4-300-659 (1998). EDWARD D. ESTES.

Case DateOctober 09, 1998
CourtColorado
Colorado Workers Compensation 1998. 4-300-659 (1998). EDWARD D. ESTES INDUSTRIAL CLAIM APPEALS OFFICEIN THE MATTER OF THE CLAIM OF EDWARD D. ESTES, Claimant, v. SUTHERLAND'S HOME IMPROVEMENT CENTER, Employer, and LUMBERMEN'S UNDERWRITING ALLIANCE, Insurer, Respondents.W. C. No. 4-300-659FINAL ORDER The claimant seeks review of a final order of Administrative Law Judge Martinez (ALJ), insofar as the ALJ found that the respondents overcame the Division-sponsored independent medical examination (IME) impairment rating and ordered apportionment of the claimant's permanent partial disability benefits. The respondents seek review of the ALJ's order to the extent the ALJ calculated permanent partial disability benefits based on the maximum rate payable for temporary total disability benefits. We affirm. The ALJ found that the claimant, a minor, sustained a compensable back injury on April 27, 1996. As a result of the injury, the claimant was required to undergo back surgery including fusion of the L3-L4 vertebrae. On June 18, 1997, the claimant was examined by one of the treating physicians, Dr. Woelfel, and assigned a ten percent whole person impairment rating under the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition (Revised) (AMA Guides). Applying Table 53 of the AMA Guides, Dr. Woelfel opined that the claimant had an eight percent impairment for a surgically treated disc. Additionally, Dr. Woelfel assessed a two percent impairment for lost range of motion. Dr. Woelfel did not apportion the claimant's impairment. Subsequently, a Division-sponsored IME was performed by Dr. Hall. In a report dated December 30, 1997, Dr. Hall opined the claimant had a twenty-four percent whole person impairment. This rating was based on a ten percent impairment under Table 53 II E, for a surgically treated disc lesion, and a fifteen percent impairment for lost range of motion. Dr. Hall did not apportion the impairment rating. At the hearing, the respondents presented evidence that the claimant sustained a prior back injury while playing football in September 1995. An MRI performed in October 1995 revealed degenerative disc disease and a "prominent central disc bulge" at L4-5, with a "lesser degree of central bulge ... at L3-4." As late as January 18, 1996, the claimant was receiving chiropractic treatment for pain associated with the football injury. The respondents also presented testimony from the claimant's former girlfriend that, prior to the April 27, 1996 industrial injury, the claimant experienced frequent low back problems. Further, two of the claimant's former co-employees testified that even after the April 27 injury, the claimant was uncertain whether his ongoing back problems were associated with the football injury or the industrial injury. The ALJ concluded that the respondents overcame Dr. Hall's IME rating by clear and convincing evidence. In support, the ALJ found that Dr. Hall failed to comply with the AMA Guides, as well as Askew v. Industrial Claim Appeals Office, 927 P.2d 1333 (Colo. 1996), in failing to apportion the impairment rating based on the claimant's preexisting football injury. Specifically, the ALJ noted Dr. Hall's deposition testimony that he would not apportion unless an impairment rating had been assigned for the preexisting injury. (Dr. Hall depo. pp. 6, 8). The ALJ also found that Dr. Hall violated the AMA Guides by failing to contact Dr. Woelfel in an attempt to resolve the disparity between their ratings. Finally, the ALJ relied on the report of Dr. Macaulay, which stated that the medical records submitted for the period prior to the April 27 industrial...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT