Askew v. Sears Roebuck & Co., 94CA1932

• Decision Date: 15 June 1995
• Docket Number: No. 94CA1932,94CA1932
• Citation: 914 P.2d 416
• Parties: Robert L. ASKEW, Petitioner, v. SEARS ROEBUCK & COMPANY, Allstate Insurance Company, and The Industrial Claim Appeals Office of the State of Colorado, Respondents. . I
• Court: Colorado Court of Appeals

Page 416

914 P.2d 416

Robert L. ASKEW, Petitioner, v. SEARS ROEBUCK & COMPANY, Allstate Insurance Company, and The Industrial Claim Appeals Office of the State of Colorado, Respondents.

No. 94CA1932.

Colorado Court of Appeals,

Div. I.

June 15, 1995.

Rehearing Denied July 13, 1995.

Certiorari Granted April 8, 1996.

Norton Frickey & Associates, P.C., Janet L. Frickey, Lakewood, for petitioner.

Ritsema & Lyon, P.C., Eliot J. Wiener, Andrew R. Bantham, Denver, for respondents Sears Roebuck & Co. and Allstate Ins. Co.

No appearance for respondent Industrial Claim Appeals Office.

Opinion by Judge PLANK.

In this proceeding for workers' compensation benefits, Robert L. Askew (claimant) petitions for review of a final order of the Industrial Claim Appeals Panel awarding him medical impairment benefits based upon a 6% whole person impairment, rather than a 14% impairment. We affirm.

Claimant sustained an industrial injury to his back in July 1991, for which respondents Sears Roebuck & Co. and Allstate Insurance Co. admitted liability. The Administrative Law Judge (ALJ) found that an x-ray taken three days after the injury showed osteoarthritic degenerative changes. He concluded that the degeneration must have existed at the time of the injury, since it could not have developed so quickly following the injury.

A physician was appointed by the Division of Workers' Compensation (Division) to perform an independent medical examination (IME) of the claimant under the provisions now codified at § 8-42-107(8)(c), C.R.S. (1994 Cum.Supp.). Based upon the American Medical Association Guides to the Evaluation of Permanent Impairment (Rev. 3d ed. 1991) (AMA Guides ), the IME physician rated claimant's impairment as 7%, with 6% for loss of range of motion, for a total of 13% whole person impairment. However, the IME physician found that only the six percent of this impairment was caused by the industrial injury, with the remainder apportioned to the pre-existing condition.

Another physician who rated claimant's impairment at 14% concluded that no apportionment was necessary. This conclusion was based on the determination that even though the degenerative changes may have pre-existed the industrial injury, claimant was asymptomatic until the injury. The IME physician subsequently agreed that claimant's impairment was 14%, but reiterated his decision to apportion the 6% of the impairment to the industrial injury.

The ALJ found that the IME physician properly applied the AMA Guides in apportioning. Therefore, the ALJ concluded that because claimant failed to overcome the IME physician's impairment rating by clear and convincing evidence, as provided in § 8-42-107(8)(c), the 6% impairment rating was binding. The Panel affirmed.

Claimant contends that apportionment is not a medical determination for the IME physician, but rather a legal determination for the ALJ. Therefore, claimant argues that the IME physician's apportionment is not binding, and is not subject to the clear and convincing standard of proof under § 8-42-107(8)(c) for a binding IME. Instead, claimant urges us to adopt a standard requiring the ALJ to determine apportionment based on the preponderance of the evidence. We are not persuaded.

Just as the authorized treating physician must base the impairment rating on the AMA Guides under § 8-42-107(8)(c), an IME physician is likewise bound by this same standard. See §§ 8-42-101(3)(a)(I) and 8-42-101(3.7), C.R.S. (1994 Cum.Supp.); Boulder v. Dinsmore, 902 P.2d 925 (Colo.App.1995). And, because portions of the AMA Guides form part of the record in this case, we may consider those portions on review. See Boulder v. Dinsmore, supra.

The AMA Guides, at 6-7, envision a physician's apportionment by providing that:

If 'apportionment' is needed, the analysis must consider the nature of the impairment and its possible relationship to each alleged factor, and it must provide an explanation of the medical basis for all conclusions and opinions. To establish that a factor could have contributed to the impairment, the analysis must include a discussion of the pathophysiology of the particular condition and of pertinent host characteristics. A conclusion that a factor did contribute to an impairment must rely on documentation of the circumstances under which the factor was present and verification that the type and magnitude of the factor were sufficient and bore the necessary temporal relationship to the condition. The existence of an impairment does not create a presumption of contribution by a factor with which the impairment is often associated. (emphasis added)

However, the glossary to the AMA Guides provides that apportionment "is a nonmedical determination" when a factor contributing to impairment does in fact cause the impairment, rather than being a possible cause. (emphasis added) It is this provision in the glossary upon which claimant's argument rests. The body of the AMA Guides arguably conflicts with the glossary definition of "apportionment." However, we need not reconcile this ambiguity because we conclude that, by enacting § 8-42-107(8)(c), the General Assembly has clearly delegated the decision to apportion to the IME physician by declaring the opinion of the IME physician binding (when the parties choose an IME physician by mutual agreement) or binding to the extent that it can be overcome only by clear and convincing evidence (when the parties cannot agree on an IME physician, and the Division selects the physician). See Metro Moving & Storage Co. v. Gussert, 914 P.2d...