Summary
In Hasty the respondents argued that the ALJ improperly took administrative notice of the AMA Guides in evaluating a physician's testimony.
Summary of this case from In Matter of Mendicelli v. Nor-Mar, W.C. NoOpinion
W.C. No. 4-145-666
July 11, 1995
ORDER OF REMAND
The respondents seek review of a final order of Administrative Law Judge Gandy (ALJ) which awarded permanent partial disability benefits based upon a medical impairment of twenty-three percent as a whole person. We set the order aside and remand for entry of a new order.
The claimant sustained a compensable neck injury in July 1992. Dr. Quick, whom the parties agree is the treating physician, issued an impairment rating on November 15, 1993. Dr. Quick opined that the claimant had a twenty-three percent whole person impairment, but apportioned nine percent of this impairment to a pre-existing degenerative condition. Thus, Dr. Quick opined that the claimant has a fourteen percent impairment under the AMA Guides.
Subsequently, counsel for claimant wrote to Dr. Quick concerning his rating, and particularly the apportionment. In a report dated January 20, 1994, Dr. Quick stated that his November 1993 rating reflected a "medical apportionment." However, Dr. Quick stated that he believed "the industrial apportionment would be 100% from the episode in question and 0% from pre-existing factors as she was working her normal capacity at the time" of the injury.
A Division-sponsored independent medical examination (IME) was performed by Dr. Akmakjian. In a report dated May 24, 1994, Dr. Akmakjian stated that he reviewed Dr. Quick's rating, "and would agree with [Quick's] impairment rating as well as the apportionment of 9 percent for a pre-existing problem even though she received an 18 percent rating with the test performed by my staff."
The claimant obtained her own IME from Dr. Harder. In a report dated August 7, 1994, Dr. Harder opined that the claimant has a twenty-four percent whole person impairment under the AMA Guides. Dr. Harder declined to apportion any disability to a pre-existing condition because the claimant "has not had previous problems with the cervical spine" and because the x-rays "do not show osteophyte formation to any significant degree."
The ALJ concluded that the claimant is "twenty-three percent disabled." In reaching this conclusion, the ALJ stated that the underlying issue is apportionment, and there is "no such thing as automatic apportionment in the State of Colorado." Specifically, the ALJ stated that apportionment "solely to a pre-existing condition" is not supported the AMA Guides nor by case law. Rather, the ALJ stated that there must be "an allocation between pre-existing conditions and industrial ability" which is supported by "competent evidence."
Having defined the legal issue in this way, the ALJ stated that Dr. Akmakjian's IME report was "clearly flawed" and did not "meet its burden of proof." In support of this finding the ALJ stated that Dr. Akmakjian did not personally perform the range of motion testing, Dr. Akmakjian did not specifically "address" issues concerning apportionment between the pre-existing degenerative disease and the injury, and Dr. Akmakjian did not personally review the x-rays on which Dr. Quick based his apportionment. The ALJ also relied on the fact that Dr. Akmakjian adopted Dr. Quick's apportionment, but Dr. Quick had "withdrawn" his apportionment in the January 1994 report.
I.
On review, the respondents contend that the ALJ misapplied the law in determining the claimant's medical impairment. Specifically, the respondents argue that, under § 8-42-104(2), C.R.S. (1994 Cum. Supp.), it is proper to apportion a claimant's overall medical impairment between medical impairment which existed prior to the injury, and that which was caused by the injury. Further, the respondents argue that, under § 8-42-107(8)(c), C.R.S. (1994 Cum. Supp.), the IME physician's apportionment between pre-existing impairment and impairment caused by the injury is binding unless overcome by clear and convincing evidence. The respondents reason that the ALJ ignored these principles because he stated that it is "improper to apportion solely to a pre-existing condition," and because he stated Dr. Akmakjian's report did not "meets its burden of proof."
For his part, the claimant asserts that it is improper to apportion medical impairment benefits based upon the mere existence of a "pre-existing condition." The claimant argues that it is proper to apportion only where the "pre-existing condition" was industrially "disabling" prior to the injury. Moreover, the claimant asserts that the question of whether the pre-existing condition was disabling is a question of fact for resolution by the ALJ, and therefore, the IME physician's apportionment is not entitled to the special weight accorded by § 8-42-107(8)(c). Because we agree with the respondents that the ALJ misapplied the law, we remand for entry of a new order.
The decision of the Court of Appeals in Askew v. Sears Roebuck Co., 914 P.2d 416 (Colo.App. 1995), is largely dispositive of the issues in this case. In Askew, the claimant sustained an industrial back injury in July 1991. After the claimant reached maximum medical improvement, a Division-sponsored IME was performed. The IME physician opined that the claimant had a thirteen percent whole person impairment, but only six percent of the impairment was attributable to the industrial injury while the remainder of the impairment was apportioned to pre-existing "osteoarthritic degenerative changes."
In Askew, the ALJ found that the IME physician properly applied the AMA Guides in apportioning the medical impairment, and that the claimant was entitled to permanent disability benefits based upon medical impairment of six percent as a whole person. Specifically, the ALJ concluded that, because the IME physician's rating was not overcome by clear and convincing evidence, it was binding upon him.
