Opinion
W.C. No. 4-320-928
May 2, 2001
ORDER OF REMAND
The respondents seek review of an order of Administrative Law Judge Corchado (ALJ) which awarded permanent partial disability benefits based upon 20 percent whole person medical impairment. We set aside the award and remand the matter for additional findings and a new order.
The claimant worked as a long-haul truck driver. In May 1996, the claimant began suffering rectal pain. He later experienced rectal bleeding. In July 1996, the claimant sought treatment from Kaiser Permanente and was diagnosed with hemorrhoids. In a previous order, ALJ Hopf found that the claimant had a preexisting hemorrhoidal condition which was not caused by his employment. However, ALJ Hopf found that the symptoms of the preexisting condition were exacerbated by the claimant's work, which required prolonged sitting. ALJ Hopf also found that prolonged sitting at work was a "necessary precondition" to the development of the claimant's disease, and that the claimant's preexisting condition was not disabling in the absence of the industrial aggravation. Therefore, ALJ Hopf determined that the claimant's rectal bleeding constituted a compensable occupational disease and that apportionment of liability was not appropriate under Anderson v. Brinkhoff, 859 P.2d 819 (Colo. 1993) (claimant is entitled to recovery for an occupational disease if the hazards of employment cause, intensify, or aggravate, to some reasonable degree, the disability for which compensation is sought). We affirmed ALJ Hopf's order on January 20, 1998, and our order was not appealed.
The claimant ultimately underwent a Division-sponsored independent medical examination (DIME) by Dr. Jacobs. Dr. Jacobs assigned a 20 percent whole person impairment rating due to "objective evidence of colon/rectal disease or anatomic loss or alteration" and "mild gastrointestinal symptoms with occasional disturbance of bowel function accompanied by moderate pain," and "minimal restriction of diet or mild, symptomatic therapy" being necessary. However, Dr. Jacobs added that he felt "compelled to apportion 50% of this to totally non-work related phenomena." Dr. Jacobs reasoned that "such a course is common in many of my [diabetic] patients who did not sit for prolonged periods, who do not drive a truck and who are not engaged in the type of employment or activity as the subject in question."
Consequently, Dr. Jacobs assigned a 10 percent medical impairment rating to the industrial injury.
The respondents admitted liability for permanent partial disability benefits based upon 10 percent whole person impairment. The claimant objected and obtained a hearing on the issue of permanent disability.
The ALJ determined the claimant failed to overcome Dr. Jacobs' opinion that 50 percent of the claimant's permanent impairment was "caused" by non-occupational factors. However, the ALJ also found that Dr. Jacobs "apportioned" 50 percent of the impairment to non-industrial factors. The ALJ found the respondent failed to prove the claimant suffered a "previous disability," and therefore concluded no apportionment was appropriate under former § 8-42-104(2), C.R.S. 1998 [amended 1999 Colo. Sess. Laws, Ch. 141, at 410 for injuries occurring on or after July 1, 1999]. Consequently, the ALJ ordered the respondent to pay benefits based upon 20 percent whole person impairment.
On review the respondent contends the issue before the ALJ was causation, not apportionment, and therefore, the ALJ was bound by the DIME physician's 10 percent impairment rating. In support, the respondent relies on the ALJ's finding that the claimant failed to overcome the DIME physician's finding that "50% of the cause of the permanent impairment was from non-work related phenomena." (Finding of Fact 9). We conclude the ALJ's findings are insufficient to permit appellate review of the basis for the order, and therefore remand the matter for additional findings. Section 8-43-301(8), C.R.S. 2000.
As argued by the respondent, the DIME's opinion concerning the cause of the claimant's impairment is binding unless overcome by clear and convincing evidence. Qual- Med, Inc., v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998). However, there is another line of cases, exemplified by Askew v. Industrial Claim Appeals Office, 927 P.2d 1333 (Colo. 1996), 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" at the time of the subsequent injury. We have held that to reconcile these two lines of cases the ALJ must determine whether the DIME physician's opinions concern "causation" or "apportionment." 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).
