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OFFICE OF ADMINISTRATIVE COURTS STATE OF COLORADO WORKERS’ COMPENSATION NO. 4-948-326-03

ISSUES

1. Have Respondents proven by a preponderance of the evidence that Claimant was “responsible for termination” of her employment?

2. Is Claimant entitled to TPD benefits commencing August 25, 2016?

FINDINGS OF FACT

1. Claimant worked for Employer as an assistant manager. On February 21, 2014, Claimant was injured in a work-related motor vehicle accident. Claimant injured multiple parts of her body, including her neck, back, head, and right hip.

2. Claimant initially received conservative treatment, including a lumbar epidural steroid injection and a right SI joint injection.

3. Claimant was placed at MMI by her ATP on February 14, 2014, with no permanent impairment.

4. Claimant underwent a DIME with Dr. Timothy Hall on October 27, 2014. Dr. Hall opined that Claimant was not at MMI. Claimant was subsequently referred to Dr. Miguel Castrejon, who became the primary ATP.

5. Claimant received extensive treatment under Dr. Castrejon’s direction, including additional injections and nerve root blocks.

6. On April 13, 2016, Dr. Schuck performed a right hip arthroscopy with extensive debridement of scar tissue.

7. Claimant has continued to receive ongoing medical treatment since surgery. As of the date of the hearing, Claimant has not been placed at MMI.

8. Claimant was taken off work on April 30, 2016 because of the hip surgery, and remained off work for proximally 3 ½ months. Claimant returned to modified duties on August 1, 2016.

9. Claimant had the following work restrictions per Dr. Castrejon’s August 4, 2016 report: “sedentary, sit/stand as needed and no stand or walk for more than 20 minutes at any one time per hour. She is to limit lifting to 10 pounds.”

10. Claimant’s modified duties were not entirely consistent with Dr. Castrejon’s restrictions. On occasion, she had to lift over 10 pounds, and stand over 20 minutes per hour.

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11. On August 20, 2016, Claimant tendered her resignation to Employer. Claimant described the “Reason for separation” as follows:

I have turned in my two weeks notice. I have been unhappy being in management before going part-time due to my restrictions. The manager [] has treated our pawnbrokers unfair. Even to the point of yelling at them in front of customers and me as well. She has cursed and told them they do nothing and she does everything. This is not true, if you look at Jonathan and my commission numbers we have done a lot as well as [ ]. I loved my job as well as Jonathan but I’ll not put up with this. I hope you can look into this period as well as my restrictions you can look at the camera on Saturday last week I believe where I was on my feet more than two hours when I am restricted to 20 minutes an hour.

12. Although Claimant had offered to work an additional two weeks, Employer accepted her resignation effective August 24, 2016. Claimant’s last day of employment was April 24, 2016. The Employee Separation Report form categorizes her termination as “voluntary resignation.” The reasons given were “Dissatisfied w/ Management,” and “Dissatisfied w/ Working Conditions.”

13. Insurer has been paying Claimant TTD benefits since her termination. Respondents filed a Petition to Terminate Claimant’s TTD benefits on October 25, 2016. Claimant timely objected to Respondents’ Petition on November 9, 2016 and Respondents subsequently requested an expedited hearing regarding the Petition.

14. Caralee Reed testified at hearing on behalf of Respondents. Ms. Reed is an HR representative for Employer. Ms. Reed verified that Claimant had completed and signed the Employee Separation Report. Ms. Reed had spoken with Claimant’s supervisors when she returned to work regarding the obligation to comply with Claimant’s restrictions. Ms. Reed credibly testified she was unaware of any complaints or concerns that Claimant’s supervisors were not following Dr. Castrejon’s restrictions. As a result, Employer had no opportunity to address any issues regarding Claimant’s modified work duties.

15. Claimant testified on her own behalf at the hearing. Claimant testified she was occasionally asked to perform duties beyond her work restrictions. Claimant testified she spoke with her manager regarding her work restrictions and was told to quit if she could not do the job. Claimant testified she resigned because “physically I couldn’t do it.”

16. Claimant’s testimony that she quit because she could not tolerate working beyond her restrictions is not substantiated or corroborated by her letter of resignation, Employee Separation Report or other documentation submitted at the hearing.

17. Respondents have proven by a preponderance of the evidence that Claimant was “responsible for termination” of her employment. Respondents are entitled to terminate Claimant’s TTD benefits effective August 24, 2016.

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18. Claimant was earning less than her preinjury average weekly wage (AWW) while working modified-duty before her termination.

19. Claimant earned $1,335.19 working modified duty between August 1, 2016 and August 24, 2016. That equates to an AWW from modified employment in the amount of $389.43 ($1,335.19 ÷ 24 days = $55.63 per day x 7 days = $389.43 per week).

20. Claimant would have had an ongoing wage loss of $73.07 per week while performing modified work, irrespective of her termination.

21. Claimant is entitled to temporary partial disability (TPD) benefits after August 24, 2016 in the amount of $48.71 per week.

22. Claimant’s employer-sponsored health insurance was terminated effective August 24, 2016. The ALJ cannot determine Claimant’s weekly COBRA continuation cost from the documents submitted at the hearing.

CONCLUSIONS OF LAW

A. Was Claimant “responsible for termination” of her employment?

The termination statutes, § 8-42-103(g) and § 8-42-105(4)(a) C.R.S., provide:

In cases where it is determined that a temporarily disabled employee is responsible for termination of employment, the resulting wage loss shall not be attributable to the on-the-job injury.

The employer must prove by a preponderance of the evidence that a claimant was terminated for cause or was responsible for the separation from employment. Gilmore v. Industrial Claim Appeals Office, 187 P.3d 1129, 1132 (Colo. App. 2008).

To establish that a claimant was responsible for termination, the respondents must show the claimant performed a volitional act or otherwise exercised “some degree of control over the circumstances which led to the termination.” Colorado Springs Disposal v. Industrial Claim Appeals Office, 5 P.3d 1061, 1062 (Colo. App. 2002); Padilla v. Digital Equipment Corp., 902 P.2d 414 (Colo. App. 1995); Velo v. Employment Solutions Personnel, 988 P.2d 1139 (Colo. App. 1988). Whether the claimant acted volitionally or exercised control over the circumstances of the termination is a question of fact, which must be evaluated based on the totality of circumstances. Knepfler v. Kenton Manor, W.C. No. 4-557-781 (March 17, 2004).

It is well-established that a claimant who voluntarily resigns her job is “responsible for termination” unless the resignation was prompted by the injury. Anderson v. Longmont Toyota, 102 P.3d 323 (Colo. 2008); Kiesnowski v. United Airlines, W.C. No. 4-492-753 (ICAO, May 11, 2004). The term “responsible,” as used in the termination statutes, may not be construed in a fashion which undermines the “overall scheme of the Act.” Colorado Springs Disposal v. Industrial Claim Appeals

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Office, supra, In Colorado Springs Disposal the court held the “word ‘responsible’ does not refer to an employee's injury or injury-producing activity.” The court reasoned that treating a claimant as “responsible” for the loss of employment caused by physical limitations resulting from the compensable injury itself would significantly alter fundamental principles of the Act. Hence, a claimant does not act “volitionally” or exercise control over the circumstances leading to the termination if the effects of the injury ultimately lead to her termination. E.g., Kauffman v. Noffsinger W. C. No. 4-608-836 (ICAO, April 18, 2005); Blair v. Art C. Klein Construction, Inc., W.C. No. 4-556-576 (ICAO, November 3, 2003); Bonney v. Pueblo Youth Service Bureau, W.C. No. 4-485-720 (ICAO, April 24, 2002).

As found, Respondents have proven that Claimant was responsible for the termination of her employment within the meaning of the termination statutes. Claimant voluntarily resigned her employment, which establishes a prima facie case that she was responsible for termination. See Coleman v. Wellbridge/Starmark Holdings, W.C. No. 4-969-560-02 (ICAO, January 13, 2017). As such, it is incumbent upon Claimant to show that her resignation was triggered by the effects of her industrial injury, rather than personal issues.

Based on the totality of evidence presented, the ALJ is not persuaded that Claimant’s resignation was triggered by or related to her injury. The ALJ finds Claimant’s August 20, 2016 email and Employee Separation Report to be the most persuasive evidence regarding her motivation for resigning her employment. In her resignation email, Claimant primarily cited concerns regarding personnel conflicts unrelated to her industrial injury. Although Claimant briefly mentioned an issue regarding her restrictions, that appears to be an afterthought regarding an incident that occurred a week earlier. Claimant also noted no issues regarding her restrictions of physical limitations on the Separation Report. The ALJ does not doubt that Claimant was asked to perform some job tasks that exceeded her restrictions. But the ALJ is not persuaded that it was the primary reason she ultimately resigned. Rather, the ALJ concludes that Claimant’s dissatisfaction with her supervisor’s management style was the primary cause of her resignation.

Consequently, Respondents have established a statutory basis for terminating TTD benefits effective August 24, 2016, Claimant’s last day of work.

B. TPD benefits commencing August 25, 2016

The finding that Claimant was responsible for her termination is not dispositive of eligibility for TPD benefits. Even though a Claimant may be ineligible for TTD benefits based on the termination statutes, she may still be entitled to an award of TPD benefits if the pre-termination job paid less than the preinjury wage. See Garbiso v. Wal-Mart Stores, Inc., W.C. No. 4-695-612 (ICAO, March 10, 2008); Minter v. Diesel Services of Northern Colorado, W.C. No. 4-513-118 (ICAO, September 10, 2002); Clevenger v. El Paso Glass Co., W.C. No. 4-712-079 (ICAO, April 29, 2008); Tarman v. US Transport, W.C. No. 4-981-955-01 (ICAO, Jun. 2, 2016); Sparks v. Mattas Marine & RV, W.C. No. 4-98 to-976-01 (ICAO, September 26, 2016). These cases stand for the proposition

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that, to the extent a claimant’s AWW at the time of the termination is less than the AWW at the time of the injury, the difference remains attributable to the disability caused by the injury and does not “result” from the claimant’s action in causing the termination.

As found, Claimant would have suffered a partial wage loss even if she had not resigned her employment. Claimant’s AWW from pre-termination modified employment was $389.43, which is less than the admitted AWW of $462.50. Claimant would have lost wages in the amount of $73.07 per week, irrespective of her termination. This equates to a weekly TPD benefit of $48.71 ($73.07 x 2/3 = $48.71).

ORDER

It is therefore ordered that:

1. Respondents’ request to terminate Claimant’s TTD benefits is granted, effective August 24, 2016.

2. Respondents shall pay TPD benefits to Claimant at the weekly rate of $48.71, commencing August 25, 2016 and continuing until terminated according to law. Respondents may take credit for any TTD benefits paid to claimant after August 24, 2016.

3. All matters not determined herein are reserved for future determination.

If you are dissatisfied with the Judge's order, you may file a Petition to Review the order with the Denver Office of Administrative Courts, 1525 Sherman St., 4th Floor, Denver, CO 80203. You must file your Petition to Review within twenty (20) days after mailing or service of the order, as indicated on the certificate of mailing or service; otherwise, the Judge's order will be final. You may file the Petition to Review by mail, as long as the certificate of mailing attached to your petition shows: (1) That you mailed it within twenty (20) days after mailing or service of the order of the Judge; and (2) That you mailed it to the above address for the Denver Office of Administrative Courts. For statutory reference, see section 8-43-301(2), C.R.S. For further information regarding procedures to follow when filing a Petition to Review, see Rule 26, OACRP. You may access a petition to review form at: http://www.colorado.gov/dpa/oac/forms-WC.htm.

DATED: February 1, 2017

s/Patrick C.H. Spencer II Patrick C.H. Spencer II Administrative Law Judge Office of Administrative Courts 2864 S. Circle Drive, Suite 810 Colorado Springs, CO 80906

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OFFICE OF ADMINISTRATIVE COURTS STATE OF COLORADO WORKERS’ COMPENSATION NO. 4-996-732-02

ISSUES

I. Did Claimant prove by a preponderance of the evidence that the functional neurological disorder (FND, also referred to as conversion disorder) that she now suffers is a compensable injury, as it resulted from a surgery, which in turn arose from an admitted work injury.

II. Are Respondents responsible for all reasonable and necessary medical expenses related to Claimant's FND.

III. Are Respondents obligated to make temporary total disability payments to Claimant as a result of her FND.

FINDINGS OF FACT

1. Claimant was injured in an admitted industrial accident on October 11, 2015 while working as an interior design specialist for Arhaus, LLC, a furniture retailer, when she slipped on a rug at work and twisted her right knee. The Claimant testified that she is classically trained in industrial design and received a degree from the Cleveland Institute of Art. Over the years, she has worked as a product developer, senior designer and innovation developer for various companies. She previously worked in the Middle East for approximately six years designing large scale furniture stores which required her to design the entire concept for the stores. At that position, she set up and opened stores which were up to 300,000 square feet in size.

2. At the time of this industrial injury, she was in the running for a promotion to a position which was a liaison between the furniture factories in Italy and Arhaus. The candidates for the position had been narrowed down to Claimant and one other person. In the summer of 2015, the owner of Arhaus took the Claimant to Italy to observe the factories and get a better idea of the Claimant’s strengths and ability to perform the job. The Claimant testified credibly that she very much enjoyed her job at Arhaus. She testified that it was fun, she enjoyed the people she worked with, she had a good relationship with the owner of the company and felt that it was an honor to work for him.

3. As a result of the October 11, 2015 injury, the Claimant was diagnosed with a torn meniscus in her right knee and underwent an arthroscopic partial meniscectomy on 12/8/15. This procedure was performed by Dr. Matthew Javernick. This procedure was performed under general anesthesia, and nothing in the record indicates that established protocols were not followed. The orthopedic repair was performed successfully. Upon awakening from the surgery, the Claimant immediately complained of a severe headache which was different from the migraine headaches she had previously suffered from. With her previous migraine headaches, the pain remained

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centered behind one of her eyes while this headache involved her whole head. Upon awakening, she also immediately began experiencing tingling and numbness sensations in her arms and severe nausea.

4. By the next morning, the Claimant’s condition had worsened. She became very dizzy and developed significant problems with her balance and gait. She also began having problems with word finding and memory in the aftermath of the surgery. Since the Claimant had never before undergone surgery, she testified that she did not know what to expect after surgery. On 12/9/15, she called Dr. Javernick and informed his office of her symptoms. She was told to discontinue her pain medications, in the event that these were causing the aforementioned problems.

5. The Claimant attended her first physical therapy appointment at Select Physical Therapy on 12/10/15, two days after her surgery (Claimant’s Exh. 10, p. 2-4). This note reflects that Claimant presented to physical therapy with severe nausea, felt “weird” since the surgery, and had a headache for three days that would not go away. The physical therapist noted an antalgic gait pattern with the Claimant’s trunk shifting heavily to the left side. This note also reflects that Claimant conveyed to her physical therapist that she wanted to get back to work as soon as possible. Claimant saw Dr. Wall, her authorized treating physician at CSHP, on 12/10/15 as well. Dr. Wall noted the Claimant’s persistent dizzy sensation and nausea which he felt was severe vertigo. He started her on Meclazine to help control the dizziness (Claimant’s Exh.4, p. 22-25).

6. On 12/14/15, Claimant once again attended physical therapy. This note reflects that she was demonstrating significant abnormalities with gaze stabilization at rest, with vertical and horizontal smooth pursuit as well as convergence. The therapist noted that the Claimant blinked constantly, had an abnormal vestibulo occular reflex and was “clearly in physical distress”. The therapist also noted moderate antalgia and noted that it was difficult for the Claimant to change positions and to “even walk around with this imbalance” (Claimant’s Exh. 10, p. 9-11). By 12/17/15, the Select Physical Therapy notes reflect that the Claimant was clearly motivated to restore normal function but her overall dizziness and nausea was really bothering her and that it was very difficult for the Claimant to move around her environment (Claimant’s Exh. 10, p. 14).

7. On 12/21/15, the Claimant again saw Dr. Wall who noted that the Claimant still had nausea and dizziness, intermittent-like headaches, numbness of her arms and tingling in her hands. He noted that the Claimant did not like looking side to side and had intermittent nystagmus so he added Promethazine to help with her vertigo and nausea (Claimant’s Exh. 4, p. 26-31). By 12/22/15, the physical therapist could not even assess the Claimant because of the Claimant’s dizziness and imbalance. She also noted that the Claimant was swaying side to side and that her hands were shaking.

8. By the Claimant’s 12/24/15 physical therapy appointment, her disequilibrium had worsened and she was “literally staggering around”. The therapist had to hold the Claimant’s hands to help her move around the clinic because she was stumbling and staggering (Claimant’s Exh. 4, p. 24-26). The Claimant returned to her orthopedic surgeon, Dr. Javernick, on 12/23/2015 where he noted that the Claimant had a

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persistent headache since the surgery, had uncontrolled shaking and chronic low grade nausea. He noted the Claimant’s complaints of memory problems and difficulty finding words. Due to her various neurologic symptoms, he referred her to a neurologist and advised her to go to the nearest emergency department if her symptoms worsened (Claimant’s Exh. 3, p. 16).

9. On 12/24/15, the Claimant credibly testified that she was at a holiday gathering when one of her friends, who happened to be a physician, noticed the Claimant’s unconscious head movements, and stuttering which according to the Claimant, had begun on that day. This individual was so concerned about these symptoms that she advised the Claimant to go to the nearest emergency room immediately.

10. Claimant was hospitalized at Memorial Hospital from December 25, 2015 until January 1, 2016. During this hospitalization, Claimant was examined by several neurologists, underwent a psychiatric evaluation by Dr. Peck and underwent various speech and occupational therapy evaluations. (Respondent's Exh. O-P,). According to the Neurology Consult undertaken on December 26, 2015, Claimant advised Dr. McDonald of the development of her symptoms of tingling and tremulousness in her arms with word finding difficult after surgery, noting that:

“these symptoms were mild to moderate and, she was still able to go to stores before Christmas. For unclear reasons, about 2 days ago, several of her symptoms worsened. Her walking unsteadiness worsened to the point that she could not ambulate without assistance. Her arm tremulousness increased as well as her head tremulousness, which is a yes-yes tremor as well as rocking movement of her body. She also for the first time developed a stuttering speech pattern.”

Dr. McDonald reviewed that in the ER, an MRI of the brain did not show evidence of a stroke, nor a pattern strongly suggestive of multiple sclerosis. He opined that the cause of her symptom complex was unclear, setting forth his differential diagnosis, while also opining that, there is a significant chance that her symptoms are functional or stress-induced, although she denies stressors.” (Respondent's Exh. O).

11. On December 29, 2015, Claimant underwent a Psychiatric Consultation with Dr. Peck. In securing the patient history, Dr. Peck noted that Clamant denied any stressors in her life, but later in the interview did mention that she had recently received a major promotion at work. However she said that because of her physical issues, she says ‘I don’t know what is going to come out of all of this now. I can’t work right now and that is causing a lot of stress too’”. The Claimant reported to Dr. Peck that she was very much looking forward to her new job. Claimant also reported to the doctor that it was not overly stressful for her to be in the hospital over Christmas. Dr. Peck’s Assessment was: 1) Unspecified anxiety disorder, and 2) Unspecified somatization disorder. The doctor noted that at this point, Claimant was more focused on thinking that her symptoms were related somehow medically to her “post-anesthesia”. (Respondent's Ex O).

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12. After a thorough neurologic work-up, the Neurology Discharge Assessment was: “likely conversion disorder, as no clear organic basis was found for claimant’s symptoms. (Respondent's Exh. O). During therapy, it was noted that neither Claimant’s speech pattern, nor her gait abnormalities followed traditional patterns and that neurpsych/psychology may be more helpful at this time. (Respondent's. Ex. P).

13. On January 11, 2016, Claimant was evaluated by neurologist, Dr. Gregory Ales for evaluation of her tremor. He noted her prior work-up at Memorial, which included MRI of the brain, MRA of the entire spine, MRV of the head, MRA of the head, CSF testing, lab work for inflammatory markers, thyroid panel, chem panel, CBC, B12 level, B1 level, and ceruloplasmin. Upon examination, he noted her head tremor and that her symptoms reduced with distraction. He also noted she stuttered with every word. After complete examination, his diagnosis was: 1) Tremor unspecified, and 2) Conversion Disorder with abnormal movement. He noted that her symptoms have disabled her but that her neurologic evaluation does not show focal abnormalities or other definitively objective findings. His recommendation was: Referral to Behavioral Health Peak View – Psychiatry. “Reason: Psychiatric evaluation.” (Respondent's. Ex. R).

14. At hearing, Claimant acknowledged that she did not follow Dr. Ales’ recommendation, for she and her husband learned that this was an inpatient facility and she did not want this type of treatment. On cross-examination, Claimant also admitted that during the entire year that has now elapsed since being hospitalized, she has not made any appointments with any speech therapists outside the workers’ compensation system by utilizing her health insurance provided by her employer injury, in an effort to begin recovery. Rather, Claimant testified that she has been advised by unknown people that pursuing treatment to assist her in her recovery will compromise her chances of prevailing in her workers’ compensation claim; and hence, she has not attempted any treatment outside the compensation system. Claimant testified that she did report to the Mayo Clinic on two occasions, but on both occasions, she advised them that her symptoms were connected with a workers’ compensation claim. Therefore, Claimant stated that treatment was refused. Despite the fact that she has health insurance through Arhaus, Claimant has received no cognitive, speech, occupational therapy or any therapy which has been recommended by all examining physicians and psychiatrists, including the one paid for by her own attorney, Dr. Woodcock.

15. Due to her ongoing balance, gait, dizziness and tremor issues, she was discharged to Cordera Rehabilitation Center. At the rehabilitation facility, the Claimant was seen by Dr. Gregory Ales, another psychiatrist, who also diagnosed her with conversion disorder or, as commonly referred to now, functional neurologic disorder (Claimant’s Exh. 8). The case was transferred from Dr. Wall to Dr. Robi Baptist, who took over as the Claimant’s ATP. Dr. Baptist referred the Claimant for speech therapy, physical therapy and eventually to the Mayo Clinic. These avenues of treatment were denied by the Respondents as not related to the original industrial injury. The Claimant testified that she even attempted twice to get the Mayo Clinic to accept her case and bill

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her treatment through her private health insurance but she was turned down both times because this is a worker’s compensation matter.

16. The Claimant credibly testified that she was excited about the promotion which she was competing for. She explained that the promotion would include furniture design and involve working with furniture manufacturers in Italy. She acknowledged that the promotion would involve significant international travel, which she is completely comfortable with. For six years between 2002 and 2008, the Claimant testified that she worked in the Middle East designing and opening furniture stores. She explained that she thoroughly enjoyed this job which ended when the U.S. economy crashed in 2008. She also testified that she has been happily married for twenty years and has no marital problems. She explained that she did not feel that this knee surgery was a “big deal” and that she just wanted to fix her knee and get back to work. She has had no previous psychological history or treatment. She has no history of neurologic problems, tremors, head bobbing or stuttering. She has had no previous history of memory or cognitive problems, either.

17. Dr. Jonathan Woodcock, a board certified neurologist as well as a board certified psychiatrist who is a physician at the University of Colorado Medical Center testified on behalf of the Claimant. He is board certified in the fields of behavioral neurology/neuropsychiatry, psychiatry and internal medicine. Dr. Woodcock is currently an assistant professor of neurology and psychiatry at the University of Colorado Medical School who trains neurology and other residents in behavioral neurology. He has worked in the fields of psychiatry and neurology for thirty-four years. (Claimant’s Exh. 1).

18. Dr. Woodcock testified that he has seen many patients over the years who present with functional neurologic disorder (“FND”) due to his dual training in neurology and psychiatry. He performed an independent medical examination on the Claimant on May 12, 2016. He explained that FND and conversion disorder are the same thing and that it is primarily not only a psychiatric issue but a neurological issue, as well. He explained that it is a condition where the unresolved psychological factors (such as stress and anxiety) in an individual’s mind are being converted into neurological symptoms and physical impairments. “It is actually the brain’s and the mind’s way of dealing with that anxiety rather than experiencing a conscious mind”. He further explained that even though the medical field does not understand the actual mechanisms of functional neurologic disorder (what actually happens inside the body), they do understand its relationship to specific causes of stress. What the medical profession does know is that individuals with FND have symptoms which they have no control over. These symptoms actually come from the unconscious mind i.e., they are not voluntary.

19. Dr. Woodcock performed an independent medical evaluation of the Claimant on 5/12/16. He testified that to a reasonable degree of medical and psychological probability, the Claimant suffers from functional neurologic disorder. He explained that Claimant's unexplained numbness and tingling of the extremities, head bobbing, tremor, stutter, dizziness/balance issues/gait issues, memory problems and cognitive issues are

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all manifestations of her unconscious mind. In fact, the dizziness that Claimant began complaining of shortly after surgery was probably a manifestation of the gait disorder she currently complains of and is part of her FND. He explained that is not unusual for people who are experiencing unexplained symptoms of any kind to worry about the etiology of those symptoms and complain that their thinking isn’t entirely clear. Dr. Woodcock explained that the memory, word finding and cognitive problems which Claimant complained of shortly after the surgery, and of which she still complains, are also part of the FND.

20. With regards to causation, Dr. Woodcock opined, to a reasonable degree of medical probability, that Claimant's FND is related to the stress of her knee injury and subsequent knee surgery based upon the temporal relationship of the beginning of the Claimant’s symptoms in relationship to the actual knee surgery. Dr. Woodcock explained that, immediately upon awakening from anesthesia, the Claimant had complaints of a severe headache, tingling and sensory changes in her arms and then shortly thereafter began to have issues with dizziness and uncontrollable shaking and tremors. Within a span of two weeks her condition had degenerated to the point that she began to stutter. The fact that these symptoms began at the time the Claimant awoke from surgery, further points to the fact that the surgery was the inciting event. He further testified that “in a situation like this where there are a number of different things going on, as is always the case, we would look for a major life event which is most closely associated in the time sequence to the onset of the condition, itself”.

21. Dr. Woodcock testified that there is an error in the last full paragraph on page 11 of his report wherein he stated that the Claimant’s stutter was the first symptom of FND to emerge after the surgery. He testified that has always been aware that the Claimant’s stutter did not emerge until Christmas Eve and that was his understanding when he reached his opinion. He referred the Court back to page 1 of his report wherein the Claimant’s history of symptoms is correct.

22. Dr. Woodcock acknowledged that he did, in fact, consider the concept of secondary gain with regards to causation of the FND. He opined that it did not play a big part in the occurrence of the FND, it’s course or its persistence because there are a number of things that counterbalance the secondary gain, namely the Claimant’s subjective disappointment with restriction of activities, the ability to work and other things such as these. Dr. Woodcock testified that he has reviewed the IME report authored by Dr. Gary Kleinman and disagrees with Dr. Kleinman’s opinion that the Claimant’s problems could be evidence of a factitious disorder.

23. Dr. Woodcock explained that his disagreement lies in the fact that a factitious disorder implies that the Claimant has some conscious control over her symptoms and that she is simply malingering. Dr. Woodcock testified that he does not believe that the Claimant’s symptoms are conscious and that she has little, if any, control over them. He also disagrees with Dr. Kleinman’s opinion regarding causation of the FND. Dr. Kleinman opined that the FND more likely than not developed from the stress and anxiety in connection to the Claimant’s new position at work as well as her reticence to return to work. Dr. Woodcock believes that one must look more at the

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temporal relationship of the cause and the start of Claimant’s symptoms (which occurred immediately upon awaking from anesthesia). He does not agree with Dr. Kleinman’s opinion that the Claimant’s functional neurologic disorder is due to the Claimant’s anxiety over returning to work. There is no evidence from the Claimant or any other medical provider that she was anxious and did not want to return to work. Dr. Woodcock noted in his report that the Claimant informed him that “she just wants to understand what this is. She wants to get back to work” (Claimant’s Exh. 2, p. 2).

24. Additionally, Dr. Baptist notes in his 2/3/15 note that “the patient was a very high functioning person with no mental issues in the past and has certainly no secondary gain issues at this point because she has a great job and desperately wants to get back to it. Also the physical manifestations I’ve seen today would be, I feel, difficult to fake and have been entirely consistent during her entire extended visit”. (Claimant’s Exh. 4, p. 37). Dr. Baptist further notes in his response to Respondent’s counsel’s letter of March 11, 2016, Dr. Kleinman states that there are secondary gain issues involving relief of responsibility at home and at work as well as “getting” to be dependent on others. In my interviews, the patient seems to cherish her work and has been advanced by her employer to a position she very much wants to return to. It seems unlikely to me that a very talented person with no previous psych issue who is very motivated to return to work and extremely valued by her employer can be said to be ‘using’ this as primary and secondary gain”. (Claimant’s Exh. 4, p. 63-65).

25. Dr. Kleinman testified by evidentiary deposition on behalf of the Respondents. Dr. Kleinman opined that the Claimant’s functional neurologic disorder is related to her anxiety over returning to work at her promoted position rather than to her knee surgery. His opinion is based upon the premise that the Claimant’s serious symptoms (i.e. stuttering) didn’t start until the 24th of December, two and a half weeks after surgery. Dr. Kleinman does not mention the other significant symptoms such as balance/gait issues, tremors, head bobbing, etc. which started well before 12/24/15. Dr. Kleinman argues that the Claimant has not mitigated her symptoms since she has failed to obtain either neurological or psychiatric help on her own over the majority of 2016.

26. Dr. Kleinman also opined that, due to possible secondary gain from being disabled, that Claimant is consciously choosing to be dependent, and that a factitious component should be considered. The ALJ does not find Dr. Kleinman's reasoning or conclusions to be persuasive. The evidence shows that Claimant was genuinely dismayed by what she was experiencing post surgery, and accurately conveyed her symptoms to all health care providers as they developed. At all times pertinent, Claimant has sought to navigate a complex medical and legal path in an effort to get well, and resume her career path. Further, Claimant has testified credibly about why she took, or failed to take, the actions that she did in seeking treatment, regardless of the ultimate wisdom of her choices.

27. Dr. Trevor McNutt, a general neurologist, testified on behalf of the Respondents. He testified that there is no way to say, with any degree of probability, which of the Claimant’s stressors actually caused the FND. He testified that since we do not know what causes this specific syndrome, there is no way to know with any

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probability which of the Claimant’s stressors is actually the cause. Although he notes in his report that the Claimant could be suffering from a factitious disorder, his testimony in Court is that he does not now think that she is actually suffering from a factitious disorder. He agrees with the other providers that the correct diagnosis of the Claimant’s unexplained symptoms is FND.

CONCLUSIONS OF LAW

Based upon the foregoing findings of fact, the ALJ draws the following conclusions of law:

Generally

A. The purpose of the Workers’ Compensation Act of Colorado (Act), §§ 8-40-01,

et seq., C.R.S., is to assure the quick and efficient delivery of disability and medical benefits to injured workers at a reasonable cost to employers, without the necessity of litigation. Section 8-40-102(1), C.R.S. The claimant shoulders the burden of proving by a preponderance of the evidence that he is a covered employee who suffered an “injury” arising out of and in the course of employment. Section 8-41-301(1), C.R.S.; Faulker v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo.App. 2000); City of Boulder v. Streeb, 706 P.2d 786 (Colo. 1985); Pacesetter Corp. v. Collett, 33 P.3d 1230 (Colo.App. 2001). A preponderance of the evidence is that which leads the trier-of-fact, after considering all of the evidence, to find that a fact is more probably true than not. Page v. Clark, 197 Colo. 306, 592 P.2d 792 (1979). The facts in a workers’ compensation case must be interpreted neutrally, neither in favor of the rights of the claimant nor in favor of the rights of respondents. Section 8-43-201, C.R.S. A workers’ compensation claim is decided on its merits. Section 8-43-201, supra.

B. In accordance with § 8-43-215, C.R.S., this decision contains specific Findings of Fact, Conclusions of Law and an Order. In rendering this decision, the ALJ has made credibility determinations, drawn plausible inferences from the record, and resolved essential conflicts in the evidence. See Davison v. Industrial Claim Appeals Office, 84 P.3d 1023 (Colo. 2004). This decision does not specifically address every item contained in the record; instead, incredible or implausible testimony or unpersuasive arguable inferences have been implicitly rejected. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo. App. 2000).

C. In determining credibility, the ALJ should consider the witness’ manner and demeanor on the stand, means of knowledge, strength of memory, opportunity for observation, consistency or inconsistency of testimony and actions, reasonableness or unreasonableness of testimony and actions, the probability or improbability of testimony and actions, the motives of the witness, whether the testimony has been contradicted by other witnesses or evidence, and any bias, prejudice or interest in the outcome of the case. Colorado Jury Instructions, Civil, 3:16.

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Compensability

D. As noted, for an injury to be compensable under the Act, it must “arise out of” and “occur within the course and scope” of employment. Price v. Industrial Claim Appeals Office, 919 P.2d 207, 210 (Colo. 1996). The "arising out of" test is one of causation. It requires that the injury have its origins in an employee's work related functions, and be sufficiently related thereto so as to be considered part of the employee's service to the employer. In this regard, there is no presumption that an injury which occurs in the course of a worker's employment arises out of the employment. Finn v. Industrial Commission, 165 Colo. 106, 437 P.2d 542 (1968); see also, Industrial Commission v. London & Lancashire Indemnity Co., 135 Colo. 372, 311 P.2d 705 (1957) (mere fact that the decedent fell to his death on the employer's premises did not give rise to presumption that the fall arose out of and in course of employment). Rather, it is the Claimant's burden to prove by a preponderance of the evidence that there is a direct causal relationship between the employment and the injuries. § 8-43-201, C.R.S. 2006; Ramsdell v, Horn, 781 P.2d 150 (Colo. App. 1989). E. The existence of a causal relationship between the admitted injury and Claimant’s psychological problem is a question of fact. F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo. App. 1985). The determination of whether there is a sufficient "nexus" or causal relationship between the claimant's employment and the injury is one of fact which the ALJ must determine based on the totality of the circumstances. In Re Question Submitted by the United States Court of Appeals, 759 P.2d 17 (Colo. 1988); Moorhead Machinery & Boiler Co. v. Del Valle, 934 P.2d 861 (Colo. App. 1996).

F. Here, the persuasive evidence demonstrates that Claimant injured her right knee on October 11, 2015 and underwent surgery on her right knee on December 8, 2015. Prior to this injury, the Claimant had never undergone surgery. Immediately upon awakening from anesthesia, the Claimant began to suffer from a myriad of unexplainable neurological symptoms, including numbness and tingling in her upper extremities, severe headache, dizziness and gait problems, tremors and stuttering which slowly developed over the following two weeks.

G. The Claimant’s various neurological symptoms were eventually diagnosed as FND by all physicians who saw the Claimant, with the exception of Dr. Robi Baptist. The Claimant’s testimony is deemed credible and convincing and supported by the medical records including her testimony as to when each symptom began. This ALJ finds that the Claimant’s testimony that she has had no preexisting psychological issues or treatment, and no preexisting problems with any neurological issues, including tremors, cognitive function, memory or stuttering is credible as well as persuasive that the surgery is, more likely than not, the cause of the Claimant’s FND.

H. Furthermore, this ALJ finds that the Respondent’s argument that the Claimant has not attempted to obtain treatment outside of the worker’s compensation system and therefore has failed to mitigate her damage is not persuasive. The evidence clearly shows that the Respondents denied both of Dr. Baptist’s referrals for speech therapy

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and to the Mayo Clinic. Moreover, the Claimant attempted to be seen through the Mayo Clinic with her private health insurance but was rejected both times because this was a worker’s compensation matter.

I. This ALJ also gives great weight to the testimony of Dr. Jonathan Woodcock based upon his qualifications as a board certified expert in the fields of behavioral neurology/neuropsychiatry, psychiatry and internal medicine. His extensive teaching background and as well as practice in both of the above-referenced fields for thirty-four years is persuasive. This ALJ also notes that Dr. Woodcock has treated many individuals over the years with a diagnosis of FND. While Dr. McNutt is both eminently qualified and credible, under the totality of the circumstances presented, Dr. Woodcock is more persuasive on the issue of causation.

J. Neither of Respondent’s IME physicians, Dr. McNutt nor Dr. Kleinman, was qualified as experts both in the fields of psychiatry and behavioral neurology/neuropsychiatry. In addition, the ALJ notes that their opinions are in direct conflict with each other. While Dr. McNutt believes there is no way to opine with any probability what caused the Claimant’s FND, Dr. Kleinman opines that, in all probability, the Claimant’s FND was due to her upcoming promotion and her reticence over returning to work at her promoted position. Dr. Woodcock and Dr. Kleinman, agree that, when looking back after the fact, one can generally point to a stressful situation that triggers an individual’s onset of FND.

K. Dr. Kleinman’s opinion that the FND is related to the Claimant’s anxiety over returning to work in her promoted position appears to be premised upon the fact that the Claimant’s “serious symptoms didn’t start until the 24th” which would be more close in time to her return to work date rather than the surgery date”. Dr. Kleinman fails to acknowledge that the medical records reflect that the Claimant’s balance and gait problems as well as her tremors and head bobbing started shortly after the surgery. Furthermore, Dr. Kleinman’s allegation that the Claimant has failed to mitigate her symptoms and not sought neurologic or psychiatric treatment on her own is unpersuasive. The Claimant credibly testified that she was originally under the assumption, based upon advice given to her by an adjuster at Zurich Insurance Company, that if she attempted to seek treatment under her own health insurance, it would be an admission that she did not feel that the claim was work related. That being said, the Claimant still attempted on two different instances to obtain treatment at the Mayo Clinic but was denied each time due to this being “a worker’s compensation matter”.

L. There is no credible evidence that the Claimant was reticent or anxious to return to work in her promoted position. The Claimant reiterated to each physician she saw that she was excited about her promotion and the increased responsibilities which came with it, including the international travel which would be involved. Dr. Kleinman indicates that the Claimant’s statements to Dr. Peck regarding her concerns over returning to work support his theory of causation. The Claimant’s statements to Dr. Peck that she was worried over her ability to return to work was predicated on if her present stuttering and tremors did not go away are not indicative of the Claimant not

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wanting to return to work. In fact, these statements support the Claimant’s contention that she wanted to return to work but was anxious about doing so under the conditions she was experiencing. Any reasonable person would be so concerned. Additionally, the Select Physical Therapy notes, which begin on 12/10/15, reflect the Claimant’s motivation to return to work as soon as possible. These notes were made well before the full magnitude of Claimant's medical problems would become known, and long before any legal issues might arise.

M. Dr. Woodcock’s contention that surgery of any kind, even if it is a simple outpatient procedure, is stressful (whether the Claimant outwardly believes it is not) is more logical than Dr. Kleinman’s hypothesis. Pursuant to the Claimant’s testimony, she had never undergone surgery of any kind prior to her knee surgery on 12/8/15 and did not know what to expect afterwards. Therefore, this ALJ finds that Dr. Woodcock’s opinion regarding the temporal relationship between the beginning of Claimant’s symptoms (severe headache, numbness and tingling of her upper extremities and dizziness) and her date of surgery (and therefore the relatedness of the FND to the surgery) is more persuasive regarding the causality of the FND than that of Dr. Kleinman or Dr. McNutt.

N. While not emphasized in the expert testimony, one need not look far in support of Dr. Woodcock's hypothesis that there is a strong temporal relationship between the surgery and the symptoms Claimant began to suffer in support of his causation analysis. In the Consent for Anesthesia Services (Claimant's Exhibit 11), before proceeding with this seemingly routine procedure, Claimant acknowledged the following:

Although safer today than ever before, the administration of anesthesia involves risks which may include, but are not limited to: allergic or adverse reaction,….nerve or spinal damage, brain damage….headache…nausea… vision loss….paralysis….positional nerve injury….serious disability…and death. (emphasis added).

Such informed consent disclaimers exist for a reason. These inherent risks, however slight, exist whenever general anesthesia is administered. These risks have been documented to the point that all patients are informed of them in writing. On occasion, even when administered according to established protocols, the unexpected can occur. So it did here, and the ALJ so finds.

