Askew v. Industrial Claim Appeals Office of the State of Colo.

• Citation: 927 P.2d 1333
• Decision Date: 03 December 1996
• Docket Number: No. 95SC489,95SC489
• Parties: 20 Colorado Journal 1760 Robert L. ASKEW, Petitioner, v. The INDUSTRIAL CLAIM APPEALS OFFICE OF THE STATE OF COLORADO, Sears Roebuck & Company, and Allstate Insurance Company, Respondents.
• Court: Colorado Supreme Court

Page 1333

927 P.2d 1333

20 Colorado Journal 1760

Robert L. ASKEW, Petitioner, v. The INDUSTRIAL CLAIM APPEALS OFFICE OF THE STATE OF

COLORADO, Sears Roebuck & Company, and Allstate

Insurance Company, Respondents.

No. 95SC489.

Supreme Court of Colorado,

En Banc.

Dec. 3, 1996.

The Frickey Law Firm, Janet L. Frickey, Lakewood, Jean E. Dubofsky, P.C., Jean E. Dubofsky, Boulder, for Petitioner.

Ritsema & Lyon, P.C., Eliot J. Wiener, Denver, for Respondents Sears Roebuck & Company and Allstate Insurance Company.

Michael J. Steiner, Denver, for Amicus Curiae Colorado Compensation Insurance Authority.

Gordon & Macdonald, P.C., William J. Macdonald, Denver, for Amicus Curiae Workers' Compensation Education Association.

Justice SCOTT delivered the Opinion of the Court.

We granted certiorari to decide whether the court of appeals erred when, in Askew v. Sears Roebuck & Co., 914 P.2d 416 (Colo.App.1995), it affirmed the order of the Industrial Claim Appeals Panel (Panel) to apportion claimant's medical impairment rating between an asymptomatic, preexisting condition and claimant's work related injury. Our order granting certiorari set forth the following issue:

Under the Workers' Compensation Act of Colorado, §§ 8-40-101 to 8-47-209, 3B C.R.S. (1995 Supp.), and particularly § 8-42-104, may the medical impairment rating for a claimant seeking workers' compensation benefits for a permanent partial disability be apportioned between the effects of an industrial injury and a pre-existing degenerative physical condition?

Because we conclude that the relevant provisions of the Workers' Compensation Act of Colorado, §§ 8-40-101 to 8-47-111, 3B C.R.S. (1996 Supp.), and our cases interpreting that law, contemplate apportionment for a prior compensable "disability" but not for a latent preexisting condition, we reverse the judgment of the court of appeals and remand for further proceedings consistent with this opinion.

I.

While the parties dispute whether apportionment is proper, they are in agreement as to the salient facts. Petitioner, Robert L. Askew, injured his back in an admitted industrial injury in the course of his employment with respondent, Sears Roebuck & Company (Sears). Askew, a graduate student at the Colorado School of Mines, worked part-time for Sears as a bookkeeper. On July 5, 1991, at the request of a Sears assistant manager, Askew attempted to place a 50-pound box of invoices on a shelf above his head. As he reached up to put the box on the shelf, Askew's lower back "popped," temporarily paralyzing his legs, and causing permanent injuries and persistent physical limitations. At the time, Askew was 49 years old.

A spinal x-ray taken several days after the injury revealed that Askew had osteoarthritic degenerative changes with intervertebral space narrowing in his spine. Although he returned to work five days after the accident, his lower back stiffness continued and he suffered occasional sharp pain and disc movement when he twisted his back or assumed certain positions. Subsequent tests confirmed disc herniation and nerve impairment.

Askew originally consulted his primary treating physician, J. Michael Geier, M.D. However, Dr. Geier did not evaluate Askew's impairment under the American Medical Association Guides to the Evaluation of Permanent Impairment (AMA Guides ) as required by section 8-42-107(8)(c), 3B C.R.S. (1996 Supp.), of the Workers' Compensation Act, to calculate permanent partial disability benefits. ¹

As a result, respondent, Allstate Insurance Co. (Allstate), referred Askew to Gene E. Bolles, M.D., who evaluated Askew's impairment under the AMA Guides. Dr. Bolles determined that Askew had suffered an 8% whole person impairment, that he had somewhat chronic but asymptomatic problems with his back, and that apportioning the impairment rating between the pre-existing condition and the industrial injury was not reasonable or appropriate. ²

