Opinion
W.C. No. 4-375-278
October 29, 1999
ORDER OF REMAND
The respondents seek review of an order of Administrative Law Judge Martinez (ALJ) which awarded permanent disability benefits based on 7 percent impairment of the left upper extremity. The respondents contend the ALJ was bound by the treating physician's apportionment of the claimant's upper extremity impairment rating. Alternatively, the respondents contend the ALJ erred in finding the claimant's pre-existing impairment was not disabling at the time of the industrial injury. Because we conclude the ALJ's order may confuse the issue of "apportionment" with the issue of "causation," we set aside the order, and remand for entry of a new order.
In 1992 the claimant sustained a tear of his left rotator cuff in the course of his employment as a miner. The claimant underwent surgery and in 1993 the treating physician for this injury determined the claimant sustained a 10 percent impairment of the left upper extremity. Subsequently, the claimant returned to heavy work as a miner.
In January 1998 the claimant sustained the injury which is the subject of this claim. This injury was diagnosed as a tear of the left rotator cuff, and the claimant again underwent surgery. On November 19, 1998, the treating physician for this injury, Dr. Knackendoffel, opined that the claimant's "current impairment is 7 percent" of the left upper extremity. Dr. Knackendoffel also noted the claimant had previously been assigned a 10 percent upper extremity impairment for the 1992 injury, and the doctor stated that the claimant did not "have any additional current impairment of his left upper extremity as a result of his 1-14-98 injury."
Under these circumstances, the ALJ concluded that Dr. Knackendoffel "determined that an apportionment was appropriate based upon the fact that the claimant had received a 10 % rating for the prior compensable injury in 1992." However, the ALJ found the claimant "recovered from the 1992 injury such that it did not impair the claimant's capacity to meet personal, social or occupational demands in the period prior to January 1998." Consequently, applying § 8-42-104(2) C.R.S. 1998 [significantly amended in 1999 for injuries occurring on or after July 1, 1999], and Askew v. Industrial Claim Appeals Office, 927 P.2d 1333 (Colo. 1996), the ALJ concluded that apportionment was inappropriate because the pre-existing impairment was not disabling at the time of the 1998 industrial injury.
I.
On review, the respondents contend the ALJ erred as a matter of law in concluding that apportionment was not appropriate, and in failing to adopt the treating physician's "apportioned" impairment rating. Essentially, the respondents argue that Dr. Knackendoffel's November 19 report should be read as "apportioning" all of the claimant's impairment to the 1992 injury. The respondents further assert that because the claimant failed to present any qualified Level II opinion to contradict Dr. Knackendoffel's apportionment, his opinion should be treated as binding on the parties and the ALJ. Because we conclude that the ALJ's order may have misapplied the law, we remand for entry of a new order.
The respondents correctly state that apportionment of "medical impairment" is an inherent part of the rating process. Consequently, it has been determined in the context of whole person medical impairment ratings that the determination of a Division-sponsored Independent Medical Examiner (IME) concerning the cause of the claimant's impairment is binding unless overcome by clear and convincing evidence. See Qual-Med, Inc. v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998). Similarly, it has been held that in cases involving whole person medical impairment ratings that the treating physician's determination of the cause of an impairment is binding unless challenged in accordance with the IME process. Egan v. Industrial Claim Appeals Office, 971 P.2d 664 (Colo.App. 1998).
However, there is a competing line of cases, exemplified by Askew v. Industrial Claim Appeals Office, supra, and Lambert Sons, Inc., v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 97CA1774, July 9, 1998), which holds that "apportionment" of medical impairment is not appropriate unless the pre-existing impairment was sufficiently identified and treated to be considered part of the subsequent disability, and the previous impairment was "disabling" of the time of the subsequent injury.
In order to reconcile these two lines of cases we have determined that it is necessary for the ALJ to determine whether the issue is one of "causation" or "apportionment." If the issue is one of "apportionment," the special proof requirements mandated by Askew and § 8-42-104(2) are applicable. Conversely, if the issue is one of pure causation, Askew is not triggered. See Johnson v. Christian Living Campus, W.C. No. 4-354-266 (October 5, 1999). In Johnson, we noted that Askew and the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition (Revised) (AMA Guides), define apportionment as "the determination of the degree to which each of various occupational and nonoccupational has contributed to a particular impairment." (Emphasis added). In contrast, we also held that the issue of "causation" arises when a physician is determining whether or not an entire component of the claimant's impairment is or is not related to the industrial injury. See also, Johnson v. El Paso School District No. 11, W.C. No. 4-345-673 (October 25, 1999).
Here, Dr. Knackendoffel's November 19 report is subject to conflicting inferences concerning whether or not he was "apportioning" impairment between the claimant's 1992 and 1998 injuries, or whether he was determining the "cause" of the claimant's impairment. On the one hand, Dr. Knackendoffel's report could be interpreted to mean that all of the claimant's impairment is attributable to be 1992 injury, but the impairment has declined from 10 percent to 7 percent due to improvement in the claimant's condition. In that case, the issue would be one of "causation." Alternatively, the November 19 report could be interpreted to mean that Dr. Knackendoffel believes both the 1992 and 1998 injuries contribute to the claimant's current 7 percent impairment, but Dr. Knackendoffel has concluded that it is inappropriate to assess any overall impairment because the claimant's impairment rating has declined from 10 percent to 7 percent since 1993. In that case, the issue would be one of "apportionment" because it involves a judgement concerning the relative contributions of two industrial injuries to a single impairment of the left upper extremity.