O. “But for” the original industrial injury to the Claimant’s right knee and subsequent surgery to treat that issue, the Claimant would not have developed the FND. As such, a causal connection has been proven between the knee surgery and the FND by a preponderance of the evidence. As a causal connection plainly exists between the admitted knee injury of 10/11/15 and the surgery performed by Dr. Javernick on 12/8/15, this ALJ concludes that there exists a logical causal connection between the Claimant’s FND and the Claimant’s work-related duties at Arhaus.

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P. Since awakening from surgery, Claimant has needed reasonable medical treatment to address these unfortunate effects related to, and caused by, this compensable injury to her knee.

Q. Claimant has remained totally disabled since the date of this surgery which occurred on December 8, 2015.

ORDER

It is therefore ordered that:

1. Claimant's diagnosis of functional neurological disorder ("FND") is found to be compensable, as it is directly related to the surgery which occurred on December 8, 2015, which in turn stemmed from an admitted compensable work injury.

2. Respondents are ordered to pay all reasonable and necessary medical expenses to treat the FND which Claimant suffers from.

3. Respondents are ordered to continue to pay Temporary Total Disability payments until terminated by operation of law, or further Order.

4. The insurer shall pay interest to claimant at the rate of 8% per annum on all amounts of compensation not paid when due.

5. All matters not determined herein are reserved for future determination.

If you are dissatisfied with the Judge's order, you may file a Petition to Review the order with the Denver Office of Administrative Courts, 1525 Sherman St., 4th Floor, Denver, CO 80203. You must file your Petition to Review within twenty (20) days after mailing or service of the order, as indicated on certificate of mailing or service; otherwise, the Judge's order will be final. You may file the Petition to Review by mail, as long as the certificate of mailing attached to your petition shows: (1) That you mailed it within twenty (20) days after mailing or service of the order of the Judge; and (2) That you mailed it to the above address for the Denver Office of Administrative Courts. For statutory reference, see section 8-43-301(2), C.R.S. For further information regarding procedures to follow when filing a Petition to Review, see Rule 26, OACRP. You may access a petition to review form at: http://www.colorado.gov/dpa/oac/forms-WC.htm.

DATED: February 1, 2017 /s/ William G. Edie

William G. Edie Administrative Law Judge Office of Administrative Courts 2864 South Circle Drive, Suite 810 Colorado Springs, CO 80906

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OFFICE OF ADMINISTRATIVE COURTS STATE OF COLORADO WORKERS’ COMPENSATION NO. 5-014-195-01

ISSUES

I. Whether Claimant has established by a preponderance of the evidence that she sustained a compensable injury to her right hand/wrist while working for Employer on May 3, 2016.

II. Whether Claimant has proven by a preponderance of the evidence that she is entitled to TPD benefits beginning May 4, 2016 and ongoing.

III. Whether Claimant has established by a preponderance of the evidence that he is entitled to all reasonable, necessary, and related medical treatment.

IV. Average weekly wage.

Because the undersigned ALJ finds and concludes that Claimant did not carry her burden to establish that she suffered a compensable right wrist, hand or thumb injury, on May 3, 2016, this order does not address issues II-IV.

FINDINGS OF FACT

Based upon the evidence presented at hearing, the ALJ enters the following of fact:

1. Claimant works as a hair stylist for Employer. She uses scissors and electric clippers to complete haircuts throughout her work day.

2. Claimant developed diffuse right shoulder, arm and hand pain around May 2015. Consequently, Claimant pursued medical treatment and was ultimately diagnosed, after an EMG1, with right carpal tunnel syndrome. Claimant’s right wrist pain, along with the numbness and tingling in her fingers persisted. The pain and paresthesia affected Claimant’s grip and her ability to carry out her work duties. Consequently, she underwent right CTS surgery on April 8, 2016, as performed by Dr. Keith Minihane at the St. Thomas More Orthopedic Group.

3. The surgery was unrelated to Claimant’s employment and was paid for by her private insurance.

4. Claimant testified that she was instructed by Dr. Minihane to take six (6) weeks

1 Claimant’s EMG was performed May 4, 2015 by William Griffis, D.O. and demonstrated eletrodiagnostic evidence consistent with mild right carpal tunnel syndrome.

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off of work following her surgery. Claimant had a previous workers’ compensation claim that left her with no additional leave through Employer. According to Claimant, Employer would not accommodate an extended leave for her. Worried that she would lose her job, Claimant testified that she returned to work approximately seven days after her right CTS procedure. During cross examination, Claimant agreed that she likely returned to work around April 18, 2016. She also testified that she had her stitches removed around April 21st. Consequently, the ALJ finds that Claimant returned to work before her stitches were removed and began cutting hair with her stitches in place.

5. Claimant testified that she was doing quite well after her CTS surgery, noting as follows: “after the second day from my surgery, I was fine with it. The only thing that was uncomfortable [was] I had stitches, and I don’t know exactly what you call it, but the superglue type adhesive on my incision.” According to Claimant, she “wasn’t having any loss or feeling or anything” and wasn’t even sore.

6. Claimant returned to Dr. Minihane’s office on April 21, 2016, during which

appointment she was evaluated by Physician Assistant (PA) Eve N. Turkington. PA Turkington noted that Claimant reported that she was doing “fairly well” and that she had returned to work the Monday preceding her appointment. According to PA Turkington, Claimant reported that her hand was “extremely sore” during this visit. Claimant was reportedly able to cut hair with her scissors but it was difficult to hold her clippers. Consequently, Claimant “requested a note” outlining her work limitations.

7. Claimant was asked about the difficulty she was having using her clippers upon

her return to work. She testified that she was indeed having trouble holding the clippers but attributed her difficulty to her stitches and having to wear a rubber glove and heavy bandage making hand movements “awkward” and difficult. Again, Claimant specifically denied that pain in her hand was contributory to her difficulty holding/using her clippers, testifying as follows:

Q: . . . It says that you’re having a difficult time holding the clippers. Is that true? A: Yes, because I had tried to cut some hair by covering my Bandage and wearing a rubber glove, because I wasn’t having any pain in my hand. And the scissor cuts were going fine, but the clipper cut wasn’t going fine. Q: . . . [W]ould you agree that that was related, in part, to the carpal tunnel surgery you just had had? A: No, I thought it was related to the fact that my hand was bandaged very severely, and I had stitches here in my hand. Q: Right.

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A: And it was difficult for me to move my hand.

8. The ALJ interprets PA Turkington’s April 21, 2016 report to attribute Claimant’s complaints of soreness in the right hand to her return to work earlier in the week (Monday). The ALJ finds it difficult to reconcile Claimant’s statements to PA Turkington that she was having trouble holding her clippers and her hand was extremely sore after returning to work with her later testimony that she was not having pain in her right hand while at work and that the difficulty using her clippers was due to her bandages and the need to wear a rubber glove to protect her stitches. Based upon the evidence presented, the ALJ finds that Claimant likely returned to work on April 18, 2016 and in the ensuing days before her April 21, 2016 appointment she developed soreness in her right hand because she was actively using it to cut hair with scissors and clippers which she found difficult to manipulate.2 The evidence presented also persuades the ALJ that the soreness in Claimant’s right hand, more probably than not, prompted her to request light duty work restrictions.

9. According to PA Turkington’s April 21, 2017 progress note, Claimant was “given a note for work stating that she [was] to be on light duty for the next two weeks.” Claimant was to be released to full duty right hand use thereafter.

10. The ALJ takes judicial notice that two weeks from April 21, 2016 would fall on May 5, 2016, as the date Claimant was scheduled to return to full duty work with her right hand. Claimant testified that she sustained a new injury to her right hand on May 3, 2016 while performing a clipper cut. Based upon evidence presented, including Claimant’s testimony, the ALJ finds that she had not been released to full duty and yet was performing the very activity (using clippers) which she had complained was difficult for her. As noted at paragraph 8 above, the ALJ finds that Claimant’s use of clippers was likely causing her pain before May 3, 2016 prompting her request for light duty restriction. Based upon the evidence presented, the ALJ finds it reasonable to infer that Claimant was likely working beyond her light duty restrictions by using clippers on May 3, 2016.

11. Regarding her alleged May 3, 2016 injury, Claimant testified that she was using the clippers in a “scooping” motion on the back of a customer’s neck when she felt a pop in the base of her thumb. According to Claimant, the area immediately swelled and turned red. In addition, Claimant testified that that she had she had only “three or four haircuts before [her] thumb popped.” She also testified that all of these previous haircuts were done with scissors and not clippers. Consequently, Claimant asserted that she was using the clippers for the first time on May 3, 2016, when the “vibration from them popped [her] thumb joint.” The ALJ finds Claimant’s testimony that May 3, 2016 was the first time she used her clippers inconsistent with other more persuasive evidence suggesting that she had been using her clippers shortly after her return to work on April 18, 2016.

12. The injury was timely reported to the store manager and Claimant was referred 2 Claimant testified that her clippers were heavy, weighing approximately 3.2 pounds.

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back to Dr. Randall Jones at Concentra, as he had only recently stopped treating Claimant for her other workers’ compensation injury. According to Claimant she was evaluated by Dr. Jones “roughly two-and-one-half hours after the alleged injury. She iced the area before she presented to the doctor. Consequently, she testified that while her “thumb joint felt like it was swollen, and it had the appearance of being different than my right3 thumb”, it had not gotten worse by the time she got to the doctor’s office.

13. Dr. Jones took a history from Claimant documenting that she was “cutting the hair of a client using clippers” when she moved her wrist from an ulnarally deviated position to a radially deviated position with “considerable force.” According to Dr. Jones’ May 3, 2016 report, Claimant reported that she “felt a pop” in the volar wrist with this movement. She also reported to Dr. Jones that she had recently had surgery, and that Dr. Minihane did not want her clipping hair for at least a month; however, Claimant returned to work early because she felt it was necessary to keep her job. Physical examination revealed tenderness at the volar (palmer) aspect of the right wrist and forearm, including the flexor tendons of the forearm. According to Dr. Jones’ report Claimant reported “non-specific tenderness about anywhere it (sic) touch on wrsit (sic) volar > (greater than) dorsal. Dr. Jones diagnosed Claimant with a strain of the right wrist and right wrist tendinitis. He placed Claimant in a splint that she was instructed to wear 24/7 unless bathing/showering. Dr. Jones placed Claimant on restrictions of no use of the right upper extremity and to continue wearing the splint constantly.

14. Despite Dr. Jones’ examination findings and diagnosis, Claimant maintained during cross examination, that he did not examine her wrist. Rather, she asserted that he examined her right “hand.” Regardless, there is no reference to any physical examination directed to the right thumb or carpometacarpal (CMC) joint.

15. Regarding causality, Dr. Jones documented the following: [I]t is possible this is work related though not a usual moi (mechanism of injury). I cannot state that her recent cts surgery is causal or not. I cannot state this would have happened or not with or w/o the cts surgery.

16. Claimant followed up with Dr. Jones on May 9, 2016, reporting that she was in a hostile work environment and that Employer made her perform “a lot of right hand paperwork earlier in the day. Physical examination revealed mild tenderness in the right forearm flexor tendons (not isolated to one specific tendon) from the wrist up to about mid forearm. Claimant’s wrist examination findings were unchanged from her prior examination conducted May 3, 2016. Again, the report contains no reference to complaints concerning the right thumb or physical examination directed to the thumb or CMC joint. Dr. Jones requested an MRI of the right wrist and referred Claimant back to Dr. Minihane for evaluation and treatment.

17. Pursuant to Dr. Jones’ referral, Claimant was reevaluated by Dr. Minihane’s

3 The ALJ finds that Claimant likely misspoke when she referenced the right thumb. More probably than not Claimant intended to indicate that her right thumb looked different than her left thumb.

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physician assistant Ms. Turkington on May 11, 2016. As part of her progress note, PA Turkington documented that Claimant “reports that she had gone back to work and that she was doing fairly well. Then she tried to do a hair cut with clippers. She reports that, as she moved up with the clippers, she felt a pop at the base of her thumb and had extreme pain. She reports that she has had pain ever since then.” Claimant’s May 11, 2016 report to PA Turkington of popping at the base of the thumb is the first time such report appears in the medical records. As found previously, Dr. Jones documented that Claimant reported that she felt a pop in the wrist and his examinations were directed to Claimant’s complaints located on the palmer surface of the right wrist and forearm.

18. As of May 11, 2016, PA Turkington’s diagnoses, for the first time included right thumb sprain. PA Turkington encouraged Claimant to continue wearing the splint provided by Dr. Jones and she also wrote Claimant a prescription for Voltaren gel. If Claimant failed to progress, PA Turkington suggested a possible first dorsal compartment injection.

19. Claimant did not return to Dr. Jones after May 9, 2016 because her claim was denied on May 11, 2016.

20. Claimant did continue treating with Dr. Minihane’s office. On June 8, 2016, Claimant again reported that she was doing well after her surgery until the work incident with the popping of the thumb. She reported difficulty with gripping or any use of the thumb. Dr. Minihane documented positive CMC joint tenderness and a positive metacarpal grind. He felt that most of Claimant’s symptoms were coming from the CMC joint and suggested performing an injection.

21. On July 15, 2016, Claimant underwent a right thumb metacarpal joint injection with Dr. Minihane due to continued worsening pain in the base of her thumb. Dr. Minihane instructed her to continue her “activity modifications” and use of her brace.

22. On August 22, 2016, Claimant underwent a Division independent medical examination (DIME) with Dr. John Douthit as part of an unrelated prior workers compensation claim. While the claims are unrelated, the ALJ finds the results of Claimant’s physical examination as part of the DIME germane to the issues presented in the instant case. During the DIME, Claimant reported that both of her hands were completely numb. Her sensory examination was non-physiologic throughout the upper extremities with Claimant reportedly being unable to discern 2 points at three centimeters during two point discrimination testing. She also reported a complete absence of vibratory sense in the right hand. Nonetheless, she demonstrated full range of motion in the hands and fingers. Dr. Douthit observed Claimant gesturing and moving both hands freely along with the presence of calluses on the hands suggesting that Claimant is able to use her hands. Nonetheless, touching the right hand was met with claims of pain.

23. On September 8, 2016, Claimant returned to Dr. Minihane with continued

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complaints of pain at the base of the thumb. Claimant denied that the prior July 15, 2016 injection provided any relief of her symptoms. The note from this encounter is silent regarding additional injections. Rather, the note indicates that it was possible that Claimant’s neck was playing a role in her pain complaints. Dr. Minihane also documented that Claimant’s examination revealed that her ulnar nerve was “clearly irritated” for which a potential release procedure was discussed.

24. Dr. Lawrence Lesnak evaluated Claimant at Respondents’ request on November 3, 2016. As part of his independent medical examination (IME), Dr. Lesnak took a history from Claimant and reviewed medical records. According to a report generated after his IME, Claimant reported that she felt a sudden pop in the base of her right thumb while shaving a male client’s neck with the electric clippers. Claimant also reported constant numbness and achiness over the dorsum (top) of her right hand including the knuckles of the middle, ring and little fingers in addition to occasional pain at the base of the right thumb. Dr. Lesnak performed a physical examination which revealed subjective complaints of pain in the right wrist with range of motion. Strength testing revealed no focal motor deficits throughout the upper extremities bilaterally and there was no evidence of muscle atrophy involving the upper extremities, including the intrinsic musculature of the right hand. Moreover, all physical testing, i.e. Finklestein’s Watson’s and shuck testing failed to produce localized symptoms. Consequently, Dr. Lesnak opined that Claimant’s current subjective upper extremity/hand complaints were without objective findings.

25. As noted above, Claimant’s reports to Dr. Jones regarding the location of the popping sensation in her right extremity differ from her later reports to PA Turkington, Dr. Minihane and Dr. Lesnak. Specifically, Claimant told Dr. Jones that she experienced a popping in the volar aspect of her right wrist. Dr. Jones’ records demonstrate only directed examination to the flexor structures of the right wrist and forearm, not the thumb or CMC joint. Later, Claimant indicates to PA Turkington and Dr. Minihane that she felt a popping sensation in her thumb. She also complained of numbness and tingling in the 4th and 5th digits of the right hand leading Dr. Minihane to opine that her ulnar nerve was irritated. Claimant would go on to inform Dr. Lesnak that she experienced a popping sensation in her right thumb but add that she now has numbness and achiness over the top of the right hand. Based upon this evidence, the ALJ finds that the situs of the alleged injury in addition to the location of symptoms has changed and expanded over time. The evidence presented persuades the ALJ that Claimant’s reports to the various providers who have treated or evaluated her regarding the situs of her alleged injury and the location of post injury symptoms are inconsistent and changing. The inconsistencies and expanding symptoms coupled with Findings of Fact paragraphs 6-11 above gravely erode the confidence the undersigned ALJ has in the reliability of Claimant’s testimony. Regardless, Dr. Lesnak opined that Claimant did not sustain any specific injury to her right wrist/hand or thumb on May 3, 2016. Rather, it was his opinion that Claimant had a “flare-up” of her postoperative symptoms because there were absolutely no clinical exam findings to support Claimant’s ongoing subjective complaints of right basal thumb pain, weakness and constant paresthesias of the dorsum of her right hand.

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26. Dr. Timothy Hall performed an IME on behalf of Claimant on November 16, 2016.

Claimant expressed the same mechanism injury to Dr. Hall that she has expressed since May 3, 2016. After a review of the records, taking a history from the Claimant, and performing a physical examination, Dr. Hall concluded that Claimant has diagnoses of De Quervain’s tenosynovitis, wrist sprain, and first CMC joint injury. He felt that her continued right hand symptoms and her need for splinting were a result of the May 3, 2016 injury.

27. Dr. Lesnak testified at hearing as an expert in physiatry. He testified that his review of Dr. Jones’ initial report documented tenderness, but did not document any swelling of the hand or wrist. It was his opinion that the tenderness exhibited by Claimant upon examination was likely a result of the previous carpal tunnel surgery and not the alleged event that occurred on May 3, 2016. According to Dr. Lesnak, Claimant did not sustain a work related injury on May 3, 2016 because she was having pain which would be expected due to the carpal tunnel release which had been done 3 to 4 weeks earlier. Dr. Lesnak testified that he has performed hundreds of carpal tunnel surgeries in the past and that the surgery involves the manipulation of a nerve which often takes 8-12 weeks to fully recover. Consequently, he testified that it was typical for patients to have a lot of pain up to 12 weeks after the procedure, especially as they increase the use of their wrist/hand. As a result, he testified that it was not surprising that Claimant reported pain in her right wrist when using the clippers both to PA Turkington on April 21, 2016 and again to Dr. Jones on the date of the alleged injury (May 3, 2016). According to Dr. Lesnak, Claimant’s symptoms are not causally related to her use of clippers or her work specifically. Rather, Claimant’s symptoms are a consequence of increasing her activities.

28. The ALJ credits Dr. Lesnak’s testimony to find that Claimant’s right wrist/hand symptoms are causally related to her non-industrial CTS surgery and the expected soreness caused by increased use of the surgical hand rather than any specific work activities. Accordingly, Claimant has failed to carry her burden to prove that her right wrist/hand condition arose out of her work duties.

29. Concerning the right thumb, Dr. Lesnak credibly explained that the injection

performed by Dr. Minihane on July 15, 2016 was both potentially therapeutic and diagnostic in nature. According to Dr. Lesnak the injection contained an anesthetic that when administered would temporarily numb the entire joint. He explained that if the injection did not give at least 80-100% pain relief temporarily, then you know that the joint injected is not the pain generator. This is the diagnostic portion of the injection. Because Claimant reported no relief of her alleged thumb pain following the July 15, 2016 injection, Dr. Lesnak testified that her response to the injection was non-diagnostic and that she did not have a “valid” CMC joint diagnosis. The opinions of Dr. Lesnak regarding the CMC joint are credible and persuasive.

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CONCLUSIONS OF LAW

Based upon the forgoing findings of fact, the ALJ draws the following conclusions of law:

General Legal Principals

A. The purpose of the Workers’ Compensation Act of Colorado (Act), Sections 8-40- 101, C.R.S. 2007, et seq., is to assure the quick and efficient delivery of disability and medical benefits to injured workers at a reasonable cost to employers, without the necessity of litigation. Section 8-40-102(1), C.R.S. The facts in a workers’ compensation case must be interpreted neutrally, neither in favor of the rights of the claimant nor in favor of the rights of the respondents. Section 8-43-201, C.R.S.

B. In accordance with §8-43-215 C.R.S., this decision contains specific Findings of Fact, Conclusions of Law and an Order. In rendering this decision, the ALJ has made credibility determinations, drawn plausible inferences from the record, and resolved essential conflicts in the evidence. See Davison v. Industrial Claim Appeals Office, 84 P.3d 1023 (Colo. 2004). This decision does not specifically address every item contained in the record; instead, incredible or implausible testimony or unpersuasive arguable inferences have been implicitly rejected. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo. App. 2000).

C. Assessing the weight, credibility and sufficiency of evidence in a Workers’ Compensation proceeding is the exclusive domain of the administrative law judge. University Park Care Center v. Industrial Claim Appeals Office, 43, P.3d 637 (Colo. App. 2001). Even if other evidence in the record may have supported a contrary inference, it is for the ALJ to resolve conflicts in the evidence, make credibility determinations, and draw plausible inferences from the evidence. When determining credibility, the fact finder should consider, among other things, the consistency or inconsistency of the witness’s testimony and actions; the reasonableness or unreasonableness (probability or improbability) of the testimony and actions; the motives of the witness; whether the testimony has been contradicted; and bias, prejudice, or interest. See Prudential Insurance Co. v. Cline, 57 P.2d 1205 (Colo. 1936); Bodensieck v. Industrial Claim Appeals Office, 183 P.3d 684 (Colo. App. 2008); Kroupa v. Industrial Claim Appeals Office, 53 P.3d 1192 (Colo. App. 2002). Moreover, the weight and credibility to be assigned expert testimony is a matter within the discretion of the ALJ. Cordova v. Industrial Claim Appeals Office, 55, P.3d 186 (Colo. App. 2002). To the extent expert testimony is subject to conflicting interpretations, the ALJ may resolve the conflict by crediting all, part or none of the testimony of an expert witness. Colorado Springs Motors, Ltd. v. Industrial Commission, 441, P.2d 21 (Colo. 1968). As found here, the inconsistencies between the record evidence and Claimant’s testimony give the ALJ pause. The evidence presented as a whole persuades the ALJ that Claimant is an unreliable medical historian prone to exaggerating her symptoms. Consequently, the ALJ finds/concludes that her testimony concerning the location and extent of her symptoms is also suspect. Simply put, the Claimant’s testimony is not persuasive. Moreover, the ALJ concludes, based upon the evidence presented, that the opinions of

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Dr. Lesnak are credible and more persuasive than the contrary opinions of Dr. Minihane and Dr. Hall.

Compensability

D. Based upon the evidence presented, the ALJ understands Claimant to assert that she suffered, at a minimum, a compensable aggravation of her right carpal tunnel condition and/or a separate CMC joint injury caused by the use of her electric clippers for the first time on May 3, 2016 after she returned to work following CTS surgery. The ALJ is not persuaded. For a claim to be compensable under the Act, the Claimant has the burden of proving that she suffered a disability that was proximately caused by an injury arising out of and within the course and scope of employment. §8-41-301(1)(c) C.R.S.; Horodyskyj v. Karanian 32 P.3d 470 (Colo. 2001); In re Swanson, W.C. No. 4-589-645 (ICAO, Sept. 13, 2006).

E. The phrases "arising out of” and "in the course of" are not synonymous and a claimant must meet both requirements for the injury to be compensable. Younger v. City and County of Denver, 810 P.2d 647, 649 (Colo. 1991); In re Question Submitted by U.S. Court of Appeals, 759 P.2d 17, 20 (Colo. 1988). The latter requirement refers to the time, place, and circumstances under which a work-related injury occurs. Popovich v. Irlando, 811 P.2d 379, 381 (Colo. 1991). An injury occurs "in the course of" employment when it takes place within the time and place limits of the employment relationship and during an activity connected with the employee's job-related functions. In re Question Submitted by U.S. Court of Appeals, supra; Deterts v. Times Publ'g Co., 38 Colo. App. 48, 51, 552 P.2d 1033, 1036 (1976). Here, there is little question that Claimant’s alleged injury occurred within the time and place limits of her employment and during an activity (cutting hair) connected with her job-related duties as a stylist, Nonetheless, the question of whether the alleged injuries, for which Claimant seeks benefits, “arose out of” her employment must be resolved before the injury is deemed compensable.

F. The "arising out of" test is one of causation. It requires that the injury have its origins in an employee's work related functions, and be sufficiently related thereto so as to be considered part of the employee's service to the employer. Horodyskyj v. Karanian, 32 P.3d 470, 475 (Colo. 2001). The fact that Claimant may have experienced an onset of pain while or shortly after performing job duties does not mean that she sustained a work-related injury. An incident which merely elicits pain symptoms without a causal connection to the industrial activities does not compel a finding that the claim is compensable. F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo. App. 1985); Parra v. Ideal Concrete, W.C. No. 3-963-659 and 4-179-455 (April 8, 1988); Barba v. RE1J School District, W.C. No. 3-038-941 (June 28, 1991); Hoffman v. Climax Molybdenum Company, W.C. No. 3-850-024 (December 14, 1989).

G. Under the Workers’ Compensation Act (hereinafter Act) there is a distinction between the terms “accident” and “injury”. An “accident” is defined under the Act as an “unforeseen event occurring without the will or design of the person whose mere act causes it; an unexpected, unusual or undersigned occurrence.” Section 8-40-201(1),

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C.R.S. In contrast, an “injury” refers to the physical trauma caused by the accident. City of Boulder v. Payne, 162 Colo. 345, 426 P.2d 194 (1967); see also, § 8-40-201(2)(injury includes disability resulting from accident). Consequently, a “compensable injury” is one which requires medical treatment or causes disability. Id.; Romero v. Industrial Commission, 632 P.2d 1052 (Colo. App. 1981); Aragon v. CHIMR, et al., W.C. No. 4-543-782 (ICAO, Sept. 24, 2004); H & H Warehouse v. Vicory, 805 P.2d 1167, 1169 (Colo. App. 1990). No benefits flow to the victim of an industrial accident unless the accident results in a compensable “injury.” Romero, supra; § 8-41-301, C.R.S.

H. Given the distinction between the terms “accident” and “injury” an employee can experience symptoms, including pain from at work without sustaining a compensable “injury.” This is true, as in the instant case, even when the employee is clearly in the course and scope of employment performing a job duty. See Aragon, supra, ("ample evidence" supports ultimate finding that no injury occurred even where a claimant experienced pain when struck by a bed she was moving as part of her job duties); see also, McTaggart-Kerns v. Dell, Inc., W.C. No. 4-915-218 (ICAO, May 29, 2014)(where a claimant involved in motor vehicle accident without resultant injuries suffered no compensable injury). As explained in Scully v. Hooters of Colorado Springs, W.C. No. 4-745-712 (October 27, 2008), simply because a claimant’s symptoms arise after the performance of a job function does not necessarily create a causal relationship based on temporal proximity. The panel in Scully noted, “[C]orrelation is not causation.” Thus, merely because a coincidental correlation between Claimant’s work and her symptoms exists in this case does not mean there is a causal connection between Claimant’s injury and his work duties.

I. The determination of whether there is a sufficient "nexus" or causal relationship between a claimant's employment and the injury is one of fact which the ALJ must determine based on the totality of the circumstances. In Re Question Submitted by the United States Court of Appeals, 759 P.2d 17 (Colo. 1988); Moorhead Machinery & Boiler Co. v. Del Valle, 934 P.2d 861 (Colo. App. 1996). Moreover, the question of whether Claimant met the burden of proof to establish the requisite causal connection between the industrial injury and the need for medical treatment is one of fact for determination by the ALJ. City of Boulder v. Streeb, 706 P.2d 786 (Colo. 1985); Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo. App. 2000). As found above, the evidence presented in this case supports a finding that claimant did not suffer a compensable carpal tunnel or CMC joint injury on May 3, 2016.

J. The ALJ is also not persuaded by Claimant’s contention that she, at a minimum, suffered an aggravation of a pre-existing condition. A pre-existing condition “does not disqualify a claimant from receiving workers compensation benefits.” Duncan v. Indus. Claims Appeals Office, 107 P.3d 999, 1001 (Colo. App. 2004). To the contrary, a claimant may be compensated if his or her employment “aggravates, accelerates, or “combines with” a pre-existing infirmity or disease “to produce the disability and/or need for treatment for which workers’ compensation is sought”. H & H Warehouse v. Vicory, 805 P.2d 1167, 1169 (Colo. App. 1990). Even temporary aggravations of pre-existing conditions may be compensable. Eisnack v. Industrial Commission, 633 P.2d 502

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(Colo. App. 1981). Pain is a typical symptom from the aggravation of a pre-existing condition. Thus, a claimant is entitled to medical benefits for treatment of pain, so long as the pain is proximately caused by the employment–related activities and not the underlying pre-existing condition. See Merriman v. Industrial Commission, 120 Colo. 400, 210 P.2d 488 (1940). As found here, Claimant’s hand/wrist soreness is, more probably than not, casually connected to the CTS surgery, her insufficient healing time and the increased use of the surgical hand rather than any specific work activities. Accordingly, the ALJ concludes that Claimant has failed to carry her burden to prove that her right wrist/hand pain was proximately caused by employment–related activities. Because Claimant failed to establish she suffered a compensable “injury”, her claim is denied and dismissed and the remaining issues raised at hearing need not be addressed further.

ORDER

It is therefore ordered that:

1. Claimant’s claim for workers’ compensation benefits arising from an alleged May 3, 2016 incident is hereby denied and dismissed.

If you are dissatisfied with the Judge's order, you may file a Petition to Review the order with the Denver Office of Administrative Courts, 1525 Sherman St., 4th Floor, Denver, CO 80203. You must file your Petition to Review within twenty (20) days after mailing or service of the order, as indicated on certificate of mailing or service; otherwise, the Judge's order will be final. You may file the Petition to Review by mail, as long as the certificate of mailing attached to your petition shows: (1) That you mailed it within twenty (20) days after mailing or service of the order of the Judge; and (2) That you mailed it to the above address for the Denver Office of Administrative Courts. For statutory reference, see section 8-43-301(2), C.R.S. For further information regarding procedures to follow when filing a Petition to Review, see Rule 26, OACRP. You may access a petition to review form at: http://www.colorado.gov/dpa/oac/forms-WC.htm.

DATED: February 2, 2017

/s/ Richard M. Lamphere_______________ Richard M. Lamphere Administrative Law Judge Office of Administrative Courts 2864 S. Circle Drive, Suite 810 Colorado Springs, CO 80906

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OFFICE OF ADMINISTRATIVE COURTS STATE OF COLORADO WORKERS’ COMPENSATION NO. 4-984-434-02

ISSUES

1. Have Respondents overcome the DIME’s determination of MMI by clear and convincing evidence?

2. Does Claimant have permanent impairment causally related to her industrial injury? If so, what is the proper rating?

3. Is Dr. Jones an authorized provider?

4. Were the surgeries performed by Dr. Jones reasonable, necessary treatment for Claimant’s industrial injury?

5. Is Claimant entitled to medical treatment after MMI?

FINDINGS OF FACT

1. Claimant worked for Employer as a labor and delivery nurse.

2. On February 12, 2015, Claimant assisted in a lengthy and difficult delivery with an emotionally unstable and combative patient. The patient was very obese. Claimant worked with this patient for approximately seven hours. During the delivery, Claimant performed tasks including monitoring the baby’s heart, conducting cervical examinations, and repositioning the patient.

3. On at least one occasion during the delivery, while Claimant was performing a cervical examination the patient clamped her legs on Claimant’s outstretched right arm and “scooted” away toward the head of the bed. Claimant noticed pain in her right shoulder during that incident. Although Claimant could not definitively pinpoint that incident as the exact moment of injury, she believes this was “probably” when she hurt the shoulder.

4. Claimant did not immediately make a formal report of injury because she assumed she had a minor “muscular” strain that would improve quickly.

5. Claimant went to a massage a few days after the injury, at which point she realized there was a more significant problem with her shoulder than she originally thought. Subsequently, Claimant formally reported the injury to Employer and requested medical treatment.

6. Employer referred Claimant to Dr. Henry Roth for authorized medical care. Due to scheduling issues, Claimant’s initial visit with Dr. Roth took place on March 4, 2015. Claimant described to Dr. Roth the onset of right shoulder pain on February 12.

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She indicated there was no specific work-related event. She explained that “she had a very prolonged encounter with an emotionally unstable obese patient. She reports substantial patient handling. She reports the individual clamping down on her right upper extremity when [claimant] was performing GYN examinations. After this delivery, while still at work, [claimant] noted discomfort at her right shoulder. She had discomfort with motion. She had trouble lifting her arm.” Dr. Roth noted Claimant had no prior history of symptoms or treatment to the right shoulder. Physical examination was positive for right-sided pectoralis and latissimus tenderness and AC joint pain. Examination of her neck revealed “full, unrestricted pain-free mobility.” Dr. Roth diagnosed “work-related aggravation of right sided AC arthrosis.” He gave Claimant a prescription for Voltaren gel and a Theraband.

7. Claimant next saw Dr. Roth on March 26, 2015. Claimant reported lateral, anterior and superior shoulder pain. She had crepitus with motion, tenderness at the AC joint and proximal myofascial pain. Biceps testing was positive. Dr. Roth stated his findings were “pointing to biceps tendinitis,” but opined causation was “nebulous.” He noted Claimant’s history of onset of shoulder pain while working on February 12, 2015, but “no specific incident or event.” Dr. Roth indicated he could not explain a biceps injury. Nevertheless, he referred Claimant for an MRI and physical therapy.

8. Claimant had an MRI of the right shoulder on April 2, 2015. The radiologist noted mild AC joint osteoarthritis, mild subacromial subdeltoid bursitis, and mild to moderate supraspinatus, infraspinatus, and subscapularis tendinosis. There was bursal surface fraying of the supraspinatus tendon. The glenohumeral joint and long head of the biceps were normal.

9. Claimant saw Dr. Roth again on April 9, 2015 and reported her condition was worsening. Claimant was frustrated and anxious about her situation. She was having difficulty tolerating work activities. Examination of the shoulder revealed increased sensitivity and decreased motion. Impingement and biceps signs were positive. Dr. Roth noted there was a “surprisingly little myofascial discomfort,” although she had tenderness in the latissimus and trapezius. Dr. Roth referred Claimant to Dr. Weinstein for an orthopedic consultation.

10. Dr. Weinstein evaluated Claimant on April 18, 2015. She relayed the episode regarding the difficult patient. Claimant told Dr. Weinstein “she is not sure exactly what happened, but she had shoulder pain after that shift and has had shoulder pain since then.” She had aching and burning pain on the anterior and lateral aspects of the shoulder. Her pain was exacerbated by sleeping and performing activities at or above shoulder level, lifting and pulling. She had tenderness over the anterior subacromial space and bicipital groove, reduced strength and range of motion, and a positive Speed’s test. Dr. Weinstein reviewed the MRI which showed rotator cuff tendinosis and biceps inflammation. Dr. Weinstein opined that Claimant’s symptoms “are consistent with inflammation of the rotator cuff tendon and superficial partial rotator cuff tear of the subscapularis tendon. There is also associated inflammation of the biceps.” He felt her condition would likely respond to conservative treatment, and gave Claimant a cortisone injection.

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11. Claimant saw Dr. Roth on April 30, 2015, and reported the injection was not helpful. Claimant requested a second orthopedic opinion with Dr. Christopher Jones. Dr. Roth was “not inclined to refer her to Dr. Jones,” but did refer Claimant to Dr. Michael Simpson for a second opinion.

12. Claimant saw Dr. Simpson on May 27, 2015. She relayed a history of injury consistent with that given to previous providers. She was having pain in the right shoulder, and “quite a bit of myofascial pain.” Claimant had limited range of motion and tenderness in the anterior subacromial space and at the subscapularis insertion. Subscapularis provocative maneuvers caused significant pain. Supraspinatus testing and Speed’s sign were minimally positive. Dr. Simpson diagnosed subscapularis tendinitis. Regarding causation, Dr. Simpson opined “I do feel that her symptoms are causally related to her work exposure. Where there may not have been any single traumatic episode to her shoulder . . . it is clear that her symptoms have been significantly aggravated from that exposure and been refractory to conservative measures. Therefore, I do feel that treatment of her right shoulder complaints are causally related to her work exposure.” Although the previous injection did not help, Dr. Simpson suggested Claimant may benefit from a second injection using a different approach.

13. Claimant saw Dr. Weinstein later in the day on May 27, 2015. She reported no significant benefit from the injection and felt that her symptoms were “essentially the same.” Physical examination revealed moderate tenderness over the anterior subacromial space and posterior rotator cuff. There was also tenderness over the bicipital groove. Impingement signs and Speed’s test were positive. She had reduced strength and range of motion. Dr. Weinstein informed Claimant that inflammation, fraying and partial tendon tears can heal, but do not always respond to non-operative measures. He outlined Claimant’s treatment options, including additional physical therapy, a second cortisone injection and surgical intervention. Claimant agreed to continue therapy for an additional 4 to 6 weeks and a second steroid injection. Dr. Weinstein noted that “if she is not improved [at her next visit], the option of continued observation versus surgical intervention would be discussed.”

14. Claimant followed up with Dr. Roth on May 28, 2015, at which time they discussed causation. Dr. Roth’s indicated he did not feel there was “a cogent mechanism of injury.” He did not believe there was “an explanation of injury sufficient to explain sustained symptoms.” Dr. Roth felt that Claimant’s ongoing symptoms probably reflected underlying degenerative pathology as opposed to a specific injury. Therefore, Dr. Roth thought a second opinion regarding causation would be “prudent.”

15. On June 11, 2015, Claimant saw Dr. Jack Rook for an Independent Medical Examination (IME) at her counsel’s request. Dr. Rook took a detailed history regarding Claimant’s work activities on February 12, 2015. Examination of the shoulder revealed exquisite tenderness with palpation of the biceps tendon, moderate tenderness to palpation of the subacromial space, positive impingement signs, decreased strength and marked range of motion deficits. Dr. Rook appreciated moderate tenderness of the right pectoralis and moderate-to-severe tenderness with spasm involving the right-sided

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paracervical, trapezius, supraspinatus, and infraspinatus muscles. Dr. Rook diagnosed rotator cuff tendinopathy, myofascial pain, and his sleep disturbance. Dr. Rook opined that Claimant’s shoulder symptoms were causally related to her work activities on February 12, 2015. Dr. Rook emphasized that Claimant’s work activities stressed her shoulder, she developed symptoms during her shift, and she had no prior history of right shoulder problems.

16. Claimant returned to Dr. Weinstein on July 1, 2015. She continued to demonstrate similar symptoms and clinical findings. Dr. Weinstein was impressed with right rotator cuff tendinitis, right biceps tendinitis and “right mild adhesive capsulitis.” He indicated additional therapy was unlikely to provide any significant benefit. Dr. Weinstein and Claimant decided to proceed with arthroscopic surgery. Dr. Weinstein also noted Claimant “is developing mild adhesions and may require a capsular release.”

17. Claimant saw Dr. Roth the next day, July 2, 2015. Dr. Roth reiterated his concerns regarding causation. He indicated he had provided conservative care because he had not been directly questioned regarding causation. But Dr. Roth stated that “I now have been asked to definitively state whether or not in my opinion her condition is work-related.” Dr. Roth opined that Claimant’s shoulder condition was not work-related. He placed Claimant at MMI with no permanent impairment, released her from his care and stated “[I] recommend that she pursue additional treatment through personal healthcare resources.”

18. Dr. John Woodward performed a record review at Respondents’ request on July 20, 2015. Dr. Woodward stated “[i]t is my opinion that the patient sustained a work-related shoulder strain from routine work and has been well evaluated and managed for this condition.” He indicated there was “no specific trauma to the shoulder, but rather her condition is a result of routine work as a healthcare provider.” But Dr. Woodward opined that Claimant’s ongoing right shoulder symptoms were “not causally related to the industrial injury occurring on February 12, 2015.” He felt her ongoing issues represented “a progression of preexisting disease.” Dr. Woodward opined that Claimant’s treatment to that point “has all been appropriate and medically necessary.” He further opined that “the request for surgery is medically necessary and appropriate; however . . . it is not causally related to the industrial injury on February 12, 2015.” Dr. Woodward recommended that Claimant proceed with surgery through her health insurance.

