Opinion
W.C. No. 4-178-141
March 17, 1998
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Rumler (ALJ), insofar as she denied their request for apportionment of the claimant's permanent partial disability benefits. We affirm.
On June 18, 1993, the claimant sustained a compensable back injury while performing his duties as a materials handler. The claimant testified that since the 1993 injury he has sought lighter duties in his employment, and is restricted in his ability to engage in recreational activities such as "four wheel driving." (Tr. pp. 37-38, 48-49).
The claimant underwent a Division Independent Medical Examination (IME) concerning permanent impairment. The Division IME physician found that the claimant has a twelve percent whole person impairment, and he apportioned fifty percent of the impairment to prior work-related back injuries.
The record reflects that the claimant sustained three prior industrial back injuries. One injury, which occurred in 1986, resulted in an award of permanent partial disability benefits based on disability of two percent as a working unit. (ALJ's Order dated September 24, 1987). The record also reflects that the claimant was still undergoing chiropractic treatments once every six weeks prior to the 1993 industrial injury.
Citing Askew v. Industrial Claim Appeals Office, 927 P.2d 1333 (Colo. 1997), the ALJ concluded that it is improper to apportion fifty percent of the claimant's whole person medical impairment rating to the effects of the prior back injuries. In support, the ALJ found that the claimant's prior industrial injuries "had not resulted in an alteration of his capacity to meet personal, social or occupational demands" at the time of the 1993 injury. Conversely, the ALJ found that the claimant has been significantly impaired since the 1993 injury.
The ALJ also found that the Division IME physician did not "correctly apportion" the claimant's medical impairment under the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition (Revised) (AMA Guides). In support of this conclusion, the ALJ cited the opinion of Dr. Haney, who conducted a private IME just two weeks prior to the 1993 industrial injury. Dr. Haney stated that the claimant was not impaired at the time of his examination. Moreover, the ALJ stated that the Division IME physician did not "have x-rays or prior medical records of Claimant prior to his industrial injury of June 18, 1993."
On review, the respondents dispute the ALJ's reliance on Askew in support of her refusal to apportion. The respondents argue that here, unlike the situation in Askew, the claimant had a preexisting symptomatic condition caused by the prior back injuries. Therefore, they reason that Askew is inapposite and does not preclude apportionment. The respondents further assert that, in any event, the ALJ is "bound" by the September 1987 order which found that the claimant had a two percent working unit "disability." We believe the respondents read Askew too narrowly, and therefore, disagree with their position.
It is true, as the respondents argue, that the claimant in Askew had a preexisting asymptomatic condition. However, we do not believe that the holding in Askew is limited to "asymptomatic preexisting conditions." Rather, Askew establishes a two-part test for apportionment of any preexisting condition. The test requires that the preexisting condition be "disabling," and that it consist of an impairment which has been "sufficiently identified, treated, or evaluated to be rated as a contributing factor in the subsequent disability."
With respect to the "disability" requirement, the Askew court cited § 8-42-104(2), C.R.S. 1997. The court noted that this statute conditions apportionment on the presence of a "previous disability" which was in existence at the time of the "subsequent injury." Further, the court held that the overall statutory scheme requires the definition of "disability" contained in the AMA Guides be applied to § 8-42-104(2). Thus, the court stated the following:
"`Disability,' which is assessed by nonmedical means, is `an alteration of an individual's capacity to meet personal, social, or occupational demands.' [citation omitted] However, the AMA Guides make clear that an individual who is impaired is not necessarily disabled. `Impairment gives rise to disability only when the medical condition limits the individual's capacity to meet the demands of life's activities.'" 927 P.2d at 1337.
In Askew, the court found no evidence that the claimant's preexisting, asymptomatic back condition had impaired his ability to meet "the demands of life's activities." Therefore, the court concluded there was no apportionable "disability" within the meaning of § 8-42-104(2). The court also applied the second part of the test and found insufficient evidence that the preexisting condition had been "sufficiently identified" to constitute an apportionable impairment.
Our conclusion that Askew applies to preexisting symptomatic conditions is supported by Baldwin Construction, Inc. v. Industrial Claim Appeals Office, 937 P.2d 895 (Colo.App.
1997). There, the court held that the claimant's preexisting hypertension, alcoholism, and depression did not constitute disabilities for purposes of apportioning permanent total disability benefits. To the contrary, the Baldwin Construction court determined that the evidence supported the ALJ's finding that the preexisting conditions did not hinder the claimant's ability to perform his heavy employment, and therefore, did not rise to the level of apportionable disabilities.
It follows that we perceive no error in the ALJ's order in this case. Although the ALJ may have found that the claimant had a preexisting symptomatic back condition, she explicitly found that this condition was not "disabling" within the meaning of § 8-42-104(2) and the AMA Guides. This finding is amply supported by the claimant's testimony that he was able to perform his heavy work prior to the 1993 injury. The finding is also supported by Dr. Haney's report which indicates the absence of any disability shortly before the 1993 industrial injury. Because the ALJ's findings are supported by substantial evidence in the record, we must uphold them on review. Section 8-43-301(8), C.R.S. 1997.
Neither are we persuaded by the respondents' assertion that, because the ALJ found a two percent working unit disability in 1987, she was required to find that the disability was still in existence at the time of 1993 injury. In the context of temporary disability, a finding of no disability at one point in time is not res judicata on the question of whether disability exists at a later time. Brown Root, Inc. v. Industrial Claim Appeals Office, 833 P.2d 780 (Colo.App. 1991). The same may be said of permanent disability because permanent disability may undergo changes over time. Empire Oldsmobile, Inc. v. McClain, 151 Colo. 510, 379 P.2d 402 (1963).
The requirement of § 8-42-104(2) is to apportion previous disabilities as they exist at the time of the subsequent injury. The mere fact that the claimant may have had a "working unit disability" in 1987 did not require the ALJ to find that disability was still in existence at the time of the 1993. The evidence supports the ALJ's finding that the 1987 disability did not exist at the time of the 1993 injury.
It follows that we agree with the ALJ's conclusion that the claimant's whole person medical impairment is not apportionable under Askew. Consequently, we need not reach the respondents' other argument that there is no evidence from which the ALJ could find that the Division IME rating was overcome by clear and convincing evidence.
IT IS THEREFORE ORDERED that the ALJ's order dated May 22, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL ________________________________ David Cain ________________________________ Bill WhitacreNOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. 1997.
Copies of this decision were mailed March 17, 1998 to the following parties:
Kelly D. Wich, 19211 E. Rice Dr., Aurora, CO 80015
Bridgestone Firestone, Inc., 6275 Eastland Rd., Rookpark, OH 44142-1301
Ins. Co. of the State of Pennsylvania, P.O. Box 32130, Phoenix, AZ 85018
Kim Bills, Gallagher Bassett Services, 7935 E. Prentice Ave., #305, Englewood, CO 80111
David W. Doyle, Esq., 4465 Kipling St., #200, Wheat Ridge, CO 80033 (For the Claimant)
Karen R. Wells, Esq., 3900 E. Mexico, #1000, Denver, CO 80210 (For the Respondents)
By: ________________________________