Although the ALJ's order states that Dr. Knackendoffel "apportioned" the impairment rating, we cannot ascertain the factual basis of his determination that the issue involves "apportionment" rather than "causation." The ALJ does not discuss the apparent ambiguity in Dr. Knackendoffel's November 19 report. Neither does the ALJ refer to Dr. Knackendoffel's December 7, 1998, report which states the claimant "sustained a permanent physical impairment as a result of the related [1-14-98] injury/illness."
On remand, the ALJ must first determine whether the issue involves one of "apportionment" or "causation" as we have defined these terms. If the ALJ concludes that Dr. Knackendoffel was determining causation, the ALJ shall not apply Askew and § 8-42-104(2). Conversely, if the ALJ determines the issue is one of "apportionment," he may apply the principles discussed in Askew. In so doing, the ALJ must resolve the ambiguity in Dr. Knackendoffel's report. Because the parties may not have foreseen our resolution of this issue, the ALJ may, in the exercise of his discretion, afford the parties an additional hearing for purposes of addressing this issue.
For purposes of our remand, we reject the respondents' assertion that, if the issue is determined to be one of causation, the ALJ is obliged to credit the opinion of Dr. Knackendoffel in the absence of any "qualified" Level II medical opinion to the contrary. Nothing in § 8-42-107(2), C.R.S. 1999, suggests that in cases involving scheduled impairments the ALJ is required to assign any special weight to the opinions or rating of the treating physician. Indeed, the provisions of § 8-42-107(8)(c), C.R.S. 1999, which assign special weight to the causation determinations of the treating physician or the IME physician, do not apply to scheduled ratings. Egan v. Industrial Claim Appeals Office, supra; § 8-42-107(8)(a), C.R.S. 1999 (when injury results in impairment not set forth in the schedule in subsection (2) the claimant is limited to medical impairment benefits as provided in subsection (8) of § 8-42-107). Moreover, causation has traditionally been determined without any requirement that the claimant present medical evidence. To the contrary, lay evidence has previously been accepted as sufficient to demonstrate causation. Lymburn v. Symbios Logic, 952 P.2d 831 (Colo.App. 1997). Consequently, insofar as Rule XIX (C), 7 Code Colo. Reg. 1101-3 at 123, and § 8-42-101 (3.6) (II) (b), C.R.S. 1999, contemplate that a Level II physician shall issue the initial impairment rating, including any applicable apportionment, we do not view the rule or the statute as establishing a rule of evidence which prohibits the ALJ from considering opinions from non-Level II accredited physicians or lay evidence when the issue is the cause of a scheduled impairment.
We have reviewed our previous decisions which the respondents cite in support of their position. We conclude that these decisions are distinguishable, or were subsequently rendered questionable by Askew and its progeny.
II.
We also reject the respondents' assertion that, if the issue involves apportionment, the record would not support the ALJ's determination that the claimant's pre-existing impairment was not disabling at the time of the 1998 injury. To the contrary, the question of whether any pre-existing impairment was "disabling" was one of fact for determination by the ALJ. The claimant's ability to resume heavy employment subsequent to the 1992 injury would support the ALJ's determination, even if the claimant experienced occasional residual symptoms from the 1992 injury. Absolute Employment Services, Inc. v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 98CA1200, September 16, 1999); Johnson v. Christian Living Campus, supra. The mere fact that the claimant may have experienced symptoms which would qualify him as having a pre-existing "impairment" did not require the ALJ to conclude the impairment was "disabling" in that it impacted the claimant's ability to meet personal, social, or occupational demands. The concepts of "impairment" and "disability" are separate and distinct and each must be present to support apportionment. Lambert Sons, Inc. v. Industrial Claim Appeals Office, supra. The respondents' other arguments are without merit.
IT IS THEREFORE ORDERED that the ALJ's order dated to May 28, 1999, is set aside, and the matter is remanded for further proceedings and entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain ____________________________________ Kathy E. Dean
Copies of this decision were mailed October 29, 1999 to the following parties:
Charles Cudo, 220 E. Raven Ave., Rangeley, CO 81648
Old Republic Insurance Company, attn: Dave Hamilton, McMillian Claims Service, P.O. Box 1556, Grand Junction, CO 81502
Gelean Bell, Deserado Mine, 3607 County Road 65, Rangeley, CO 81648
Ed Thatcher, Deseret G T, 5295 S. 300 West, Ste. 500, Murray, UT 84107
Christopher Seidman, Esq., P.O. Box 3207, Grand Junction, CO 81502 (For Claimant)
J. Keith Killian, Esq., P.O. Box 4859, Grand Junction, CO 81502 (For Respondents)
BY: A. Pendroy