19. Acting on the instructions from Dr. Roth, Claimant saw her primary care provider (PCP), Dr. David Zyblski, on July 28, 2015. She relayed the history regarding her right shoulder and explained that Dr. Weinstein had recommended surgery. She requested a second opinion with Dr. Jones. Physical examination of the right shoulder revealed tenderness and limited range of motion. Dr. Zyblski referred Claimant to Dr. Jones for further workup and treatment.

20. On August 6, 2015, Dr. Roth responded to an inquiry from Respondents regarding permanent impairment. He confirmed that Claimant had no impairment, and

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stated: “it remains by medically probable opinion that the current disorder at the right shoulder is not a reflection of a work injury.”

21. Respondents filed a Final Admission of Liability (FAL) on August 27, 2015 based on Dr. Roth’s report. Claimant timely objected to the FAL and requested a DIME.

22. Claimant underwent arthroscopic surgery with Dr. Jones on August 25, 2015. The procedure included “extensive debridement” of the rotator interval, labrum and joint capsule, manipulation under anesthesia, and an acromioplasty. Intraoperative findings were consistent with adhesive capsulitis and significant inflammation of the joint and joint space.

23. Postoperatively, Claimant participated in physical therapy but continued to suffer from severe range of motion loss. Dr. Jones recommended a second manipulation under anesthesia (MUA) “as I think that would keep her from regressing completely.”

24. Dr. Jones performed the second manipulation under anesthesia (MUA) procedure on September 8, 2015.

25. The medical records document significant improvement after the second MUA. Claimant participated in physical therapy with steady improvement in pain levels and range of motion. On November 30, 2015, Dr. Jones noted that Claimant was “doing really well from a ROM standpoint, but she still feels very limited from a strength standpoint.” He described her range of motion that day as “just really awesome,” and recommended she continue to focus on strengthening.

26. On October 21, 2015, Dr. Woodward performed a retrospective record review at the request of Respondents’ counsel regarding the procedures Dr. Jones had performed. Dr. Woodward opined that Claimant’s “adhesive capsulitis was not caused by her work duties, but rather due to nonindustrial causes or preexisting conditions.” Dr. Woodward noted the MRI showed significant tendinosis and bursitis, which likely predated the industrial injury. Dr. Woodward stated “the descriptions provided to me could certainly have exacerbated her pre-existing condition, but I do not feel that the adhesive capsulitis was caused by or directly the result of her job description and her work injury.” Dr. Woodward opined that adhesive capsulitis can be idiopathic in the vast majority of cases. Dr. Woodward agreed that the procedures performed by Dr. Jones were appropriate, but not causally related to her work.

27. Dr. Miguel Castrejon conducted on DIME on January 14, 2016. He had a detailed discussion with Claimant regarding the history of her injury and her work activities on February 12, 2015. Dr. Castrejon also noted that Claimant had pursued some psychological counseling for depression and anxiety associated with her injury. Significant physical examination findings included scapular winging with forward elevation of the right shoulder, tenderness of the AC joint and the proximal biceps tendon, tenderness of the right trapezius with trigger points and some muscle

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hypertonicity. Impingement testing was negative. Claimant’s rotator cuff strength and range of motion were reduced.

28. Dr. Castrejon opined that Claimant’s MRI and intraoperative surgical findings were not caused by her work activities on February 12, 2015, but were aggravated by those activities. Dr. Castrejon explained:

[T]he claimant has undisputed evidence of pre-existing changes that were nonsymptomatic and nondisabling prior to the activity(ies) of February 12, 2015. The claimant (and condition) when exposed to the work related physical stressors resulted in the claimant’s condition coming to light. . . . If the job performed by the claimant aggravates a pre-existing or non-work-related conditions and renders the condition more symptomatic and, in this case, more painful to the point where it interferes with the employee’s work, the employee is entitled to medical care under the Colorado Workers’ Compensation Act.

In this particular case, the examining physicians should not overlook the lack of both subjective and objective documentation of pre-existing shoulder symptoms/disability/loss of work time. The examining physicians should take into consideration that the onset of the symptoms occurred during the course and scope of the claimant’s employment. The operative findings should also be taken into consideration. I have taken the entire case into consideration and concluded that it is medically probable that the development of right shoulder pain was in all medical probability as a result of a combination of the claimant’s pre-existing asymptomatic shoulder condition and the activities that she performed on February 12, 2015.

29. Dr. Castrejon opined that Claimant developed reactive depression, anxiety, and a sleep disturbance as a direct result of her shoulder injury. Dr. Castrejon believed that treatment for those conditions was reasonable, necessary, and should be covered under her workers’ compensation claim. Dr. Castrejon noted Claimant’s depression and anxiety had improved with treatment.

30. Dr. Castrejon felt Claimant’s condition had stabilized, so he assigned MMI as of that day, January 14, 2016. Dr. Castrejon opined that Claimant sustained a 17% upper extremity impairment: 8% for range of motion deficits and 10% secondary to an acromioplasty. The 17% extremity rating is equivalent to 10% of the whole person. Dr. Castrejon provided no specific discussion or justification in his report for the 10% rating other than citing the acromioplasty. Dr. Castrejon felt no psychological impairment rating was warranted.

31. Claimant followed up with Dr. Jones on February 15, 2016. On that date, she was primarily concerned about significant neck pain, radiating into her hands. Her cervical spine was tender bilaterally, and she had a positive Spurling’s test. Dr. Jones ordered a cervical MRI to evaluate stenosis.

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32. The cervical MRI was performed on February 18, 2016 and showed osteophyte complexes at C5-6 and C6-7 with mild narrowing of the neuroforamina at C6-7. There was no evidence of disc herniation or nerve root impingement.

33. Dr. Zbylski referred Claimant to Dr. Jenks for the cervical symptoms.

34. Dr. Jenks saw Claimant on April 5, 2016. She reported ongoing diffuse pain around the right shoulder. Dr. Jenks noted that within the last few months Claimant had developed pain in the posterior and left posterolateral aspect of her neck. She had pain radiating to the trapezius, parascapular, and levator scapulae areas bilaterally and numbness in the fourth and fifth digits of both hands. Dr. Jenks recommended a cervical epidural steroid injection and raised the possibility of cervical facet injections.

35. Dr. Cebrian performed an IME at Respondents’ request on June 17, 2016. He took a detailed history and reviewed Claimant’s medical records, including Dr. Castrejon’s DIME report. Examination of her cervical spine revealed decreased range of motion and pain in her neck. Her right shoulder was diffusely tender, but Dr. Cebrian appreciated no spasms or trigger points. Regarding her right shoulder, Dr. Cebrian diagnosed tendinosis of the supraspinatus, infraspinatus and the subscapularis with adhesive capsulitis and interstitial tearing. Dr. Cebrian opined that her shoulder diagnoses were not caused by her work activity on February 12, 2015. Rather, he opined that tendinosis was due to the aging process. He opined that any symptoms Claimant might have experienced at work reflected her underlying disease process and did not indicate a causal relationship to her work. Dr. Cebrian cited the Medical Treatment Guidelines for the proposition that adhesive capsulitis is typically idiopathic and not normally a work-related condition. Dr. Cebrian noted that patients with adhesive capsulitis can have periscapular and neck pain from compensatory scapulothoracic motion. He indicated that Claimant has no permanent impairment related to her claim because she had no work-related injury or illness. Dr. Cebrian opined that Dr. Castrejon was incorrect to assign a 10% upper extremity impairment for Claimant’s acromioplasty. He opined that the Level II Accreditation allows a 10% upper extremity rating for a distal clavicle resection but not for an acromioplasty. Dr. Cebrian concluded that further evaluation, diagnosis or treatment under workers’ compensation was not reasonable, necessary or work-related.

36. Dr. Jones performed a third surgical procedure on July 12, 2016, which comprised: an extensive debridement of the superior labrum including a Type 2 SLAP tear, a subpectoral biceps tenodesis, debridement of significant perihumeral fibrosis, and a distal clavicle resection. Before surgery, Dr. Jones noted Claimant’s ROM was improved, but felt surgery was warranted to address her pain.

37. Dr. Hall performed an IME at Claimant’s request on October 10, 2016. Dr. Hall interviewed Claimant and reviewed her medical records. Dr. Hall opined that Dr. Castrejon provided “a very thorough and convincing discussion” to support his opinions regarding causation. Dr. Hall agreed with Dr. Castrejon that Claimant’s right shoulder condition was caused by her work, and disagreed with Dr. Cebrian’s causation analysis. Dr. Hall noted Claimant was doing better, both from an emotional and physical

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standpoint. Dr. Hall opined Dr. Castrejon had committed no errors in constructing his impairment rating. Dr. Hall opined the surgeries performed by Dr. Jones were reasonable, necessary and causally related to Claimant’s injury. Dr. Hall felt Claimant was not at MMI as of her third surgery and may need another impairment rating.

38. Dr. Cebrian issued a supplemental IME report on November 4, 2016. Dr. Cebrian opined that the Type 2 SLAP tear identified by Dr. Jones in the July 12, 2016 surgery was a new finding not related to the February 12, 2015 claim. Dr. Cebrian opined the SLAP tear represented a natural progression of Claimant’s underlying pre-existing degenerative changes. He opined that the July 12, 2016 surgery was medically reasonable and necessary, but not work-related.

39. Dr. Cebrian and Dr. Hall testified at the December 13, 2016 hearing. Both doctors largely reiterated and expounded upon the opinions expressed in their IME reports.

40. Regarding Dr. Castrejon’s impairment rating, Dr. Cebrian testified that the Level II training and DOWC guidelines do not allow a 10% extremity rating for an acromioplasty.

41. Dr. Castrejon’s opinions are credible and more persuasive than medical opinions in the record to the contrary.

42. Respondents have failed to overcome the DIME regarding MMI and causation by clear and convincing evidence.

43. Claimant has proven by a preponderance of the evidence she has permanent impairment not listed on the schedule.

44. Respondents have overcome the DIME’s impairment rating by clear and convincing evidence. Specifically, the DIME erred by including a 10% extremity rating for Claimant’s acromioplasty surgery.

45. Claimant has a 5% whole person impairment for range of motion deficits.

46. Dr. Zbylski and Dr. Jones are authorized providers because Dr. Roth discharged Claimant from care and instructed her to pursue treatment with her personal physicians.

47. The August 15, 2015 and September 8, 2015 surgeries by Dr. Jones were reasonable, necessary, and causally related to Claimant’s injury.

48. Claimant is entitled to a general award of medical benefits after MMI.

49. The July 12, 2016 surgery by Dr. Jones was reasonable, necessary, and causally related post-MMI medical treatment to relieve the effects of Claimant’s injury.

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CONCLUSIONS OF LAW

A. Burdens of Proof

The parties have raised several interrelated issues regarding MMI and permanent impairment. Respondents are challenging the MMI date assigned by the DIME. Additionally, Respondents submit that Claimant has no work-related permanent impairment. In the alternative, Respondents assert that the DIME’s rating is erroneous. Claimant agrees with the DIME’s findings and argues her shoulder rating should be compensated as a whole person impairment.

As postured, the issues present split burdens of proof. Additionally, there are preliminary questions regarding which of the DIME’s findings are entitled to presumptive weight, and which issues are decided based on a preponderance of the evidence.

Logically, it makes sense to address MMI before impairment, and the burden of proof on that issue is clear: Respondents must overcome the DIME on MMI by clear and convincing evidence.

Regarding permanent impairment, the initial consideration is whether Claimant’s shoulder impairment represents a scheduled or whole person impairment. Section 8-42-107 sets forth two methods of compensating permanent medical impairment. Subsection (2) provides a schedule of disabilities and subsection (8) provides a DIME process for whole person ratings. The DIME’s determination regarding whole person impairment is binding unless overcome by clear and convincing evidence. Conversely, scheduled impairment is a question of fact for the ALJ based on a preponderance.

Whether a claimant sustained a scheduled or non-scheduled impairment is a threshold question of fact for determination by the ALJ. The heightened burden of proof which attends a DIME rating applies only if the claimant establishes by a preponderance of the evidence that the industrial injury caused functional impairment not found on the schedule. Then, and only then, does either party face a clear and convincing evidence burden to overcome the DIME’s rating. Webb v. Circuit City Stores, Inc. W.C. No. 4-467-005 (ICAO August 16, 2002). Although the DIME’s opinions may be relevant to this determination, they are not entitled to any special weight on this threshold issue. See Egan v. Industrial Claim Appeals Office, 971 P.2d 664 (Colo. App. 1998) (DIME provisions do not apply to the scheduled ratings).

In light of the foregoing principles, the ALJ has allocated the burdens of proof in the following manner: (1) Respondents must overcome the DIME’s determination regarding the date of MMI by clear and convincing evidence; (2) Claimant must prove by a preponderance of the evidence she sustained whole person impairment; (3) if Claimant has whole person impairment, Respondents must overcome the DIME rating by clear and convincing evidence; (4) if Respondents overcome the DIME whole person rating, the proper rating is a factual question based on a preponderance of the evidence; (5) on the other hand, if Claimant does not have a whole person impairment, then Claimant must prove the proper rating by a preponderance of the evidence.

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B. Standards for overcoming a DIME

The DIME’s determinations regarding MMI and whole person impairment are binding unless overcome by clear and convincing evidence. Section 8-42-107(8)(b) and (c), C.R.S.; Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo. App. 2002); Qual-Med, Inc. v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo. App. 1998). The DIME’s determination regarding the cause of the claimant’s impairment is an “inherent” part of the diagnostic assessment which comprises the DIME process of determining MMI and rating permanent impairment. Egan v. Industrial Claim Appeals Office, 971 P.2d 664 (Colo. App. 1988). Therefore, the DIME’s determination that a particular impairment is or is not related to the industrial injury is binding unless overcome by clear and convincing evidence. Id.

“Clear and convincing evidence means evidence which is stronger than a mere ‘preponderance;’ it is evidence that is highly probable and free from serious or substantial doubt.” Metro Moving & Storage Co. v. Gussert, 914 P.2d 411 (Colo. App. 1995). Therefore, the party challenging a DIME’s conclusions must demonstrate it is “highly probable” that the MMI and impairment findings are incorrect. Qual-Med, 961 P.2d at 592. A party meets this burden if the evidence contradicting the DIME physician is “unmistakable and free from serious or substantial doubt.” Leming v. Industrial Claim Appeals Office, 62 P.3d 1015 (Colo. App. 2002). A “mere difference of medical opinion” does not constitute clear and convincing evidence that the DIME is incorrect. E.g., Gutierrez v. Startek USA, Inc., W.C. No. 4-842-550-01 (ICAO March 18, 2016); Javalera v. Monte Vista Head Start, Inc., W.C. No. 4-532-166 (ICAO July 19, 2004); see also Gonzales v. Browning-Ferris Industries of Colorado, W.C. No. 4-350-356 (ICAO March 22, 2000).

C. Did Respondents overcome the DIME regarding MMI?

The dispute over MMI hinges on the DIME’s opinions regarding causation. Dr. Roth placed Claimant at MMI on July 2, 2015 because he believed her ongoing shoulder problems were not work-related. If causation were taken out of the equation, it is clear that Claimant was not at MMI on July 2, 2015 from a purely medical perspective. Claimant had two surgical procedures after July 2, 2015, which were aimed at improving her condition. Three orthopedic surgeons (Weinstein, Woodward, and Jones) and two physiatrists (Castrejon and Hall) agreed the surgeries were reasonable and necessary. Therefore, the dispositive question is whether those surgeries were causally related to her work.

The DIME resolved the causation issue in Claimant’s favor. As noted, a determination regarding causation is an “inherent” aspect of determining MMI. Therefore, the DIME’s conclusion that Claimant’s right shoulder condition was causally related to her work is binding unless overcome by clear and convincing evidence.

As found, Respondents have failed to overcome the DIME’s determination Claimant reached MMI on January 14, 2016. Claimant’s right shoulder symptoms began on February 12, 2015 at work. Her work that day involved physical activities that

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stressed her shoulder. There is no persuasive evidence of any significant pre-existing shoulder symptoms or limitations. Rather, the persuasive evidence demonstrates that Claimant’s right shoulder was asymptomatic before February 12, 2015. Dr. Castrejon provided a thorough and persuasive explanation of his conclusions regarding causation. Although Claimant had right shoulder pathology that likely predated her injury, Dr. Castrejon opined the work activity aggravated the underlying condition. Dr. Castrejon appropriately cited the controlling legal standard that an industrial aggravation of an asymptomatic pre-existing condition constitutes a compensable injury. Additionally, Dr. Castrejon’s causation determination is supported by the opinions of Dr. Simpson, Dr. Rook and Dr. Hall.

The ALJ does not find that the contrary causation evidence presented by Respondents rises to the level of clear and convincing evidence. At best, the opinions of Dr. Roth, Dr. Cebrian and Dr. Woodward1 constitute mere differences of medical opinion with the DIME. Based on the totality of evidence presented, the ALJ concludes that Respondents have not overcome the DIME regarding MMI and causation.

D. Did Claimant prove functional impairment not listed on the schedule?

Whether a claimant has sustained scheduled or whole person impairment is a question of fact for determination by the ALJ. Strauch v. PSL Swedish Healthcare System, 917 P.2d 366, 368 (Colo. App. 1996). It is the claimant’s burden to prove she has non-scheduled impairment, by a preponderance of the evidence. Cassius v. Entegris, W.C. No. 4-732-489 (ICAO, March 26, 2010). In resolving this question, the ALJ must determine “the situs of the functional impairment,” which is not necessarily the site of the injury itself. Id. In the context of permanent partial disability, the term “injury” refers to the part or parts of the body that have been permanently, functionally impaired because of the injury. Walker v. Jim Fouco Motor Co., 942 P.2d 1390 (Colo. App. 1997). The schedule of disabilities refers to the loss of “an arm.” Section 8-42-107(2)(a). In other words, if the claimant has a functional impairment to part(s) of his body other than the “arm,” she has sustained a whole person impairment and must be compensated under § 8-42-107(8).

Although the opinions of physicians can be considered when determining this issue, the ALJ can also consider lay evidence such as the claimant’s testimony regarding pain and reduced function. Olson v. Foley’s, W.C. No. 4-326-898 (ICAO, September 12, 2000).

There is no requirement that functional impairment take any particular form, and “pain and discomfort which interferes with the claimant’s ability to use a portion of the body may be considered ‘impairment’ for purposes of assigning a whole person

1 One reading of Dr. Woodward’s opinion actually supports Dr. Castrejon’s causation determination. In his October 21, 2015 report, Dr. Woodward stated “the descriptions provided to me could certainly have exacerbated her preexisting condition, but I do not believe that the adhesive capsulitis was caused by or directly the result of her job description and her work injury described.” (Emphasis added). Aggravation of a preexisting condition is a well-established basis for a compensable injury, regardless of whether the work “directly” caused the underlying condition.

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impairment rating.” Martinez v. Albertson’s LLC, W.C. No. 4-692-947 (ICAO, June 30, 2008). Referred pain from the primary situs of the initial injury may establish proof of functional impairment to the whole person. E.g., Latshaw v. Baker Hughes, Inc., W.C. No. 4-842-705 (ICAO, December 17, 2013); Mader v. Popejoy Construction Co., Inc., W.C. No. 4-198-489 (ICAO, August 9, 1996).

Pain and limitation in the trapezius, neck, and scapular area can functionally impair an individual beyond the arm. E.g. Steinhauser v. Azco, Inc., W.C. No. 4-808-991 (ICAO, January 11, 2012) (pain and muscle spasm in scapular and trapezial musculature warranted whole person impairment); Franks v. Gordon Sign Co., W.C. No. 4-180-076 (ICAO, March 27, 1986) (supraspinatus attaches to the scapula, and is therefore properly considered part of the “torso,” rather than the “arm”); Martinez v. Albertson’s LLC, W.C. No. 4-692-947 (ICAO, June 30, 2008) (pain affecting the trapezius and difficulty sleeping on injured side supported finding of whole person impairment).

As found, Claimant has proven by a preponderance of the evidence that she suffered impairment not listed on the schedule. First, the injury and resulting surgery objectively and permanently altered anatomical structures that are not part of her arm. Claimant underwent a subacromial decompression, which is performed above the glenohumeral joint and therefore above the “arm.” Although the anatomical situs of the injury is not dispositive, it is a valid factor to consider when determining whether a claimant has a scheduled or whole person impairment. See, e.g., Martinez v. Albertson’s LLC, W.C. No. 4-692-947 (ICAO, June 30, 2008) (“The [claimant’s] subacromial decompression was done at the acromion and the coracoacromial ligament in order to relieve the impingement, which is all related to the scapular structures above the level of the glenohumeral joint”).

Second, the medical records corroborate Claimant’s testimony, and document referred pain from the shoulder into areas such as the trapezius and interscapular muscles. For example, Dr. Simpson noted “quite a bit of myofascial pain” around the shoulder. Dr. Rook documented moderate tenderness of the right pectoralis and moderate-to-severe tenderness with spasm involving the right-sided paracervical, trapezius, supraspinatus, and infraspinatus muscles. Similarly, Dr. Castrejon appreciated scapular winging with forward elevation of the right shoulder, tenderness of the AC joint, and tenderness of the right trapezius with trigger points and hypertonicity.

Third, the symptomatology associated with Claimant’s shoulder injury interferes with her ability to perform various activities, including working, household chores and sleeping. Her ability to reach in all directions is significantly compromised and she still has rotator cuff weakness. Her ongoing symptoms and limitations prevent Claimant from returning to her preinjury occupation as a nurse.

The ALJ acknowledges that Claimant received chiropractic treatment for neck pain before her industrial injury, but those symptoms did not limit Claimant’s ability to engage in vocational or avocational activities. She was working full time in a physically demanding occupation prior to February 12, 2015. At his initial evaluation, Dr. Roth

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noted full cervical range of motion. Therefore, to the extent Claimant had pre-existing symptomatology, it caused no significant functional limitations. By contrast, Claimant’s shoulder injury and associated symptoms have caused significant limitations in work, personal and recreational activities.

The totality of evidence persuades the ALJ that Claimant’s shoulder injury causes functional limitations beyond her arm. Claimant has proven that she sustained a whole person impairment.

E. Did Respondents overcome Dr. Castrejon’s whole person impairment rating?

As found, Respondents have proven by a clear and convincing evidence that Dr. Castrejon erred in assigning a 10% extremity rating for acromioplasty surgery. This situation was addressed in Serena v. SSC Pueblo Belmont Op. Co. LLC, W.C. No. 4-922-344-01 (ICAO, December 1, 2015); aff’d Serena v. Industrial Claim Appeals Office, Colo. App. No. 15CA2095, November 3, 2016 (not selected for publication).

In Serena, DIME had assigned a 10% extremity rating for subacromial decompression, with no additional justification or discussion. The Panel held the 10% rating was inappropriate under the AMA Guides and the DOWC Impairment Rating Tips. The Panel noted that the AMA Guides provide that shoulder impairment will be derived primarily by range of motion. Although the Impairment Rating Tips allow the rating physician to apply an additional rating up to 10% for certain “arthroplasty” procedures, the Panel held that the Tips “[do] not justify an additional 10% rating solely due to the circumstance that a surgery was performed.”

Here, Dr. Castrejon provided no rationale for the additional 10% rating other than Claimant having an acromioplasty. Although Dr. Hall testified the additional 10% was appropriate, he offered no additional justification other than the fact of surgery. Dr. Cebrian opined a physician can give 10% for a distal clavicle resection, but not for acromioplasty. It appears Dr. Castrejon believed Claimant was automatically entitled to an additional 10% impairment simply because she had acromioplasty surgery. That assumption is incorrect, as reflected in Serena. Consequently, Respondents have demonstrated that Dr. Castrejon’s rating is highly probably incorrect.

Once the ALJ determines that a DIME rating has been overcome in any respect, the proper rating becomes a question of fact under the preponderance standard. Paredes v. ABM Industries, W.C. No. 4-862-312-02 (ICAO, April 14, 2014); Garlets v. Memorial Hospital, W.C. No. 4-336-566 (ICAO, September 5, 2001). A finding that the DIME’s rating has been overcome does not require the ALJ to reject the DIME’s opinions in their entirety. Rather, the DIME’s findings can be considered with all other evidence when evaluating the preponderance of persuasive evidence. Paredes, supra.

The ALJ finds Dr. Castrejon’s opinions persuasive in all respects other than Claimant’s entitlement to the extra 10% rating for surgery. Accordingly, the ALJ adopts Dr. Castrejon’s range of motion rating as the best measure of Claimant’s permanent

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impairment. The range of motion component of Dr. Castrejon’s rating was 8% of the upper extremity, which is equivalent to 5% of the whole person.

F. Authorization of Dr. Zbylski and Dr. Jones

As found, Dr. Zbylski and Dr. Jones are authorized because Dr. Roth discharged Claimant from care and instructed her to pursue treatment with her personal physicians.

Besides proving that medical treatment was, reasonable, necessary, and causally related to the injury, a claimant must prove that the treatment was “authorized.” “Authorization” refers to a physician’s legal authority to treat the injury at the respondents’ expense. Popke v. Industrial Claim Appeals Office, 944 P.2d 677 (Colo. App. 1997). A physician who commences treatment upon a referral made in the “normal progression of authorized treatment” becomes an authorized treating physician. Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d 680 (Colo. App. 1999); Greager v. Industrial Commission, 701 P.2d 168 (Colo. App. 1985). Once the respondents have exercised their right to select the treating physician in the first instance, the claimant may not change physicians without permission from the insurer or an ALJ. Giannetto Oil Co. v. Industrial Claim Appeals Office, 931 P.2d 570 (Colo. App. 1996).

In Cabela v. Industrial Claim Appeals Office, 198 P.3d 1277 (Colo. App. 2008), the Court of Appeals held that if an ATP determines that a claimant’s condition is not work-related and instructs the claimant to pursue treatment with personal physicians, the treatment will be deemed authorized if it is later determined that the condition was compensable. The court held, “the risk of mistake by an ATP in concluding that an injury is noncompensable lies with the employer” rather than the claimant.

Dr. Roth placed Claimant at MMI on July 2, 2015 because he believed she did not have a work-related condition. He told Claimant “she [should] pursue additional treatment through personal health care resources.” As a result, Claimant sought treatment with Dr. Zbylski, who subsequently referred her to Dr. Jones. Under Cabela, Dr. Zbylski and Dr. Jones are authorized providers.

G. August 15, 2015 and September 8, 2015 surgeries

All treating and examining providers agree that the August 15 and September 8, 2015 surgical procedures were reasonable and necessary. The ALJ has credited Dr. Castrejon’s causation analysis regarding Claimant’s right shoulder, and Claimant has proven that the August 15, 2015 and September 8, 2015 surgeries were compensable treatment for her industrial injury.

H. July 12, 2016 surgery

Although Claimant’s legal theory regarding compensability of the July 12, 2016 surgery is not entirely clear, it appears Claimant is requesting the surgery be covered as a post-MMI “Grover”-type medical benefit.

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Respondents are liable for medical treatment from authorized providers that is reasonably necessary to cure or relieve the employee from the effects of the injury. Section 8-42-101; Sims v. Industrial Claim Appeals Office, 797 P.2d 777 (Colo. App. 1990). The need for medical treatment may extend beyond MMI if the claimant requires further treatment to relieve the effects of the injury or prevent deterioration of their physical condition. Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988).

As an initial matter, Dr. Castrejon persuasively opined that Claimant required ongoing medical treatment after MMI. The ALJ credits Dr. Castrejon’s opinion to conclude that Claimant is entitled to a general award of post-MMI medical treatment. See Hanna v. Print Expediters, 77 P.3d 863 (Colo. App. 2003).

Both Dr. Cebrian and Dr. Hall opined that the July 12, 2016 surgery was reasonable and necessary, but disagreed regarding causation. Based on the totality of evidence presented, the ALJ is persuaded that the July 12, 2016 surgery was a proximate consequence of Claimant’s shoulder injury.

The fact that Dr. Jones found a SLAP tear does not persuade the ALJ that the surgery was not injury-related. Dr. Cebrian opined that the SLAP tear was not a work-related condition. Dr. Hall opined that the SLAP tear might have occurred during one of the MUA procedures or during therapy. The ALJ need not decide causation of the SLAP tear, because the ALJ concludes that the July 2016 surgery was proximately caused by Claimant’s industrial injury. The surgery was intended to address Claimant’s right shoulder pain, which has been constant since her injury. Regardless of the SLAP tear, there were other intraoperative findings that represent a continuation of the problems that led to the previous two procedures. Claimant would not have needed surgery on July 12, 2016 but for the industrial injury. Even if the SLAP tear was not injury-related, the mere fact that a non-industrial cause of a claimant’s symptoms is discovered during surgery does not vitiate the causal connection between the industrial injury and a surgery undertaken to treat the compensable injury. See Merriman v. Industrial Commission, 210 P.2d 448 (Colo. 1949).

As found, the July 12, 2016 surgery was reasonable and necessary post-MMI medical treatment. The ALJ recognizes that surgery is frequently directed to “curing” a claimant’s condition rather than simply “relieving” or preventing deterioration of their condition. But the type of treatment is not dispositive of whether the insurer is liable for the treatment as a post-MMI medical benefit. It is the purpose for which treatment is provided, rather than the “nature” of the treatment, which determines whether the treatment is curative or provided for permissible post-MMI purposes. Milco Construction v. Cowan, 860 P.2d 539, 542 (Colo. App. 1992). If the treatment is designed to relieve the effects of the work injury, the insurer is obligated to cover it. Moreover, liability is not limited only to treatment that “maintains” a claimant’s condition. Karathanasis v. Chili's Grill & Bar, W. C. No. 4-461-989 (Industrial Claim Appeals Office, August 8, 2003); Hayward v. UNISYS Corp., W.C. No. 4-230-686 (ICAO, July 2, 2002), aff'd, Hayward v. Industrial Claim Appeals Office, (Colo. App. No. 02CA1446, January 9, 2003) (not selected for publication). Surgery can be a permissible form of post-MMI treatment, if it is undertaken for the purposes outlined in the Grover case. E.g., Shipman v. Larry’s

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Transmission Center, W.C. No. 4-721-918 (ICAO, August 25, 2008) (surgery to correct a leg-length discrepancy approved as post-MMI treatment); Hayward v. UNISYS Corp., supra (knee surgery may be curative or may be Grover-style maintenance treatment designed to alleviate deterioration of the claimant’s condition).

Dr. Jones noted that Claimant’s shoulder range of motion had improved dramatically after the second MUA in September 2015. His rationale for the July 2016 surgery was to alleviate Claimant’s ongoing pain. Therefore, the surgery was not expected to improve Claimant’s function, but was merely intended to relieve pain. Based on the totality of evidence presented, the ALJ is persuaded that the surgery was undertaken to “relieve” the effects of Claimant’s injury, and was not “curative.”

ORDER

It is therefore ordered that:

1. Respondents’ request to overcome the DIME regarding MMI is denied and dismissed.

2. Respondents shall pay Claimant PPD benefits based on a 5% whole person rating.

3. Respondents shall pay for medical treatment provided by Dr. Zyblski and Dr. Jones for Claimant’s right shoulder after July 2, 2015, including the August 15, 2015, September 8, 2015, and July 12, 2016 surgeries.

4. Respondents shall cover reasonable, necessary and related medical treatment after MMI from authorized providers.

5. The insurer shall pay interest to claimant at the rate of 8% per annum on all amounts of compensation not paid when due.

6. All matters not determined herein, or otherwise closed by operation of law, are reserved for future determination.

If you are dissatisfied with the Judge's order, you may file a Petition to Review the order with the Denver Office of Administrative Courts, 1525 Sherman St., 4th Floor, Denver, CO 80203. You must file your Petition to Review within twenty (20) days after mailing or service of the order, as indicated on the certificate of mailing or service; otherwise, the Judge's order will be final. You may file the Petition to Review by mail, as long as the certificate of mailing attached to your petition shows: (1) That you mailed it within twenty (20) days after mailing or service of the order of the Judge; and (2) That you mailed it to the above address for the Denver Office of Administrative Courts. For statutory reference, see section 8-43-301(2), C.R.S. For further information regarding procedures to follow when filing a Petition to Review, see Rule 26, OACRP. You may access a petition to review form at: http://www.colorado.gov/dpa/oac/forms-WC.htm.

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DATED: February 6, 2017

s/Patrick C.H. Spencer II Patrick C.H. Spencer II Administrative Law Judge Office of Administrative Courts 2864 S. Circle Drive, Suite 810 Colorado Springs, CO 80906

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OFFICE OF ADMINISTRATIVE COURTS STATE OF COLORADO WORKERS’ COMPENSATION NO. 5-003-783-01

ISSUES

Whether claimant has proven by a preponderance of the evidence that the right total knee arthroplasty performed on October 11, 2016 was reasonable, necessary and related to the work injury claimant sustained on December 22, 2015.

FINDINGS OF FACT

1. Claimant is 70 years old and has worked for the employer since 2000 as a housekeeper. Claimant suffered an admitted injury to her right knee on December 22, 2015. Claimant’s job duties included unrolling large rolls of carpet. It was claimant’s normal practice to unroll the carpet by pushing it with her foot in a kicking motion.

2. Claimant testified that the admitted injury occurred when she was rolling out carpet in this way and she suddenly felt pain in her right knee. Claimant also testified that her right knee became inflamed and she was unable to walk. Claimant testified that prior to the December 22, 2015 injury she had not experienced right knee pain.

3. Claimant’s authorized treating physician (“ATP”) Dr. Jamie Faught referred claimant for various modes of treatment including prescription pain medications, physical therapy, and injections. The medical records indicate claimant received two steroid injections and one Synvisc injection. Claimant testified that the injections and pain medications did not help with her pain.

4. On December 23, 2015 an x-ray was taken of claimant’s right knee and showed advanced osteoarthritis. On December 29, 2015, claimant reported to Codi Anderson, PT, DPT, that she had inflammation and swelling at the time of the injury. In that same report, Codi Anderson noted right knee patellofemoral edema.

5. On January 7, 2016 a magnetic resonance image (“MRI”) of claimant’s right knee showed advanced tricompartmental osteoarthritic changes, moderate to severe chondromalacia, along with a complex horizontal cleavage tear involving nearly the entire medial meniscus. The MRI also showed a complex degenerative type tearing of the lateral meniscus.

6. Claimant returned to work on a part-time basis on January 26, 2016. At that time she had work restrictions that included a 10 pound lifting restriction and walking on “even ground only”. After returning to work claimant continued to experience pain in her right knee.

7. Dr. Norman Harris opined in a May 23, 2016 report that claimant’s December 22, 2015 work injury exacerbated her underlying osteoarthritis. Dr. Harris

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also noted that claimant was unresponsive to conservative treatment and he recommended right total knee arthroplasty. Dr. Harris referred claimant to Dr. Robert Derkash for a surgical consultation.

8. In medical records dated June 9, 2016 and July 27, 2016, Dr. Derkash noted that claimant had failed conservative treatment and a right total knee arthroplasty was appropriate given the degenerative changes to claimant’s right knee. Respondents denied authorization for the recommended surgery.

9. Claimant chose to proceed with surgery despite respondents’ denial. Dr. Derkash performed the right total knee arthroplasty on October 11, 2016.

10. Pam Willis, Director of Human Resources with employer, testified at hearing regarding prior medical issues claimant had during her employment. Ms. Willis testified that in 2010 and 2013 claimant had work restrictions, including lifting restriction. Ms. Willis also testified that in October 2013 claimant notified her that the stairs at her place of employment were difficult for her. Ms. Willis testified that employer accommodated claimant’s concern by allowing her to use the guest elevator rather than use the stairs.

11. Dr. Jon Erickson performed a review of claimant’s medical records and issued a report summarizing his findings on November 14, 2016. Dr. Erickson opined that the December 22, 2015 work incident was a minor sprain/strain of claimant’s right knee. Dr. Erickson concluded in his report that the right knee arthroplasty was medically reasonable and necessary given claimant’s osteoarthritis. However, Dr. Erickson opined that the need for the surgery is unrelated to the December 22, 2015 work incident. Dr. Erickson further opined that the pain claimant experienced on December 22, 2015 was caused by the underlying osteoarthritis and not by her occupation. Dr. Erickson also opined that claimant’s work activities did not aggravate claimant’s underlying condition.

12. Dr. Erickson testified by deposition in this matter. Dr, Erickson’s testimony was consistent with his report and he confirmed his opinion that claimant’s need for surgery is unrelated to claimant’s December 22, 2015 work injury. Dr. Erickson also testified that claimant’s medical records show no right knee treatment or pain prior to the December 22, 2015 work injury.

13. The ALJ credits claimant’s testimony and finds that claimant has demonstrated that it is more likely than not that prior to the December 22, 2015 work injury she did not have right knee pain. The ALJ also credits the medical records that show objective changes to claimant’s knee including edema as indicated by the physical therapist on December 29, 2015 and the January 7, 2016 MRI results showing a complex meniscus tear. Therefore, the ALJ finds that it is more likely than not that claimant experienced changes to her right knee as a result of the December 22, 2015 work injury.

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14. The ALJ credits the opinion of Dr. Harris over the contrary opinion of Dr. Erickson and finds that it is more likely than not that claimant’s action of kicking the carpet on December 22, 2015 aggravated, accelerated, or combined with claimant’s preexisting osteoarthritis resulting in the need for right total knee arthroplasty.

CONCLUSIONS OF LAW

1. The purpose of the “Workers’ Compensation Act of Colorado” is to assure the quick and efficient delivery of disability and medical benefits to injured workers at a reasonable cost to employers, without the necessity of any litigation. Section 8-40-102(1), C.R.S. A claimant in a Workers’ Compensation claim has the burden of proving entitlement to benefits by a preponderance of the evidence. Section 8-42-101, C.R.S. A preponderance of the evidence is that leads the trier-of-fact, after considering all of the evidence, to find that a fact is more probably true than not. Page v. Clark, 197 Colo. 306, 592 P.2d 792 (1979). The facts in a Workers’ Compensation case are not interpreted liberally in favor of either the rights of the injured worker or the rights of the employer. Section 8-43-201, C.R.S., 2013. A Workers’ Compensation case is decided on its merits. Section 8-43-201, C.R.S., supra.

2. The ALJ’s factual findings concern only evidence that is dispositive of the issues involved. The ALJ has not addressed every piece of evidence that might lead to a conflicting conclusion and has rejected evidence contrary to the above findings as unpersuasive. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo. App. 2000). When determining credibility, the fact finder should consider, among other things, the consistency or inconsistency of the witness’s testimony and actions; the reasonableness or unreasonableness (probability or improbability) of the testimony and action; the motives of the witness; whether the testimony has been contradicted; and bias, prejudice, or interest. See Prudential Insurance Co. v. Cline, 98 Colo. 275, 57 P.2d 1205 (1936); CJI, Civil 3:16 (2015).

3. A compensable industrial accident is one that results in an injury requiring medical treatment or causing disability. The existence of a preexisting medical condition does not preclude the employee from suffering a compensable injury where the industrial aggravation is the proximate cause of the disability or need for treatment. See H & H Warehouse v. Vicory, 805 P.2d 1167 (Colo. App. 1990); see also Subsequent Injury Fund v. Thompson, 793 P.2d 576 (Colo. App. 1990). A work related injury is compensable if it “aggravates accelerates or combines with” a preexisting disease or infirmity to produce disability or need for treatment. See H & H Warehouse v. Vicory, supra.

4. Respondents are liable for authorized medical treatment reasonably necessary to cure and relieve an employee from the effects of a work related injury. Section 8-42-101, C.R.S.; see Sims v. Industrial Claim Appeals Office, 797 P.2d 777 (Colo. App. 1990).

