Opinion
W.C. No. 4-375-278
May 4, 2000
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Martinez (ALJ) which denied his claim for scheduled disability benefits. We affirm.
This matter was before us previously. Our Order of Remand dated October 29, 1999, contains a statement of the facts. That statement is incorporated herein.
On remand, the ALJ found that the treating physician, Dr. Knackendoffel, reported the claimant does not have "any additional current impairment as result of" his 1998 industrial injury. Although the ALJ noted that Dr. Knackendoffel's opinion was "not a model clarity," the ALJ interpreted the opinion to mean that the entire 7 percent upper extremity impairment was attributable to the claimant's prior (1992) injury, not the January 1998 industrial injury, which is the subject of this claim. Under these circumstances, the ALJ characterized the issue as one of "causation," and credited Dr. Knackendoffel's opinion. Consequently, the ALJ denied the claim for scheduled permanent disability benefits, and found the claimant is "not entitled to apportionment."
On review, the claimant contends the ALJ erred "in failing to award permanent partial disability benefits for the claimant's January 14, 1998 left rotator cuff tear injury." Relying principally on Lambert and Sons Inc. v. Industrial Claim Appeals Office, 984 P.2d 656 (Colo.App. 1998), the claimant argues that his ability to continue heavy work after the 1992 injury precludes "apportionment" and required the ALJ to find that all of his impairment was attributable to the 1998 industrial injury. We disagree.
The claimant's argument notwithstanding, the statute required him to prove that the 1998 industrial injury caused permanent medical impairment which entitles him to benefits under § 8-42-107(2), C.R.S. 1999. Section 8-41-301(1)(c), C.R.S. 1999; § 8-43-201, C.R.S. 1999. Further, the claimant's medical impairment rating must be computed 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. 1999. A determination of whether a "particular component of the claimant's overall medical impairment was caused by the industrial injury is an inherent part of the rating process under the AMA Guides." Egan v. Industrial Claim Appeals Office, 971 P.2d 664, 665 (Colo.App. 1998); see also, Qual Med, Inc. v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998).
As we noted in our prior order, the question of whether the claimant's 1998 industrial injury caused any component of his upper extremity medical impairment is, in this case involving a scheduled injury, one of fact for determination by the ALJ. Egan v. Industrial Claim Appeals Office, supra. Thus, we must uphold the ALJ's order if supported by substantial evidence in record. Section 8-43-301(8), C.R.S. 1999.
Here, the ALJ interpreted the treating physician's report of November 19, 1998, as attributing all of the claimant's upper extremity impairment to the 1992 injury. This is a plausible interpretation of the report, and must be upheld on review. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo. 1995). Conversely, the report supports the conclusion that none of the claimant's impairment was caused by the 1998 injury.
The claimant's arguments do not convince us that the issue in this case must be characterized as one of "apportionment" under former § 8-42-104(2), C.R.S. 1998. Because the ALJ found, on substantial evidence, that the claimant's 1998 injury did not cause any medical impairment, it is unnecessary to determine whether any such hypothetical impairment could be "apportioned" under the principles announced in Askew v. Industrial Claim Appeals Office, 927 P.2d 1333 (Colo. 1996), and applied in Lambert and Sons, Inc. v. Industrial Claim Appeals Office, supra. In Lambert, the Division-sponsored independent medical examination (IME) physician contradicted himself concerning whether or not the claimant's impairment was attributable to a prior injury or the 1995 industrial injury. The ALJ resolved the conflict in the IME physician's testimony and found that the IME physician attributed the claimant's impairment to the 1995 injury. Lambert and Sons, Inc. v. Industrial Claim Appeals Office, 984 P.2d at 659. Thus, in Lambert, apportionment principles were implicated because the evidence established that the 1995 industrial injury was the cause of at least some, if not all, of the claimant's impairment. In contrast, in this case the ALJ found the claimant failed to establish that any medical impairment was caused by the 1998 industrial injury. Therefore, the issue of apportionment, or dividing the impairment between multiple causes, did not arise. Askew v. Industrial Claim Appeals Office, 927 P.2d 1335, n. 2 (AMA Guides define apportionment as "the determination of the degree to which each of various occupational or nonoccupational factors has contributed to a particular impairment"); Egan v. Industrial Claim Appeals Office, supra.
The claimant also asserts that, because the respondents admitted liability for temporary disability and medical benefits as result of the 1998 industrial injury, they are precluded from arguing that the claimant's permanent medical impairment is unrelated to the 1998 injury. The claimant cites Cooper v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 98CA1343, October 28, 1999), cert. granted, April 24, 2000, as authority for this proposition. We reject this argument.
Section 8-43-203(2)(d), C.R.S. 1999, provides that once liability is admitted, payments "shall continue according to admitted liability." However, admitting liability for an industrial injury, including temporary disability and medical benefits, does not preclude the respondents from later contesting whether any permanent disability was caused by the industrial injury. Indeed, the respondents may seek a hearing for the purpose of prospectively withdrawing an admission for temporary total disability benefits on grounds that the admitted industrial is not the cause of the temporary disability. See Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo.App. 1997).
Cooper v. Industrial Claim Appeals Office, supra, is not authority to the contrary. Cooper itself states that, although a determination of "work-relatedness of the injury" may be subject to collateral estoppel, "that issue should not be confused with, and is not conclusive of, questions as to the nature and extent of the disability." (Emphasis added). Slip. Op. at 7. Thus, the respondents' admission that the claimant sustained a compensable injury does not amount to an admission that the injury caused any permanent medical impairment.
For these reasons, we conclude that our prior order properly sets forth the law. Because the ALJ's order after remand is supported by substantial evidence, and is in accordance with the law, it must be affirmed.
IT IS THEREFORE ORDERED that the ALJ's order dated December 17, 1999, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
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. 1999. 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 May 4, 2000 to the following parties:
Charles Cudo, 220 E. Raven Ave., Rangely, CO 81648
Blue Mountain Energy, Inc., Gelean Bell, Deserado Mine, 3607 County Road 65, Rangely, CO 81648
Old Republic Insurance Company, Dave Hamilton, McMillan Claims Corp., P. O. Box 1556, Grand Junction, CO 81501
Christopher Seidman, Esq., 101 S. 3rd St., #265, P. O. Box 3207, Grand Junction, CO 81502 (For Claimant)
J. Keith Killian, Esq., and Joanna C. Jensen, Esq., 225 N. 5th St., #1010, P. O. Box 4859, Grand Junction, CO 81502 (For Respondents)
Ed Thatcher, David Crabtree, Esq., Deseret G T, 5295 So. 300 West, #500, Murray, UT 84107
Christine Terrill, Old Republic Insurance Company, P. O. Box 2200, Greensburg, PA 15601
BY: A. Pendroy