Askew and 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 "causation" when a physician is determining whether or not an entire component of the claimant's impairment is related to the industrial injury. Qual-Med, Inc., v. Industrial Claim Appeals Office, supra; Egan v. Industrial Claim Appeals Office, 971 P.2d 664 (Colo.App. 1998); Johnson v. El Paso School District No. 11, W.C. No. 4-345-673 (October 25, 1999); aff'd. American Compensation Insurance Company v. Industrial Claim Appeals Office, Colo. App. No. 99CA2058, August 3, 2000 (not selected for publication). Egan and Qual-Med involved issues of "causation" rather than apportionment because the claimants had been assigned "separate upper extremity and cervical impairment" ratings. The question in those cases was whether the "distinct cervical impairment" was causally related to the underlying industrial injuries.
If the issue is apportionment, the special proof requirements mandated by Askew and § 8-42-104(2) are applicable. However, if the issue is solely causation, Askew is not implicated. Cudo v. Blue Mountain Energy Inc. W.C. No. 4-375-278 (October 29, 1999). Where the issue is 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). Moreover, where the DIME physician's report is subject to conflicting inferences, it is the prerogative of the ALJ as the fact finder to resolve the conflicts . Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
Dr. Jacobs' report is subject to conflicting inferences. Dr. Jacobs recognized that he was not "specifically asked to address causality and etiology." However, he opined that the claimant's "recurrent problems with abscess formulation, fistula and recurrent rectal inflammatory changes" were the result of the claimant's diabetes and "surgical complications," not his employment as a truck driver. He added that although sitting can be "exquisitely painful" when a patient's hemorrhoidal condition is active, "it is difficult to understand from a physiologic standpoint how internal hemorrhoids can even be aggravated by sitting for prolonged periods and driving a truck." Nevertheless, he assigned a 20 percent whole person impairment rating of which he "apportioned" 10 percent to the industrial injury.
On the one hand, Dr. Jacobs' report could be interpreted to mean Dr. Jacobs determined that only 50 percent of the claimant's permanent medical impairment was caused by the industrial injury. Alternatively, Dr. Jacobs' report could be read to reflect an opinion that the claimant's permanent medical impairment is the result of occupational and non- occupational factors in equal proportion. In that case, the issue would be one of "apportionment," because it involves the DIME physician's judgment concerning the relative contributions of the industrial and nonindustrial factors.
Although the ALJ found Dr. Jacobs rendered an opinion on "causation," he also interpreted Dr. Jacobs' report as determining "apportionment." Because the ALJ's findings are internally inconsistent, and do not resolve the pertinent issue, additional findings are necessary. Section 8-43-301(8). On remand, the ALJ must determine whether Dr. Jacobs' opinions reflect a determination of causation or apportionment. Based upon this determination, the ALJ shall enter a new order on permanent partial disability.
For purposes of our remand, we also reject the respondent's contention that the apportionment issue is governed by the principles in Anderson v. Brinkhoff, supra. To the contrary, Anderson applies to the initial determination of whether the claimant suffered a compensable occupational disease.
Here, the respondent's request for the apportionment of liability for the claimant's hemorrhoidal condition was rejected by ALJ Hopf in her order dated August 25, 1997. The respondent did not appeal our order which affirmed ALJ Hopf's order. Consequently, the respondent is collaterally estopped from further litigation of the issue. See Cooper v. Industrial Claim Appeals Office, 998 P.2d 5 (Colo.App. No. 1999).
However, we agree with the ALJ that the issue of whether the claimant's permanent medical impairment is totally attributable to the industrial injury is a separate and distinct issue from whether the claimant's temporary disability is the result of the industrial injury. Therefore, ALJ Hopf's order does not preclude the ALJ from determining whether to apportion liability for the claimant's permanent disability.
IT IS THEREFORE ORDERED that the ALJ's order dated June 20, 2000, is set aside and the matter is remanded to the Division of Administrative Hearings for the entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Bill Whitacre
Copies of this decision were mailed May 2, 2001 to the following parties:
Jorge Saenz-Rico, 6525 West 114th Ave., Westminster, CO 80020
Jeanne Hogue, Yellow Freight System, Inc., P.O. Box 7932, Overland Park, KS 66211
Glen Davis, Yellow Freight System, Inc., 15905 Smith Road, Aurora, CO 80011
Douglas Phillips, Esq., 155 South Madison, Ste. 330, Denver, CO 80209 (For the Claimant)
Michael A. Perales, Esq., 999 18th St., #3100, Denver, CO 80202 (For the Respondent)
BY: A. Pendroy