5. As found, the claimant has demonstrated by a preponderance of the evidence that the right total knee arthroplasty performed by Dr. Derkash on October 11,

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2016 was medical treatment reasonable and necessary to cure and relieve claimant from the effects of the admitted December 22, 2015 work injury. Claimant’s testimony, the medical records, and the opinion of Dr. Harris are found to be credible and persuasive regarding this issue.

ORDER

It is therefore ordered that:

1. Respondents shall pay for the right total knee arthroplasty performed by Dr. Derkash on October 11, 2016.

2. All matters not determined herein are reserved for future determination.

If you are dissatisfied with the Judge's order, you may file a Petition to Review the order with the Denver Office of Administrative Courts, 1525 Sherman St., 4th Floor, Denver, CO 80203. You must file your Petition to Review within twenty (20) days after mailing or service of the order, as indicated on certificate of mailing or service; otherwise, the Judge's order will be final. You may file the Petition to Review by mail, as long as the certificate of mailing attached to your petition shows: (1) That you mailed it within twenty (20) days after mailing or service of the order of the Judge; and (2) That you mailed it to the above address for the Denver Office of Administrative Courts. For statutory reference, see section 8-43-301(2), C.R.S. For further information regarding procedures to follow when filing a Petition to Review, see Rule 26, OACRP. You may access a petition to review form at: http://www.colorado.gov/dpa/oac/forms-WC.htm.

DATED: February 6, 2017

___________________________________ Cassandra M. Sidanycz Administrative Law Judge Office of Administrative Courts 222 S. 6th Street, Suite 414 Grand Junction, Colorado 81501

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OFFICE OF ADMINISTRATIVE COURTS STATE OF COLORADO WORKERS’ COMPENSATION NO. WC 4-975-033-03

ISSUES

Whether Claimant has proven by a preponderance of the evidence that the need for the L5-S1 left-sided microdiscectomy decompression surgical procedure is causally related to the admitted work injury?

FINDINGS OF FACT

Based upon the evidence presented at hearing, the Judge enters the following findings of fact:

1. Claimant, a 32 year-old former plumber for Employer, suffered a back injury on February 11, 2015. Claimant testified that he was moving a water heater on a dolly down a flight of stairs with a co-worker, with Claimant above the water heater and his co-worker below. They lost control of the dolly; it fell down several steps and pinned the co-worker against a dresser, which caused Claimant to jerk forward. Claimant testified that he did not fall down but rather flexed forward. He testified that he felt immediate pain in his low back, legs, thoracic area, and right shoulder.

2. Claimant treated initially at Vail Valley Medical Center. The provider recorded Claimant reporting a “wrenching feeling in the right mid to upper thoracic spine area, paravertebral,” and “having no lumbar distress or discomfort.” The records note that Claimant was “emphatic that there was no actual blunt trauma. He did not fall.” He was diagnosed with an acute thoracic back strain.

3. On February 12, 2015, Dr. Jennifer Bettenhausen noted Claimant reported that the dolly slipped away from him, and he felt a pain in his thoracic region with referred pain to his right shoulder region and down to his right buttock. He complained of some numbness that went to his right calf with no weakness to his right lower extremity.

4. On February 16, 2015, Claimant complained to Dr. Bettenhausen of low back pain and spasms with continued numbness in his right leg. Claimant visited Vail Valley Medical Center that night, and the attending physician noted Claimant was referred there by his physical therapist because he was experiencing radicular symptoms into his right lower extremity. On exam, Claimant complained of diffuse tenderness over his whole back, but had full strength and neurological function in his left lower extremity. The attending physician, Dr. Matthew Kamper, noted “at Brian’s request, he is given another 10 mg IM morphine shot for pain relief.”

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5. On February 17, 2015, Claimant returned to Vail Valley Medical Center. Dr. Kamper gave Claimant another morphine shot and stated his concern that Claimant not habitually come in to obtain morphine shots.

6. On February 19, 2015, Claimant had a lumbar MRI which showed a broad-based left-sided paracentral disc protrusion at L5-S1 and an annular tear with disc material contacting the left S1 nerve root.

7. On February 23, 2015, Claimant returned to Vail Valley Medical Center. The attending physician noted Claimant complained of right leg pain. And remarked that there may have been reference in prior records to prior left leg pain, but “the patient states to me this has always been in his right leg.”

8. On February 24, 2015, Dr. Scott Raub at Vail Summit Orthopedics evaluated Claimant. Claimant complained of buttock pain worse on the right at 8/10, right leg pain at 6/10 and left thigh pain at 2/10. On exam, Claimant had full strength in his left leg, and positive right sided findings including a positive straight leg raise. Dr. Raub also noted that Claimant was tender to even light stroking over his skin in the lumbar area. He recommended S1 steroid injections. Dr. Raub did not document any low back bruising at this visit.

9. After his initial appointment with Dr. Raub, Claimant fell at home. Claimant testified that on February 27, 2015, he was smoking on the landing in front of his apartment, his right leg gave out, and he had a “slow fall” onto his right side. On cross-examination Claimant clarified he fell on his right arm and shoulder.

10. Claimant submitted photographs which showed bruising in his low back, buttocks, and left flank. He testified the first photograph was taken on February 25, 2015. He testified the third photograph was taken on March 6, 2015, based upon the visible band-aids from the injection he received that day.

11. On March 6, 2015, Dr. Raub administered the S1 steroid injections. Dr. Raub noted at that time that Claimant did not have any obvious bruising on February 24th, but had developed “quite a bit of ecchymosis mainly left lower lumbar and flank extending all the way into the buttocks bilaterally.” He remarked in his procedure note that he felt Claimant sustained a soft tissue injury “when he fell on February 11, 2015.”

12. Dr. Raub testified by deposition that he could not recall why he felt Claimant had fallen during his work injury and may have made an assumption. Dr. Raub also testified that it would be “pretty unusual” for Claimant to have developed bruising from the work injury without him detecting it prior to that time. He testified that bruising typically develops within a week, and it seemed more plausible to him that the bruising on Claimant’s back would have developed from Claimant’s fall at home than from the work injury. He testified the bruising would have likely developed from a blunt force trauma rather than a flexion motion. He also testified that, based upon the location of the bruising, he felt the trauma likely occurred to the left midline of the low back.

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13. On March 16, 2015, Claimant returned to Dr. Raub who noted Claimant had a fall a week and half before the injection, but Claimant told him he did not feel as if the fall changed his symptoms. However, Dr. Raub noted Claimant’s “symptoms have changed somewhat,” including feeling a knot in his left lumbar area along with a lot of coccygeal pain. Dr. Raub agreed “there is an inconsistency there.” Dr. Raub testified that Claimant’s symptoms as of March 16, 2015 were predominantly left-sided, whereas his symptoms as of the February 24, 2015 appointment had been predominantly right-sided. Dr. Raub recommended an MRI of Claimant’s pelvis.

14. Claimant was asked on cross-examination about the referenced change in symptoms. Claimant denied they changed and testified that Dr. Raub told him the “knot” in his back was from the injections. The ALJ notes Claimant’s testimony is different than Dr. Raub’s testimony that it was Claimant who reported shifting symptoms on that date.

15. On March 19, 2015, Dr. Gary Zuehlsdorff reviewed Claimant’s file. He expressed concern as to validity of the history provided by Claimant, because the initial mechanism of injury did not include a fall which would have caused the bruising. Dr. Zuehlsdorff noted that bruising would have more likely than not been related to a second injury a week and a half prior to the injection by Dr. Raub.

16. Also on March 19, 2015, Claimant reported to Axis Physical Therapy that his pain was 6/10 with bilateral leg pain, worse on the left side.

17. The pelvis MRI occurred on March 23, 2015. It showed fluid collection along the left aspects of the buttock, adjacent edema extending to the midline, which was “likely the sequel of recent soft tissue injury; in other words bruising and small hematoma.” Dr. Raub testified these findings would be consistent with a blunt force trauma to the left buttocks.

18. On March 24, 2015, Claimant reported to Dr. Raub that his back pain was improving, but he also complained of pain at a level of 8/10. On March 25, 2015, Claimant reported to Axis Physical Therapy his pain was 6/10 with radicular symptoms, left worse than right.

19. On May 13, 2015, Axis Physical Therapy recorded that Claimant’s pain complaint was 7/10, and it was 6/10 the next day.

20. On May 22, 2015, Dr. Bettenhausen answered a letter from Pinnacol in which she stated that she felt Claimant’s ongoing back pain was due to his initial work injury and “not from the contusion.” Claimant confirmed on cross-examination that he told Dr. Bettenhausen that his fall at home involved his right side.

21. As of June 8, 2015, Claimant’s reported pain complaint to Axis Physical Therapy was still 6/10. On June 10, 2014, Axis Physical Therapy records show Claimant reported “some irritation with the stretch but feel better now.” His pain complaint was 6/10. The record documents Claimant underwent a “light hamstring stretch with no neurological flossing.”

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22. Claimant testified on direct examination that he felt a pop in his back while the physical therapist was pushing against and stretching his left leg while he lay on the ground. Claimant testified he had continuous numbness in his left leg after that physical therapy visit, but he also testified “a lot of the pain went away.”

23. On June 22, 2015, Claimant reported to Axis Physical Therapy that he was very sore after “TDN,” which Dr. Fall testified stands for trigger point dry needling. His pain was 8-9/10 after that treatment, but the next two days he had been substantially better at 3/10, and at the time of hearing was at 5-6/10, left greater than right.

24. On June 24, 2015, Dr. Bettenhausen noted Claimant stating that he felt a pop in his low back with an onset of numbness in his left leg during physical therapy two weeks prior. He reported “slight” numbness in his left leg. On June 25, 2015, Claimant reported to Dr. Raub that he hurt himself in physical therapy. He reported pain up to 7/10 in the left lumbosacral area and left buttock with numbness over his left leg. Dr. Raub again noted he was sensitive to light skin stroking on examination.

26. On July 9, 2015, Claimant had repeat MRIs. The lumbar MRI showed a left sided disc protrusion with “possible contact of the left S1 nerve root.” The pelvis MRI showed resolution of the prior hematoma without other signs of injury. Claimant complained of 8/10 pain in his low back and left leg to Dr. Raub on that day. Dr. Raub indicated the new MRI actually showed the disc bulge to be a “bit smaller” than in the February MRI. He recommended a repeat left S1 epidural steroid injection.

27. On August 6, 2015, Claimant reported to Dr. Bettenhausen that he was feeling better with “much less left leg numbness now,” and his back pain was improving as well. His straight leg raise test was equivocal.

28. Claimant transferred care to Caroline Gellrick, M.D. On August 28, 2015, she noted Claimant told her that, during the work accident, he “twisted his back and fell on the stairs with bruising.” He complained of back pain and left leg pain, up to 8/10. She noted he reported falling at home but with no worsening of condition. She ordered an EMG for his left leg and lumbar x-rays. The EMG was performed by Barton Goldman, M.D. on September 10, 2015 and was read as normal.

29. On October 5, 2015, Dr. Scott Hompland examined Claimant. Claimant reported the injury as involving a “crash into the stairs” causing immediate back spasms. Claimant reported his back and left leg pain fluctuated from 4/10 – 7/10.

30. Dr. Andrew Castro examined Claimant on October 12, 2015. Claimant reported his mechanism of injury as falling “down the stairs onto his buttock area.” He reported his pain was 7/10. Claimant had negative bilateral straight leg raises. Dr. Castro noted the MRI findings were “actually quite

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minimal,” but the L5-S disc bulge could have been causing his symptoms. He recommended additional injections.

31. Dr. Hompland administered a left L5-S1 epidural steroid injection on October 23, 2015. On November 4, 2015, Claimant reported 40-50% improvement in pain and complete resolution of left leg numbness.

32. Claimant had a follow-up lumbar MRI on October 27, 2015. It showed a “mild disc bulge . . . without clear evidence for nerve impingement.”

33. On November 17, 2015, Allison Fall, M.D. performed an IME of Claimant for Respondents. Claimant reported the mechanism of injury included falling forward and hitting his buttocks on the stairs. Regarding his subsequent fall, Claimant reported he fell “onto one side.” Dr. Fall noted that Claimant’s radicular symptoms initially were in Claimant’s right leg and his bruising in his low back, left flank, and buttocks, was more consistent with a later fall, “as bruising which had occurred from a contusion on 2/11/14 would have been present on 2/24/14.” She also remarked that the findings on the March 23, 2015 pelvis MRI were inconsistent with the initial mechanism of injury. Dr. Fall concluded that the records documented an initial right thoracic strain with resolution of those symptoms.

34. On November 19, 2015, Claimant reported to Dr. Gellrick that he still felt significant improvement from his last injection with Dr. Hompland. He had a positive straight leg raise on the left.

35. On December 11, 2015, Dr. Goldman evaluated Claimant. He noted that Claimant had called his office telling them that Dr. Gellrick wanted him to refill his medication, but Dr. Goldman stated he was not assuming opioid management, and he felt this was a red flag. Claimant described his mechanism of injury to Dr. Goldman as falling forward and “landing on the stairs on his buttocks.” Claimant described ongoing symptoms averaging pain levels of 6/10 in the back and 7/10 “elsewhere.” Dr. Goldman recommended a repeat EMG.

36. On December 21, 2015, Dr. Gellrick addressed the different mechanisms of injury. She noted Claimant “tells me today that . . . he believes he believes he fell down on his buttocks on the steps when the co-worker got pinned down below. The incident in early March . . . landed on his right side, not his buttocks and not his back.” Dr. Gellrick noted that she was disagreeing with the causation analysis of Dr. Fall based upon the story provided by Claimant.

37. On January 7, 2016, Dr. Goldman performed an EMG, which showed a left sided L5-S1 radiculopathy.

38. Dr. Gellrick conducted additional analysis on January 16, 2016, after being provided additional records. She stated that she agreed with Dr. Zuehlsdorff’s analysis that the bruising was most likely related to a contusion that occurred at the end of February or early March based upon when it was first identified. She noted Dr. Raub should be queried further about his findings, and she found it “notable” that he saw a positive right straight leg raise and Claimant currently presented with a positive left straight leg raise. Dr. Gellrick stated the

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MRIs from before the fall at home and after the fall at home did not show any significant difference. However, she stated she would “defer the interpretation of the MRIs, however, to the expertise of physiatry.” The ALJ notes that Dr. Raub is a physiatrist and testified that the MRIs show the disc bulge receding after the fall at home, which further calls into question Claimant’s presentation. On January 21, 2016, Dr. Gellrick stated: “He is adamant that he did fall with the water heater. . .”

39. On February 19, 2016, Dr. Castro recommended a left sided microdiscectomy decompression at L5-S1 based upon Claimant’s new EMG findings and failure to improve from conservative care.

40. On March 31, 2016, John Hughes, M.D., performed an IME on behalf of Claimant. Regarding a prior 2013 low back injury, Claimant reported he had “a little tweak” of low back pain that went away after an injection. Claimant told him he had a fall at home at the end of February 2015 where he “landed on his right side and notes that he had some bruising.” Dr. Hughes did not address the many discrepancies in Claimant’s reported mechanisms of injury. Nor did Dr. Hughes discuss the differences in opinions regarding the onset of bruising. However, he opined that Claimant had a progressive radiculopathy verified by the latest EMG, and the recommended surgery was reasonable, necessary and related treatment.

41. Dr. Fall prepared an addendum IME report. Her opinion remained that Claimant did not sustain a blunt injury in his work accident, the bruising was related to a subsequent event, and the need for surgery to address the left sided complaints was not causally related to the work injury.

42. In addition to his testimony already referenced, Claimant testified he had lots of pain in both his right and left legs when he first saw Dr. Raub on February 24, 2015, along with groin pain which was worse on the left than right. On cross-examination, he testified his pain on the left was “stronger” than the right. He was then asked about Dr. Raub’s notes which reference left thigh pain of 2/10 and right thigh pain of 6/10. Claimant testified that record was incorrect.

43. Claimant was asked on cross-examination about his prior 2013 low back injury in Washington. Claimant initially denied having any radicular pain with that injury, and admitted telling Dr. Hughes and Dr. Gellrick that it was just a “tweak” involving only low back pain. Claimant was referred to a pain diagram dated August 1, 2013 showing Claimant had circled both his legs, front and back, complaining of pain and numbness. He then admitted to having those symptoms. Claimant was then asked about a pain diagram dated August 6, 2013, which showed his bilateral lower extremities circled with a number 6 written over them to address severity of his complaints. Claimant testified the 6/10 referred to tightness, not pain. Claimant was then asked about a document which contained a “Pain Level” key where 6 was circled and a diagram showing pain listed for both legs. Claimant then admitted he had bilateral leg pain at 6/10 at that time.

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44. Claimant was asked about the February 11, 2015 accident on cross-examination. He was pressed as to whether he fell on his buttocks. Claimant testified he could not recall completely, then he testified he fell down and “tweaked forward down the stairs.” He then testified he was “standing,” and denied falling down on his buttocks.

45. Claimant was then asked on cross-examination about various records referencing that he fell during the work accident. Regarding Dr. Gellrick’s initial August 28, 2015 note, Claimant testified that doctors’ notes can sometimes get mixed up. Then on January 21, 2016, Dr. Gellrick’s notes state Claimant, “states that he hit the stairs with his buttocks as he was forced forward,” to which Claimant testified he only told her he was forced forward and did not know why she stated he hit his butt. Similarly, Claimant testified he did not know why Dr. Castro and Dr. Goldman both stated Claimant fell and landed on his buttocks. Rather, Claimant testified he told Dr. Goldman that after he was jerked forward he sat down on the stairs on his buttocks. He then testified, “[B]y the time it was done I was sitting on the stairs,” but he denied falling. Claimant was then asked about Dr. Fall’s IME report which included Claimant’s report that he landed on the stairs “on his buttocks.” Claimant testified that was also not correct.

46. Claimant was asked further about his symptoms immediately after the accident. Claimant testified again that his primary initial pain was low back. Claimant was pressed about the lack of references to low back pain in the Vail Valley records from the date of injury, and Claimant stated he told them about his low back pain. He testified those medical records were also incorrect and did not record his correct complaints.

47. Claimant confirmed on cross-examination he told Dr. Gellrick, Dr. Bettenhausen, and Dr. Hughes that his fall at home involved him falling on his right side and not his low back or buttocks.

48. Claimant was asked about Dr. Kamper’s February 16, 2015 Vail Valley Medical Center note which stated Claimant was provided morphine at his request. Claimant responded that, despite the language in the note, Dr. Kamper told him the pharmacy was closed. When Claimant insisted on pain relief, Dr. Kamper provided him the morphine shot. The ALJ finds it highly unlikely that Dr. Kamper was able to acquire morphine for the shot if the pharmacy had been closed. Dr. Kamper also noted on February 17, 2015 that he relayed his concern to Claimant about coming into urgent care for morphine shots. Claimant denied requesting morphine. Claimant also denied calling Dr. Goldman requesting that he prescribe him medications, as Dr. Goldman had documented.

49. Dr. Raub’s deposition was taken on June 22, 2016 and July 12, 2016. In addition to his deposition testimony already referenced, Dr. Raub testified that he had no record of Claimant telling him he fell during his work injury. He similarly noted that the description in the initial Vail Valley records that Claimant was adamant he did not fall was “very consistent” with what Claimant told him on February 24th. Dr. Raub testified that there was no medical

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explanation for Claimant’s overactive response to a brush over the skin in the low back during exams.

50. Dr. Raub also testified to Claimant’s alleged worsening of condition from physical therapy. He noted that, with respect to hamstring stretches Claimant was performing, “it would be unlikely that the therapist would push somebody that hard to injure their back while doing some stretching.”

51. Dr. Fall testified at hearing as an expert in the field of physical medicine and rehabilitation and as a Level II accredited physician. She believed the evidence showed the work accident did not involve a blunt force trauma to his buttocks, but she noted that at the time of the IME Claimant had told her he fell on his buttocks. She testified his primary initial symptoms, as documented at Vail Valley and by Dr. Bettenhausen, were right thoracic/scapular complaints with radiation up to his shoulder and down to his right leg. She further testified the records were clear the referral to Dr. Raub was made by the physical therapist and Dr. Bettenhausen to address his right-sided radicular symptoms. She testified the thoracic symptoms with radiation to the right side of the upper back and right leg were the symptoms she felt were related to the original work injury, and those symptoms had resolved and did not require further treatment. She noted Claimant’s current symptoms of left sided low back pain and left sided radicular pain were not related to his work injury and did not become predominant until after his fall at home.

52. Dr. Fall opined it was likely that bruising would not have been evident to Dr. Raub on February 24, 2015, and it was unlikely for bruising to the extent shown in Claimant’s Exhibit 14 to develop in one day as Claimant contended, if it was related to the original work injury. She noted that amount of bruising would slowly develop over several days. She also testified it was not medically likely that the first and third pictures were taken on February 25, 2015 and March 6, 2015, respectively, as Claimant alleged, because the course of bruising shows the passage of only several days. She testified the first picture was more likely taken closer to March 6, 2015 than February 25, 2015. She also testified it made no medical sense for bruising to first develop two weeks after the original work injury. Rather, it would develop within several days. She opinedf that the bruising shown in the photographs submitted and identified by Dr. Raub was most likely related to his subsequent fall at home. She testified the amount of bruising showed a significant blunt force trauma had occurred. She also testified the findings of the March 2015 pelvis MRI were consistent with a blunt force trauma and not Claimant’s characterization of the work injury.

53. Dr. Fall also testified that Claimant’s symptoms changed as of March 2015 to be more focal on the left side rather than the right. She testified that the “knot” in the left lumbar area and coccygeal pain referenced by Claimant on March 16, 2015 were consistent with the areas of bruising shown in the photographs. She believed the disc protrusion was pre-existing, because Claimant’s prior back injury in 2013 showed radicular symptoms, and his first 2015 MRI showed it present on the left side even though his symptoms were

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right sided. She testified that the type of blunt force trauma shown by the bruising could have initiated, or re-initiated, a nerve root irritation for the left side.

54. Dr. Fall testified Claimant did not have positive straight leg raises on the left side, indicating nerve root irritation, until after the fall at home. On cross-examination, Claimant’s counsel inquired whether the first recorded left sided straight leg raise was on June 24, 2015 with Dr. Bettenhausen, after his alleged physical therapy aggravation. Dr. Fall noted that Claimant’s complaint of pain during his hamstring stretch was, in and of itself, a positive left sided straight leg raise. She testified it is common for therapy to aggravate the pain which is being treated.

55. Dr. Fall testified Dr. Castro’s surgical request was directed to address the left sided symptoms which were not related to the original work injury. She testified that the minor left leg symptoms addressed prior to his fall at home did not warrant surgical consideration. Dr. Fall addressed Dr. Gellrick’s opinion that she felt the surgery would be related to the original work injury, despite the variances in the mechanism of injury and onset of bruising, because Claimant’s MRIs stayed substantially the same. Dr. Fall testified that Claimant’s initial clinical exams were not consistent with a symptomatic left sided disc bulge since his primary symptoms were on the right, and now the MRI finding is symptomatic. She noted you treat the clinical presentation of the patient, not the MRI.

56. With respect to Claimant’s alleged physical therapy aggravation, Dr. Fall testified that she agreed with Dr. Raub that it was unlikely that Claimant suffered a permanent aggravation from hamstring stretches given her understanding of the stretches and the physical therapy notes documenting his complaints on and after June 2015. She noted the stretches can be done lying down with the leg up in the air, and they are akin to straight leg raises which can cause temporary pain but not change the underlying clinical picture.

57. The ALJ finds that Claimant did not prove by a preponderance of the evidence that the need for the surgery recommended by Dr. Castro is causally related to the workers’ compensation claim. The ALJ finds that it is more likely than not that Claimant had a non-work related fall at home in late February or early March 2015, after the work injury, which led to a shift in Claimant’s symptoms to primarily left sided low back and radicular symptoms followed by a worsening of those symptoms. The requested surgery is to treat Claimant’s worsening left-sided symptoms which are related to his fall at home, and is not related to his alleged work injury. The ALJ notes that contrary medical opinions on relatedness appear based upon incorrect information provided by Claimant to them that he fell on his buttocks during the work injury and did not fall on his buttocks during his fall at home.

CONCLUSIONS OF LAW

Based upon the foregoing findings of fact, the Judge draws the following conclusions of law:

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Generally

The purpose of the Workers’ Compensation Act of Colorado, §§ 8-40-101, et seq., C.R.S. is to assure the quick and efficient delivery of disability and medical benefits to injured workers at a reasonable cost to employers, without the necessity of litigation. The claimant shoulders the burden of proving entitlement to benefits by a preponderance of the evidence. See § 8-43-201, C.R.S. A preponderance of the evidence is that which leads the trier-of-fact, after considering all of the evidence, to find that a fact is more probably true than not. Page v. Clark, 592 P.2d 792 (Colo. 1979).

Assessing weight, credibility, and sufficiency of evidence in Workers' Compensation proceeding is exclusive domain of administrative law judge. University Park Care Center v. ICAO, 43 P.3d 637 (Colo. App. 2001). Even if other evidence in the record may have supported a contrary inference, it is for the ALJ to resolve conflicts in the evidence, make credibility determinations, and draw plausible inferences from the evidence. When determining credibility, the fact finder should consider, among other things, the consistency or inconsistency of the witness's testimony and actions; the reasonableness or unreasonableness (probability or improbability) of the testimony and actions; the motives of the witness; whether the testimony has been contradicted; and bias, prejudice, or interest. See Bodensieck v. ICAO, 183 P.3d 684 (Colo. App. 2008).

Medical Benefits

A claimant in a Workers’ Compensation claim has the burden of proving entitlement to benefits by a preponderance of the evidence. § 8-43-201, C.R.S. Respondents are required to provide medical benefits reasonably necessary to cure or relieve the effects of the industrial injury. § 8-42-101(1), C.R.S. (2014); Snyder v. ICAO, 942 P.2d 1337 (Colo. App. 1997). The question of whether the need for treatment is causally-related to an industrial injury is one of fact. Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo. App. 1999).

The issue for the ALJ’s determination in this claim is whether Claimant has proven by a preponderance of the evidence that the lumbar surgery recommended by Dr. Castro constitutes treatment which is causally related to this claim. Claimant has failed to meet this burden. The ALJ notes the totality of the evidence demonstrates it is more likely than not that Claimant suffered an injury subsequent to his work accident which led to the severe bruising first identified by Dr. Raub on March 6, 2015, and which led to a shift in Claimant’s symptoms. All treating and examining physicians who have considered the nature and timing of the severe bruising documented by Dr. Raub and in the photographs ultimately agreed that the bruising is more likely related to a subsequent trauma than to the work injury. Dr. Gellrick, Dr. Fall, and Dr. Raub, have stated that any bruising from the work accident would have developed before Claimant’s first appointment with Dr. Raub on February 24, 2015. The physicians also agree a forward flexion would not have caused bruising. The ALJ agrees that the evidence demonstrates it more likely that the original mechanism of injury did not involve a blunt force trauma, it would not have led to bruising, and his bruising which developed over

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two weeks later was consistent with an intervening left sided blunt force trauma to his low back / buttocks.

Coinciding with the evidence demonstrating an intervening blunt force trauma, the medical records also clearly demonstrate a shift in Claimant’s symptoms from predominantly right-sided after the work accident to left-sided after the intervening fall. On March 16, 2015, Dr. Raub documented that Claimant denied any change in his symptoms from the fall at home, while also complaining of a change in his symptoms to more focal left sided and coccyx pain. Dr. Raub around the same time had documented that Claimant’s severe bruising was in his coccyx and low back, more prominent on the left side. His change in symptoms therefore matched the pattern of bruising which developed after his fall at home. The ALJ also credits the testimony of Dr. Fall that the pattern of bruising matched the areas where his new symptoms arose. Dr. Raub similarly testified that the bruising was consistent with a blunt force trauma to his left low back and buttocks. Claimant’s testimony on this subject was not credible. He testified Dr. Raub’s February 24, 2015 note recording his pain complaints of much more severe right sided pain was not correct. He also testified the “knot” described by Dr. Raub on March 16, 2015 related to the injection site. However, Dr. Raub’s testimony contradicts this, and his medical record does not corroborate Claimant’s contention. Finally, the totality of the records clearly show predominantly left sided symptoms after the intervening fall regardless of Claimant’s contention as to his symptoms on that one date. The ALJ finds that Claimant’s shift in symptoms coincided with the intervening trauma and matching bruising pattern.

The ALJ does not find the Claimant’s testimony as a whole credible. The medical records demonstrate a timeline of Claimant’s shifting allegations during the claim, which was often contradictory to his testimony at hearing. In the first month after the accident, he either denied any blunt force trauma during the work accident or omitted any discussion of it, which actually was consistent with his hearing testimony. However, after his fall at home, he consistently informed his physicians that he fell on his butt during the work injury, while also denying falling on his butt or low back in the fall at home. Claimant’s shifting stories at least suggests he is not an accurate historian.

Claimant’s testimony that many medical records were incorrect regarding the mechanism of injury is also not credible in light of the specific language in many of the records. For example, Dr. Hompland noted Claimant “crashed” into the stairs. Dr. Gellrick documented that Claimant was “adamant” that he fell on the stairs when confronted by her on the differing stories. Claimant throughout his testimony contended the notes of Vail Valley Medical Center, Dr. Raub, Dr. Gellrick, Dr. Fall, Dr. Castro, and Dr. Goldman were all incorrect in various respects regarding recorded symptoms, medication requests, the mechanism of injury, etc. The ALJ finds it improbable that Claimant’s medical records contain as many gross inconsistencies or facts which happen to be contrary to Claimant’s current position on vital issues in this claim. Rather, it is more likely Claimant’s testimony as a whole was simply not credible.

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Regarding the ultimate causation opinion, the ALJ credits the opinions of Dr. Raub and Dr. Fall over those expressed by Dr. Hughes and Dr. Gellrick. Both of the latter physicians evidently based their opinions on two pieces of incorrect information provided to them by Claimant; that he fell on his buttocks during the work injury, and he did not fall on his buttocks at home. Dr. Hughes in particular did not address the contrary causality theory in his report and appears to have accepted Claimant’s explanation without question. Dr. Gellrick eventually acknowledged the discrepancy between Claimant’s story to her with the initial medical records and timing of the bruising onset. Her currently documented opinion that the surgery is related to the original work injury is based upon a lack of significant change in the MRIs from before the fall at home and after. The ALJ credits Dr. Fall’s testimony in this regard that the pivotal consideration to determine causality is the nature of Claimant’s symptoms prior to the fall at home relative to thereafter. She testified credibly and in line with the medical records that the left-sided disc protrusion was either not symptomatic or minimally symptomatic prior to the fall at home, and then Claimant’s symptoms migrated to the corresponding left side of the disc bulge after the intervening fall. The ALJ also notes that Dr. Gellrick deferred a comparison examination of the MRIs to “physiatry,” while also deferring her opinion to clarification from Dr. Raub regarding his initial findings. Dr. Raub is a physiatrist who thereafter testified that he reviewed the MRIs from before and after the intervening fall. He noted the disc bulge had actually receded, which further clouds the picture of Claimant’s clinical presentation, as does his non-physiological findings such as overreaction to light skin brushing and his possible drug seeking as documented by Vail Valley Medical Center and Dr. Goldman. Dr. Raub also clarified his initial opinions regarding the timing and causation of the bruising, as referenced herein.

While Claimant did have some minor left sided low back and radicular symptoms before his fall at home, Claimant has not established whether those lower levels of symptoms on their own, without a non-work related aggravation, would have been surgical. To the contrary, the records demonstrate Claimant was initially referred to Dr. Raub due to his right sided radicular complaints which eventually resolved. The ALJ credits Dr. Fall’s opinion that the disc protrusion was likely pre-existing, and the ALJ notes that Claimant’s 2013 medical records reference that he was dealing with bilateral radicular symptoms at that time, which Dr. Fall testified was most likely a radicular process caused by the disc protrusion. Dr. Gellrick and Dr. Hughes appeared to have been provided misinformation as to this portion of their causation analysis as well, because Claimant acknowledged not telling them about his history of radicular pain.

The ALJ further finds that Claimant has failed to prove a permanent worsening of his left-sided symptoms during physical therapy in June 2015. Claimant testified that during his physical therapy hamstring stretches, he felt a pop, he felt immediate numbness in his left leg, but also that the pop caused him to have less pain. On June 15, 2015, Claimant’s physical therapist documented that Claimant reported “some irritation with the stretch but feel[s] better now,” with an overall pain complaint of 6/10. This is not consistent with Claimant’s testimony. His pain severity complaint on that day was consistent though with his reports at preceding various medical appointments.

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Then on June 22, 2015, after the alleged aggravation, Claimant reported to Axis Physical Therapy he had been sore from trigger point dry needling, then improved to a 3/10 pain and was at a 5-6/10 pain level at that time, left greater than right. T here is no reference to a new onset of worsening numbness or a reduction in pain from the “pop.”

Claimant did note to a couple of his physicians in the weeks following the physical therapy that he felt he had a worsening from stretching, but the records immediately preceding and following the alleged aggravation do not corroborate his allegations at hearing. Moreover, even when he reported the alleged worsening, Claimant reported continuously similar pain levels to Dr. Bettenhausen and Dr. Raub on June 24, 2015 and June 25, 2015, respectively, compared to his pre-therapy pain. He noted “slight numbness” to Dr. Bettenhausen, not the severe numbness with a reduction of pain he alleged feeling immediately at hearing. As of August 6, 2015, Claimant reported to Dr. Bettenhausen that his left leg numbness had receded, indicating a waxing and waning of his left sided symptoms which ultimately are most likely traceable to his intervening fall.

The ALJ credits the testimony of Dr. Fall and Dr. Raub that it was unlikely Claimant would have suffered a permanent worsening from the light hamstring stretches he performed in therapy. Despite Claimant’s contention that the worsening was evident by his first positive left straight leg raise only after the relevant therapy session, Dr. Fall credibly testified that Claimant’s report of symptoms during the stretch which involved him lying down with his leg in the air was itself a positive straight leg raise, not the cause of a positive straight leg raise. The ALJ also notes that Claimant’s straight leg raise tests have not been consistent. While he has had positive left sided straight leg raises after the fall at home and physical therapy sessions, Dr. Bettenhausen recorded an equivocal left sided straight leg raise as early after the therapy as August 6, 2015, and Dr. Castro documented a negative straight leg raise on October 12, 2015. Therefore, the absence of a positive straight leg raise in the couple months between his fall at home and alleged worsening at physical therapy is not sufficient to establish a worsening. Regardless, in order to find such an aggravation occurred, the ALJ would be required to credit Claimant’s testimony that he had an immediate and longstanding worsening of his numbness and other left sided radicular symptoms which is contrary to what is documented in the records. As previously discussed, Claimant’s testimony is found to be not credible.

Having found that the Claimant more likely than not suffered an intervening trauma which caused a shift in his symptoms to left sided low back pain and radicular symptoms, without a subsequent work-related aggravation, the question becomes whether the request for surgery is causally related to the work accident. Dr. Castro’s records contain his opinion that surgery is reasonable and necessary to treat Claimant’s increasing left sided pain and left sided progressive radiculopathy. The ALJ agrees with Dr. Fall that Claimant’s original thoracic and right sided symptoms from the work accident have dissipated, his initial low back and left sided symptoms have not been proven to require surgery, and his low back and left sided symptoms became more prominent after the intervening fall. The surgery recommended by Dr. Castro is meant

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to address those worsening left sided and low back symptoms. Therefore, the requested surgery is not causally related to the admitted work injury.

ORDER

Based upon the foregoing findings of fact and conclusions of law, the Judge enters the following order:

1. Claimant’s claim for L5-S1 left-sided microdiscectomy and decompression surgery is denied as Claimant has failed to prove that the surgery is causally related treatment for this claim.

2. Issues not expressly decided herein are reserved to the parties for future determination.

DATED: February 6, 2017

/s/ Kimberly Turnbow Kimberly B. Turnbow Administrative Law Judge Office of Administrative Courts 1525 Sherman Street, 4th Floor Denver, CO 80203

If you are dissatisfied with the Judge's order, you may file a Petition to Review

the order with the Denver Office of Administrative Courts, 1525 Sherman St., 4th Floor, Denver, CO 80203. You must file your Petition to Review within twenty (20) days after mailing or service of the order, as indicated on certificate of mailing or service; otherwise, the Judge's order will be final. You may file the Petition to Review by mail, as long as the certificate of mailing attached to your petition shows: (1) That you mailed it within twenty (20) days after mailing or service of the order of the Judge; and (2) That you mailed it to the above address for the Denver Office of Administrative Courts. For statutory reference, see section 8-43-301(2), C.R.S. For further information regarding procedures to follow when filing a Petition to Review, see Rule 26, OACRP. You may access a petition to review form at: http://www.colorado.gov/dpa/oac/forms-WC.htm.

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OFFICE OF ADMINISTRATIVE COURTS STATE OF COLORADO WORKERS’ COMPENSATION NO. WC 3-989-875-09

ISSUES

I. Whether the ALJ has jurisdiction to proceed on the Respondent's Application for Hearing without first filing a Petition to Reopen, pursuant to C.R.S. 8-43-303.

II. Which party bears the burden of proof to terminate the essential services - in this case housekeeping services - which are currently being provided to Claimant under this admitted claim.

III. Are the housekeeping services currently being provided to Claimant, and paid by Respondent's, compensable as "medical benefits" under C.R.S. 8-42-101, et seq.

FINDINGS OF FACT

Based upon the evidence presented at hearing, the ALJ enters the following Findings of Fact:

1. The Claimant sustained an admittedly compensable injury while working within the course and scope of her employment for the employer on July 24, 1990. 2. The Claimant’s date of birth is August 2, 1935, and the Claimant is presently 81 years old. 3. As a result of the on the job injury, the Claimant underwent a lumbar laminectomy with fusion on February 21, 1991, left knee surgery on February 12, 1992, left shoulder rotator cuff repair on October 24, 1992, cervical interbody fusion at C5-C7 on September 23, 1993, left total knee arthroplasty on October 19, 2005 and left shoulder replacement on November 3, 2010. 4. A home evaluation was performed in 1997 that was ordered by Dr. Timothy Hall and authorized by the employer. At that time Ms. Jean Bruns, OTR, CHT with The Rehabilitation Center—Downtown concluded that the Claimant needed four hours per day, two days a week of essential services as a result of her on the job injury which included grocery shopping, cooking and bringing home takeout meals and assistance getting in and out of the Hot Tub. 5. The issue of providing essential services for the Claimant has been an issue central to the maintenance being provided to the Claimant for quite some time. Reports from Dr. Timothy Hall of December 8, 1994, March 7, 1997, April 25, 1997, July 24, 1997, March 16, 1998, April 22, 1998, July 22, 1998, and prescriptions for essential

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services of Dr. Hall of June 21, 1999, and September 22, 1999 have all been reviewed by the ALJ. Dr. Hall’s report of July 22, 1998 questioned whether perhaps a more skilled level of intervention was necessary. Dr. Hall in his report of March 7, 1997 agreed with a report of Dr. Henry Roth of February 6, 1997 to Respondent’s counsel wherein Dr. Roth suggested an occupational therapy evaluation be performed. Thereafter Ms. Bruns performed the evaluation, and from the testimony given and the evidence in the file, essential services, regardless of who has been performing them, have been given to this Claimant at 8 hours per week and have been paid for by the Respondent since Ms. Bruns’ report of July 24, 1997. 6. A hearing was held on March 11, 1999 before ALJ Martin Stuber, at which time one of the issues was the provision of essential services. Judge Stuber found:

“Respondents concede that claimant is entitled to ‘housekeeping services’ in the amount of eight hours per week currently provided by Trina Cuthbert, claimant’s granddaughter.”

