4-300-659 (1998). EDWARD D. ESTES.
Case Date | October 09, 1998 |
Court | Colorado |
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...
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