Opinion
W.C. No. 4-147-383
July 2, 2001
ORDER OF REMAND
The respondents seek review of an order of Administrative Law Judge Wheelock (ALJ) which awarded benefits for permanent total disability. The respondents contend the ALJ erroneously precluded the presentation of evidence on the issue of apportionment. We set aside the order and remand for further proceedings.
In 1992, the claimant suffered admitted injuries to her upper extremities. On October 27, 1997, Dr. Rook placed the claimant at maximum medical improvement (MMI) and assigned a 41 percent whole person impairment rating due to bilateral thoracic outlet syndrome, cervical and bilateral upper extremity range of motion deficits, and cervical myofascial pain syndrome and cervical range of motion deficits. Dr. Rook did not apportion the impairment. The respondents filed a Final Admission of Liability for the payment of permanent partial disability benefits consistent with Dr. Rook's medical impairment rating.
Thereafter, the claimant applied for a hearing on the issue of permanent total disability. The respondents added the issue of "apportionment" and obtained an independent medical examination by Dr. Tyler.
At the commencement of the hearing, the respondents sought to introduce Dr. Tyler's testimony that the claimant's symptomatology predated the industrial injury. The claimant objected on grounds the respondents waived the apportionment defense by failing to request a Division-sponsored Independent Medical Examination (DIME) in accordance with § 8-42-107(8)(c), C.R.S. 2000, to dispute Dr. Rook's medical impairment rating.
The ALJ determined that the "cause" of the claimant's condition was resolved when the respondents voluntarily admitted liability for permanent partial disability benefits based upon Dr. Rook's unapportioned medical impairment rating. Furthermore, the ALJ determined that in the absence of a DIME, he lacked jurisdiction to consider the respondents' challenge to Dr. Rook's opinions. Consequently, the ALJ precluded the respondents from presenting evidence on the issue of apportionment.
Moreover, on conflicting medical and vocational evidence, the ALJ determined the claimant is unable to earn any wages. Therefore, the ALJ awarded permanent total disability benefits. The respondents timely appealed.
On appeal, the respondents contend the ALJ erred as a matter of law in precluding the presentation of evidence on the issue of apportionment. The respondents contend that the claimant put the causation issue before the ALJ for adjudication when she objected to the Final Admission. Further, they contend there is nothing in § 8-42-104(2) which prevents an insurer from asserting the defense of apportionment on the issue of permanent total disability by failing to dispute the treating physician's rating on the issue of permanent partial disability. We agree in part.
Section 8-43-203(2)(d), C.R.S. 2000, provides that: "if any liability is admitted, payments shall continue according to admitted liability." The respondents are bound by their final admission. Dalco Industries, Inc. v. Garcia, 867 P.2d 156 (Colo.App. 1993). However, once the claimant objects, all disputed issues are put before the ALJ for determination. HLJ Management Group v. Kim, 804 P.2d 250 (Colo.App. 1990); Weber v. Mesa County Sheriff's Department, W.C. No. 3-113-179 (May 28, 1998) , aff'd., Mesa County Sheriff's Department v. Industrial Claim Appeals Office, (Colo.App. No. 98CA1119, February 25, 1999) (not selected for publication).
Here, the respondents admitted liability for permanent partial disability benefits based upon 41 percent whole person impairment and zero permanent total disability benefits. (Final Admission December 1, 1998). When the claimant applied for a hearing on the issue of permanent total disability, she inherently disputed the respondents' assertion that she was only permanently partially disabled. See Waymire v. Industrial Claim Appeals Office, 924 P.2d 1168 (Colo.App. 1996), cert. denied October 15, 1996 (claimant may not receive concurrent permanent total disability benefits and medical impairment benefits not allowable because both compensate for lost earning capacity). Thus, the issue of permanent partial disability was necessarily contested.
Former § 8-42-104(2), C.R.S. 1998, [amended in 1999], which governs this claim provides that:
In case there is a previous disability, the percentage of disability for a subsequent injury shall be determined by computing the percentage of the entire disability and deducting therefrom the percentage of the previous disability as it existed at the time of the subsequent injury."
Apportionment based upon a preexisting medical impairment is not proper unless the previous impairment constitutes a disability. Askew v. Industrial Claim Appeals Office, 927 P.2d 1333 (Colo. 1996); Public Service Company of Colorado v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 00CA1991, June 21, 2001). This is true because the terms "impairment" and "disability" are not synonymous. Impairment relates to an alteration of an individual's health status as assessed by medical means, while "disability" pertains to a person's ability to meet "personal, social or occupational demands," and is assessed by non-medical means. Absolute Employment Services, Inc. v. Industrial Claim Appeals Office, 997 P.2d 1229 (Colo.App. 1999). The Askew court also held that apportionment of permanent partial disability based upon pre-existing medical impairment is not proper unless the impairment has been sufficiently identified, treated, or evaluated to be rated as a contributing factor in the subsequent disability. Public Service Company of Colorado v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 00CA1991, June 21, 2001).
The claimant's medical impairment rating is dispositive of her entitlement to permanent partial disability benefits. Section 8-42-107(8)(d), C.R.S. 2000. Under § 8-42-107(8)(c), the treating physician makes the initial medical impairment rating. If either party disputes the treating physician's determination the claimant must undergo a DIME and the ALJ lacks jurisdiction to determine the accuracy of the treating physician's rating in the absence of a DIME. Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo.App. 1995).
Furthermore, it is now well established that the "cause" of medical impairment is an inherent element of the treating physician's medical impairment rating. Egan v. Industrial Claim Appeals Office, 971 P.2d 664 (Colo.App. 1998). Therefore, insofar as the respondents dispute Dr. Rook's opinion on the cause of the claimant's medical impairment, the respondents are precluded from challenging Dr. Rooks opinions in the absence of an DIME.
The respondents do not contend they requested a DIME. Neither do they request leave to obtain an DIME. Under these circumstances, the ALJ properly restricted the respondents from presenting evidence to refute Dr. Rook's opinions concerning the nature and extent of the claimant's permanent medical impairment from the industrial injury.
However, a medical impairment rating is not determinative of permanent total disability. Instead, permanent total disability exists when the industrial "disability" precludes the claimant from earning "any wages in the same or other employment." Section 8-40-201(16.5)(a), C.R.S. 2000. Under this standard, medical impairment is only one of a myriad of "human factors" to be considered in determining whether the claimant is incapable of earning "any wages." Best-Way Concrete Co. v. Baumgartner, 908 P.2d 1194 (Colo.App. 1995). The ALJ may also consider the claimant's education and abilities, former employment, and medical restrictions in determining whether employment is "reasonably available to the claimant under his particular circumstances." Weld County School District RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998). Accordingly, where the claimant has permanent medical impairment from the industrial injury, the crucial issue is whether the residual effects of the medical impairment preclude the claimant from obtaining and maintaining employment. Thus, the existence of permanent medical impairment may or may not entitle the claimant to permanent total disability benefits.
In the context of permanent total disability, a "previous disability" is a disability which impairs the claimant's ability to earn wages. Baldwin Construction Inc., v. Industrial Claim Appeals Office, 937 P.2d 895 (Colo.App. 1997). The previous disability may be a physical limitation resulting from a military or non-industrial injury that was not considered by the treating physician in rating permanent medical impairment from the industrial injury. Ragsdale v. Western Company of North America, W.C. No. 3-114-839 (February 3, 2000) For example, in Baldwin, the issue was whether the claimant's permanent total disability was apportionable to the claimant's hypertension, alcoholism, and depression, which predated industrial injury.
The respondents do not identify the evidence they sought to present on the issue of apportionment. However, for the above reasons, we conclude the ALJ erroneously precluded the respondents from presenting any evidence in support of their claim for apportionment, insofar as the evidence did not attempt to challenge Dr. Rook's medical impairment rating.
On remand, the ALJ shall afford the respondents an opportunity to present evidence in the issue of apportionment. However, the respondents may not present evidence which constitutes a constructive challenge to Dr. Rook's opinions concerning the nature, extent and cause of the claimant's permanent medical impairment to the cervical spine and upper extremities.
IT IS THEREFORE ORDERED that the ALJ's order is set aside, and the matter is remanded to the ALJ for further proceedings consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Dona Halsey
Copies of this decision were mailed July 2, 2001 to the following parties:
Nancy VanRoy, 709 Pioneer Ln., Colorado Springs, CO 80904-1744
Apple Computers, Patricia J. Clisham, Esq., 1200 17th St., #1700, Denver, CO 80202
Miles Monroe, Liberty Mutual Insurance Company, P. O. Box 168208, Irving, TX 75016-8205
Jon C. Thomas, Esq., 1032 N. Wahsatch Ave., Colorado Springs, CO 80903 (For Claimant)
Patricia J. Clisham, Esq. and Keith E. Mottram, Esq., 1200 17th St., #1700, Denver, CO 80202 (For Respondents)
BY: L. Epperson