Finding that an itemization of time spent on each service to be unreasonable, Judge Stuber ordered the Respondents to pay for Claimant’s eight hours of housekeeping services without an itemized billing. 7. The Claimant testified that her son, Jim, has been providing her with various housekeeping services since shortly after the Order from Judge Stuber. Regardless of the Order from 1999, Jim Schwartz has provided itemized statements for his housekeeping services, at least for half of calendar year 2016. 8. Jim Schwartz, testified that he provides services to his mother at least 8 hours per week and those services include: doing the grocery shopping and picking up his mother’s medications and taking her to some of her doctor appointments, cooking for his mother both at her house and preparing meals for her at his home and taking the meals to his mother; cleaning the house including taking the bedding off of his mother’s bed and washing and putting the bedding back on the bed; cleaning the bathroom, including cleaning the shower, doing all of the laundry; doing a deep cleaning of the entirety of her approximate 3000 square foot house, changing the screens out so that in the summer his mother’s house does not overheat, occasionally assisting his mother in and out of the bath tub that has jets in it so that she can soak, occasionally doing yard cleanup outside of his mother’s house. 9. The Respondent has challenged whether or not the Claimant’s son is providing the services that he testified that he has been performing. Further the Respondent questions whether the dates that he has performed those services coincide with the billings submitted by him to the self-insured’s third party administrator. The Respondent provided records of surveillance performed at the Claimant’s residence and at Mr. Schwartz’s residence.

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10. Mr. Schwartz testified that he has a garage door opener for his mother’s house and always parks in the garage and that in the summer when the surveillance was performed there are blackout screens on the windows of his mother’s house to keep the heat out, so someone performing surveillance would not be able to see what he was doing inside of his mother’s residence. Mr. Schwartz testified that he generally arrives at his mother’s house in the summer months around 7:00 a.m. and leaves somewhere around 3:00 to 3:30 depending on if he is cooking as well. He testified that he attempts to cook sufficient quantities of food to keep his mother fed for three to four days or will cook at his home and bring the food over. Mr. Schwartz testified that he generally spends considerable more time assisting his mother above the eight hours per week but only bills the Respondent for eight hours. The Claimant testified that her son does in fact perform the services for her every week. 11. The ALJ finds that the reports supplied by the private investigation firm of Kolb, Stewart, and Associates ("Kolb") are true and accurate in describing what was observed on the days depicted. The observations were performed and documented in good faith. 12. The ALJ also finds that the testimony of Mr. Schwartz is also credible, in explaining his whereabouts on the dates in question as documented by Kolb, and why he might not have been observed on certain dates by Kolb, despite performing those services for which he billed Respondents. 13. The ALJ further finds that Mr. Schwartz testified credibly regarding the amount of time spent on the household tasks he describes, and how he billed Respondent for his services. There were some lapses by Mr. Schwartz in correctly documenting certain specific dates and times, and for which payment was rightfully withheld by Respondents due to lack of sufficient documentation. Mr. Schwartz has elected not to pursue payment for those dates, and has since become more precise in his billing practices. The ALJ further finds that the rate of $15 per hour is a reasonable rate of compensation for the types of services which have been rendered by Mr. Schwartz. Such services on an ongoing basis include:

• Cleaning, dusting, and vacuuming Claimant's home. • Cleaning Claimant's garage • Performing yard work around the home. • Placing screens on Claimant's home on a seasonal basis. • Grocery shopping for Claimant, and cooking meals for her. • Performing laundry services in the home, and changing sheets. • In the six-month period from April, 2016 through September 2016, Mr. Schwartz

drove Claimant twice to Dr. Feldman, and once to Dr. Shia. Mr. Schwartz testified credibly that he probably spends more than eight hours per week on these types of tasks, among others, but does not bill for the hours in excess of 8 hours per week. Given the ongoing nature of the services provided, the costs average $6,240 per year.

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14. Both the Claimant and the Claimant’s son testified that the Claimant’s physical condition has progressively gotten worse, primarily her neck and low back. The Claimant has had a recent trial of a spinal cord stimulator due to the increase in her low back pain and a recommendation for a permanent spinal cord stimulator has been made based upon the results of the trial that was performed. 15. Both the Claimant and the Claimant’s son have testified that, when the Claimant attempts physical activity, she develops increased pain for a period of time thereafter. Dr. Feldman, her present pain doctor, in his report of October 17, 2016 states that due to the “Patient’s severe, disabling, chronic low back pain, mid back pain, and neck pain, she will need housekeeping services and care services for life.” The medical reports of Dr. Feldman further suggest, however, that the Claimant walk as much as possible to strengthen herself, in spite of any short term pain issues. 16. Claimant also testified in this case, and the ALJ finds her testimony to be credible, despite her ongoing use of opiates to address her pain. Claimant testified on direct and cross examination that:

• She lives by herself in her 3000 square foot, 3 bedroom, 3 bathroom home. • Her son Jimmie Schwartz comes over frequently to assist her with the types of

tasks which he outlined. She is not involved in any way in his billing for services. • She can shower by herself. • She can use the bathroom by herself. • She can feed herself. • She can attend to her personal hygiene needs herself. • She can manage her own medications. • While she does "very little" driving, she is licensed to drive, and can drive to

doctor appointments by herself. • She can water the plants in her yard by herself. The yard does not contain

grass. 17. Dr. Roth has submitted two follow-up reports since his report of February 6, 1997, one on February 29, 2016 and another of December 7, 2016. Both of those reports are based upon a review of a portion of the medical records. The records reviewed by Dr. Roth in 2016 do not include his report of February 6, 1997 regarding the issue of essential services. Dr. Roth in his February report set forth an opinion that the Claimant was not an appropriate candidate for spinal cord stimulator placement and that her medication regimen should be changed. His report of December 7, 2016 states that he has now been asked to opine whether the essential services that the Claimant was receiving were reasonable, necessary and related to the industrial injury of July 24, 1990. Dr. Roth therein sets forth that the Claimant’s chronic pain syndrome, chronic narcotic use, deconditioning and behavioral factors are “preexisting and not claim related.” Dr. Roth’s detailed report of February 6, 1997 shows only a preexisting complaint of intermittent low back complaints but no loss time from work and no medical treatment.

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18. Since the Order of Judge Stuber, the Claimant’s physical condition, especially that of her low back and neck, have gotten worse as is evidenced by the medical records and reports of Dr. Jain and Dr. Feldman and the testimony of her son and the Claimant. It is entirely unclear, however, whether this deterioration can be attributed to a worsening of Claimant's admitted injury, or due simply to advancing age. 19. A review of Claimant's medical records reveals that she currently sees her Authorized Treating Physician, Dr. Feldman, on a quarterly basis. Dr. Feldman has noted that Claimant would be better off in limiting her usage of opiates, and to exercise more often. Claimant has declined Dr. Feldman's recommendation of psychiatric care to address these issues, based upon a prior experience she deemed unsatisfactory. 20. When the Claimant attempts physical activity such as housecleaning, cooking, doing the laundry or grocery shopping, she reports increased pain levels. The Claimant’s treating doctors have been of the opinion that this Claimant is in need of housekeeping services.

CONCLUSIONS OF LAW

Based upon the foregoing Findings of Fact, the ALJ draws the following Conclusions of Law:

Generally a. The purpose of the Workers’ Compensation Act is to assure the quick and

efficient delivery of disability and medical benefits to injured workers at a reasonable cost to employers, without the necessity of any litigation. CRS 8-40-102(1).

b. The ALJ’s factual findings concern only evidence and inferences found to

be dispositive of the issues involved; the ALJ has not addressed every piece of evidence or every inference that might lead to conflicting conclusions and has rejected evidence contrary to the above findings as unpersuasive. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo. App. 2000).

c. The ALJ’s findings must be based upon substantial evidence. Substantial

evidence is probative evidence which warrants a reasonable belief in the existence of facts supporting a particular finding without regard to the existence of contradictory testimony or findings. Delta Drywall v. ICAO, 868 P.2d 1155 (Colo. App. 1993); F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo. App. 1985).

d. When determining credibility, the fact finder should consider, among other

things the consistency or inconsistency of the witness’s testimony and actions; the reasonableness or unreasonableness (probability or improbability) of the testimony and actions; the motives of the witness; whether the testimony has been contradicted; and bias, prejudice, or interest. See, Prudential Ins. Co. v. Cline, 57 P.2d 1205 (1936). A workers’ compensation case is decided on its merits. CRS 8-43-210.

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e. The Respondent is liable for medical treatment which is reasonably

necessary to cure and relieve the effects of the industrial injury. Section 8-42-101(I)(a), C.R.S. Snyder, supra, 942 P.2d 1337 (Colo. App. 1997); Country Squire Kennels v. Tarshis, 899 P.2d 362 (Colo. App. 1995).

f. Weighing the medical evidence is the sole prerogative of the ALJ. The

ALJ is presumed to have special expertise in evaluating this type of evidence. Wierman v. Tunnell, 120 P.2d 638 (1941); Seagrave v. Sanders, W.C. No. 3-107-326 (June 5, 1995.) Insofar as expert testimony is subject to conflicting interpretations, the ALJ may resolve the conflict by crediting part or none of the testimony. Colorado Springs Motors, Ltd. v. Industrial Commission, 441 P.2d 21 (1968).

Jurisdiction to Hear this Matter

g. It is well settled that Section 8-43-303 of the Act does not mandate the

filing of a formal petition to reopen in order to confer jurisdiction on an ALJ to determine whether in fact the claim should be reopened. See, Ward v. Azotea Contractors, 748 P.2d 338 (Colo. 1987) and Padilla v. Industrial Commission, 696 P.2d 273 (Colo. 1985). While courts have held procedural rules governing filing of petitions to reopen may be enforced, that have not held such rules erect jurisdictional barriers to adjudicating re-openings where the rules have not been complied with. Gardner v. Noreen, WC No. 4-756-007 (February 22, 2012). The issues raised by Respondents may be heard in this matter.

Burden of Proof

h. Where the respondents file a Final Admission admitting for maintenance

medical treatment, this does not preclude them from later contesting their liability for a particular treatment. Rather, when the respondents contest liability for a particular medical benefits, the claimant must prove that such contested treatment is reasonably necessary to treat the industrial injury and is related to the industrial injury. Snyder v. Industrial Claim Appeals Office, 940 22d 1337 (Colo. App. 1997). This principle recognizes that even though an admission is filed, the claimant bears the burden of proof to establish the right to specific medical benefits and the mere admission that an injury occurred and treatment is needed cannot be construed as a concession that all conditions and treatments which occur after the injury were caused by the injury. HLJ Management v. Kim, 804, P.2d 705 (Colo. 1988). See also Barker v. Poudre School District, W.C. No. 4-750-735 (ICAO 2011); Salisbury v. Prowers County School District, W.C. No. 4-702-144 (ICAO 2013); Mitchem v. Donut Haus #2, W.C. No. 4-785-078-03 (ICAO 2015).

i. In this case, Respondents are contesting a specific benefit—essential

services. The burden of proof, therefore, remains on the Claimant. In this case, however, Respondents have proven their case by a preponderance of the evidence.

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Reasonable and Necessary Medical Treatment

j. Despite the good faith efforts of Kolb to ascertain if services were being rendered for which Respondents were being billed, the evidence is lacking that Mr. Schwartz was not faithfully performing the duties for which he was billing. Any occasional lapse in proper documentation does not establish that Claimant was not utilizing Mr. Schwartz's services on a regular basis; in this case, at least 8 hours per week, on average.

k. The determination of whether services are medically necessary for the

treatment of a claimant’s injuries or incident to obtaining such treatment is a question of fact and must be based upon substantial evidence. Edward Kraemer & Sons, Inc. v. Downey, 852 P.2d 1286 (Colo. App. 1992); Atencio v. Quality Care, Inc., 791 P.2d 7 (Colo. App. 1990). In Bellone v. Indus. Claim Appeals Office, 940 P.2d 1116 (Colo. App. 1997), the Court of Appeals addressed the issue of whether child care for the claimant’s children was a medical benefit under the Act. In Bellone the claimant suffered a closed head injury when she slipped and fell during the course and scope of employment. Distinguishing the case from Kuziel v. Pet Fair, Inc., 931 P.2d 521 (Colo. App. 1996) the Court, reversing the ICAO, held that under the facts of the case, including the statements by the claimant’s doctors, that the claimant’s need for the child care was medically necessary to cure and relieve the claimant from the effects of her work related injury. The issue was again taken up by the Court of Appeals in Colorado Springs School District # 11 v. ICAO, 12CA2465 (Colo. App. 2013). In that case, the Court had the opportunity to address the question as to whether household services were a medical necessity. Citing with approval, Country Squire Kennels, supra, and Bellone, supra, the Court held that household assistance may be considered a medical necessity under section 8-42-101(1)(a) of the Act if it is shown that the services are “incidental to obtaining such medical or nursing treatment,” and that “the service must be reasonably needed to cure and relieve the effects of the injury and be related to a claimant’s physical needs.”

l. Every employer shall furnish such medical [and] nursing . . . treatment . .

.as may be needed at the time of the injury or occupational disease and thereafter during the period of disability to cure and relieve the employee of the effects of the injury. C.R.S. §8-42-101. To be compensable, the services must be for medical or nursing treatment. County Squire Kennels v. Tarshis, 899 P.2d 362, 263 (Colo. App. 1995). Courts have drawn a line between nursing attendance, which is covered by Workers’ Compensation, and services that are in essence housekeeping, which are not. Id. at 364. Compensation may not be awarded if the only services rendered are ordinary household chores. Id. at 364. In order to render housekeeping services compensable, such services must enable the claimant to obtain medical care OR be relatively minor in comparison to the medical care and treatment. Id. at 364. See also, Valdez v. Gas Stop, 857 P.2d 544 (Colo. App. 1993)(housekeeping services not compensable unless incidental to medically necessary attendant care services and central to claimant’s health and personal care); Hillen v. Tool King, 851 P.2d 289 (Colo. App. 1993) (compensation denied for lawn care); But see Atencio v Quality Care, 791

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P.2d 7 (Colo. App. 1990 (attendant care housekeeping services necessary where claimant could not bathe, dress or perform sanitary functions); Edward Kraemer and Sons v. Downey, 853 P.2d 1286 (Colo. App. 1992)(nursing care performed by Claimant’s spouse were reasonable and necessary where claimant was paralyzed from the chest down and needed assistance with eating, bathing and turning to prevent bed sores); Bellone v. ICAO, 940 P.2d 1116 (Colo. App. 1997)(child care services were medical in nature because they relieved the symptoms and effects of the injury). While a prescription for services is not necessarily dispositive of medical necessity, such evidence may be considered in determining whether, under the totality of the circumstances, household assistance is incidental to obtaining medical treatment. See, Country Squire Kennels, supra.

m. In this case, the services at issue being provided by Mr. Schwartz are not

nursing attendance. They are, by all accounts, household chores. Under County Squire Kennels, the Courts must examine whether the costs of such housekeeping services are incidental to the expense of providing medical or nursing treatment. One alternative prong of "incidental" is whether it enables the Claimant to receive medical care.

n. In this case, the only "housekeeping" service provided by Mr. Schwartz

which could fit into this category of enabling Claimant to receive medical care is providing transportation to and from medical appointments. That has occurred three times in a 6 month period, for a total of six hours. Claimant sees Dr. Feldman quarterly, to review her ongoing condition. Further, Claimant testified that while she drives "very little", she is currently licensed, and can drive herself to medical appointments. Under the facts as they currently stand, the services at issue in this case - including Claimant's preferred use of her son to drive to her occasional medical appointments - do not meet this prong of "incidental".

o. The other alternative prong of "incidental" is that such services must be

"relatively minor" in comparison to the medical care and treatment being provided. The total cost of the household chores on an annualized basis comes to $6,240.00. It cannot be concluded that these household chore costs are "relatively minor" in comparison to the quarterly visits with Claimant's Authorized Treating Physician, and his occasional referral to other physicians.

p. The household chores at issue in this matter are not reasonably medically

necessary. Nor are the costs associated therewith incidental to the expense of providing nursing or medical treatment. Because of these conclusions, it is not necessary to address Respondent's contention that any such services are somehow unrelated to the original, admitted industrial accident.

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ORDER

It is therefore ordered that:

1. The 'essential services' at issue herein, being the "housekeeping services" being provided to Claimant are not compensable as "medical benefits".

2. Respondent liability for these housekeeping services is terminated.

3. All matters not determined herein are reserved for future determination.

If you are dissatisfied with the Judge's order, you may file a Petition to Review the order with the Denver Office of Administrative Courts, 1525 Sherman St., 4th Floor, Denver, CO 80203. You must file your Petition to Review within twenty (20) days after mailing or service of the order, as indicated on certificate of mailing or service; otherwise, the Judge's order will be final. You may file the Petition to Review by mail, as long as the certificate of mailing attached to your petition shows: (1) That you mailed it within twenty (20) days after mailing or service of the order of the Judge; and (2) That you mailed it to the above address for the Denver Office of Administrative Courts. For statutory reference, see section 8-43-301(2), C.R.S. For further information regarding procedures to follow when filing a Petition to Review, see Rule 26, OACRP. You may access a petition to review form at: http://www.colorado.gov/dpa/oac/forms-WC.htm.

DATED: February 7, 2017

/s/ William G. Edie William G. Edie Administrative Law Judge Office of Administrative Courts 2864 South Circle Drive, Suite 810 Colorado Springs, Colorado 80906

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OFFICE OF ADMINISTRATIVE COURTS STATE OF COLORADO WORKERS’ COMPENSATION NO. 4-939-614-01

ISSUE

Whether Claimant has proven by a preponderance of the evidence that he is incapable of earning any wages and is entitled to receive Permanent Total Disability (PTD) benefits as a result of admitted industrial injuries that he sustained during the course and scope of his employment with Employer on January 9, 2014.

FINDINGS OF FACT

1. Claimant is a 62 year old male who worked for Employer as an Animal Care Technician and Facilities Manager. Claimant’s job duties included computer work, data entry, monitoring the heating and air handling systems, coordinating maintenance, training, contracting with outside companies, animal carcass disposal, animal transportation, tracking supplies and inventory, light repairs and generator checks. On January 9, 2014 Claimant suffered admitted industrial injuries to his lower back, hips and left shoulder when he fell from a height of approximately three feet off a ladder during the course and scope of his employment with Employer.

2. Claimant received medical treatment for his January 9, 2014 industrial injuries from Authorized Treating Physician (ATP) Robert Nystrom, D.O. Dr. Nystrom managed Claimant’s care and referred him for treatment, diagnostic testing and therapy to a number of other providers.

3. After Claimant’s industrial injuries Dr. Nystrom authorized him to return to part-time, modified duty employment. Claimant’s modified duty employment included office work, making phone calls, reviewing documentation, using a computer, performing administrative tasks and attending meetings. Claimant competently performed his modified duty work for Employer between February 20, 2014 and December 30, 2014.

4. On November 18, 2014 Mark Durbin, M.D. reported that Claimant’s left shoulder MRI revealed a supraspinatus tear that required surgery. On December 31, 2014 Claimant underwent a left shoulder rotator cuff repair. Claimant did not return to modified or full duty employment with Employer after December 31, 2014.

5. Claimant continued to experience left shoulder problems after his surgery. On June 1, 2015 Dr. Durbin determined that Claimant required additional shoulder surgery. On July 30, 2015 Claimant underwent a left shoulder surgery, diagnostic arthroscopy, anterior and posterior capsulotomy and revision distal clavical resection. The post-operative diagnosis was left shoulder adhesive capsulitis.

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6. Because Claimant continued to experience lower back pain, Dr. Nystrom referred him for a surgical evaluation with Hans Coester, M.D. Dr. Coester determined that Claimant was not a surgical candidate. A second opinion evaluation also reflected that Claimant was not a candidate for lumbar surgery.

7. On March 8, 2015 Claimant underwent an independent medical examination with Albert Hattem, M.D. Dr, Hattem determined that Claimant had reached Maximum Medical Improvement (MMI) on January 5, 2016. He assigned a 24% whole person impairment rating based on Claimant’s lower back, left shoulder and left wrist impairments. Dr. Hattem remarked that Claimant could return to work in a light duty capacity.

8. On April 13, 2016 Dr. Nystrom referred Claimant for a Functional Capacity Evaluation (FCE) to ascertain appropriate work restrictions. On May 6, 2016 Claimant underwent the FCE. Claimant demonstrated the ability to occasionally reach above shoulder level, bend, crawl and perform fine coordination skills. He could also kneel, climb ladders, pinch, grasp and squat. Furthermore, Claimant showed the ability to frequently perform dynamic balancing, static balancing, stair climbing and walking. He also had the ability “to work full time and perform sitting up to 5 hours and standing up to 14 hours throughout his work day.” Claimant could specifically occasionally lift up to 25 pounds below waist height, up to 25 pounds to shoulder height and 10 pounds overhead. The FCE also noted 20 pound pushing and pulling restrictions. The FCE ultimately reflected that Claimant could perform work within the light physical demand category.

9. On May 12, 2016 Dr. Nystrom concluded that Claimant had reached MMI. He agreed with Dr. Hattem that Claimant warranted a 24% whole person impairment rating. Dr. Nystrom assigned permanent work restrictions that included no lifting to chest height in excess of 30 pounds and no lifting above the shoulders in excess of 10 pounds.

10. On May 24, 2016 Insurer filed a Final Admission of Liability (FAL) consistent with Dr. Nystrom’s MMI and impairment determinations. The FAL specified that Claimant reached MMI on May 12, 2016 with a 24% whole person impairment rating.

11. On July 21, 2016 Claimant underwent an independent medical examination with Joseph P. Ramos, M.D. Dr. Ramos reported that Claimant continued to have problems performing activities of daily living because of his upper extremity limitations. Claimant recounted that he was unable to perform simple household chores including hanging pictures, removing dishes from cabinets and placing items in the refrigerator. Claimant also experienced difficulties showering and sleeping. Based on Claimant’s description of his abilities Dr. Ramos assigned permanent work restrictions including: (1) no lifting, carrying, pushing or pulling in excess of five pounds; (2) no lifting above chest level; (3) no running, crouching, kneeling, crawling or squatting; (4) no climbing ladders, stairs or working at heights; (5) no work involving repetitive twisting, turning or bending; and (6) periods of rest while working.

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12. On August 17, 2016 Claimant underwent an evaluation with Vocational Expert John Macurak. Relying on the work restrictions assigned by Dr. Ramos, Mr. Macurak concluded that Claimant was “unemployable as a result of his 01/09/14 work injury.” He specifically remarked that in evaluating Claimant’s “ability to earn wages from other employment existing in his commutable labor market, I am unable to identify any occupation currently listed in help wanted ads and through [Claimant’s] current job search efforts and findings. Positions advertised would not be within his current physical abilities without extensive job site modifications.” Accordingly, Mr. Macurak determined that Claimant was unable to earn any wages in any capacity.

13. Dr. Hattem testified at the hearing in this matter. After conducting an independent medical examination of Claimant on March 8, 2015 Dr. Hattem reviewed the FCE report, Dr. Nystrom’s MMI report and Dr. Ramos’ independent medical examination. Initially, Dr. Hattem noted that Dr. Ramos’ permanent work restrictions were excessive. He noted that Dr. Ramos did not review Claimant’s FCE and failed to adequately consider Dr. Nystrom’s extended treatment and familiarity with Claimant’s condition. Dr. Hattem agreed with Dr. Nystrom’s permanent work restrictions of no lifting to chest height in excess of 30 pounds and no lifting above the shoulders in excess of 10 pounds. However, Dr. Hattem noted that Claimant also required restrictions regarding overhead lifting with his left arm.

14. Dr. Hattem remarked that Claimant did not need to lie down periodically throughout the day and medications should not constitute a barrier to his work activities. He also explained that Claimant does not require restrictions regarding handling, gripping or driving. Relying on the FCE, Dr. Hattem maintained that Claimant could work in at least the light duty employment category.

15. On September 20, 2016 Claimant underwent an evaluation with Vocational Expert Roger Ryan. Mr. Ryan confirmed that Colorado’s labor markets are healthy and there are many opportunities for non-traditional employment situations, including home-based work, virtual offices and flexible work schedules. He noted that the labor market was particularly suitable for someone with Claimant’s background and transferable skills.

16. The record reveals that Claimant has developed a number of transferable job skills through education and experience that render him a suitable candidate for a number of employment opportunities. Claimant attended Front Range Community College and completed courses in computer programs, speech and communications. Based on work experience beginning in approximately 1974 Claimant presents himself to prospective employers as possessing significant computer training, experience and skills. Notably, Claimant has taken classes in Introduction to DOS, beginning Symphony, and Lotus 123. He also has program experience in Corel Draw, Quick Books, Lotus 123, Microsoft Excel, Windows XP, i-Color rip software, FSP, Adobe Illustrator, Photoshop, Microsoft Works, Microsoft Word, and Cut Studio. Moreover, Claimant has a proven ability to complete job specific training by achieving certifications in quality control, first responder, preventive maintenance, statistical process controls,

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introduction to quality technology, fundamentals in quality technology and ToxBase data entry.

17. Claimant’s prior work history includes more than five years of experience in collections for Alliance Data Systems, Norlarco Credit Union and Public Service Credit Union. He performed telephone collections, translated information for Spanish speaking customers, updated account information, performed skip traces, entered data and used a personal computer. With the preceding employers he obtained knowledge of all office methods, equipment and procedures. Claimant also previously worked as a facilities assistant where he was in charge of shipping and receiving as well as the mail and copy rooms. He arranged for meetings and special events. Claimant also previously managed a wastewater treatment plant where he calibrated probes and sensors, collected samples, tested water quality, performed requisition and inventory, entered data, prepared reports for government agencies, wrote and published preventive maintenance and operation procedures, interacted with vendors, trained others and performed equipment maintenance. Claimant also has experience with home-based sales positions including selling a mobile phone web optimization interfacing system, selling tea and selling custom t-shirts. The record thus reveals that Claimant has developed occupational skills involving general office duties, data entry, computers, phones, collections, facilities management and sales.

18. In evaluating whether Claimant is able to work in any capacity Mr. Ryan considered Claimant’s records, conducted an interview regarding Claimant’s education, work experience and physical abilities and performed labor market research. Mr. Ryan specifically considered Claimant’s vocational attributes and human factors including age, education, work history transferable skills, communication skills and work restrictions. In addressing Claimant’s work restrictions, Mr. Ryan noted that Dr. Nystrom, Dr. Hattem and the FCE were consistent in determining that Claimant could work in the light duty category. He thus reviewed available positions in the light duty job category.

19. Because Claimant lives in Fort Collins, Colorado Mr. Ryan conducted labor market research in the area. He considered collections positions because they are classified in the sedentary job category. Mr. Ryan commented that there were employers in Fort Collins that had recently hired and there were employers who anticipated hiring in the future. At the time of his labor market survey, there were no current openings. However, Mr. Ryan checked on a website for openings one day prior to hearing and identified five different employers with positions. Mr. Ryan also conducted a labor market survey of night auditor positions. The position is classified in the light duty field and Mr. Ryan remarked that it fit well with Claimant’s experience in customer service and computer skills. Mr. Ryan explained that collections positions had been available six months prior to his analysis, but there were no openings on the day of his survey. However, Mr. Ryan subsequently searched a job openings website on the day prior to the hearing and found available positions.

20. Mr. Ryan testified that collections and night auditor positions were not the only suitable jobs for Claimant because of his extensive background and experience.

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He commented that Claimant possesses profound transferable skills through his experience with collections, management, data entry and computers. Mr. Ryan concluded that, based on Claimant’s human factors and work restrictions, he maintains the ability to earn wages in the light to sedentary work categories.

21. Claimant has failed to prove that it is more probably true than not that he is incapable of earning any wages and is entitled to receive PTD benefits as a result of admitted industrial injuries that he sustained during the course and scope of his employment with Employer on January 9, 2014. On May 12, 2016 Dr. Nystrom concluded that Claimant had reached MMI. He determined that Claimant warranted a 24% whole person impairment rating. Dr. Nystrom assigned permanent work restrictions that included no lifting to chest height in excess of 30 pounds and no lifting above the shoulders in excess of 10 pounds. On May 6, 2016 Claimant underwent a FCE. Claimant demonstrated the ability to occasionally reach above shoulder level, bend, crawl and perform fine coordination including firm grasping. He could also kneel, climb ladders, pinch, grasp and squat. He demonstrated the ability “to work full time and perform sitting up to 5 hours and standing up to 14 hours throughout his work day.” The FCE ultimately reflected that Claimant could perform work within the light physical demand category. Claimant could specifically occasionally lift up to 25 pounds below waist height, up to 25 pounds to shoulder height and 10 pounds overhead. The FCE also noted 20 pound pushing and pulling restrictions. Finally, Dr. Hattem agreed with Dr. Nystrom’s permanent work restrictions of no lifting to chest height in excess of 30 pounds and no lifting above the shoulders in excess of 10 pounds. However, Dr. Hattem noted that Claimant also required restrictions regarding overhead lifting with his left arm. Based on the permanent work restrictions designated by Dr. Nystrom, the FCE and Dr. Hattem, Claimant can perform duties in the light and sedentary job categories.

22. The record reveals that Claimant has developed a number of transferable job skills through education and experience that render him a suitable candidate for a number of employment opportunities. In evaluating whether Claimant is able to work in any capacity vocational expert Mr. Ryan addressed Claimant’s education, work experience and physical abilities and performed labor market research. Mr. Ryan specifically considered Claimant’s vocational attributes and human factors including age, education, work history, transferable skills, communication skills and work restrictions. In evaluating Claimant’s work restrictions, Mr. Ryan noted that Dr. Nystrom, Dr. Hattem and the FCE were consistent in determining that Claimant could work in the light duty category. In addressing jobs in Claimant’s labor market, Mr. Ryan identified collection and night auditor positions. However, he testified that collections and night auditor positions were not the only suitable jobs for Claimant because of his background and experience. He commented that Claimant possesses profound transferable skills through his experience with collections, management, data entry and computers. Mr. Ryan concluded that, based on Claimant’s human factors and work restrictions, he maintains the ability to earn wages in the light to sedentary work categories.

23. In contrast, Dr. Ramos assigned significantly more severe permanent work restrictions for Claimant’s job duties. Based on Claimant’s description of his

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abilities Dr. Ramos specifically assigned permanent work restrictions including: (1) no lifting, carrying, pushing or pulling in excess of five pounds; (2) no lifting above chest level; (3) no running, crouching, kneeling, crawling or squatting; (4) no climbing ladders, stairs or working at heights; (5) no work involving repetitive twisting, turning or bending; and (6) periods of rest while working. Relying on the work restrictions assigned by Dr. Ramos, Mr. Macurak concluded that Claimant was “unemployable as a result of his 01/09/14 work injury.” He specifically remarked that in evaluating Claimant’s “ability to earn wages from other employment existing in his commutable labor market, there were no available positions within Claimant’s “current physical abilities without extensive job site modifications.” Accordingly, Mr. Macurak determined that Claimant was unable to earn any wages in any capacity.

24. However, Dr. Hattem noted that Dr. Ramos’ permanent work restrictions were excessive. He commented that Dr. Ramos did not review Claimant’s FCE and failed to adequately consider Dr. Nystrom’s extended treatment and familiarity with Claimant’s condition. Moreover, Mr. Macurak failed to adequately address Claimant’s significant transferable job skills through education and experience. Accordingly, the record reflects that employment exists that is reasonably available to Claimant under his particular circumstances. Accordingly, Claimant’s request for PTD benefits is denied and dismissed.

CONCLUSIONS OF LAW

1. The purpose of the “Workers’ Compensation Act of Colorado” (Act) is to assure the quick and efficient delivery of disability and medical benefits to injured workers at a reasonable cost to employers, without the necessity of any litigation. §8-40-102(1), C.R.S. A claimant in a Workers' Compensation claim has the burden of proving entitlement to benefits by a preponderance of the evidence. §8-42-101, C.R.S. A preponderance of the evidence is that which leads the trier-of-fact, after considering all of the evidence, to find that a fact is more probably true than not. Page v. Clark, 197 Colo. 306, 592 P.2d 792 (1979); People v. M.A., 104 P.3d 273, 275 (Colo. App. 2004). The facts in a Workers' Compensation case are not interpreted liberally in favor of either the rights of the injured worker or the rights of the employer. §8-43-201, C.R.S. A Workers' Compensation case is decided on its merits. §8-43-201, C.R.S.

2. The Judge’s factual findings concern only evidence that is dispositive of the issues involved; the Judge has not addressed every piece of evidence that might lead to a conflicting conclusion and has rejected evidence contrary to the above findings as unpersuasive. See Magnetic Engineering, Inc. v. ICAO, 5 P.3d 385, 389 (Colo. App. 2000).

3. When determining credibility, the fact finder should consider, among other things, the consistency or inconsistency of the witness's testimony and actions; the reasonableness or unreasonableness (probability or improbability) of the testimony and actions; the motives of the witness; whether the testimony has been contradicted; and bias, prejudice, or interest. See Prudential Insurance Co. v. Cline, 98 Colo. 275, 57 P.2d 1205 (1936); CJI, Civil 3:16 (2007).

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4. Prior to 1991 the Act did not define PTD. Weld County School Dist. RE-12 v. Bymer, 955 P.2d 550, 553 (Colo. 1998). Under the prevailing case law standard the ability of a claimant to earn occasional wages or perform certain types of gainful work did not preclude a finding of PTD. Id. at 555. A PTD determination prior to 1991 “turned on the claimant’s loss of earning capacity or efficiency in some substantial degree in a field of general employment.” Id.

5. In 1991 the General Assembly added a definition of PTD to the Act. See §8-40-201(16.5)(a), C.R.S. Under §8-40-201(16.5)(a), C.R.S. PTD means “the employee is unable to earn any wages in the same or other employment.” The new definition of PTD was intended to tighten and restrict eligibility for PTD benefits. Bymer, 955 P.2d at 554. A claimant thus cannot obtain PTD benefits if he is capable of earning wages in any amount. Id. at 556. Therefore, to establish a claim for PTD a claimant shoulders the burden of proving by a preponderance of the evidence that he is unable to earn any wages in the same or other employment. See §8-43-201, C.R.S. The phrase, “to earn any wages in the same or other employment,” “provides a real and non-illusory bright line rule for the determination whether a claimant has been rendered permanently totally disabled.” Lobb v. Indus. Claim Appeals Office, 948 P.2d 115, 119 (Colo. App. 1997). Finally, there is no requirement that respondents must locate a specific job for a claimant to overcome a prima facie showing of permanent total disability. Hennenberg v. Value-Rite Drugs, Inc., W.C. No. 4-148-050 (ICAP, Sept. 26, 1995); Rencehausen v. City and County of Denver, W.C. No. 4-110-764 (ICAP, Nov. 23, 1993).

6. The term “employment” is defined in the Workers’ Compensation Act in §8-40-201(8), C.R.S. This section states that employment is, “[a]ny trade, occupation, job, position, or process of manufacture or any method of carrying on any trade, occupation, job, position or process of manufacture in which any person may be engaged.” Section 8-40-201(19), C.R.S. defines “wages” as the money rate for which the employee is to be compensated for services. For purposes of PTD “any wages” means more than zero. See McKinney v. Indus. Claim Appeals Office, 894 P.2d 42 (Colo. App. 1995) (determining that the ability to earn wages in “any” amount is sufficient to disqualify a claimant from receiving PTD benefits).

7. A claimant must demonstrate that his industrial injuries constituted a “significant causative factor” in order to establish a claim for PTD. In Re Olinger, W.C. No. 4-002-881 (ICAP, Mar. 31, 2005). A “significant causative factor” requires a “direct causal relationship” between the industrial injuries and a PTD claim. In Re of Dickerson, W.C. No. 4-323-980 (ICAP, July 24, 2006); see Seifried v. Industrial Comm’n, 736 P.2d 1262, 1263 (Colo. App. 1986). The preceding test requires the ALJ to ascertain the “residual impairment caused by the industrial injury” and whether the impairment was sufficient to result in PTD without regard to subsequent intervening events. In Re of Dickerson, W.C. No. 4-323-980 (ICAP, July 24, 2006). Resolution of the causation issue is a factual determination for the ALJ. Id.

8. In ascertaining whether a claimant is able to earn any wages, the ALJ may consider various “human factors,” including a claimant's physical condition, mental

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ability, age, employment history, education, and availability of work that the claimant could perform. Bymer, 955 P.2d at 556; Holly Nursing v. ICAO, 992 P.2d 701, 703 (Colo. App. 1999). The critical test, which must be conducted on a case-by-case basis, is whether employment exists that is reasonably available to the claimant under his particular circumstances. Bymer, 955 P.2d at 557. Ultimately, the determination of whether a Claimant suffers from a permanent and total disability is an issue of fact for resolution by the ALJ. In Re Selvage, W.C. No. 4-486-812 (ICAP, Oct. 9, 2007).

9. As found, Claimant has failed to prove by a preponderance of the evidence that he is incapable of earning any wages and is entitled to receive PTD benefits as a result of admitted industrial injuries that he sustained during the course and scope of his employment with Employer on January 9, 2014. On May 12, 2016 Dr. Nystrom concluded that Claimant had reached MMI. He determined that Claimant warranted a 24% whole person impairment rating. Dr. Nystrom assigned permanent work restrictions that included no lifting to chest height in excess of 30 pounds and no lifting above the shoulders in excess of 10 pounds. On May 6, 2016 Claimant underwent a FCE. Claimant demonstrated the ability to occasionally reach above shoulder level, bend, crawl and perform fine coordination including firm grasping. He could also kneel, climb ladders, pinch, grasp and squat. He demonstrated the ability “to work full time and perform sitting up to 5 hours and standing up to 14 hours throughout his work day.” The FCE ultimately reflected that Claimant could perform work within the light physical demand category. Claimant could specifically occasionally lift up to 25 pounds below waist height, up to 25 pounds to shoulder height and 10 pounds overhead. The FCE also noted 20 pound pushing and pulling restrictions. Finally, Dr. Hattem agreed with Dr. Nystrom’s permanent work restrictions of no lifting to chest height in excess of 30 pounds and no lifting above the shoulders in excess of 10 pounds. However, Dr. Hattem noted that Claimant also required restrictions regarding overhead lifting with his left arm. Based on the permanent work restrictions designated by Dr. Nystrom, the FCE and Dr. Hattem, Claimant can perform duties in the light and sedentary job categories.

10. As found, the record reveals that Claimant has developed a number of transferable job skills through education and experience that render him a suitable candidate for a number of employment opportunities. In evaluating whether Claimant is able to work in any capacity vocational expert Mr. Ryan addressed Claimant’s education, work experience and physical abilities and performed labor market research. Mr. Ryan specifically considered Claimant’s vocational attributes and human factors including age, education, work history, transferable skills, communication skills and work restrictions. In evaluating Claimant’s work restrictions, Mr. Ryan noted that Dr. Nystrom, Dr. Hattem and the FCE were consistent in determining that Claimant could work in the light duty category. In addressing jobs in Claimant’s labor market, Mr. Ryan identified collection and night auditor positions. However, he testified that collections and night auditor positions were not the only suitable jobs for Claimant because of his background and experience. He commented that Claimant possesses profound transferable skills through his experience with collections, management, data entry and computers. Mr. Ryan concluded that, based on Claimant’s human factors and work

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restrictions, he maintains the ability to earn wages in the light to sedentary work categories.

11. As found, in contrast, Dr. Ramos assigned significantly more severe permanent work restrictions for Claimant’s job duties. Based on Claimant’s description of his abilities Dr. Ramos specifically assigned permanent work restrictions including: (1) no lifting, carrying, pushing or pulling in excess of five pounds; (2) no lifting above chest level; (3) no running, crouching, kneeling, crawling or squatting; (4) no climbing ladders, stairs or working at heights; (5) no work involving repetitive twisting, turning or bending; and (6) periods of rest while working. Relying on the work restrictions assigned by Dr. Ramos, Mr. Macurak concluded that Claimant was “unemployable as a result of his 01/09/14 work injury.” He specifically remarked that in evaluating Claimant’s “ability to earn wages from other employment existing in his commutable labor market, there were no available positions within Claimant’s “current physical abilities without extensive job site modifications.” Accordingly, Mr. Macurak determined that Claimant was unable to earn any wages in any capacity.

12. As found, however, Dr. Hattem noted that Dr. Ramos’ permanent work restrictions were excessive. He commented that Dr. Ramos did not review Claimant’s FCE and failed to adequately consider Dr. Nystrom’s extended treatment and familiarity with Claimant’s condition. Moreover, Mr. Macurak failed to adequately address Claimant’s significant transferable job skills through education and experience. Accordingly, the record reflects that employment exists that is reasonably available to Claimant under his particular circumstances. Accordingly, Claimant’s request for PTD benefits is denied and dismissed.

