterial to calculation of medical impairment benefits). Therefore, it is reasonable to conclude that it is also immaterial to the calculation of medical impairment benefits, whether the claimant returned to work for the respondent after MMI.
The respondent's remaining arguments have been considered and do not alter our conclusions. Therefore, we are not persuaded that the ALJ erred in failing to exclude the cost of health insurance in calculating the award of medical impairment benefits.
IT IS THEREFORE ORDERED that the ALJ's order dated July 22, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL _______________________________ David Cain _______________________________ Kathy E. DeanNOTICE
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, 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 this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1997.
Copies of this decision were mailed January 14, 1998 to the following parties:
David L. Blair, 2998 Marshall Ct., Wheat Ridge, CO 80214
Dillon Companies, Inc., 1555 Quail Street, Lakewood, CO 80215
King Soopers, Inc., Workers' Compensation Dept., P.O. Box 5567, T.A., Denver, CO 80217
Susan D. Phillips, Esq., 155 S. Madison, Ste. 330, Denver, CO 80209 (For the Claimant)
Lawrence D. Blackman, Esq., 1515 Arapahoe St., Tower 3, Ste. 600, Denver, CO 80202 (For the Respondent)
BY: _________________________________