Askew was dissatisfied with that impairment rating and applied for an independent medical examination (IME) pursuant to section 8-42-107(8)(c). ³ The director of the Division of Workers' Compensation (Director) selected John J. Aschberger, M.D., to perform the IME. Dr. Aschberger determined that Askew had a 13% whole person impairment under the AMA Guides. However, because Dr. Aschberger "wasn't comfortable with assigning a 7 percent impairment attributable to the work injury" and he was uncertain as to whether the source of Askew's injury was attributable to the preexisting degenerative changes or the industrial injury, he decreased the whole person injury by 50%. Therefore, Dr. Aschberger decided that 7% of the impairment should be apportioned due to Askew's preexisting osteoarthritic degeneration. Thus, by his report dated September 23, 1993, Dr. Aschberger eventually concluded that Askew had only a 6% permanent partial disability due to the industrial or work-related injury. ⁴

Still dissatisfied, Askew hired Donald S. Harder, M.D., to conduct another examination. On November 8, 1993, Dr. Harder rated Askew's impairment at 14% of the whole person under the AMA Guides. Dr. Harder determined that apportionment was not appropriate. By letter dated December 15, 1993, prepared after reviewing his own November report and Dr. Aschberger's report, Dr. Harder opined that apportionment was inappropriate because the "degenerative changes ... very well may have pre-existed his injury" and "[h]ad this injury not occurred, there is no reason to think that [Askew] would have developed back pain problems."

After a hearing, the administrative law judge (ALJ) concluded that Dr. Aschberger and Dr. Harder had agreed that Askew sustained a 14% whole person impairment, ⁵ but had disagreed whether apportionment was appropriate. The ALJ upheld Dr. Aschberger's final 6% impairment rating, ruling that the independent medical examiner appointed by the Director had complied with the AMA Guides in determining that "some of [the 14% whole person impairment] should be apportioned to the claimant's pre-existing condition." ⁶ Thus, the ALJ ruled that because Askew failed to overcome Dr. Aschberger's rating by clear and convincing evidence, see section 8-42-107(8)(c), Askew had sustained a permanent medical impairment of 6% and, therefore, Allstate was liable for benefits based on apportionment excluding pre-existing, asymptomatic conditions in the amount of $3,236.03.

The Panel from the Industrial Claim Appeals Office affirmed the order of the ALJ regarding apportionment. The Panel first noted that the ALJ's findings were supported by substantial evidence. The Panel then determined that the AMA Guides provide for apportionment of medical impairment. Thus, the Panel concluded that Dr. Aschberger properly apportioned Askew's impairment in accordance with the AMA Guides and that because Askew's preexisting condition contributed to his total impairment, the ALJ was correct in concluding that "the claimant is limited to permanent partial disability benefits based upon impairment of 6 percent of the whole person."

The court of appeals affirmed the Panel's order, holding that an IME physician may apportion a medical impairment rating between an asymptomatic, preexisting condition and the effects of an industrial injury, and that the impairment rating and the apportionment are subject to the deference accorded by section 8-42-107(8)(c). Askew, 914 P.2d at 418. Askew then petitioned for certiorari review.

II.

Askew argues that under the Workers' Compensation Act, the medical impairment rating for a claimant with a permanent partial disability may not be apportioned between the effects of an industrial injury and the unknown impact of an asymptomatic, pre-existing physical condition. Respondents contend that based on the 1991 amendments to the Workers' Compensation Act, apportionment was appropriate. ⁷ We reject respondents' argument and hold that, under the plain language of section 8-42-104(2), 3B C.R.S. (1996 Supp.), and the AMA Guides, Askew was entitled to an impairment rating without apportionment.

A.

Sections 8-42-102 through 8-42-104, 3B C.R.S. (1996 Supp.), of the Workers' Compensation Act govern the calculation of compensation for persons who have suffered work-related injuries. Our focus today rests on the proper interpretation of the apportionment provision, section 8-42-104(2), which provides:

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. In such cases awards shall be based on said computed percentage.

(Emphasis added.) ⁸

In construing statutes, courts must give effect to the intent of the General Assembly. PDM Molding, Inc. v. Stanberg, 898 P.2d 542, 545 (Colo.1995). To that end, courts must look first to the statutory language, giving words and phrases their commonly accepted and understood meaning. Id. If the statutory language is unambiguous, there is no need to resort to interpretive rules of statutory construction because it is presumed that the General Assembly meant what it clearly said. Griffin v. S.W. Devanney & Co., 775 P.2d 555, 559 (Colo.1989). When the General Assembly adopts a comprehensive regulatory scheme, the legislation should be construed as a whole to give effect to all its parts within the context of the entire scheme. Martinez v. Continental Enters., 730 P.2d 308, 315 (Colo.1986).

The Workers' Compensation Act does not define the term "previous disability" as it is used in the apportionment provision of section 8-42-104. However, in arriving at a medical impairment rating as a percentage of the whole person, which necessarily includes any decision to apportion such impairment, section 8-42-107(8)(c) mandates that the authorized treating physician base his or her decision on the provisions of the AMA...