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ORDER

Based upon the preceding findings of fact and conclusions of law, the Judge enters the following order:

1. Claimant’s request for PTD benefits is denied and dismissed

2. Any issues not resolved in this Order are reserved for future determination.

If you are a party dissatisfied with the Judge’s order, you may file a Petition to Review the order with the Denver Office of Administrative Courts, 1525 Sherman Street, 4th Floor, Denver, CO 80203. You must file your Petition to Review within twenty (20) days after mailing or service of the order, as indicated on certificate of mailing or service; otherwise, the Judge’s order will be final. You may file the Petition to Review by mail, as long as the certificate of mailing attached to your petition shows: (1) That you mailed it within twenty (20) days after mailing or service of the order of the Judge; and (2) That you mailed it to the above address for the Denver Office of Administrative Courts. For statutory reference, see section 8-43-301(2), C.R.S. (as amended, SB09-070). For further information regarding procedures to follow when filing a Petition to Review, see Rule 26, OACRP. You may access a form for a petition to review at http://www.colorado.gov/dpa/oac/forms-WC.htm.

DATED: February 2, 2017.

_______________________ Peter J. Cannici Administrative Law Judge Office of Administrative Courts 1525 Sherman Street, 4th Floor Denver, CO 80203

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OFFICE OF ADMINISTRATIVE COURTS STATE OF COLORADO WORKERS’ COMPENSATION NO. WC 5-010-301-02

ISSUES

1. Whether Claimant has established by a preponderance of the evidence that he sustained a compensable injury on May 11, 2015. 2. Whether Claimant has established by a preponderance of the evidence that he is entitled to a general award of reasonable and necessary medical benefits.

STIPULATIONS

1. Claimant’s average weekly wage at the time of his injury was $1,641.22.

FINDINGS OF FACT

1. Claimant is employed by Employer as a recruiting and development specialist and has been so employed since approximately January of 1992. 2. As part of his job duties, Claimant regularly travels both within and outside of the state of Colorado. 3. On May 11, 2015 Claimant was flying to Missouri where Employer’s home office is located for training. Claimant’s flight was out of Denver International Airport (DIA) and was scheduled to depart DIA at approximately 10:10 a.m. 4. Claimant parked his vehicle at the Pike’s Peak parking lot at DIA at approximately 8:00 a.m. Claimant grabbed his computer bag and put it over his shoulder. Claimant then went to his trunk to grab his luggage. While lifting his luggage out of the trunk Claimant felt a twinge and pain in the left side of his lower back. Claimant did not think much of the twinge immediately, got on a shuttle bus to the airport, and boarded his flight. 5. During his flight, the pain in the left side of Claimant’s lower back got worse and was shooting down his left leg. 6. After arriving in Missouri, Claimant had a two hour drive to get to Employer’s home office for training. Claimant had a rental vehicle that was similar to his company car in Colorado. During his drive, Claimant experienced significant pain and found the vehicle difficult to adjust and/or make comfortable. Claimant stopped during the drive to purchase ibuprofen due to his pain.

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7. While in Missouri, Claimant spoke to Employer’s fleet manager Travis King and requested a different company car because Claimant believed he would have trouble and pain driving the car when he returned to Colorado. 8. While in Missouri for training Claimant also called his primary care provider (PCP) about his pain. Claimant’s PCP called in a prescription that Claimant picked up in Missouri. 9. On May 14, 2015 Claimant emailed Mr. King. Claimant had previously emailed Mr. King questioning whether his new company car was the correct one that he had ordered. Mr. King responded on May 11, 2015 stating that Claimant had received the correct vehicle and Mr. King compared Claimant’s 2011 Fusion with Claimant’s new 2015 Fusion. In the May 14, 2015 email, Claimant replied thanking Mr. King for the information and asking if there was a pool car that could be changed out for Claimant’s 2015 company vehicle. Claimant reported that he had been hit with a sciatic nerve running down his leg and that the only thing he had done differently was drive the new car for 500 miles. Claimant reported that it may be a coincidence, but that he could hardly walk. See Exhibit C. 10. Employer’s policies require that an employee who sustains a work related injury must report that injury to the employee’s supervisor as soon as practicable after the injury. See Exhibit G. 11. Claimant acknowledged that he had received a copy of the employee handbook but was unsure whether he ever read the handbook. Other than information in the handbook, Claimant was never otherwise instructed by Employer on how to turn in a workers’ compensation claim. 12. Claimant did not immediately report the incident on May 11, 2015 to his Employer. Claimant returned to Colorado after training and continued his normal job duties. Claimant believed his back and sciatic symptoms would get better on their own. When the symptoms did not resolve, Claimant went to his primary care provider (PCP) and other providers for treatment. 13. On June 2, 2015 Claimant was evaluated by his PCP David Tusek, M.D. Dr. Tusek noted that Claimant was still having sciatica issues since lifting suitcase out of car on a work related trip two weeks ago. Dr. Tusek noted that he had called in a muscle relaxer for Claimant which had helped Claimant a bit. On examination, Dr. Tusek assessed lumbago. See Exhibit 5. 14. On June 15, 2015 Claimant was evaluated by Douglas Brisson, D.C. Claimant reported that about three weeks prior he started having left hip and left sciatic pain with left toe numbness and that sitting stationary aggravated his condition. Claimant reported his pain was a 6/10. On examination, Dr. Brisson noted moderate to severe myofascial pain and tenderness in the lumbar region at the lumbopelvic area. See Exhibits 6, J.

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15. On June 17, 2015 Claimant was evaluated by physical therapist (PT) Doug Hanna. PT Hanna noted that Claimant woke with pain on 5/11/15 and could not recall any injury or strain the previous few days. Claimant reported severe pain of 8/10 down the lower left extremity, that his left extremity was weak, and that his great toe was numb/tingling. PT Hanna noted that Claimant appeared to be suffering from an L5-S1 radiculopathy and that the goals would be to restore lower extremity strength, single leg balance and control, and dynamic lumbo-pelvic stability. See Exhibits 9, K. 16. On August 4, 2015 Claimant was evaluated by John Tobey, M.D. Dr. Tobey noted an insidious onset of low back and left lower extremity pain associated with weakness on May 11, 2015. Claimant reported that the radicular pain had improved over time and that his pain was 1/10. On examination, Dr. Tobey noted a mildly antalgic gait with decreased stance phase on the left, partial foot drop, and diminished sensation to the left great toe. Dr. Tobey concluded that the findings of nerve conduction studies and electromyography were abnormal. Dr. Tobey assessed acute moderate left L5 greater than S1 radiculopathy with denervation. Dr. Tobey noted that a lumbar spine CT scan would be obtained. Dr. Tobey noted that if Claimant did not improve clinically, surgery would be recommended based on the amount of denervation present. However, if Claimant continued to improve, they could take a watchful waiting approach. See Exhibits 7, M. 17. On August 6, 2015 Claimant underwent a lumbar CT scan interpreted by Virgina Scroogins, M.D. Dr. Scroogins noted a history of radiculopathy. Dr. Scroogins provided impressions of L5-S1 disc bulge with disc loss of height and endplate spurring contributing to bilateral foraminal stenosis, and L4-L5 disc bulge contributing to mild to moderate bilateral foraminal stenosis. See Exhibits 7, N. 18. On September 28, 2015 Claimant was evaluated by doctor of podiatric medicine, Christina Weber. Claimant reported that he had weakness and numbness issues in his left lower extremity with leg, thigh, and sciatica that started on May 11. Claimant reported he could now just start standing on the foot. Claimant reported ongoing numbness to the left big toe, that his foot felt unstable, and that he was concerned with a foot issue. Claimant also reported a CT scan and EMG study had showed L5 and S1 problems with some narrowing. Dr. Weber performed a physical examination where she noted Claimant had antalgic gait, drop foot gait on the left, inability to balance on the left foot, muscle atrophy on the left leg with a smaller circumference compared to the right leg, and tactile decrease in distal extremities on the left. Dr. Weber assessed: acquired pronation deformity of foot; numbness of foot; lumbar radiculopathy; and weakness of limb. Dr. Weber opined that the findings and issues on the left side appeared to be due to lumbosacral radiculopathy involving the L4-S1 nerve roots. Dr. Weber noted her concern with the muscle atrophy, weakness, and antalgic gait and recommended Claimant get a second opinion as soon as possible to evaluate the condition and to see if strength could be returned to the left side to allow normal toe off at the end of gait cycles. See Exhibits 8, L.

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19. On September 29, 2015 Claimant submitted an incident report to Employer. Claimant found an incident report online and the form he filled out indicates that it is to be completed within one hour of the theft or property loss. Claimant reported on the form that the incident occurred on May 11, 2015 and that he reported it on September 29, 2015 after being advised by the doctor to turn in a workers compensation form. In response to the theft/property loss or damage/other incidents(including injuries) section, Claimant answered the question of what materials, machines, equipment, or conditions were involved by stating “company car along with extended periods of driving.” Claimant left the portion of the form that asks for a description of the circumstances of the incident blank, listing n/a with no explanation of his injury. See Exhibit 2. 20. On October 1, 2015 Insurer contacted Claimant. Claimant reported that on May 11 he had parked his car, got his bag (25 to 30 pounds) out of the trunk and felt back pain in the lower back. Claimant reported walking to the airport and that he could hardly continue to walk from the pain. Claimant reported he had received a new company car a few weeks before and went from a ford escape to a ford fusion and once he told Employer he was having issues, they changed the vehicle back. Claimant reported the accident location and the initial onset was at DIA in the Pikes Peak parking lot and that he had a computer bag on his left shoulder and a rolling garment bag in the trunk. Insurer noted that Claimant had gone to his PCP, to physical therapy, and to a podiatrist. Insurer noted no lost time from this injury and that Claimant continued to work. Insurer referred Claimant for treatment. See Exhibit 12. 21. On October 6, 2015 Claimant was evaluated by Rammohan Naidu, PA-C. Claimant reported in the history of present illness that he was injured May 11, 2015 while lifting at work, with a sudden onset of pain. Claimant reported that about five months ago he had some back pain that had now caused his left leg and foot to become numb. Claimant reported back pain, lower extremity tingling, and lower extremity weakness. Claimant reported that he had tried physical therapy, acupuncture, exercises, and that he had specialist care with a discussion of surgery. Claimant reported realizing that the injury was work related and needing to report it. Claimant had a CT scan of the lumbar spine that PA-C Naidu reviewed and noted it showed multilevel disc bulges with bilateral foraminal stenosis. PA Naidu assessed bulge of lumbar disc without myelopathy and radiculopathy. PA Naidu referred Claimant to a physiatrist. See Exhibits 10, I. 22. On October 14, 2015 Claimant was evaluated by John Aschberger, M.D. Claimant reported back pain with radiation that started on May 11, 2015. Claimant reported that he reached into a trunk to pull out a travel bag and felt a pull in the left low back with subsequent increasing pain radiating down the left lower extremity. Claimant reported initially seeking evaluation with his primary care physician, that he underwent physical therapy, electro diagnostic testing that demonstrated nerve damage, and a CT scan that demonstrated multilevel disc bulges and foraminal stenosis. Claimant reported that a medrol dose pack had given him good benefit and that his symptoms overall had been subsiding. Claimant reported persistent numbness at the left great toe

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and some weakness in the left leg that had been improving. Claimant reported the pain radiating to the leg had resolved and denied back pain. Dr. Aschberger opined that the symptoms and findings implicated a left L5 and S1 radiculopathy. Dr. Aschberger noted that Claimant had done well with the medrol dose pack and recommended Claimant continue with a core stability program and exercise program. Dr. Aschberger noted that Claimant worked out fairly regularly and he cautioned Claimant regarding appropriate exercises and positions to avoid. Dr. Aschberger also discussed surgical intervention, but opined that given Claimant’s lack of pain and recovering strength surgery did not appear necessary at the time. See Exhibits 11, I. 23. On November 2, 2015 Claimant was evaluated by Dr. Aschberger. Claimant reported improving strength in his lower extremity and that he was doing pretty well with essentially nonexistent pain. Dr. Aschberger noted the physical examination was suggesting of left L5 and S1 radiculopathy and that an electro diagnostic report from August 4, 2015 showed predominant denervation potentials with an interpretation of left L5 greater than S1 radiculopathy with denervation. Dr. Aschberger noted that Claimant would monitor strength to assure there was no deterioration and opined that if Claimant remained pain free with recovery and strength, that they did not need to do much more for Claimant in terms of intervention. Dr. Aschberger noted that he would like Claimant to continue with a core stability exercise program at home and hoped to avoid impairment for Claimant. See Exhibits 11, I. 24. On November 30, 2015 Claimant was evaluated by Dr. Aschberger. Claimant reported minimal pain and some continued weakness in the left leg. Dr. Aschberger assessed left L5 and S1 radicular pattern and noted there had been positive EMG testing. Dr. Aschberger opined that given the low level of pain and lack of deterioration regarding muscular functioning that he was not enthusiastic about recommending surgical intervention. See Exhibit 11. 25. On December 17, 2015 Claimant was evaluated by Dr. Aschberger. Claimant continued to do well with a low pain level. Dr. Aschberger assessed left L5 and S1 radicular pattern and again noted improvements. Dr. Aschberger noted he would see Claimant in 4 weeks and that if Claimant continued to have residual deficit, Claimant would be scheduled for an impairment assessment. Dr. Aschberger noted that he expected likely impairment in an L5 distribution, but that the S1 seemed to be recovering pretty well and that an S1 impairment might be able to be avoided. See Exhibits 11, I. 26. On January 21, 2016 Claimant was evaluated by Dr. Aschberger. Claimant reported low level irritation with occasional soreness and some weakness. Dr. Aschberger continued to assess left L5 and S1 radicular pattern and deficit. Dr. Aschberger reviewed Claimant’s myelogram report and EMG report and noted that the results were consistent with an L5 and S1 radicular pattern and were consistent with physical examination findings. Dr. Aschberger opined that Claimant was status quo with some residual from a lumbar radicular process. Dr. Aschberger expected

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maximum medical improvement (MMI) at the next appointment and scheduled Claimant for an impairment assessment. See Exhibits 11, I. 27. On February 8, 2016 Claimant underwent an impairment assessment with Dr. Aschberger. Dr. Aschberger assessed lumbar degenerative changes with left lumbar radiculopathy with the prominent level being L5. Dr. Aschberger noted that there had been some S1 component with overall recovery in the S1 that was doing well. Dr. Aschberger opined that Claimant was at MMI, and provided a 14% whole person impairment rating. Dr. Aschberger noted that Claimant had been doing well with no deterioration in condition and that maintenance follow up did not appear necessary. Dr. Aschberger discharged Claimant from treatment and recommended restrictions of no lifting more than 40 to 50 pounds. See Exhibits 11, I. 28. On March 22, 2016 Dr. Aschberger responded to a letter regarding causality of Claimant’s injury. The letter asked Dr. Aschberger whether he could opine with 51% certainty that Claimant’s diagnosis was caused by a mechanism of injury of “the company car along with extended periods of driving.” The letter also noted that Claimant had logged 19,256 miles in 2015. Dr. Aschberger circled “no” in response to the question. Dr. Aschberger noted in the additional comments section that “a specific mechanism of injury was described with my initial encounter.” See Exhibit 11. 29. Insurer representative Amy Vanderploeg testified at hearing. She noted that she had received the first report of injury in this case and also that she had interviewed Claimant on the phone. Ms. Vanderploeg noted that the initial report of injury provided by Claimant indicated “the company car and extended driving” and that it did not line up with the later report of lifting a suitcase. She noted that because things did not line up she sent a letter to Dr. Aschberger asking him to opine on causality with the mechanism of injury listed as driving “the company car and extended driving” and that Dr. Aschberger said the injury was not work related. She also noted that Claimant had not made any reports until almost October. 30. Claimant’s testimony is found credible and persuasive. Claimant is credible that he was injured lifting the suitcase out of his car on May 11, 2015. Claimant reported this mechanism of injury to his PCP while in Missouri at training, and had a prescription called in. Claimant also continued to report this mechanism when evaluated several weeks later in early June by his PCP, when asked by providers, and when contacted initially by Insurer on October 1, 2015 Claimant did not correctly fill out the incident form on September 29, 2015 and listed n/a instead of describing the mechanism of injury. However, three days later, Claimant spoke to Insurer and described the lifting of the suitcase as the mechanism of injury. This report of injury is credible, persuasive, and consistent with Claimant’s first report to Dr. Tusek.

CONCLUSIONS OF LAW

Generally

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The purpose of the Workers’ Compensation Act of Colorado, §§ 8-40-101, et seq., C.R.S. is to assure the quick and efficient delivery of disability and medical benefits to injured workers at a reasonable cost to employers, without the necessity of litigation. See § 8-40-102(1), C.R.S. The claimant shoulders the burden of proving entitlement to benefits by a preponderance of the evidence. See § 8-43-201, C.R.S. A preponderance of the evidence is that which leads the trier-of-fact, after considering all of the evidence, to find that a fact is more probably true than not. Page v. Clark, 197 Colo. 306, 592 P.2d 792 (1979).

Assessing weight, credibility, and sufficiency of evidence in Workers'

Compensation proceeding is exclusive domain of administrative law judge. University Park Care Center v. Industrial Claim Appeals Office, 43 P.3d 637 (Colo. App. 2001). Even if other evidence in the record may have supported a contrary inference, it is for the ALJ to resolve conflicts in the evidence, make credibility determinations, and draw plausible inferences from the evidence. When determining credibility, the fact finder should consider, among other things, the consistency or inconsistency of the witness's testimony and actions; the reasonableness or unreasonableness (probability or improbability) of the testimony and actions; the motives of the witness; whether the testimony has been contradicted; and bias, prejudice, or interest. Prudential Insurance Co. v. Cline, 98 Colo. 275, 57 P.2d 1205 (1936); Bodensieck v. Industrial Claim Appeals Office, 183 P.3d 684 (Colo. App. 2008). The weight and credibility to be assigned expert testimony is a matter within the discretion of the ALJ. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo. App. 2002). To the extent expert testimony is subject to conflicting interpretations, the ALJ may resolve the conflict by crediting part or none of the testimony. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968).

The ALJ's factual findings concern only evidence and inferences found to be

dispositive of the issues involved; the ALJ has not addressed every piece of evidence or every inference that might lead to conflicting conclusions and has rejected evidence contrary to the above findings as unpersuasive. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo. App. 2000).

Compensability

The claimant was required to prove by a preponderance of the evidence that at the time of the injury she was performing service arising out of and in the course of the employment, and that the alleged injury was proximately caused by the performance of such service. See § 8-41-301(1)(b) & (c), C.R.S. A pre-existing disease or susceptibility to injury does not disqualify a claim if the employment aggravates, accelerates, or combines with the pre-existing disease or infirmity to produce a disability or need for medical treatment. Duncan v. Industrial Claim Appeals Office, 107 P.3d 999 (Colo. App. 2004); H & H Warehouse v. Vicory, 805 P.2d 1167 (Colo. App. 1990). The question of whether the claimant met the burden of proof to establish a compensable injury is one of fact for determination by the ALJ. City of Boulder v. Streeb, 706 P.2d

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786 (Colo. 1985); Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo. App. 2000).

Claimant has met his burden to establish by preponderant evidence that he sustained a work related injury on May 11, 2015. Claimant is credible and persuasive that he felt a twinge while lifting his luggage out of his vehicle at DIA, that his pain got progressively worse during both his flight and his later drive to Employer’s home office, and that he called his PCP to report the problem and receive a prescription. As found above, Claimant went to his PCP several weeks later when the pain did not subside. His PCP, Dr. Tusek, noted that Claimant was still having sciatica issues since lifting suitcase out of car on a work related trip two weeks ago. Claimant reported a consistent mechanism of injury to Insurer and to the workers’ compensation providers that he was referred to for treatment.

Prior to reporting the injury and being referred for treatment under the workers’

compensation system, Claimant had treatment with other providers. Claimant is credible that his focus was on getting better and that he did not specifically explain how the injury occurred to these providers other than his PCP. Claimant is credible and persuasive that he did not report to his providers that he just woke up with the pain on May 11, 2015. Claimant testified credibly that his physical therapist asked if he had woken up with pain and he answered yes, because the day of his PT treatment he had woken up with pain. Further, Claimant is credible that Dr. Tobey’s report of insidious onset was not provided by Claimant and that he does not really even know what insidious means. Claimant is credible that at this point he was just treating the injury and did not tell all the providers about pulling the luggage out of the car and that he thought the providers who had scripts were aware of the mechanism of injury.

Additionally, the incident report filled out by Claimant was filled out incorrectly.

Claimant listed the materials, machines, equipment, or conditions involved as the company car along with extended periods of driving. However, Claimant did not fill out the portion of the form that asks for a description of the incident. Respondents used this form to transfer the information onto a report and claim for workers’ compensation and listed the mechanism of injury as “company car along with extended periods of driving.” However, the ALJ finds Claimant credible and persuasive that he was not alleging that the company car and/or extended driving caused his injury, rather, he was just trying to answer the questions listed on the form as asked.

The ALJ finds and concludes, more likely than not, that Claimant was injured on

May 11, 2015 while lifting luggage out of his vehicle at DIA. Claimant’s testimony is credible and persuasive and consistent with his initial report to Dr. Tusek while he was still in training in Missouri. Further, Claimant’s testimony is also consistent with later treatment records and records of the Insurer where Claimant continued to report the same mechanism of injury. Dr. Aschberger opined that the company car along with extended driving did not cause the injury. However, Dr. Aschberger noted that he had a specific mechanism of injury in the first visit. After the first visit where Claimant reported the specific mechanism of injury to Dr. Aschberger as involving lifting a suitcase, Dr. Aschberger treated Claimant multiple times, eventually placed Claimant at MMI, and

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provided an impairment rating. Dr. Aschberger’s later opinion that the claim was not work related is based only on the assumption/question provided in the letter that the injury was from the company car and extended driving. As Claimant is credible that the injury was not due to the company car or extended driving, Dr. Aschberger’s opinion was based on incorrect information and is not persuasive.

Medical Benefits

Respondents are liable to provide medical treatment that is reasonable and necessary to cure and relieve the effects of the industrial injury. Section 8-42-101(1)(a), C.R.S. The question of whether the claimant proved treatment is reasonable and necessary is one of fact for the ALJ. Kroupa v. Industrial Claim Appeals Office, 53 P.3d 1192 (Colo. App. 2002).

As found above, Claimant has established that he sustained a compensable injury on May 11, 2015. Therefore, he has established an entitlement to reasonable and necessary medical benefits to cure and relieve the effects of his injury.

ORDER

1. Claimant has met his burden to establish by a preponderance of the evidence that he sustained a compensable injury on May 11, 2015.

2. Claimant has established by a preponderance of the evidence that he is entitled to reasonable and necessary medical benefits for his May 11, 2015 work injury.

3. Claimant’s average weekly wage at the time of his injury was $1,641.22. 4. All matters not determined herein are reserved for future determination.

If you are dissatisfied with the Judge's order, you may file a Petition to Review the order with the Denver Office of Administrative Courts, 1525 Sherman St., 4th Floor, Denver, CO 80203. You must file your Petition to Review within twenty (20) days after mailing or service of the order, as indicated on certificate of mailing or service; otherwise, the Judge's order will be final. You may file the Petition to Review by mail, as long as the certificate of mailing attached to your petition shows: (1) That you mailed it within twenty (20) days after mailing or service of the order of the Judge; and (2) That you mailed it to the above address for the Denver Office of Administrative Courts. For statutory reference, see section 8-43-301(2), C.R.S. For further information regarding procedures to follow when filing a Petition to Review, see Rule 26, OACRP. You may access a petition to review form at: http://www.colorado.gov/dpa/oac/forms-WC.htm.

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DATED: February 1, 2017 /s/ Michelle E. Jones

___________________________________ Michelle E. Jones Administrative Law Judge Office of Administrative Courts 1525 Sherman Street, 4th floor Denver, CO 80203

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OFFICE OF ADMINISTRATIVE COURTS STATE OF COLORADO WORKERS’ COMPENSATION NO. WC 4-996-665-02

ISSUES

1. Whether Claimant has established by a preponderance of the evidence that he sustained a compensable injury on August 3, 2015. 2. Whether Claimant has established by a preponderance of the evidence that he is entitled to a general award of reasonable and necessary medical benefits.

STIPULATIONS

1. Claimant’s average weekly wage is $288.00 2. If the claim is found compensable, Dr. Cathy Smith is the authorized treating provider.

FINDINGS OF FACT

1. Claimant alleges he was injured on August 3, 2015 when he caught his right ankle in the plastic covering a pallet and tripped and fell onto his left side. 2. At the time of the alleged injury Claimant was employed by Employer as a stocker. Employer contracts with Wal-Mart locations and Claimant typically worked at Wal-Mart folding, stacking, and sorting boxes. At the time of the alleged injury Claimant had been working for Employer for one month. 3. At the time of the alleged injury, Claimant was 71 years old. Claimant had previously sustained two injuries to his lower back, in 2003 and 2005 for which he had filed workers’ compensation claims. Claimant had previously been evaluated by a vocational expert to determine whether or not he could ever return to work following those two injuries. In 2007 Claimant settled the workers’ compensation claims. 4. Prior to the alleged injury, Claimant had not worked at all in the previous ten years. 5. Prior to the alleged injury Claimant received significant medical treatment and evaluations at the Sunrise Monfort family Clinic including, but not limited to, the following: 04/28/05 – Claimant reported a two year history of back pain, with radiation into the right leg. Claimant reported feeling that the right leg was going to give out.

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06/22/05 -- Claimant reported a one month history of right leg and knee pain, reported slipping but not falling and feeling twinge in his back and knee. 04/07/10 -- Claimant reported right leg swelling, right groin pain, and left leg swelling. Clinic noted edema on the right leg. 03/11/11 -- Claimant reported pain in both of his feet and legs for months and that he had a sharp pulsation and his feet hurt all the time. Claimant also reported lower back pain with radiation. Claimant reported being shot three times when he was younger, once in the lower back. 03/25/11 -- Claimant reported that he had continued back pain and that he was told in 2005 that he needed back surgery. 07/17/12 -- Claimant reported neck pain in the right lateral neck, back pain, muscle aches, and poor balance 08/21/12-- Claimant reported bilateral shoulder pain that was intense and present all the time at a 4/10 with decreased range of motion. Claimant reported a fall in 2004 when he hit his right shoulder. Claimant reported neck pain as well. 08/28/12 -- Claimant had a right shoulder steroid injection. 04/03/13 -- Claimant reported bilateral ankle pain for the past year at a 4/10, that his ankles rolled easily, and that he sprained his left ankle approximately one year ago. Claimant reported having painful ankles near the ankle bones and that he took Tylenol for pain. Claimant was assessed with chronic ankle pain bilaterally, was noted to have antalgic gait, and was referred to podiatry. 04/24/13 -- Claimant reported bilateral ankle pain, left worse than right and that both ankles were weakening and constantly giving out. Claimant reported that they had been painful for several years but worsened over the past few weeks. X-rays of his ankles were taken and reviewed and showed some joint space narrowing at the ankle joint in both ankles. Claimant was given ankle braces, and surgical options were discussed. 05/12/14 -- Claimant reported left lower back pain for four days and left flank pain that had moved to both sides.

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06/11/14 -- Claimant reported numbness to the back of his neck, head, and radiating down his left shoulder and chest. Claimant reported tingling in the back of his neck, in his left shoulder, and in his left arm. See Exhibit B. 6. Claimant is a poor historian and overall is not credible or persuasive. Claimant reported to multiple providers that he had no prior problems with his bilateral ankles including no bilateral ankle symptoms. Claimant also testified that he had no ankle treatment prior to the alleged injury. Medical records document that in 2013 he reported that his bilateral ankles had been painful for several years. In 2013 Claimant received bilateral ankle braces and discussed surgical options for his ankles. 7. Claimant testified that before the alleged injury, his back was doing well. Claimant also reported to Dr. Fall that he had a little bit of a prior back problem after falling at work and that he had treatment and his back pain took approximately one year to resolve. This is not credible or persuasive. In April of 2005 Claimant reported a two year history of back pain with radiation into the left leg. In March of 2011, Claimant reported that he had continued back pain and that he was told in 2005 that he needed back surgery. In July of 2012 Claimant reported back pain. In May of 2014 Claimant again reported back pain. Clamant has a bullet fragment in his upper left L2 vertebral body and another bullet projecting at the L4 level outside of the spine that has existed for many years. Over the years and ongoing from 2003 Claimant had back pain and the results of a back MRI from 2012 were compared to an MRI of the back taken after the alleged injury and showed no changes. 8. Claimant testified that his left shoulder was not giving him any trouble before the alleged injury. However, in August of 2012 Claimant reported intense bilateral shoulder pain that was present all the time with decreased range of motion. Claimant also reported numbness and tingling in his left shoulder and radiating down his left arm/chest in June of 2014. 9. As Claimant is not credible or persuasive his alleged mechanism of injury, symptoms following the alleged injury, and any aggravation of prior problems reported by him cannot be relied upon to any degree of certainty. Additionally, at his first appointment for this alleged injury on August 5, 2015 Claimant failed to provide an accurate history of his prior medical problems and symptoms to Dr. Brogmus. See Exhibit E. 10. After a review of the medical records and examination, Dr. Fall opined that within a reasonable degree of medical probability that claimant did not suffer an acute injury as a result of a fall on August 3, 2015 other than a possible contusion. Dr. Fall also opined that the diagnostic studies showed only underlying degenerative changes consistent with age and prior history of trauma. See Exhibit A.

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11. Dr. Fall credibly testified at hearing that there was not any objective documentation, based on examination findings or diagnostic studies, which showed that Claimant suffered a new injury with symptoms consistent with and caused by the fall. 12. Moreover, Dr. Fall credibly explained that Claimant’s complaints on August 5, 2015 were the types of problems, i.e. contusions and sprains, which would resolve on their own without a need for medical treatment. At worst, some self-management such as over the counter medications or ice may be appropriate, but even these treatment modalities would not typically be warranted. 13. Dr. Fall persuasively testified that because there were no objective findings which showed an acute injury related to his work, claimant’s ongoing medical treatment would not be related to the August 3, 2015 incident. 14. Dr. Fall is found credible and persuasive.

CONCLUSIONS OF LAW

Generally

The purpose of the Workers’ Compensation Act of Colorado, §§ 8-40-101, et seq., C.R.S. is to assure the quick and efficient delivery of disability and medical benefits to injured workers at a reasonable cost to employers, without the necessity of litigation. See § 8-40-102(1), C.R.S. The claimant shoulders the burden of proving entitlement to benefits by a preponderance of the evidence. See § 8-43-201, C.R.S. A preponderance of the evidence is that which leads the trier-of-fact, after considering all of the evidence, to find that a fact is more probably true than not. Page v. Clark, 197 Colo. 306, 592 P.2d 792 (1979).

Assessing weight, credibility, and sufficiency of evidence in Workers'

Compensation proceeding is exclusive domain of administrative law judge. University Park Care Center v. Industrial Claim Appeals Office, 43 P.3d 637 (Colo. App. 2001). Even if other evidence in the record may have supported a contrary inference, it is for the ALJ to resolve conflicts in the evidence, make credibility determinations, and draw plausible inferences from the evidence. When determining credibility, the fact finder should consider, among other things, the consistency or inconsistency of the witness's testimony and actions; the reasonableness or unreasonableness (probability or improbability) of the testimony and actions; the motives of the witness; whether the testimony has been contradicted; and bias, prejudice, or interest. Prudential Insurance Co. v. Cline, 98 Colo. 275, 57 P.2d 1205 (1936); Bodensieck v. Industrial Claim Appeals Office, 183 P.3d 684 (Colo. App. 2008). The weight and credibility to be assigned expert testimony is a matter within the discretion of the ALJ. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo. App. 2002). To the extent expert testimony is subject to conflicting interpretations, the ALJ may resolve the conflict by crediting part or

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none of the testimony. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968).

The ALJ's factual findings concern only evidence and inferences found to be

dispositive of the issues involved; the ALJ has not addressed every piece of evidence or every inference that might lead to conflicting conclusions and has rejected evidence contrary to the above findings as unpersuasive. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo. App. 2000).

Compensability

The claimant was required to prove by a preponderance of the evidence that at

the time of the injury she was performing service arising out of and in the course of the employment, and that the alleged injury was proximately caused by the performance of such service. See § 8-41-301(1)(b) & (c), C.R.S. A pre-existing disease or susceptibility to injury does not disqualify a claim if the employment aggravates, accelerates, or combines with the pre-existing disease or infirmity to produce a disability or need for medical treatment. Duncan v. Industrial Claim Appeals Office, 107 P.3d 999 (Colo. App. 2004); H & H Warehouse v. Vicory, 805 P.2d 1167 (Colo. App. 1990). Even if an incident occurs it must be significant enough to result in an injury requiring medical treatment or resulting in impairment. Wherry v. City and County of Denver, W.C. No. 4-475-818 (Ind. Cl. App. Office, March 7, 2002). If an incident is not a significant event resulting in an injury, claimant is not entitled to benefits. The question of whether the claimant met the burden of proof to establish a compensable injury is one of fact for determination by the ALJ. City of Boulder v. Streeb, 706 P.2d 786 (Colo. 1985); Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo. App. 2000). Claimant has failed to meet his burden to establish by a preponderance of the evidence that he sustained a compensable injury to any body part in the alleged August 3, 2015 incident. Claimant is not credible or persuasive and his accounts of the alleged mechanism of injury cannot be relied upon to any degree of certainty. Additionally, his alleged complaints, body parts, and symptoms also cannot be relied upon to any degree of certainty. Dr. Fall is credible and persuasive that there were no objective findings to support that Claimant sustained an acute injury on August 3, 2015. Further, Dr. Fall is credible in noting and reviewing Claimant’s numerous chronic medical conditions that pre-existed the alleged work injury. Claimant failed to report to multiple medical providers the extent of his prior and pre-existing conditions and most providers had incomplete information on which to base their assessments due to Claimant’s failure to be forthcoming. Claimant has had chronic back issues dating back to at least 2003 and an MRI compared from 2012 to after the alleged work injury showed no changes. Claimant has had chronic bilateral ankle problems and was given bilateral ankle braces and had a discussion about ankle surgery in 2013 that he failed to disclose. Claimant had prior shoulder pain as well. Claimant, overall, is a very poor historian and is not credible. His reports cannot be relied upon and Claimant has failed to meet his burden.

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The medical records clearly indicate that Claimant suffered from numerous chronic conditions prior to August 3, 2015. Claimant has failed to establish that an incident occurred on August 3, 2015 that caused any need for medical treatment.

Medical Benefits

Respondents are liable to provide medical treatment that is reasonable and necessary to cure and relieve the effects of the industrial injury. Section 8-42-101(1)(a), C.R.S. The question of whether the claimant proved treatment is reasonable and necessary is one of fact for the ALJ. Kroupa v. Industrial Claim Appeals Office, 53 P.3d 1192 (Colo. App. 2002).

As found above, Claimant has failed to establish that he sustained a compensable injury. Therefore, he is not entitled to an award of reasonable and necessary medical benefits.

ORDER

1. Claimant has failed to meet his burden to establish by a preponderance of the evidence that he sustained a compensable injury on August 3, 2015. His claim is denied and dismissed.

If you are dissatisfied with the Judge's order, you may file a Petition to Review the order with the Denver Office of Administrative Courts, 1525 Sherman St., 4th Floor, Denver, CO 80203. You must file your Petition to Review within twenty (20) days after mailing or service of the order, as indicated on certificate of mailing or service; otherwise, the Judge's order will be final. You may file the Petition to Review by mail, as long as the certificate of mailing attached to your petition shows: (1) That you mailed it within twenty (20) days after mailing or service of the order of the Judge; and (2) That you mailed it to the above address for the Denver Office of Administrative Courts. For statutory reference, see section 8-43-301(2), C.R.S. For further information regarding procedures to follow when filing a Petition to Review, see Rule 26, OACRP. You may access a petition to review form at: http://www.colorado.gov/dpa/oac/forms-WC.htm.

DATED: February 2, 2017 /s/ Michelle E. Jones

___________________________________ Michelle E. Jones Administrative Law Judge Office of Administrative Courts 1525 Sherman Street, 4th floor Denver, CO 80203

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OFFICE OF ADMINISTRATIVE COURTS STATE OF COLORADO WORKERS’ COMPENSATION NO. WC 5-021-257

ISSUES

The issues to be determined herein by the Court are the following:

1. Whether Claimant proved by a preponderance of the evidence that she is entitled to an award of these medical benefits: a. The payment of medical bills from University Physicians, Inc.;

b. The reimbursement for payments made to Pink Massage for massage

therapy;

c. The reimbursement for payment made to Walmart for a bath/shower seat; and

d. The advanced payment for an ergonomic office chair.

2. Whether Claimant proved by a preponderance of the evidence that she is entitled to an order awarding reimbursement of lost wages for time spent attending the hearing held on December 6 and 23, 2016.

3. Whether Claimant proved by a preponderance of the evidence that she is entitled to an order awarding reimbursement for mileage to and from her doctors’ appointments; and

4. Whether Claimant proved by a preponderance of the evidence that she is entitled to submit newly discover evidence post hearing. .

FINDINGS OF FACT

Having considered the evidence presented at hearing, and Claimant’s post hearing request to submit newly discovered evidence, the following Findings of Fact are entered.

1. Claimant sustained an admitted work injury while working for Employer to her neck and leg on June 29, 2016, after falling down steps at work. Claimant sought and received emergency medical treatment from University of Colorado Hospital the same day. As part of this treatment, she also received treatment from specific physician providers that are associated with University Physicians, Inc.

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2. Claimant subsequently received authorized treatment from Drs. George Kohake, M.D., Paul Raford, M.D., and Robert Broghammer, M.D. who are associated with the HealthOne Occupational Medicine Centers in Aurora, Colorado (HealthOne). HealthOne was the authorized treating provider.

3. Claimant was referred by the physicians at HealthOne for physical and

massage therapy during the course of active treatment. Therapy was provided by Cheryl Parent, PT and Carlene Dumon, PT.

4. On July 14, 2016, Claimant reported to Dr. Kohake that she was having

difficulty performing her job due to continued neck pain and limited movement, and felt like she was working in slow motion. As a result, Dr. Kohake ordered an MRI of the cervical spine and an ergonomic evaluation.

5. On July 27, 2016, Claimant reported to Dr. Raford that she was

“essentially pain free, only with some transient soreness after physical therapy or working out in her trapezius.” (Resp. Ex. F, pp. 47-48) Claimant requested to return to full duty. It was noted she had her last physical therapy session and was transitioning to a home-exercise program. On physical examination of the neck, there was no stiffness, pain, or restricted motion. The neck had full range of motion. The assessment provided was “cervical and lumbar strains, right lower extremity pain; all resolved.” (Resp. Ex. F, supra.)

6. In a subsequent office visit on August 9, 2016, Claimant reported she was

“not 100%, but close to it.” (Resp Ex. E, pp. 26-27). Claimant reported that her daughter had grabbed her by the neck over the weekend, which had caused a lot of pain. Dr. Kohake noted Claimant did not receive a cervical MRI because she was improving. Dr. Kohake also noted Claimant was no longer working for the Employer and had accepted a job as an underwriter for Bank of America. Claimant received trigger point injections in the neck and significant improvement was noted.

7. Dr. Kohake placed Claimant at maximum medical improvement (MMI) on

August 9, 2016. No work restrictions were imposed. With respect to future medical care, Dr. Kohake stated: “The patient was planning on getting a massage and wanted clearance on that. I think that is fine. In fact, at this point I think the patient can be released from treatment. Continue following with stretches and exercises. No scheduled follow up through this clinic. No impairment.” (Resp. Ex. E, p.27).

8. After being placed at MMI, Claimant filed an Application for Hearing

endorsing the issues of compensability and compensation for travel to and from doctor’s office. Respondents replied to the application for hearing raising the issues of compensability and medical benefits.

