Opinion
W.C. No. 4-353-190
October 16, 2001
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Wheelock (ALJ) insofar as the ALJ denied additional permanent partial disability benefits, denied medical benefits for an appendectomy and refused to increase the average weekly wage. We set aside the contested portions of the order and remand for entry of a new order.
On September 12, 1997, the claimant suffered a work-related low back injury. At the time of the injury, the claimant earned $8.75 per hour. The respondents admitted liability for the injury based upon an average weekly wage of $276. In August 1999, the claimant underwent a bilateral L-5/S-1 laminotomy with bilateral L-5/S-1 diskectomy. The claimant developed a post surgical infection which was treated by Dr. Hofflin, who is an infectious disease specialist. In February 2000, the claimant underwent an appendectomy.
Dr. Jenks placed the claimant at maximum medical improvement on August 30, 2000, with 34 percent whole person impairment. Dr. Finn performed a Division-sponsored independent medical examination (DIME) on November 8, 2000. Dr. Finn assigned a 15 percent whole person impairment rating based upon Table 53 of the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition, Revised (AMA Guides), and assigned a 13 percent rating for range of motion impairment. However, Dr. Finn subtracted 3 percent for impaired range of motion caused by a 1990 fusion surgery. The respondents admitted liability based upon Dr. Finn's 24 percent whole person impairment rating.
Insofar as pertinent, the ALJ determined Dr. Finn's subtraction of 3 percent from the medical impairment rating reflected an opinion on "causation" not "apportionment." Furthermore, the ALJ determined the claimant failed to overcome Dr. Finn's opinions on the issue of "causation" by "clear and convincing evidence." Therefore, the ALJ denied permanent partial disability benefits in excess of the admitted liability.
Crediting the opinions of Dr. Janssen, and rejecting the contrary opinions of Dr. Hofflin, the ALJ also found the claimant failed to prove a causal relationship between the appendicitis and the industrial injury. Therefore, the ALJ refused to hold the respondents liable for the cost of the appendectomy.
Finally, the ALJ determined the fairest method of measuring the claimant's average weekly wage was to divide the claimant's total earnings by the total number of weeks worked which results in an average weekly wage of $276, rather than using wages earned during the 90 days prior to the industrial injury when the claimant worked additional hours. Therefore, the ALJ refused to increase the claimant's average weekly wage.
I.
On review, the claimant contends, inter alia, that the ALJ erred as a matter of law in finding that Dr. Finn's subtraction of 3 percent for pre-existing range of motion deficits was an opinion on "causation" rather than "apportionment. We agree.
Former § 8-42-104(2), C.R.S. 1998 [amended in 1999 for claims occurring after July 1, 1999], applies to this 1997 injury claim. That statute allows ALJs to apportion permanent partial disability benefits where a percentage of the disability is due to a previous disability. Askew v. Industrial Claim Appeals Office, 927 P.2d 1333 (Colo. 1996). The AMA Guides define apportionment as "the determination of the degree to which each of various occupational and nonoccupational factors has contributed to a particular impairment."
In contrast, the issue is one of "causation" when a physician is determining whether an entire component of the claimant's impairment is or is not related to the industrial injury. Qual-Med, Inc., v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998); Egan v. Industrial Claim Appeals Office, 971 P.2d 664 (Colo.App. 1998). Egan and Qual-Med, involved issues of "causation" rather than apportionment because the claimants had been assigned "separate upper extremity and cervical impairments." The question in those cases was whether the "distinct cervical impairments" were causally related to the underlying industrial injuries.
To reconcile Askew and Qual-Med, the ALJ must determine whether the DIME physician's opinions concern "causation" or "apportionment." See Public Service Co. of Colorado v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 00CA1991, June 21, 2001) ; Johnson v. Christian Living Campus, W.C. No. 4-354-266 (October 5, 1999), aff'd., American Compensation Insurance Company v. Industrial Claim Appeals Office, (Colo.App. 99CA2058, August 3, 2000) (not selected for publication); Nichols v. Denver Publishing Company, W.C. No. 4-248-693 (September 21, 2000); Cudo v. Blue Mountain Energy Inc., W.C. No. 4-375-278 (October 29, 1999). If the issue involves apportionment, the special proof requirements mandated by Askew and § 8-42-104(2) are applicable. However, if the issue is solely one of causation, the ALJ is bound by the rating physician's resolution of the issue in the absence of "clear and convincing" evidence to the contrary. See also Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo.App. 2000).
Here, Dr. Finn assigned a rating for the total impairment of the lumbar spine. Only after Dr. Finn rated the claimant's total regional impairment due to a specific disorder of the lumbar spine under Table 53 of the AMA Guides and lost range of motion, did Dr Finn subtract 3 percent for preexisting range of motion impairment. Regardless of whether Dr. Finn referred to the 3 percent reduction as reflecting an opinion on "causation," Dr. Finn did not purport to attribute all of the claimant's lumbar impairment or even all of the claimant's range of motion deficits to the 1990 surgery. Under these circumstances, Dr. Finn's reduction of the range of motion rating for impairment caused by the 1990 surgery was necessarily an opinion concerning the relative contributions of occupational and nonoccupational factors to the claimant's rateable range of motion impairment, not a determination of whether an entire component of the claimant's impairment is unrelated to the industrial injury. Cf. Lambert and Sons, Inc. v. Industrial Claim Appeals Office, 984 P.2d 656 (Colo.App. 1998). Consequently, the ALJ erred in characterizing the DIME physician's opinions as concerning the issue of "causation" and not "apportionment."
However, we disagree with the claimant's contention that the ALJ's error required her to award permanent disability benefits in accordance with Dr. Jenks' 34 percent whole person impairment rating. 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). To the contrary, because Dr. Finn's range of motion rating involved an issue of "apportionment," the claim is governed by former § 8-42-104(2).
Section 8-42-104(2) allows the apportionment of preexisting medical impairment where the pre-existing impairment is "disabling" at the time of the subsequent injury. Colorado Fuel Iron Corp. v. Rhodes, 166 Colo. 82, 441 P.2d 652 (1968). Under the apportionment statute, the term "disability" pertains to a person's ability to meet "personal, social or occupational demands."
The record contains some evidence the 1990 surgery was not disabling at the time of the 1997 injury. ( See Tr. p. 15-17; Finn depo. pp. 24-26, 29). The determination of whether the respondents proved grounds for apportionment is one of fact for resolution by the ALJ. Askew v. Industrial Claim Appeals Office, supra. Consequently, we must remand the matter to the ALJ for additional findings which resolve the pertinent issue. Based upon those findings, the ALJ shall enter a new on the issue of permanent partial disability.
In view of our disposition, we need not consider the claimant's alternative arguments. Therefore, we do not address the claimant's contention that if Dr. Finn's 3 percent reduction of impairment reflects an opinion on "causation," the claimant presented clear and convincing evidence that Dr. Shaw erroneously applied Table 54 of the AMA Guides in determining the "cause" of the claimant's range of motion deficits.
II.
Next, the claimant contends the ALJ committed reversible error in denying medical benefits for the appendectomy. In particular, the claimant contends the record does not support the ALJ's finding that Dr. Hofflin failed to provide "any medical basis" for his opinion that the appendicitis was "caused by and is the result of the first surgery." We agree.
The record contains a direct conflict between the opinions of Dr. Janssen and Dr. Hofflin concerning the cause of the claimant's appendectomy. Within his sole prerogative, the ALJ resolved the conflict in favor of Dr. Janssen. In support, the ALJ found the medical statement offered by the claimant which contains Dr. Hofflin's opinion that the appendectomy was necessitated by the industrial injury is:
"nothing more than the Claimant's attorney's letter to Dr. Hofflin. Dr. Hofflin does not provide any medical basis for his opinion that the Claimant's appendectomy is related to his industrial injury."
Therefore, the ALJ determined the claimant failed to prove by a preponderance of evidence that there was a causal connection between the appendectomy and the industrial injury. ( See Discussion and Conclusions of Law, p. 5).
Admittedly, the May 23, 2000, statement containing Dr. Hofflin's opinion that the "appendectomy was caused by and is a result of the first surgery" is a letter from the claimant's attorney to Dr. Hofflin and that letter does not contain any explanation for Dr. Hofflin's opinion that the appendectomy was a consequence of the laminectomy. However, the record also contains a letter dated July 26, 2000, from Dr. Hofflin in which he explains the medical basis underlying his opinion that there was a causal connection between the appendicitis and the industrial injury. Specifically, Dr. Hofflin stated that he began to treat the claimant when the claimant developed an infection at the site of the L5/S1 disc and adjacent vertebrae with MRSA as a result of the laminectomy. The infection was treated with prolonged antibiotic therapy which caused it to temporarily subside, but the claimant suffered a subsequent relapse. Dr. Hofflin also stated that:
"Upon re-exploration it was found that [the claimant's] appendix was scarred and adherent to the anterior spine at the L5/S1 level and cultures from the appendix was scarred and adherent to the anterior spine at the L5/S1 level and cultures from the appendix and the underlying bone grew MRSA. It is my opinion that [the claimant's] appendix became inflamed and scarred and adherent to the spine as a consequence of the infection of the spine. It was only after the last debridement and appendectomy that the infection could be resolved. It is highly unlikely that the appendicitis was coincidental, especially since the appendix itself grew MRSA."
