This summary was computer-generated without any editorial revision. It is not official, has not been checked for accuracy, and is NOT citable.
Facts
The Worker, employed by Basin Moving & Storage, sustained a lower back injury in August 1993. Following two surgeries to address a herniated disc and related complications, the Worker experienced ongoing pain and functional limitations. Medical evaluations yielded conflicting opinions regarding the extent of the Worker's impairment, with some experts attributing a 25% impairment rating and others suggesting a lower rating due to a lack of evidence for radiculopathy or motion segment instability. The Worker also faced allegations of engaging in injurious practices, such as continued use of a back brace and cane against medical advice (paras 2-10).
Procedural History
- Workers' Compensation Administration: The Workers' Compensation Judge (WCJ) awarded the Worker benefits based on a 5% impairment rating, denied separate ratings for psychological disorder and chronic pain, and reduced benefits due to injurious practices (headnotes, paras 1, 10).
Parties' Submissions
- Worker (Appellant): Argued that the WCJ erred in assigning a 5% impairment rating, failing to assign separate ratings for psychological disorder and chronic pain, reducing benefits for alleged injurious practices, and excluding testimony from one of the Worker's expert witnesses (para 1).
- Employer/Insurer (Appellees): Contended that the WCJ's findings were supported by substantial evidence, including medical testimony and observations of the Worker's conduct, and that the reduction in benefits for injurious practices was appropriate (paras 10, 23).
Legal Issues
- Was the WCJ's assignment of a 5% impairment rating supported by substantial evidence?
- Did the WCJ err in refusing to assign separate impairment ratings for psychological disorder and chronic pain?
- Was the reduction of benefits for injurious practices properly applied under the statute?
- Did the WCJ improperly exclude the testimony of one of the Worker's expert witnesses?
Disposition
- The decision of the WCJ was reversed, and the case was remanded for further proceedings (para 35).
Reasons
Per Wechsler J. (Apodaca and Armijo JJ. concurring):
Impairment Rating: The WCJ's assignment of a 5% impairment rating was not supported by substantial evidence. The WCJ improperly relied on postoperative findings and Dr. Chiodo's testimony, which was inconclusive due to insufficient preoperative information. The AMA Guides require impairment ratings to be based on preoperative conditions, and the WCJ failed to adhere to this standard (paras 11-21).
Injurious Practices: While the WCJ had discretion to reduce benefits for injurious practices under Section 52-1-51(I), the reduction must be separate from the impairment rating. The WCJ conflated these findings, which was inconsistent with the statutory framework. The reduction should address the Worker's postoperative conduct without altering the impairment rating (paras 22-27).
Exclusion of Expert Testimony: The WCJ erred in excluding Dr. Sherrill's testimony on the grounds of alleged coaching by the Worker's attorney. Preparing a witness for testimony is permissible, and there was no evidence of improper influence. The exclusion of this testimony was prejudicial, as it addressed the Worker's psychological condition and chronic pain (paras 28-30).
Psychological and Chronic Pain Ratings: The WCJ's findings on psychological disorder and chronic pain were undermined by the improper exclusion of Dr. Sherrill's testimony. The AMA Guides allow for separate ratings in certain circumstances, and the WCJ must reconsider these issues on remand, taking into account the excluded testimony (paras 31-34).
The case was remanded for the WCJ to issue new findings on impairment, injurious practices, and separate ratings for psychological disorder and chronic pain, based on the existing record (para 35).