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9. Following a prehearing conference order that was entered on October 24,

2016, requiring Respondents to take a position on the claim, Respondents filed a Final Admission of Liability on November 1, 2016, consistent with August 9, 2016, report from Dr. Kohake. The certificate of service on the Final Admission of Liability indicated it was mailed to Claimant. No objection was made to the Final Admission of Liability.

10. After Claimant was discharged by Dr. Kohake, Claimant obtained

massage therapy treatments from Pink Massage. Records of payment receipts from Pink Massage indicate Claimant received a total of 18 massage treatment sessions between August 15, 2016, and December 8, 2016, at the cost of $60.00 per session. The total amount paid for massage treatments to Pink Therapy was $1,080.00.

11. Claimant testified at hearing that no physician at HealthOne referred her

for massage therapy at Pink Massage or any other therapist after being discharged at MMI. The medical records confirm that no specific referral was made for massage therapy after August 9, 2016, by a treating physician.

12. Claimant also purchased a bath/shower seat from Walmart prior to being

discharged by Dr. Kohake in the amount of $642.60. Claimant testified that no physician at HealthOne recommended the purchase of the bath/shower seat that was bought from Walmart. The medical records also confirm that no specific referral or authorization request was made for a bath/shower seat as part of active medical treatment by a treating physician.

13. Claimant testified that she conducted online research on her own and

identified an ergonomic office chair that she believes she requires in order to relieve the effects of her work related injury. The cost of the chair she identified is $319.99.

14. Claimant testified that no physician at HealthOne recommended an

ergonomic office chair to relieve the effects of the work related injury. The medical records confirm that no specific referral or authorization request was made for an ergonomic office chair by a treating physician.

15. Claimant’s application for hearing requested compensation for travel to

and from doctor’s office. Claimant testified that she received a payment in the amount of $148.77 in satisfaction of her request for travel reimbursement to attend authorized medical appointments. Therefore, this issue was withdrawn for hearing.

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16. At hearing, Claimant testified that she missed a total of 8 hours of work to attend hearings at the Office of Administrative Courts on December 6, 2016, and December 23, 2016. Respondents addressed Claimant’s claim for reimbursement of lost wages in its post hearing position statement. Claimant did not present testimony or evidence regarding her alleged lost wages. Claimant presented no argument or evidence in support of her claim for lost wages. Claimant cites no authority in support of the ALJ’s jurisdiction to award lost wages for attendance at an administrative hearing. In the absence of evidence or argument regarding her lost wages, her claim is denied.

17. Claimant also testified that she continues to receive medical bills for medical treatment she received from University Physicians, Inc. on June 29, 2016, the date of injury. The bills were referred to a firm named Wakefield and Associates, Inc. for collection. Claimant testified these collection efforts are negatively impacting her credit score. Claimant credibly testified that to her knowledge there are two outstanding medical bills that need to be paid to Wakefield and Associates in the amount of $84.35 and $482.42 for a total of $566.77.

18. There is no dispute that Wakefield and Associates commenced collection

actions in connection with this outstanding balance owed to University Physicians, Inc. prior to the Final Admission of Liability being filed in this claim on November 1, 2016.

19. Nor do the parties dispute that while the medical care provided by the

hospital itself as part of the emergency medical treatment received on June 29, 2016, was paid by Respondents, Claimant also received reasonable and necessary medical treatment from physicians associated with University Physicians, Inc. on the same day. There is no evidence that University Physicians, Inc. ever attempted to bill Respondents for medical care provided during the active course of treatment prior to the filing of the Final Admission of Liability, or thereafter.

20. Post hearing, Claimant submitted medical records obtained during an appointment with a medical provider seen after the date of the December 6 and 23, 2016, hearings. Claimant argues, because of her worsened condition, she requested permission of Respondents to return to Dr. Kohake for additional treatment. Claimant contends that Respondents only responded to her request close to the date of the hearing on December 23, 2016, and scheduled the medical appointment with Dr. Kohake after the date of the December 23, 2016, hearing in this matter. Thus, Claimant contends that she could not obtain the medical records she is now submitting until after a December 29, 2016, appointment.

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21. Claimant submits as newly discovered evidence, which must be considered in this proceeding, a December 29, 2016, medical report and referrals for a physiatrist, a MRI of Claimant’s cervical spine, an ergonomic evaluation, and massage therapy one time per week for four weeks. The medical report reflects that Dr. Kohake’s assessment of Claimant was chronic neck and upper back symptoms. The doctor’s report reflects that Claimant would continue to be evaluated and receive treatment under medical maintenance. Dr. Kohake reported that “MMI will be changed should there be any significant change of diagnosis or treatment needed.”

CONCLUSIONS OF LAW

Having entered the foregoing Findings of Fact, the following Conclusions of Law are reached. General Provisions

1. The purpose of the Workers’ Compensation Act of Colorado (Act), Sections 8-40-101, et seq., C.R.S., is to assure the quick and efficient delivery of disability and medical benefits to injured workers at a reasonable cost to employers, without the necessity of litigation. Section 8-40-102(1), C.R.S. The claimant shoulders the burden of proving entitlement to benefits by a preponderance of the evidence. Section 8-43-201, C.R.S. A preponderance of the evidence is that which leads the trier-of-fact, after considering all of the evidence, to find that a fact is more probably true than not. Page v. Clark, 592 P.2d 792 (Colo. 1979). The facts in a workers' compensation case must be interpreted neutrally, neither in favor of the rights of the claimant nor in favor of the rights of respondents. Section 8-43-201.

2. A Workers' Compensation case is decided on its merits. Section 8-43-201. The ALJ's factual findings concern only evidence and inferences found to be dispositive of the issues involved; the ALJ has not addressed every piece of evidence or every inference that might lead to conflicting conclusions and has rejected evidence contrary to the above findings as unpersuasive. Magnetic Engineering, Inc. v. Indus. Claim Appeals Office, 5 P.3d 385 (Colo. App. 2000). When determining the credibility of a witness, the fact finder should consider, among other things, the consistency or inconsistency of the witness's testimony and actions; the reasonableness or unreasonableness (probability or improbability) of the testimony and actions; the motives of the witness; whether the testimony has been contradicted; and bias, prejudice, or interest. See Prudential Ins. Co. v. Cline, 57 P.2d 1205 (1936); CJI, Civil 3:16 (2005).

3. The Act provides, “Every employer, regardless of said employer’s method of insurance, shall furnish such medical, surgical, dental, nursing, and hospital treatment, medical, hospital, and surgical supplies, crutches, and apparatus as may reasonably be needed at the time of the injury or occupational disease and thereafter during the disability to cure and relieve the employee from the effects of the injury.” Section 8-42-101(1)(a), C.R.S.

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4. Determining the reasonableness and necessity for treatment may involve

various considerations including assessment of the risks associated with the procedure, the cost of the treatment when compared to the expected benefit, and the duration of the expected symptomatic relief. See Kroupa v. Mercy Medical Center and Catholic Health Initiatives, 53 P.3d 1192 (Colo. App. 2002). Ultimately, the question of whether a certain medical treatment is reasonable and necessary is one of fact for resolution by the ALJ. See Suetrack v. Industrial Claim Appeals Office, 902 P.2d 854 (Colo. App. 1995).

5. The employer or insurer shall not be liable for medical treatment provided under the Act “unless such treatment has been prescribed by an authorized treating physician.” Section 8-43-404(7), C.R.S. Insurers are also liable for expenses incurred as part of the normal progression of authorized treatment. Thus, the designation “authorized treating physician” includes not only those physicians to whom an employer directly refers a claimant, but also those to whom a claimant is referred by an authorized treating physician. Bestway Concrete v. Industrial Claims Appeals Office, 984 P.2d 680, 684 (Colo. App. 1999).

6. The Act provides that payment for medical services shall be made pursuant to the Colorado Workers’ Compensation schedule of fees fixed by the Director. And “[i]t is unlawful, void, and unenforceable as a debt for any physician, chiropractor, hospital, person, expert witness, reviewer, evaluator, or institution to contract with, bill, or charge any party for services, rendered in connection with injuries coming within the purview of this article or an applicable fee schedule, which are or may be in excess of said fee schedule unless such charges are approved by the director.” Section 8-42-101(3)(a)(1), C.R.S.

University Physicians Inc. (Wakefield & Associates) Medical Bills

7. Claimant received emergency medical treatment from the physicians associated with University Physicians, Inc. on June 29, 2016, in connection with the admitted injuries. A Final Admission of Liability was filed on November 1, 2016, and therefore, Respondents are liable for payment of such services rendered pursuant to the Colorado Fee Schedule. Section 8-42-101(3)(b), C.R.S. Likewise, the medical providers are prohibited from seeking collection of payment for services directly from the Claimant once as admission has been filed. Section 8-42-101(4), C.R.S. In this case, University Physicians, Inc., through their collection agency Wakefield & Associates, began seeking collection prior to the filing of the Final Admission of Liability directly from Claimant. There is no evidence that the provider has sought payment from Respondents pursuant to the requirements of Section 8-42-101(3)(b), C.R.S. and WCRP Rule 16.

8. Respondents are therefore liable for payment of the $84.35 and $482.42

to Wakefield and Associates in satisfaction of the amounts owed for the reasonable, necessary, and medical treatment provided on June 29, 2016. These amounts may be

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applied and credited against any future amounts that may be billed to the Respondents pursuant Section 8-42-101(3)(b), C.R.S. and WCRP Rule 16 by the provider directly.

Pink Massage Reimbursement Request

9. The physicians at HealthOne, including Dr. Kohake, were the authorized

treating physicians in this claim. Claimant is seeking reimbursement for amounts paid to Pink Massage, a massage therapy provider that Claimant selected of her own volition subsequent to being placed at MMI by Dr. Kohake. Claimant’s testimony, and the medical records support, that no authorized treating physician from HealthOne made a specific referral for any additional massage therapy at the time of being placed at MMI.

10. Claimant contends that Dr. Kohake’s report dated August 9, 2016, contains a referral by an authorized treating physician for massage therapy. The August 9th report indicates that Claimant was “planning on getting a massage and wanted clearance on that.” Dr. Kohake’s report reflects that he responded to Claimant’s inquiry, stating, “I think that is fine”, and then in the next sentence of the report released Claimant from treatment.

11. It is concluded that neither Drs. Radford nor Kohake made a specific referral for massage therapy in order to cure and relieve the effects of the work injury. There is no request from any authorized treating physician seeking prior authorization for such therapy. Both Drs. Radford and Kohake opined that Claimant was pain-free. Claimant requested that that Dr. Radford return her to full duty. Dr. Kohake placed Claimant at MMI noting a cervical MRI was canceled “because [Claimant] is improving.”

12. Therefore, it is concluded that Pink Massage was not an authorized provider, and there was no referral to Pink Massage by an authorized treating physician. Therefore, Claimant’s request for reimbursement for such therapy treatment is denied.

Reimbursement for Bath/Shower Seat from Walmart

13. Similarly, Claimant’s request for reimbursement for the purchase of a

bath/shower seat from WalMart is denied. Claimant testified that the bath/shower seat was not recommended by an authorized treating physician nor was there any indication in the medical records that the bath/shower chair was reasonable, necessary, and related to the admitted work injury. Absent a referral or recommendation from an authorized treating physician that a medical supply or apparatus is needed to cure and relieve the effects of the work related injury, Respondents are not liable for payment of any such device that Claimant purchased.

The Ergonomic Chair

14. Claimant seeks an advance payment for an ergonomic office chair that she testified would allow her to more easily perform her work as an underwriter for Bank of America. Claimant testified that no authorized treating physician recommended or

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prescribed any such chair. While there was some discussion during the course of active treatment about ordering an ergonomic evaluation of her workspace while she worked for the Respondent Employer, this request was apparently cancelled once she was released to MMI and found a new job. Therefore, because the ergonomic chair was not prescribed or recommended by an authorized treating physician to cure or relieve the effects of the work related injury, Claimant’s request for an advance payment is denied.

Lost Wages to Attend Hearings

15. Claimant seeks reimbursement for lost wages due to the time she was

required to take off from work in order to prosecute her claim at the Office of Administrative Courts. However, there is no authority under the Act and no obligation for Respondents to finance Claimant’s litigation costs. Claimant failed to provide authority supporting her claim reimbursement of costs associated with litigating her claim at the Office of Administrative Courts.

Newly Discovered Evidence Submitted Post Hearing

16. Claimant submitted medical records obtained during an appointment with

a medical provider seen after the date of the December 6 and 23, 2016, hearing. Claimant argues, because of her worsened condition, she requested permission of Respondents to return to Dr. Kohake for additional treatment. Claimant contends that Respondents only responded to her request close to the date of the hearing on December 23, 2016, and scheduled the medical appointment with Dr. Kohake after the date of the hearing in this matter. Thus, Claimant contends that she could not obtain the medical records she is now submitting until after a December 29, 2016, appointment.

17. Parties are expected to submit their evidence at the time of

the hearing. Frank v. Industrial Commission, 96 Colo. 364, 43 P.2d 158 (1935). However, in cases where additional evidence was proffered after the apparent conclusion of the proceedings, the Panel has sought guidance from cases involving motions for a new trial due to newly discovered evidence. E.g., People v. Distel, 759 P.2d 654, 660 (Colo.1988); People in the Interest of P.N., 663 P.2d 253, 256 (Colo.1983); Kennedy v. Bailey, 169 Colo. 43, 47, 453 P.2d 808, 810 (1969).The factors the courts examine in deciding whether to allow additional evidence are whether the requesting party could not, with reasonable diligence, have discovered and produced the evidence at issue at the first hearing, whether the evidence was material to the issue in first trial, and whether the evidence, if admitted, would probably change result of first trial. Aspen Skiing Company v. Peer, 804 P.2d 166, 172 (Colo. 1991).The courts have noted that these factors are not discrete items that lend themselves to mechanistic application, but rather are closely interrelated and require exercise of prudential judgment informed primarily by considerations of fundamental fairness to the litigants. See Aspen Skiing Company v. Peer, supra. Of course, the ALJ must also consider the parties' due process rights, including the right to present evidence and confront adverse evidence. See Delaney v. Industrial Claim Appeals Office, 30 P.3d 691

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(Colo. App. 2000); Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076 (Colo. App. 1990).

18. Claimant submits as newly discovered evidence, a December 29, 2016, medical report and December 29th referrals for a physiatrist, a MRI of Claimant’s cervical spine, an ergonomic evaluation, and massage therapy one time per week for four weeks. The medical report from Dr. Kohake assesses Claimant to have chronic neck and upper back symptoms. The doctor’s report reflects that Claimant would continue to be evaluated and receive treatment under medical maintenance. Dr. Kohake reported that “MMI will be changed should there be any significant change of diagnosis or treatment needed.”

19. It is concluded that while this is evidence could not have been obtained by Claimant prior to the December 6 and 23, 2016, hearings, the evidence is not material to the issues in first hearing and it would not change the result of first hearing. The first hearing pertains to the Claimant’s claim for specific medical benefits; some medical treatment expenses already provided, some medical equipment Claimant seeks to obtain at Respondents’ expense and authorization for an ergonomic evaluation. The new evidence proffered by Claimant does not change the outcome of the Court’s ruling on the issues raised here. Accordingly, the request to have the newly discovered evidence is denied.

ORDER

Based on the foregoing Findings of Fact and Conclusions of Law, and for the

reasons set forth above, it is hereby ordered as follows: A. Respondents are liable for payment for medical services rendered on June 29, 2016 by University Physicians, Inc. pursuant to the Colorado Workers’ Compensation Act fee schedule. Respondents shall pay a total of $566.77 to Wakefield & Associates in partial or full satisfaction of the amount owed to University Physicians, Inc. Respondents may take credit for this amount against any additional amounts that may be owed for services provided by University Physicians, Inc. Any additional requests for payment to University Physicians, Inc. for services rendered on June 29, 2016 shall be made pursuant to the Colorado Fee Schedule and the utilization requirements set forth in DOWC Rule 16. Claimant is advised that she may inquire as to any available remedy against University Physicians, Inc. with the Colorado Division of Workers’ Compensation or other appropriate agency in the event the provider continues to seek collection of payment directly from Claimant for claim related medical services. B. Claimant’s reimbursement request for amounts paid to Pink Massage is hereby DENIED. C. Claimant’s reimbursement request for amounts paid to Walmart for a bath/shower chair is hereby DENIED.

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D. Claimant’s request for advanced payment for an ergonomic chair is hereby DENIED.

E. Claimant’s reimbursement request for lost wages incurred in order to prosecute her claim before the Office of Administrative Courts is hereby DENIED.

If you are dissatisfied with the Judge's order, you may file a Petition to Review the order with the Denver Office of Administrative Courts, 1525 Sherman St., 4th Floor, Denver, CO 80203. You must file your Petition to Review within twenty (20) days after mailing or service of the order, as indicated on certificate of mailing or service; otherwise, the Judge's order will be final. You may file the Petition to Review by mail, as long as the certificate of mailing attached to your petition shows: (1) That you mailed it within twenty (20) days after mailing or service of the order of the Judge; and (2) That you mailed it to the above address for the Denver Office of Administrative Courts. For statutory reference, see section 8-43-301(2), C.R.S. For further information regarding procedures to follow when filing a Petition to Review, see Rule 26, OACRP. You may access a petition to review form at: http://www.colorado.gov/dpa/oac/forms-WC.htm.

DATED: February 6, 2017

MARGOT W. JONES __________________________________ Margot W. Jones, Administrative Law Judge Office of Administrative Courts 1525 Sherman Street, 4th Floor Denver, CO 80203

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OFFICE OF ADMINISTRATIVE COURTS STATE OF COLORADO WORKERS’ COMPENSATION NO. 5-005-487-03

ISSUES

The issues addressed herein concern compensability and Claimant’s entitlement to medical benefits, temporary total disability benefits, a determination of Claimant’s average weekly wage and whether Claimant was an independent contractor at the time of his alleged industrial injury. The specific questions to be answered are:

I. Whether Claimant established by a preponderance of the evidence that he

sustained a compensable injury on January 26, 2016.

II. If Claimant established that a compensable injury occurred on January 26, 2016, whether Respondents have proven, by a preponderance of the evidence, that Claimant was an independent contractor and not entitled to workers’ compensation benefits.

III. Whether Claimant has proven by a preponderance of the evidence that he is entitled to TTD benefits beginning January 27, 2016 and ongoing.

IV. Whether Claimant has established by a preponderance of the evidence that he is entitled to all reasonable, necessary, and related medical treatment.

V. Average weekly wage.

Because the undersigned ALJ concludes that Claimant was an independent contractor at the time of his fall, this order does not specifically address issues III-V above.

FINDINGS OF FACT

Based upon the evidence presented at hearing, the ALJ enters the following findings of fact:

1. Claimant is a 28-year-old roofer who has worked roofing buildings off and on with Tri Lakes Roofing Inc. (Tri-Lakes), since September 2015. On January 26, 2016, Claimant was going to begin working on a roof after it had snowed. Claimant had forgotten to bring his fall protection equipment with him to the job site.

2. Jon White, a senior subcontractor for Tri Lakes, indicated that only those workers who had the proper safety equipment were allowed to get on the roof to shovel the snow off. After Mr. White left the worksite, Claimant climbed onto the roof without using the proper safety gear and fell suffering serious injuries.

3. Claimant was taken to Memorial North Hospital by his co-workers where he

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underwent surgery by Dr. Fredericks to correct a right commuted intertrochanteric femur fracture, hip fracture and resulting compartmental syndrome.

4. Jeffrey Morrell is the owner and President of Tri-Lakes Roofing, Inc, the alleged employer in this case. Mr. Morrell testified that outside of his secretary, he had no hourly paid employees. Rather, he testified that he had a list of independent roofing contractors whom were contacted to complete jobs assigned to Tri-Lakes. Mr. Morrell testified that any decision to retain a specific independent contractor was left to Jon White, whom he had a long time subcontractor relationship with. According to Mr. Morrell, Claimant was not required to work exclusively for him and that it was his understanding that Claimant also worked for his church and possibly others. Mr. Morrell testified that he would advise his subcontractors of the address where the job site was located and would arrange for delivery of the materials necessary to complete the job but that he would not provide any tools needed as both the subcontractors and the contract laborers they chose to retain were expected to bring their own.

5. Mr. Morrell also testified that he had no control over Claimant’s daily activities as he had never met him. He also noted that if he was dissatisfied with Claimant’s work, he would simply stop contracting with him instead of “firing” him. Mr. Morrell also testified that Claimant would have been paid per square, as were all of the roofers and that his accountant would pay the independent contractors. In this case, Mr. Morrell testified that his accountant wrote one check to Claimant and his crew and that the check amount depended on how many houses they roofed, and not the time it took them to complete the job. Mr. Morrell also testified that Claimant, as an independent contractor was not provided with any type of paid benefits.

6. Mr. Morrell testified that Claimant would have been retained as an independent contractor due to his prior roofing experience and that neither he nor any other person associated with Tri-Lakes trained Claimant.

7. Jon White testified that he never had a conversation with Claimant offering him $18 per hour and that he never spoke to Claimant about becoming a full-time employee. Instead, Mr. White testified that Claimant and his crew were paid with one check that was based on the total amount of squares done on a particular contract. Mr. White credibly testified that it was his understanding that Claimant worked for other companies during the time he contracted for Tri Lakes, specifically toward the end of December 2015 and beginning of January 2016.

8. Mr. White testified that Claimant and his crew would bring their own tools to the work site but on the date when Claimant fell from the roof, he had forgotten to bring his safety anchors. Out of concern for Claimant’s safety and OSHA regulations, Mr. White testified that he told everyone without safety equipment to stay off the roof. As noted above, Mr. White had left the construction site when Claimant climbed onto and fell from the roof. Mr. White testified that he had left to obtain safety equipment for Claimant and his crew noting that anything he purchased on that date was for himself. Mr. White indicated that while he would allow others to use his equipment/tools if they had

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forgotten to bring their own it was expected that the work crews bring their own tools and equipment.

9. Mr. White testified that he did not exert control over Claimant’s day-to-day activities. Additionally, Mr. White testified that he did not dictate how the work was to be done but rather he would inspect the final product that Claimant produced. He testified that once a job was set up and the materials were delivered he would call various independent contractors including Claimant to see if he and his crew were available for work. If available, he would let them know the location and send them on their way.

10. Mr. White testified that he was a subcontractor for Tri-Lakes and had his own workers’ compensation insurance.

11. Claimant testified that he made $18 per hour with an average weekly wage of $1,237.06. He admitted that he was paid with one check and that he split it three-ways with two crew members. Claimant testified that he had never seen a time sheet nor had he ever filled one out. He testified further that he never asked to see his time sheets assuming that Mr. White was filling one out for him and his crew.

12. When questioned, Claimant testified that he was worked approximately 60 hours per week, but admitted he would have had to work approximately 69 hours per week in order to earn the weekly wage he was claiming. Moreover, Claimant testified that he worked from 8 a.m. to 6 p.m. and that this was during the winter and he could not roof while it was dark out.

13. Claimant testified that Jon White would supervise his work on a daily basis. He explained that Mr. White would tell him what time he needed to start work, what work needed to be done, how the work needed to be done, and at what time he was to be at work. He agreed that Mr. White would inspect his work after it was completed.

14. Claimant testified that he first became a roofer when he started performing work for Employer. Mr. White and other workers on the job site—whose names he could not recall—taught him how to be a roofer.

15. Claimant testified that he considered himself to be an employee of Jon White and that he did not know who Jeff Morrell was.

CONCLUSIONS OF LAW

Based upon the foregoing findings of fact, the ALJ draws the following conclusions of law:

A. Only employees of an employer are entitled to compensation for work-related injuries. C.R.S. §8-41-301(1)(a), (stating that an injury is compensable if, “at the time of the injury, both employer and employee are subject to the provisions of said articles…”). Individuals who are “free from control and direction in the performance of [a] service” for

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an employer are not employees. C.R.S. §8-40-202(2)(a). Such individuals are referred to as “independent contractors.” See C.R.S. §8-40-202.

B. The party asserting that a claimant is an “independent contractor” bears the burden of proving independence by a preponderance of the evidence. The putative employer may establish that the Claimant is an independent contractor because he was free from direction and control and engaged in an independent business or trade through a written document or by proving the presence of some or all of nine criteria set forth in §8-40-202(2)(b)(II), C.R.S 2015; Nelson v. Industrial Claim Appeals Office, 981 P.2d 210 (Colo. App.1998).

C. Pursuant to §8-40-202(2)(b)(II) “to prove independence it must be shown that the person for whom services are preformed does not:”

• Require the individual to work exclusively for the person for whom services are preformed; except that the individual may choose to work exclusively for such person for a finite period of time specified in the document;

• Establish a quality standard for the individual; except that the person may provide plans and specifications regarding the work but cannot oversee the actual work or instruct the individual as to how the work will be preformed;

• Pay a salary or at an hourly rate instead of at a fixed or contract rate;

• Terminate the work of the service provider during the contract period unless such

service provider violates the terms of the contract or fails to produce a result that meets the specifications of the contract;

• Provide more than minimal training for the individual;

• Provide tools or benefits to the individual; except that materials and equipment

may be supplied;

• Dictate the time of performance; except that a completion schedule and a range of negotiated and mutually agreeable work hours may be established;

• Pay the service provider personally instead of making checks payable to the trade or business name of such service provider; and

• Combine the business operations of the person for whom service is provided in

any way with the business operations of the service provider instead of maintaining all such operations separately and distinctly.

D. While the ALJ must consider the factors listed in the statute, the fact that the

party asserting independence does not prove one of the factors is not conclusive evidence that the claimant is an employee; put another way, the party asserting

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independence does not have to meet every factor listed above to prove an individual is an independent contractor. See C.R.S. §8-40-202(b); Nelson v. Industrial Claim Appeals Office, supra.

E. Section 8-40-202(b)(I) and (II) create a “balancing test” requiring the party asserting “independence” to overcome the presumption of an employment relationship contained in section 8-40-202(2)(a) and establish instead independent contractor status. Nelson v. Industrial Claim Appeals Office, supra. Once a claimant establishes that he performed services for an alleged employer for a wage, the burden shifts to the respondent to prove the Claimant was not an employee by showing that Claimant was free from direction and control and customarily engaged in an independent trade. In this case, the undersigned ALJ concludes on the evidence presented that Claimant preformed services for Tri-Lakes for a wage and that he suffered serious injuries to his leg and hip arising out of and in the course and scope of his work duties as a roofer on January 26, 2016. Consequently, the burden shifted to Respondents to establish that Claimant was an independent contractor rather than an employee of Tri Lakes.

F. Generally an employee is a person who is subject to their employer’s control over the means and methods of their work, as well as the results. Carpet Exchange of Denver, Inc. v. Industrial Claim Appeals Office, 859 P.2d 278 (Colo. App. 1993). It is the power to control, and not the fact of control being exercised, which is the primary factor in distinguishing an employee from a contractor. Industrial Commission of Colorado v. Moynihan, 94 Colo. 438, 32 P.2d 802 (1934). Based upon the totality of the evidence presented, the ALJ finds the testimony of Jeffrey Morrell and Jon White concerning Claimant’s status as an independent contractor more persuasive than the contrary testimony of Claimant. Claimant agrees that some of the factors listed above tip in favor of his being an independent contractor. For example, Claimant concedes in his position statement that there “was no evidence presented that [he] was required to work exclusively for [Respondent]” or that the business operations of Claimant and Employer where combined in any way. The ALJ agrees, concluding that the evidence presented concerning factors one and nine above support a finding/conclusion that Tri-Lakes had no power to control Claimant regarding his decision to accept work from other contractors. Furthermore, no evidence was presented to establish a comingling of Claimant’s business with the business operations of Tri-Lakes. Consequently, the evidence presented concerning these factors supports a conclusion that Claimant was an independent contractor when he was injured on January 26, 2016.

G. Claimant also stresses in his post hearing position statement that his pay, at an hourly rate and the fact that he was not trained by personnel at Tri Lakes are of little import in determining whether he was an employee or an independent service provider for Employer on January 26, 2016. The ALJ is not persuaded, concluding that Claimant’s pay structure and job training are significant factors to consider when determining whether he was an employee or an independent contractor on the date of injury. As discussed below, the evidence presented concerning these factors tips in favor of Claimant being an independent contractor.

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H. Concerning the remaining factors enumerated under §8-40-202(2)(b)(II), C.R.S, 2015, Claimant contends that they support a conclusion that he was an employee of Tri Lakes when he fell from a roof on January 26, 2016. Again, the ALJ is not persuaded.

I. Claimant contends that the evidence presented proves that Tri Lakes established a quality standard because Mr. Morrell testified that Mr. White could excuse the Claimant and his crew from the job site “if they’re not doing their job proper” and because Mr. White inspected the final work product. On the evidence presented, the ALJ finds that the putative employer, Tri Lakes did not oversee Claimant’s work in the field simply because Mr. Morrell testified that the providers on his contracted jobs could be told to get off the job site if they were not adhering to proper safety practices or “doing their job proper.”1 The ALJ finds that there are considerable safety concerns which may prompt a general roofing contractor to preclude and otherwise control an independent service provider from beginning or continuing work on a roofing project.2 Contrary to Claimant’s suggestion, enforcing safety regulations does not establish a quality standard regarding the performance of Claimant’s services to Tri Lakes. Furthermore, the ALJ is not convinced, based upon the evidence presented, that Mr. White established a quality standard or exerted control and supervision over the daily performance of Claimant and his crew because he inspected Claimant’s completed work. Rather, the ALJ credits Mr. White’s testimony to find and conclude that he had little daily interaction with the independent contractors on the job and did not supervise them given his need to bid other projects and check on the jobs in progress.

J. On the back of his aforementioned argument concerning the establishment of a quality standard, Claimant also contends that he was an employee of Tri Lakes because Mr. Morrell had authorized Mr. White to preclude individuals who failed to perform their work properly/safely from being on the work site. The ALJ finds this assertion unpursuasive and contradicted by the more credible testimony of Mr. Morrell who indicated that he did not hire/fire personnel nor would he have terminated Claimant during the middle of a project. Rather, Mr. Morrell credibly testified that he subcontracted work to Mr. White who would simply call service providers from a list he maintained to see if they were interested in taking a project. Moreover, Mr. Morrell noted that if, at the end of a project he was unsatisfied with a subcontractor’s work/work performance he simply would not contractor with them further. The evidence presented persuades the undersigned that Tri Lakes/Mr. Morrell did not feel that he could terminate the work of the service provider during the contract period unless such service provider violates the terms of the contract or failed to produce a result that meets the specifications of the contract. Consequently, the ALJ finds that the evidence presented regarding the right to terminate Claimant and his crew supports a conclusion that claimant was hired as a subcontractor of JW Enterprises (Jon White) and that Tri Lakes could not simply terminate Claimant at will as suggested.

1 The evidence presented persuades the ALJ that Mr. Morrell never worked directly with the Claimant. Although he may have seen Claimant on a job site, there is scant evidence to establish that Mr. Morrell oversaw or directed Claimant’s work in any meaningful way. 2 As here when Claimant failed to show up on the job site with the proper fall prevention equipment as required by OSHA regulation.

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K. Claimant also argues that the sixth enumerated factor of providing tools weighs

in favor of Claimant being an employee of Tri Lakes. In this case, Claimant and his witnesses testified that they brought their own tools to work with them. Their tools consisted of a tool bag containing a roofing hammer, a utility knife with extra blades and scissors. Claimant suggested that the Mr. White provided them with nailing guns, air compressors with hoses and ladders to complete the necessary repair work. The evidence presented supports a conclusion that Claimant and his crew were to bring safety harnesses and fall protection equipment to the job and on the date of injury and had forgotten those items, prompting Jon White to direct Claimant not to get up on the roof. Regarding “tools” which Claimant asserts were provided by Respondent; Mr. White testified that if Claimant and his crew had forgotten theirs, they could use his, but he and his crew were expected to come to the job site prepared to work. Based upon the evidence presented, the ALJ finds/concludes that just as Claimant forgot to bring his fall protection equipment to work with him on January 26, 2016, he and his crew also probably forgot to bring other tools such as nailing guns, air compressors and air hoses to work periodically during which time they used Mr. White’s. Moreover, the evidence presented regarding tools/equipment was limited Jon White’s provision of the same, not Tri-Lakes. Consequently, the ALJ finds and concludes that there was no intention on the part of Tri Lakes to “provide” tools to Claimant or his crew to complete the contracted work. To the extent that Claimant contends that ladders constitute tools, the ALJ is not persuaded. Rather, the ALJ finds that ladders are equipment which, along with materials, can be provided to complete the job. Thus, even if Claimant had convincingly established that Tri Lakes provided ladders, it was permitted to do so while maintaining the independent contractor relationship with Claimant.

L. Claimant also contends that the seventh factor which precludes a general contractor from dictating the time of performance weighs in favor of him being an employee. Here, Claimant and his witnesses testified that they felt their hours were dictated to them by Mr. White. Claimant testified that Mr. White would call him the day before work was to start and tell him where to go and when work could start. Mr. White testified that the projects Claimant was contracted to complete were in covenant protected communities which had time constraints regarding when work could begin and end on any particular day. No evidence was presented that Mr. Morrell or Mr. White had any control over these covenants. The evidence presented supports a conclusion that Claimant’s hours along with the hours of other workers performing services within these communities were controlled, not by Mr. Morrell or Mr. White but rather by home owner association (HOA) regulations over which Tri Lakes had no influence. Moreover, no persuasive evidence was presented that Mr. White or Mr. Morrell ever dictated to Claimant if and when he could take a rest or lunch break during his time on the job. The evidence presented convinces the ALJ that Claimant was free to set his own hours within his work day and neither Mr. White nor Tri Lakes (Mr. Morrell) controlled that. In other words, Claimant was free to work as long as he chose during the day so long as it was within the hours for work set by the community HOA and it was otherwise safe to do so. Based upon the evidence presented, the ALJ agrees with Respondent’s that the only amount of control exercised on Claimant’s time of performance were adherence to the community time constraints regarding when work could begin and end for the day

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and for safety reasons due to weather, daylight and other regulations, i.e. OSHA safety standards, all of which Tri-Lakes had no control over.

M. Concerning Claimant’s pay as raised at paragraph G above, the ALJ finds that the evidence presented supports a conclusion that he was paid by the “square” and not the hour as he testified. Claimant’s testimony that he earned $18 per hour conflicts with the evidence presented to the court and as such, is not credible. The ALJ finds that Claimant would have had to work approximately 69 hours per week at $18 per hour to earn the average weekly wage (AWW) he was claiming. However, Claimant agreed that the checks he received from Tri Lakes were for himself and his two employees who also earned $18 per hour. If this were the case, the checks would have been for a substantially larger amount than reflected. Claimant also admitted he worked for Tri Lakes during the winter and that he could not roof in the dark. However, in order to get 69 hours of work in per week, even on a six day work week, Claimant would have had to have worked better than 10 hours per day which based upon his testimony regarding when he started his work day would have required him to work in the dark. Accordingly, the ALJ concludes that Claimant’s testimony regarding the number of hours he worked to support his AWW incompatible with the profession and unreliable. Based upon the evidence presented, the ALJ is persuaded that Claimant was paid a fixed rate rather than on an hourly basis. As noted above, the ALJ finds this evidence significant in answering the question of whether Claimant was an employee or an independent contractor when he was injured on January 26, 2016. In this regard, the evidence presented supports Respondent’s contention that Claimant was hired to perform roofing work as an independent service provider at a fixed per square rate of pay on a job Tri Lakes subcontracted to JW Enterprises (Jon White).

N. While Claimant testified that he was trained to roof by Mr. White and other he could not remember, he presented no persuasive evidence that Tri Lakes provided any training to him. Thus, while Claimant’s testimony may support a claim of an employer/employee relationship between JW Enterprises and himself, there is a lack of persuasive evidence to support a conclusion that he was an employee of Tri Lakes based upon a claim that he was trained by Mr. Morrell or others employed by Tri-Lakes.

O. Upon careful review and consideration of the evidence presented and the factors set forth in §8-40-202(2)(b)(II), the ALJ concludes that the scale tips in favor of Claimant being an “independent contractor” for JW Enterprises as opposed to an employee of Tri Lakes, despite the fact that Claimant was paid “personally” instead of to a trade or business name.3 As noted above, C.R.S. §8-40-202 (2)(b)(II), does not establish any precise number or combination of factors which is decisive in determining whether or not a claimant is an employee or an independent contractor. Rapouchova v. Frankie's Installation, W. C. No. 4-630-15 (August 17, 2005). Rather, it is for the ALJ to determine, as a matter of fact, whether or not particular factors are present, and ultimately, whether a claimant is an employee or independent contractor based on the totality of the evidence presented concerning the statutory factors. Nelson v. Industrial 3 Claimant testified that he is an undocumented alien and that as such he could not legally form/register a business.

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Claim Appeals Office, supra. Here there is ample evidence to support that Tri Lakes did not control the means, methods and results of Claimant’s work. To be sure, Claimant testified that he was paid by “Jon” and that he considered himself an employee of Jon White not Jeffrey Morrell. Indeed, Claimant testified that he did not know who Mr. Morrell was, a fact supported by the testimony of Mr. Morrell who indicated that he never met Claimant. Considering the totality of the evidence presented the ALJ finds and concludes that Claimant was free from control and direction by Tri Lakes and was customarily engaged in an independent occupation, namely roofing, when he was injured while working as an independent contractor for JW Enterprises on January 26, 2016. Accordingly, his claim for benefits must be denied and dismissed.

ORDER

It is therefore ordered that:

1. Claimant’s claim for workers’ compensation benefits arising out of injuries sustained after falling from a roof on January 26, 2016, is denied and dismissed.

If you are dissatisfied with the Judge's order, you may file a Petition to Review the order with the Denver Office of Administrative Courts, 1525 Sherman St., 4th Floor, Denver, CO 80203. You must file your Petition to Review within twenty (20) days after mailing or service of the order, as indicated on certificate of mailing or service; otherwise, the Judge's order will be final. You may file the Petition to Review by mail, as long as the certificate of mailing attached to your petition shows: (1) That you mailed it within twenty (20) days after mailing or service of the order of the Judge; and (2) That you mailed it to the above address for the Denver Office of Administrative Courts. For statutory reference, see section 8-43-301(2), C.R.S. For further information regarding procedures to follow when filing a Petition to Review, see Rule 26, OACRP. You may access a petition to review form at: http://www.colorado.gov/dpa/oac/forms-WC.htm.

DATED: February 8, 2017

/s/ Richard M. Lamphere_______________ Richard M. Lamphere Administrative Law Judge Office of Administrative Courts 2864 S. Circle Drive, Suite 810 Colorado Springs, CO 80906

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OFFICE OF ADMINISTRATIVE COURTS STATE OF COLORADO WORKERS’ COMPENSATION NO. 5-003-212-01

ISSUES

I. Was Claimant's claim for disfigurement closed by his failure to timely respond to a Final Admission of Liability.

II. Was Claimant's claim for medical benefits closed by his failure to timely respond to a Final Admission of Liability.

FINDINGS OF FACT

Based upon the evidence presented at hearing, the ALJ enters the following Findings of Fact:

1. Claimant was injured on December 7, 2015 while traveling for work for Air Methods, Inc. At the time Claimant was in Sterling Heights, Michigan. After eating a take-out fried chicken dinner in his room, Claimant used a moist towelette provided by the Chicken Shack.

2. Claimant rubbed the moist towelette over his face, neck, ears, back of his neck, and left shoulder. He washed his hands shortly thereafter. A few minutes later, he felt burning to the areas where the towelette was applied. When Claimant took off his shirt to get in the shower to wash the areas he had just rubbed with the moist towelette, skin visibly came off on his shirt. However, Claimant continued to feel the burning sensations.

3. Claimant was taken by ambulance to the emergency room and subsequently transferred to the Burn Unit at Beaumont Medical Center in Troy, Michigan. It was noted that Claimant had blanchable, second degree burns to the anterior neck and face to the level of his lower lips. He was also noted to have blanchable second degree burns to the anterior and posterior neck/upper thoracic spine. The burn was noted as circumferential and approximately 5% TBS. “Serious discharge noted.”