Under these circumstances, the ALJ's finding that Dr. Hofflin did not provide any medical basis for a causal connection between the appendicitis and the industrial injury is not supported by the record. Therefore, the disputed finding must be stricken. See Ackerman v. Hilton's Mechanical Men, Inc., 914 P.2d 524 (Colo.App. 1996) (ALJ's factual determinations binding only if supported by substantial evidence and plausible inferences drawn from the record); Hall v. Industrial Claim Appeals Office, 757 P.2d 1132 (Colo.App. 1988) (finding of "no" evidence cannot be interpreted as a finding of no credible evidence).
Furthermore, we cannot ascertain how the ALJ would have assessed the probative weight of the conflicting medical opinions had she considered Dr. Hofflin's letter dated July 26, 2000. Therefore, we cannot say the ALJ's error was harmless. See § 8-43-310, C.R.S. 2001. Consequently, we must set aside the order denying medical benefits for the appendectomy and remand the matter for a new order on the issue.
III.
Finally, we agree with the claimant that the ALJ abused her discretion in calculating the average weekly wage.
Average weekly wage is generally determined by the wage the injured worker received at the time of the injury. However, the ALJ has discretionary authority under § 8-42-102(3), C.R.S. 2001, to use an alternative method to determine average weekly wage where "manifest injustice" would result if the claimant's benefits are calculated based on lower earnings at the time of the injury. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993) ; Broadmoor Hotel v. Industrial Claim Appeals Office, 939 P.2d 460 (Colo.App. 1996); Campbell v. IBM Corp., 867 P.2d 77 (Colo.App. 1993).
We may not interfere with the ALJ's calculation of average weekly wage unless an abuse of discretion is shown. Coates, Reid Waldron v. Vigil, supra. The standard on review of an alleged abuse of discretion is whether the ALJ's order "exceeds the bounds of reason," such as where it is not supported by substantial evidence or is contrary to law. Rosenberg v. Board of Education of School District #1, 710 P.2d 1095 (Colo. 1985).
Exercising her discretionary authority under § 8-42-102(3), the ALJ determined that the claimant's average weekly wage was more fairly determined by averaging the claimant's earnings from January 9, 1997 through the date of injury than using the claimant's earnings during the 90 day period prior to the industrial injury when the claimant was working additional hours. ( See Findings of Fact p. 2; Discussion and Conclusions of Law p. 6). Because the record supports the ALJ's finding that the claimant's work schedule varied from week to week, calculating the claimant's earnings by averaging the claimant's weekly work schedule for the 9 months preceding the industrial injury does not exceed the bounds of reason.
However, the claimant testified that at the time of hire, he earned $7.50 and that his pay rate increased to $8.75 shortly before the industrial injury. Furthermore, the ALJ expressly found the claimant was earning $8.75 per hour at the time of the injury. ( See Finding of Fact p. 2).
The overall purpose of the statutory scheme is to "arrive at a fair approximation of the claimant's wage loss and diminished earning capacity" resulting from the industrial injury. Campbell v. IBM Corp., supra. Accordingly, we conclude that it is manifestly unjust to calculate the claimant's average weekly wage by averaging the claimant's hourly rate of pay over the course of the employment because this method of determining average weekly wage underestimates the earning capacity impaired by the industrial injury. Therefore, the ALJ abused her discretion insofar as she calculated the claimant's average weekly wage by averaging the claimant's hourly rate of pay and the matter is remanded to the ALJ to redetermine the average weekly wage. However, this disposition should not be construed as restricting the ALJ from determining the average weekly wage by averaging the number of hours the claimant worked from 1997 to the date of the injury.
IT IS THEREFORE ORDERED that the ALJ's order dated March 26, 2001, is set aside insofar as it denied additional permanent partial disability benefits, denied medical benefits for the appendectomy and calculated average weekly wage. The matter is remanded to the ALJ to enter a new order on these issues consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Dona Halsey
Copies of this decision were mailed October 16, 2001 to the following parties:
Erin England, 3972 Baxter Rd., Joelton, TN 37080
Jan Dawson, Patt's Blasting Painting, Inc., 1368 Hillcrest Ave., Colorado Springs, CO 80909
Curt Kriksciun, Esq., Colorado Compensation Insurance Authority d/b/a Pinnacol Assurance — Interagency Mail (For Respondents)
Kimball Gardner, Esq., 115 E. Vermijo, #101, Colorado Springs, CO 80903 (For Claimant)
Richard M. Lamphere, Esq., 111 S. Tejon, #700, Colorado Springs, CO 80903
BY: L. Epperson