We affirmed the ALJ's order in Askew, and the Court of Appeals in turn affirmed our order. In so doing, the court recognized that the AMA Guides are "arguably" conflicting as to whether or not "apportionment" is a medical or a legal issue. However, the court declined to resolve this problem because it concluded that, by enacting § 8-42-107(8)(c), "the General Assembly . . . clearly delegated the decision to apportion to the IME physician by declaring the opinion of the IME physician binding . . . or binding to the extent that it can be overcome only by clear and convincing evidence."
Moreover, the Askew court rejected the notion that § 8-42-104(2) grants ALJs authority to apportion "disability" independent of the IME provisions of § 8-42-107(8)(c). The court recognized that the term "disability," as used in § 8-42-104(2), previously referred to the concept of lost earning capacity. However, the court concluded that, under the S.B. 218 version of the Act, the terms "medical impairment" and "permanent disability" are synonymous. Therefore, the court stated that when an IME physician apportions "a medical impairment rating between a pre-existing condition and the effects of an industrial injury, both the impairment rating and any apportionment are subject to the deference accorded by § 8-42-107(8)(c)."
Applying these principles here, it is apparent the ALJ misapplied the law in determining the claimant's medical impairment. The claimant's arguments notwithstanding, the IME physician is entitled to apportion medical impairment between pre-existing conditions and the industrial injury, regardless of whether the pre-existing condition caused "industrial disability" under pre-S.B. 218 law. See also Durocher v. Industrial Claim Appeals Office, 905 P.2d 4 (Colo.App. 1995) ("permanent partial disability benefits" described in offset statutes are not distinguishable from "medical impairment benefits" described in § 8-42-107).
Further, the ALJ erred in his allocation of the burden of proof. Contrary to the ALJ's statements, Dr. Akmakjian's report did not need to meet any "burden of proof." Rather, the burden of proof in this case was upon the claimant, as the party challenging Dr. Akmakjian's rating, to overcome the rating by clear and convincing evidence. Section 8-42-107(8)(c). Because it is impossible to ascertain how the ALJ would have assessed the evidence had he recognized the correct law and applied the correct burden of proof, the order must be set aside and remanded for entry of a new order.
II.
The respondents have argued that there is "no evidence" in the record from which the ALJ could find that Dr. Akmakjian's report was overcome by clear and convincing evidence. However, we disagree with this argument.
In determining whether an IME physician's medical impairment rating has been overcome by clear and convincing evidence, "it is solely for the trier of fact to determine the persuasive effect of the evidence and whether the burden of proof has been satisfied." Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). Consequently, it is for the ALJ to resolve the conflicts between the medical experts concerning the proper apportionment of the claimant's medical impairment. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
Here, the record reflects conflicting expert opinion concerning whether or not the claimant's x-rays demonstrate the existence of a pre-existing medical impairment. In addition, the claimant testified that she did not experience any pre-injury problems with her neck. (Tr. p. 11). Under these circumstances, we cannot say that the record lacks any evidence from which the ALJ could find that the opinion of the IME physician was overcome by clear and convincing evidence. That question is a factual matter for determination by the ALJ.
We note that the respondents argue that the ALJ improperly took administrative notice of the AMA Guides in evaluating Dr. Akmakjian's testimony. Consequently, the respondents argue that the ALJ's finding concerning Dr. Akmakjian's testimony is not supported by the record.
We agree with the respondents that the Court of Appeals decisions in City of Boulder v. Dinsmore, 902 P.2d 925, (Colo.App. 1995), and Askew v. Sears Roebuck Co., supra, indicate that it is improper for an ALJ consider the specific contents of the AMA Guides unless placed in evidence. However, it is apparent from the ALJ's order that he believed that he was entitled to consider the AMA Guides without receiving them into evidence. It is also apparent that the ALJ did not have the benefit of the Dinsmore and Askew decisions at the time he reached this conclusion.
Under these circumstances, we conclude that the ALJ should be permitted, in the exercise of his discretion, to hold an additional hearing to receive the pertinent portions of the AMA Guides into evidence, and to permit all parties an opportunity to present further evidence concerning the application of the AMA Guides to the facts of this case.
IT IS THEREFORE ORDERED that the ALJ's order, dated January 20, 1995, is set aside insofar as it awarded permanent partial disability benefits based upon medical impairment of twenty-three percent as a whole person. 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
___________________________________ Dona Halsey
Copies of this decision were mailed July 11, 1995 to the following parties:
Lenore B. Hasty, 2542 14th Ave., Greeley, CO 80631
Gutierrez Koppes, Attn: Rebecca Koppes-Conway, Esq., 912 8th Ave., Greeley, CO 80631
Colorado Compensation Insurance Authority, Attn: D.A. Thomas, Esq. (Interagency Mail)
Steven R. Bristol, Esq., 1122 9th St., Ste. 202, Greeley, CO 80631 (For the Claimant)
By: ______________________