4. Claimant did not miss greater than 3 days from work. His employer allowed him to work from home during the healing process, which enabled Claimant to maintain no wage loss.

5. Claimant was living in Castle Rock, Colorado at the time of the injury. However, subsequent to the injury he moved to Texas. Respondents authorized treatment for Claimant with Concentra in Arlington, Texas. Claimant was evaluated by Dr. Richard Virgilio on April 26, 2016. Of note, the patient in Concentra’s medical records is misidentified as “Jeffrey P Stuart.” The medical record does reflect Claimant’s

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correct date of birth, and the ALJ finds that the medical records at issue are those of the Claimant.

6. During the office visit of April 26, 2016 Dr. Virgilio placed Claimant at maximum medical improvement with no impairment.

7. Respondents filed a Final Admission of Liability ("FAL") on May 19, 2016. (Claimant’s Exhibit 4, page 42). Respondents denied liability for post MMI medical treatment. It was further noted, “per Dr. Virgilio’s attached 4/26/16 report, MMI is 4/26/16 with 0% whole person impairment. Denying future medical benefits. Denying temporary or permanent indemnity benefits. No lost time exceeding 3 working days.” Under “Benefit History”, type of benefits was noted as: “med only.”

8. Claimant did not file an objection to the Final Admission of Liability. An Entry of Appearance was filed on Claimant's behalf on July 19, 2016. An Application for Hearing on behalf of Claimant was then filed on September 22, 2016. The sole issue endorsed on Claimant's Application was Disfigurement. However, at hearing, the Court also heard about medical issues which are unresolved.

9. Claimant testified that he continues to feel nerve pain which extends from the soft tissue located in the worst part of his burn area (which was the last area to heal) and down into his left arm. This pain is intermittent, consisting of tingling in the arm, and neck pain. He reports no prior injuries to this area of his body. At the time he was examined by Dr. Virgilio in Texas on April 26, 2016, he was experiencing this intermittent pain, but he did not report it to Dr. Virgilio, thinking at the time it may not have been related. It has gotten worse since then. Claimant now desires additional medical treatment for his injury.

10. Claimant was present at the hearing. He removed his garments which allowed this Administrative Law Judge to evaluate scars as a result of the burns Claimant sustained on December 7, 2015. The scars observed at hearing are consistent in contour and shape to those depicted in the photographs which were admitted into evidence. However, the scars produced in the hearing show less reddening, and some further healing than the photographs depict. There is no evidence in the record that the disfigurement worsened since the Final Admission of Liability was filed; indeed, if anything, it has improved to some degree.

11. Claimant testified credibly at hearing about the circumstances surrounding the burns, the symptoms he felt at the time, and the symptoms he continues to experience.

12. As a result of this admitted claim, Claimant has suffered the burn scars as described, which are both serious and permanent.

13. Claimant provided no evidence of error or mistake in support of a Petition to Reopen his claim.

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CONCLUSIONS OF LAW

Based upon the foregoing findings of fact, the Judge draws the following Conclusions of Law:

Generally

A. The purpose of the Workers’ Compensation Act of Colorado (Act) Section 8-40-101, et seq. C.R.S. (2004), is to assure the quick and efficient delivery of disability and medical benefits to injured workers at a reasonable cost to employers, without the necessity of litigation. Section 8-40-102(1), supra. Claimant shoulders the burden of proving by a preponderance of the evidence that his injury arose out of the course and scope of his employment. Section 8-41-301(1), C.R.S. (2004); See City of Boulder v. Streeb, 706 P.2d 786 (Colo. 1985). A preponderance of the evidence is that which leads the trier of fact, after considering all of the evidence, to find that a fact is more probably true than not. Page v. Clark, 197 Colo. 306, 592 P.2d 792 (1979). The facts in a workers’ B. When determining credibility, the fact finder should consider, among other things, the consistency or inconsistency of the witnesses’ testimony and actions; the reasonableness or unreasonableness (probability or improbability) of the testimony and actions; the motives of the witness; whether the testimony has been contradicted; and bias, prejudice or interests. See Prudential Insurance Co. v. Cline, 98 Colo. 275, 57 P.2d 1205 (1936). A workers’ compensation case is decided on its merits. Section 8-43-201, supra. The ALJs factual findings concern only evidence that is dispositive of the issues involved. The ALJ has not addressed every piece of evidence that might lead to a conflicting conclusion and has rejected evidence contrary to the above findings as unpersuasive. Magnetic Engineering, Inc. v. ICAO, 5 P.3d 385 (Colo. App. 2000).

Causation

C. Proof of causation is a threshold requirement that an injured employee must establish by a preponderance of the evidence before any benefits are awarded. Section 8-41-301(1)(c), C.R.S.; Faulkner v. Indus. Claim Appeals Office, 12 P.3d 844, 846 (Colo. App. 2000). The question of whether the Claimant met the burden of proof to establish the requisite causal connection is one of fact for determination by the ALJ. City of Boulder v. Streeb, 706 P.2d 786 (Colo. 1985); Faulkner v. Indus. Claim Appeals Office, supra.

D. The evidence must establish the causal connection with reasonable probability, not medical certainty. Ringsby Truck Lines, Inc. v. Industrial Commission, 491 P.2d 106 (Colo. App. 1971). Reasonable probability exists if the proposition is supported by substantial evidence which would warrant a reasonable belief in the existence of facts supporting a particular finding. F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo. App. 1985). An award of benefits may not be based upon or denied upon speculation or conjecture. Deines Bros. v. Indus. Comm’n, 125 Colo. 258, 242 P.2d 600 (1952); Indus. Comm’n v. Havens, 136 Colo. 111, 134 P.2d 698 (1957).

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E. In this case, causation is not a matter for determination, as agreed by the

parties at hearing. Causation was also shown by Claimant's testimony. This is an admitted claim for medical benefits. Issues surrounding the cause of the burns Claimant suffered, unusual as they are, will not be relitigated herein. There is no need to examine further the reports of Dr. Cebrian, nor to examine possible inconsistencies in Claimant's version of events. That ship has sailed.

Disfigurement

F. In determining whether Claimant’s claim for benefits and disfigurement are

closed subject to reopening by his failure to timely object to Respondents’ filing of a Final Admission of Liability, the Administrative Law Judge finds that a Final Admission of Liability was filed on May 19, 2016. It did not pay any temporary benefits, permanent benefits or disfigurement benefits, and it included the applicable language that any and all benefits and penalties not specifically admitted, are denied. This includes claims for Disfigurement. Claimant did not timely file an Objection to the Final Admission of Liability or apply for hearing until September 22, 2016. Claimant contends that under Thibault v. Ronnie’s Automotive Services, W.C. No. 4-970-099-01 (August 8, 2016), his claim was not automatically closed by the failure to timely object to the Final Admission of Liability pursuant to statute. Respondents contend that Thibault was wrongly decided and as an unpublished Industrial Claim Appeals Panel opinion, it does not control. The ALJ does not entirely concur with the stated legal positions of either of the parties.

G. Here a Final Admission of Liability was filed and included the appropriate notification under the statute and no Objection was timely filed. C.R.S. § 8-43-203(2)(b)(II) provides that a case will “automatically close as to the issues admitted in the Final Admission of Liability if the Claimant does not, within 30 days after the date of the Final Admission of Liability, contest the Final Admission of Liability in writing and request a hearing on any disputed issues that are ripe for hearing.”

H. The mechanism of automatic closure is part of a statutory scheme designed

to promote, encourage and insure prompt payment of compensation to an injured worker without the necessity of a formal administrative determination in cases not presenting a legitimate controversy. Duyrkopp v. ICAO, 30 P.3d 821 (Colo. App. 2001).

I. Applying time limits to a Claimant’s right to contest closure is rational and

advances that purpose. Peregoy v. ICAO, 87 P.3d 261 (Colo. App. 2004). Once a case has automatically closed by operation of the statute, the issues resolved by the Final Admission of Liability are not subject to further litigation unless they are reopened pursuant to C.R.S. § 8-43-303 (2007). Colorado has long recognized that failure to timely contest a Final Admission of Liability results in closure of all claims that are admitted or denied in the Final Admission of Liability. Leewaye v. ICAO, 178 P.3d 1254 (Colo. App. 2007); Olivas-Soto v. ICAO, 143 P.3d 1178 (Colo. App. 2006); Berg v. ICAO, 128 P.3d 270 (Colo. App. 2005); Duyrkopp v. ICAO, 30 P.3d 821 (Colo. App. 2001). Nothing in the Loofbourrow opinion moved away from this well-established

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precedent or reconstrued C.R.S. § 8-43-203(2)(b)(II) otherwise. Loofbourrow does not affect the holding in Thibault, in relation to this case. The Administrative Law Judge concludes that accordingly under the plain language of the statute and the binding precedent from the Colorado Court of Appeals, Claimant’s claim for disfigurement was automatically closed when he did not timely challenge the Final Admission of Liability.

J. Respondent contends that Thibault was wrongly decided, and should not be followed. Thibault will be followed; the facts themselves are distinguishable. Despite his failure to timely object to the FAL, Thibault was excused from doing so, insofar as he sought additional medical benefits. The rationale is obvious: Thibault was not aware of the full extent of his injuries, and his need for further treatment at the time he acquiesced to the FAL. His medical condition then worsened, despite his having already been placed at MMI. To rule otherwise would prevent injured workers from being medically treated for work injuries which might manifest themselves after all parties in good faith believed MMI had been reached.

K. Nothing in Thibault addressed disfigurement, and nothing suggests it be

extended that far. Claimant herein knew full well the full extent of his disfigurement at the time of the FAL; if anything, it abated slightly in the months following. The rationale in Thibault (protecting workers in the event of later worsening of condition, despite an MMI finding) is inapplicable here. One might imagine a scenario where a worker in Claimant's legal position experiences a worsening of his disfigurement after a FAL. That issue can be sorted out in another case, on another day, should it occur.

Reopening/Worsening of Condition

L. Colorado Revised Statute § 8-43-303 provides that at any time within six

years after the date of injury, any award may be reopened on the grounds of error, mistake or change in condition. There is no evidence of an error of mistake to justify a reopening. As pertinent here, a change of condition refers to a change in the condition of the original compensable injury or a change in the Claimant’s physical or mental condition which can be causally connected to the original compensable injury. Chavez v. Industrial Commission, 714 P.2d 1328, 1330 (Colo. App. 1985). The party seeking reopening bears the burden of proof as to any issue sought to be reopened. § 8-43-304(4) C.R.S. The reopening authority is permissive. Renz v. Larimer County Sch. Dist. Poudre R-1, 924, P.2d 1177 (Colo. App. 1996).

M. Whether it is characterized as a reopening, or simply an extension of

medical benefits already conceded by Respondent, Claimant is now in the unenviable position of not knowing, with any medical certainty, whether his arm pain is related to his burn injury or not. Respondent seeks to prevent him from ever finding this out through diagnostic testing.

N. The respondents are liable for medical treatment from authorized providers

which are reasonably necessary to cure or relieve the employee from the effects of the injury. Section 8-42-101(1)(a); Sims v. Industrial Claim Appeals Office, 797 P.2d 777

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(Colo. App. 1990). The need for medical treatment may extend beyond MMI if the claimant requires further treatment to relieve the effects of the injury or prevent deterioration of their physical condition. Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988). Where liability for medical benefits is disputed, the claimant bears the burden of proving entitlement to benefits by a preponderance of the evidence. Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo. App. 1997). Although a claimant may rely on medical records and expert opinions, a claimant is not required to present medical evidence to prove the cause of his symptoms. Rather, the claimant’s testimony, if credited, may alone constitute sufficient evidence to support the ALJ’s determination concerning the cause of the claimant’s symptoms. Savio House v. Denis, 665 P.2d 141 (Colo. App. 1983);

O. Compensable medical treatment includes evaluations or diagnostic

procedures required to ascertain the nature or extent of the industrial injury. Montoya v. Kaiser-Hill Company, LLC, W.C. No. 4-633-835 (ICAO, April 26, 2006); Garcia v. Express Personnel, W.C. No. 4-587-458 (ICAO, August 24, 2000). The general standard for compensability of diagnostic evaluations is whether they have “a reasonable prospect of defining a claimant’s condition and suggesting further treatment.” Hatch v. John H. Garland Co., W.C. No. 4-368-712 (ICAO, August 11, 2000). Diagnostic evaluations can be awarded after MMI if they are reasonably necessary to outline a course of treatment to relieve the effects of a claimants’ injury or prevent deterioration. Owens v. Conam Management, 4-350-674 (ICAO, June 15, 2001); Logan v. Durango Mountain Resort, W.C. No. 4-679-289 (ICAO, November 18, 2010); Brock v. Jack Brach & Sons Trucking, 3-107-451 (ICAO, December 15, 1995).

Additional Diagnostic Medical Benefits

P. As Thibault makes clear, Claimant need not prove the elements needed for a successful Petition to Reopen his case; in other words, a worker in a similar circumstance as Claimant (A FAL premised on a finding of MMI, and for which no indemnity benefit is payable) need not show that his condition has changed, or that there was an error or mistake which would justify reopening.

Q. All Claimant must show is that such additional medical benefits are reasonable, necessary, and related to the work injury. Claimant has yet to demonstrate that Respondent should pay for medical treatment to alleviate his arm pain symptoms. He has shown through credible testimony, and by a preponderance of the evidence, that diagnostic procedures are reasonably necessary to establish what relation, if any, his arm pain bears to his admitted burn injuries.

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ORDER

It is therefore ordered that:

1. Claimant's claim for disfigurement was closed by his failure to respond to the Final Admission of Liability. His request for disfigurement benefits is denied and dismissed.

2. Claimant's claim for medical treatment was not closed by his failure to respond to the Final Admission of Liability. Respondents are ordered to pay for diagnostic medical treatments to determine if his arm paid is related to the burns Claimant received in his admitted claim.

3. All matters not determined herein are reserved for future determination.

The insurer shall pay interest to claimant at the rate of 8% per annum on all amounts of compensation not paid when due.

If you are dissatisfied with the Judge's order, you may file a Petition to Review the order with the Denver Office of Administrative Courts, 1525 Sherman St., 4th Floor, Denver, CO 80203. You must file your Petition to Review within twenty (20) days after mailing or service of the order, as indicated on certificate of mailing or service; otherwise, the Judge's order will be final. You may file the Petition to Review by mail, as long as the certificate of mailing attached to your petition shows: (1) That you mailed it within twenty (20) days after mailing or service of the order of the Judge; and (2) That you mailed it to the above address for the Denver Office of Administrative Courts. For statutory reference, see section 8-43-301(2), C.R.S. For further information regarding procedures to follow when filing a Petition to Review, see Rule 26, OACRP. You may access a petition to review form at: http://www.colorado.gov/dpa/oac/forms-WC.htm.

DATED: February 9, 2017

/s/ William G. Edie William G. Edie Administrative Law Judge Office of Administrative Courts 2864 South Circle Drive, Suite 810 Colorado Springs, Colorado 80906

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OFFICE OF ADMINISTRATIVE COURTS STATE OF COLORADO WORKERS’ COMPENSATION NO. 5-012-062-01

ISSUES

1. Whether Claimant established by a preponderance of the evidence that he sustained a compensable injury on March 19, 2016.

2. If Claimant did sustain a compensable injury on March 19, 2016, whether Respondents have proven by a preponderance of the evidence that Claimant was an independent contractor and not entitled to workers’ compensation benefits.

3. Whether Claimant has proven by a preponderance of the evidence that he is entitled to temporary total disability (TTD) benefits beginning March 21, 2016 and ongoing.

4. Whether Claimant has established by a preponderance of the evidence that he is entitled to reasonable, necessary, and related medical treatment.

5. Whether Respondents have proven, by a preponderance of the evidence, that Claimant was responsible for the termination of his employment precluding his entitlement to TTD benefits.

6. If Claimant is entitled to TTD benefits, what was his average weekly wage (AWW).

7. If Claimant is entitled to TTD benefits, whether those benefits are subject to any statutory offset.

FINDINGS OF FACT

Based upon the evidence presented at hearing, the ALJ enters the following findings of fact:

1. Claimant was hired to work as an independent contractor for Employer for a few days in December 2015. At the time Claimant explained that he had contracted with another company to complete a long term job and was looking for some “fill in time” before that job was to start.

2. At the time Claimant operated a business called Syens Construction, which he

had registered with the Secretary of State in Colorado. Documents filed on January 24, 2014 reflect that Syens Construction performs “window installation.” Claimant registered the company under the following address: 400 Ranch Drive in Woodland Park, CO. This is also Claimant’s home address.

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3. Claimant’s business documents were refiled with the Secretary of State on April 2, 2015. The description of the type of work performed by the company was expanded slightly to: “Installs replacement windows, finish carpentry.” The agent listed for Syens Construction on this filing is Vanessa Haakenson, who Claimant confirmed is his girlfriend. Ms. Haakenson’s address is likewise listed as 400 Ranch Drive in Woodland Park, CO. When asked on cross-examination why the description of his company changed to “installs replacement windows, finish carpentry”, he stated that the change was made for “insurance purposes.” Claimant confirmed that he did have insurance for the company at that time.

4. On July 29, 2015, Claimant filed Articles of Incorporation with the Secretary of State in Colorado, identifying his business name as “Syens Construction, LLC.” Vanessa Haakenson is listed as the registered agent. Claimant testified at hearing that he created the LLC with Ms. Haakenson as the owner, so that they could get bids on minority jobs when Syens Construction was being operated by a female. Claimant elaborated: “I changed from a DBA to an LLC and put the company in my girlfriend’s name so that we could take advantage of minority bidding on jobs and diversify what we were doing.” On cross examination, Claimant reiterated that the change was made “… purely so that we could bid on - as a minority company, a female owned company, so we were seeing as an - as an advantage to broaden the work that we could obtain.” He explained that the DBA was dissolved and the LLC was created.

5. A “Certificate of Fact of Good Standing” was issued by the Office of the Secretary of State in Colorado that certifies Syens Construction, LLC was in good standing as of July 12, 2016. Claimant did not dispute that Syens Construction, LLC may be in good standing with the Secretary of State; however, he testified that that the existence of Syens Construction was on paper only and that there was no one bidding on jobs under the LLC nor was there any work being done under the LLC.

6. As noted, Claimant, in the capacity of Syens Construction, worked on projects with Employer for a few days in December 2015. During that time, he used his own truck, hand tools, sawzall, and his multi-purpose ladders.

7. Following his “fill in” work for Employer, Claimant started the long term job he advised Employer he had contracted to perform. According to Claimant, he had obtained a contract to set doors at Colorado State University (CSU) in Fort Collins. Claimant testified that he performed the job at CSU as “Syens Construction”, and that the job had nothing to do with Hardy Window & Door. Claimant estimated that the job in Fort Collins lasted about a month.

8. Claimant subsequently returned home to Woodland Park and contacted Craig

Hardy in March 2016 to see if he, personally could “come back to work for [the] company.” Claimant testified that he explained to Mr. Hardy that he wanted a “job.”

9. Claimant testified that the only conversation he had with Craig Hardy about being an independent contractor at that time was whether he wanted to bring his own tools to work and lead a crew of his own. Claimant testified that it was explained to him that if he

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was going to be an independent contractor he would have to have his own liability insurance. According to Claimant, he explained to Craig Hardy that he “just wanted to literally take my sandwich to work and go home at the end of the day, that I had – was dissolving my business and was looking to be just an employee.” According to Claimant he was then hired on as an employee on a “full-time situation; five days a week, 40 hours, $20 an hour.”

10. On March 19, 2016, after a snow event, Claimant was instructed to begin the work to remove a window on one of Employer’s projects while Mr. Hardy went to Home Depot for supplies. Claimant testified that the work area was covered in snow and as he stepped out onto a concrete patio he slipped and fell. He explained that when he fell he threw the board that he was carrying into the air and the board landed on his leg and he landed on his shoulder and elbow. Claimant testified that when he hit the ground his elbow pushed his shoulder up and pulled the rotator cuff in his neck. He also explained that he has some lower back pain from twisting to the ground.

11. Claimant testified that he told Craig Hardy about the fall after he returned from Home Depot. Claimant testified that board had lacerated his leg and was bleeding. He also testified that the leg was very swollen, being twice its normal size. Claimant purportedly asked to seek medical attention. According to Claimant, his request was denied after it was explained to him by Mr. Hardy that he (Claimant) needed to be a team player and that if he (Mr. Hardy) had injured himself he would not be able to leave. Claimant testified that it was his understanding that if he left to go to the doctor he would be terminated. This testimony is in conflict with the testimony of Mr. Hardy, who testified that Claimant simply pulled up his pant leg and said “Check this out” as if he was displaying his injury as a trophy. Mr. Hardy did not see that Claimant’s leg was swollen twice their normal size, as Claimant has suggested during his testimony. Rather, he reported that Claimant had a “scratch.”1 Claimant did not mention injuring his shoulder at all to Mr. Hardy. Per Mr. Hardy, Claimant did not ask him if he could leave to seek medical treatment.

12. Claimant received a text from Craig Hardy on the evening of March 20, 2016, asking how his leg was doing. Claimant responded: “It’s doing okay. I’ll be there in the morning.” Claimant proceeded to testify that he had lied to Mr. Hardy about the condition of his leg and concealed his others injuries so that he could keep his job. When asked if he had misrepresented his condition to Mr. Hardy, Claimant said: “Absolutely.” When asked why there was no mention by Claimant in the text exchange on March 20th or otherwise about a shoulder injury, Claimant stated: “Again, I was concealing the injury to begin with because I needed to keep that job.”

13. Claimant returned to the job site on March 21, 2016. He did not tell Craig Hardy at the job site on March 21, 2016 that he was physically unable to perform his job duties.

14. Claimant testified that he attempted to perform his job duties on March 21, 2016, 1 According to Claimant, his laceration healed leaving a scar the size of a dime on his leg.

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but that he was unable to do so as a consequence of his injuries. According to Claimant, his turnover (job speed) was not up to Employers standards and that Mr. Hardy made that “abundantly clear by tearing him up one side and down the other. Claimant testified that an argument took place with Mr. Hardy telling him that he was taking too long to complete a window installation. Claimant testified that Mr. Hardy started yelling at him and terminated his employment. Claimant testified that: “. . . when I explained to Mr. Hardy that he didn’t need to speak to me that way, that was after he let loose his barrage on me and had terminated my employment and then threw my windows (sic) out of the window onto the ground. He did not - - I didn’t gather up any tools, he threw them out the - - out of the window and then told me to get off his job site.” Claimant testified that Mr. Hardy told him “you are free to go anytime you want to go, you’re no longer an employee here” so he got in his car and left.

15. Mr. Hardy testified to the events leading up to Claimant leaving the job site on March 21, 2016. Mr. Hardy’s testimony provides a very different picture of what transpired that day. According to Mr. Hardy, he informed Claimant about a quality problem with his framing concerning a window which required space for an emergency egress. When he brought this to Claimant’s attention and pointed out that the framing was wrong and would need to be corrected to meet code requirements, Mr. Hardy testified that Claimant became very angry and a heated dispute ensued. According to Mr. Hardy, Claimant “did not like what he was hearing, he got violent and lunged at me enough that one of the other guys came down” to intervene. Mr. Hardy testified that Claimant then gathered up his stuff and proceeded to his car. As Claimant had forgotten his pry bar and hammer, he got back out of the car “all crazy”, retrieved it, returned to his car and took off according to Mr. Hardy.

16. Mr. Hardy, testified that no words were exchanged between the two about terminating their arrangement nor did he tell Claimant that he was no longer his employee. Nonetheless, Mr. Hardy admitted that the situation was “completely out of control.

17. The ALJ credits the testimony of Mr. Hardy to find that Claimant elected to engage him in a war of words, attempt to intimidate him with his stature2 and then abruptly leave the job site.

18. Claimant sent a text message to Mr. Hardy on March 22, 2016 requested that he

be paid for two and one-half days of work. Claimant requested payment of 22 hours at $20/hour for a total of $440.00. Mr. Hardy responded by requesting a signed W-9. Claimant then indicated that he would send a signed copy in PDF format for printing so he did not have to travel to Denver. Mr. Hardy then provided Claimant with an email address.

19. On March 24, 2016, Mr. Hardy requested the W-9 a second time by email.

2 Claimant is 6’2” tall and of significantly larger build than Mr. Hardy.

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Claimant responded that he would send it that evening. A second response was sent by Claimant’s girlfriend that Claimant was asleep and that she would have him sign a 1099 and scan it in the morning.

20. Claimant sent the W-9 and on March 27, 2016, asked if Mr. Hardy received it.

He responded on March 28, 2016 that he did get it prompting Claimant to ask if his check had been sent. Mr. Hardy asked why the W-9 did not include the name of Claimant’s business. Claimant then responded by indicating that he would make a correction and again asking “have you mailed the check out.” Mr. Hardy indicated that he was only “going to make the check out to [Claimant’s] business.

21. On March 28, 2016, Claimant reported to Penrose Mountain Urgent Care. Claimant reported that while hanging windows, he was standing on a thin sheet of ice slipped and was struck in the lower extremity with an 85 pound plank. He also reported 6/10 right shoulder pain. X-rays of the right tibia and fibula were obtained and interpreted as normal. A pain diagram was completed indicating that Claimant reported pain in his shoulder, neck, and right ankle. Physical examination revealed dependent ecchymosis in the right foot/ankle. Claimant was assessed with a suspected rotator cuff strain and concern was raised for possible wound infection leading to a diagnosis of cellulitis for which Claimant was provided a prescription of Keflex. It is noteworthy that Claimant did not complain of pain in any body parts other that his right leg and right shoulder on March 28, 2016. This is supported by the pain diagram completed in conjunction with the emergency room visit. The ALJ finds the physical examination to contain objective evidence of injury to the lower extremity.

22. When asked why he had not gone to the emergency room the following day

(March 20th) or shortly thereafter, Claimant responded: “Well, because I had been drained from not being allowed to leave the job site on Saturday.” He later testified that he had delayed seeking treatment because: “I didn’t know I even had a claim, I didn’t even know I could go to the doctor, I thought it was out of my pocket that I would have to pay for this stuff. And it was only after I had talked to an attorney that they explained to me that it - - it would not be out of my pocket and that I needed to go see - - seek medical treatment - - for my injuries.”

23. Claimant said he never told Craig Hardy that he been to Penrose on March 28,

2016, because that was after his employment had been “terminated.”

24. Claimant completed at First Report of Injury form on March 29, 2016 listing his lower right leg and right shoulder as the only parts of the body affected by his work related accident.

25. Respondents filed a Notice of Contest on April 25, 2016. Respondents denied the claim on the basis that Claimant was not an employee of Employer.

26. Claimant testified that he has not been able to receive treatment since his first visit to the urgent care because he can’t afford to pay for treatment and workman’s comp is denying his claim. Claimant went on to testify: “…I’m having a lot of trouble

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even making an appointment with a doctor who can understand this whole mess.” [Transcript, p. 28] Claimant also stated: “… In this mess worth Workman’s Compensation I have not found a - - a doctor’s office that will - - that has any paperwork that they can fill out to even start seeing me.”

27. Claimant filed an application for hearing on June 27, 2016.

28. Claimant testified that he has not worked since the injury.

29. Claimant testified that he continues to experience pain in his shoulder, has difficulty sleeping on his right side, and has limited range of motion in his shoulder. Claimant testified that he also has pain in his lower back which he testified arose weeks after the original injury. Claimant testified that he also experiences a “pulling” feeling in his neck. Claimant testified that he was not having problems with these body parts before the work injury nor was he seeking treatment for these body parts before the injury.

30. Claimant testified that he wants additional treatment for his injuries.

31. Regarding his status as an employee for Hardy Window & Door, LLC Claimant testified Mr. Hardy or his partner, James, would supervise his job duties. Claimant testified that Mr. Hardy would tell Claimant where to set up and what job duties he would be performing for the day. Mr. Hardy would check up with Claimant throughout the day to see if he was still on task and performing fast enough. Claimant was also instructed on how Hardy Window & Door expected the flashing around their windows to be done testifying that he would be counseled if he was not performing the work to Employer’s standards. Claimant testified that Mr. Hardy inspected Claimant’s work after it was completed at every job.

32. In contrast, Claimant testified that when working for his company, Syens Construction, he would get handed a contract listing the work to be completed. Claimant explained that it was up to him to determine when the work would be completed and how the work was to be completed, noting that no one checked his work upon completion.

33. Claimant testified that he provided his own hand tools. However, he explained that the jobs required use of ladders, aluminum brakes, drills, air compressors, saws, etc. He explained that Craig Hardy provided this equipment and specialized tools. Claimant testified that when he was operating as an independent contractor under Syens Construction he would provide these tools for himself.

34. Claimant testified that job sites and duties were communicated to him by Mr. Hardy either verbally on the job the night before or through text message. The ALJ finds this testimony supported by the record evidence.3 Claimant testified that he would 3 Respondents’ Exhibit G, consists of a text message Mr. Hardy sent to Claimant indicating where to report for work and what time to begin work.

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typically start work around 8:00 a.m. and would be told when he could take a break and when to stop working for the day adding the following testimony: “I showed up, my job duties were dictated, I was told which jobs to go to, I - - I really didn’t have any control over my day. If I wanted to leave for a cup of coffee I had to ask somebody first.”

35. Regarding Claimant’s status as an independent contractor, Mr. Hardy testified that his office manager/bookkeeper is the only employee of his company. Mr. Hardy testified that he hires skilled independent contractors to perform window installation who work alongside himself. Mr. Hardy testified that he requires independent contractors to carry liability insurance. Mr. Hardy testified that he asked Claimant several times for his proof of insurance only to receive multiple excuses such as “I forgot it” or “It’s coming.” Nonetheless, Mr. Hardy admitted that he never had Claimant complete an independent contractor agreement and that he only sought a W-9 from Claimant after he left the job site following their heated disagreement.

36. Mr. Hardy also testified that he requires his independent contractors to carry their own tools and equipment to projects. Based upon the evidence presented the ALJ finds that while Claimant took his own hand tools to work with him, the more specialized tools (aluminum brakes, drills, air compressors, etc.) required to complete jobs were, more probably than not, loaded at Employer’s warehouse along with the materials necessary to complete the project on any given day.4

37. Mr. Hardy testified that he paid his independent contractors by “piecework” and that Claimant’s rate was $180.00 per day. Mr. Hardy testified that he came up with the rate of pay based off a nine-hour work day.5

CONCLUSIONS OF LAW

Based upon the foregoing findings of fact, the ALJ draws the following

conclusions of law:

General Legal Principals

A. The purpose of the Workers’ Compensation Act of Colorado (Act), §§ 8-40-101, et seq., C.R.S., is to assure the quick and efficient delivery of disability and medical benefits to injured workers at a reasonable cost to employers, without the necessity of litigation. Section 8-40-102(1), C.R.S. The claimant shoulders the burden of proving by a preponderance of the evidence that he is a covered employee who suffered an injury arising out of and in the course of employment. Section 8-43-301(1), C.R.S.; Faulker v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo. App. 2000); City of Boulder v. Streeb, 706 P.2d 786 (Colo. 1985); Pacesetter Corp. v. Collett, 33 P.3d 1230 (Colo. App. 2001). A preponderance of the evidence is that which leads the trier-of-fact, after

4 Mr. Hardy testified that everyone meets at 7:00 in the morning to load the day’s projects and prepare for the day. According to Mr. Hardy, they then drive to the job site. 5 The ALJ notes that the $180.00 daily rate for a nine hour day equates to $20.00/hour.

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considering all of the evidence, to find that a fact is more probably true than not. Page v. Clark, 197 Colo. 306, 592 P.2d 792 (1979). The facts in a workers’ compensation case must be interpreted neutrally, neither in favor of the rights of the claimant nor in favor of the rights of respondents. Section 8-43-201, C.R.S. A workers’ compensation claim is decided on its merits. Section 8-43-201, supra.

B. In accordance with § 8-43-215, C.R.S., this decision contains specific Findings of Fact, Conclusions of Law and an Order. In rendering this decision, the ALJ has made credibility determinations, drawn plausible inferences from the record, and resolved essential conflicts in the evidence. See Davison v. Industrial Claim Appeals Office, 84 P.3d 1023 (Colo. 2004). This decision does not specifically address every item contained in the record; instead, incredible or implausible testimony or unpersuasive arguable inferences have been implicitly rejected. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo. App. 2000).

C. In determining credibility, the ALJ should consider the witness’ manner and demeanor on the stand, means of knowledge, strength of memory, opportunity for observation, consistency or inconsistency of testimony and actions, reasonableness or unreasonableness of testimony and actions, the probability or improbability of testimony and actions, the motives of the witness, whether the testimony has been contradicted by other witnesses or evidence, and any bias, prejudice or interest in the outcome of the case. Colorado Jury Instructions, Civil, 3:16.

Compensability & Independent Contractor Status

D. A claimant’s right to compensation initially hinges upon a determination that the claimant suffered a disability that was proximately caused by an injury arising out of and within the course and scope of employment. C.R.S. § 8-41-301. The phrases "arising out of” and "in the course of" are not synonymous and a claimant must meet both requirements for the injury to be compensable. Younger v. City and County of Denver, 810 P.2d 647, 649 (Colo. 1991); In re Question Submitted by U.S. Court of Appeals, 759 P.2d 17, 20 (Colo. 1988). The latter requirement refers to the time, place, and circumstances under which a work-related injury occurs. Popovich v. Irlando, 811 P.2d 379, 381 (Colo. 1991). An injury occurs "in the course of" employment when it takes place within the time and place limits of the employment relationship and during an activity connected with the employee's job-related functions. In re Question Submitted by U.S. Court of Appeals, supra; Deterts v. Times Publ'g Co., 38 Colo. App. 48, 51, 552 P.2d 1033, 1036 (1976). The "arising out of" test is one of causation. It requires that the injury have its origins in an employee's work related functions, and be sufficiently related thereto so as to be considered part of the employee's service to the employer. Horodyskyj v. Karanian, 32 P.3d 470, 475 (Colo. 2001). It is the burden of the claimant to establish causation by a preponderance of the evidence. Faulkner v. Indus. Claim Appeals Office, 12 P.3d 844, 846 (Colo. App. 2000). There is no presumption than an injury which occurs in the course of employment arises out of the employment. Finn v. Industrial Commission, 165 Colo. 106, 437 P.2d 542 (1968). The evidence must establish the causal connection with reasonable probability, but it need not establish it with reasonable medical certainty. Ringsby Truck Lines, Inc. v. Industrial Commission,

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30 Colo. App. 224, 491 P.2d 106 (Colo. App. 1971); Industrial Commission v. Royal Indemnity Co., 124 Colo. 210, 236 P.2d 2993. Medical evidence is not required to establish causation and lay testimony alone, if credited, may constitute substantial evidence to support an ALJ’s determination regarding causation. Industrial Commission of Colorado v. Jones, 688 P.2d 1116 (Colo. 1984); Apache Corp. v. Industrial Commission of Colorado, 717 P.2d 1000 (Colo. App. 1986).

E. In this case, the ALJ concludes that the evidence presented supports that

Claimant was performing services for Hardy Window & Door for a wage and that he suffered injuries to his leg and shoulder after slipping on ice and snow with a heavy board while performing his work duties as a window installer on March 19, 2016. Consequently, the ALJ concludes that the burden shifted to Respondents to prove that Claimant was an independent contractor rather than an employee of Hardy Window & Door, LLC.

F. Only employees of an employer are entitled to compensation for work-related

injuries. C.R.S. §8-41-301(1)(a), (stating that an injury is compensable if, “at the time of the injury, both employer and employee are subject to the provisions of said articles…”). Individuals who are “free from control and direction in the performance of [a] service” for an employer are not employees. C.R.S. §8-40-202(2)(a). Such individuals are referred to as “independent contractors.” See C.R.S. §8-40-202. The party asserting that a claimant is an “independent contractor” bears the burden of proving independence by a preponderance of the evidence. The putative employer may establish that the Claimant is an independent contractor because he was free from direction and control in the performance of his duties. Nelson v. Industrial Claim Appeals Office, 981 P.2d 210 (Colo. App.1998). In addition to proving that the Claimant is free from control and direction, the Respondent must also establish the Claimant is customarily engaged in an independent trade, occupation, profession, or business related to the service performed. Section 8-40-202(2)(a), C.R.S. Independence may be proven through a written document or by proving the presence of some or all of nine criteria set forth in §8-40-202(2)(b)(II), C.R.S 2015.

G. Pursuant to §8-40-202(2)(b)(II) “to prove independence it must be shown that the person for whom services are preformed does not:”

• Require the individual to work exclusively for the person for whom services are preformed; except that the individual may choose to work exclusively for such person for a finite period of time specified in the document;

• Establish a quality standard for the individual; except that the person may provide plans and specifications regarding the work but cannot oversee the actual work or instruct the individual as to how the work will be preformed;

• Pay a salary or at an hourly rate instead of at a fixed or contract rate;

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• Terminate the work of the service provider during the contract period unless such service provider violates the terms of the contract or fails to produce a result that meets the specifications of the contract;

• Provide more than minimal training for the individual;

• Provide tools or benefits to the individual; except that materials and equipment

may be supplied;

• Dictate the time of performance; except that a completion schedule and a range of negotiated and mutually agreeable work hours may be established;

• Pay the service provider personally instead of making checks payable to the trade or business name of such service provider; and

• Combine the business operations of the person for whom service is provided in

any way with the business operations of the service provider instead of maintaining all such operations separately and distinctly.

H. While the ALJ must consider the factors listed in the statute, the fact that the

party asserting independence does not prove one of the factors is not conclusive evidence that the claimant is an employee; put another way, the party asserting independence does not have to meet every factor listed above to prove an individual is an independent contractor. See C.R.S. §8-40-202(b); Nelson v. Industrial Claim Appeals Office, supra. To the contrary, Section 8-40-202(b)(I) and (II) create a “balancing test” requiring the party asserting “independence” to overcome the presumption of an employment relationship contained in section 8-40-202(2)(a) and establish instead independent contractor status. Nelson v. Industrial Claim Appeals Office, supra. In Industrial Claim Appeals Office v. Softrock Geological Services, Inc., 325 P.3d 560 (Colo. 2014), the Colorado Supreme Court held that whether an individual is customarily engaged in an independent trade, occupation, profession, or business related to the service performed must be determined by applying a totality of circumstances test that evaluates the dynamics of the relationship between the individual and the putative employer. Based upon the totality of the evidence presented, the ALJ concludes that Respondents have failed to meet their burden to establish Claimant was an independent contractor and engaged in an independent business or trade at the time of his March 29, 2016 work related injury.

I. The ALJ has considered the enumerated factors required to prove independence as set forth in C.R.S. §8-40-202(2)(b)(II) carefully. Claimant admits that at least one of the factors listed above tip in favor of his being an independent contractor. For example, Claimant concedes in his position statement that there “was no evidence presented that he was required to work exclusively for Respondent.” However, Claimant goes on to assert that the evidence concerning the remaining factors should be interpreted neutrally or weighs in favor of his being an employee of Hardy Window & Door. The ALJ agrees in part, concluding further that the evidence presented on factor

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four and nine is insufficient to support a conclusion regarding independence one way or the other. Nonetheless, the ALJ agrees with Claimant to find and conclude that the third enumerated factor of payment at a salary or hourly rate falls in favor of Claimant. Claimant testified that he was paid hourly at a rate of $20.00 per hour. Respondents’ witness Craig Hardy testified that Claimant was paid per day at a rate of $180.00. The pay records submitted do not indicate how the Claimant was paid. As found above, Respondents’ submitted a series of text message between Claimant and Mr. Hardy in Respondents’ Exhibit G. The text messages were from March 18, 2016 where Claimant asked Respondents for his last paycheck. On page 27 of Respondents’ Exhibit G, the Claimant indicates that he should be paid for 22 hours of work at a total of $440.00. This is consistent with Claimant’s testimony that he was paid $20.00 per hour. Moreover, Respondents alleged $180.00 daily rate over nine hour’s breaks down to $20.00/hour.

J. Regarding his pay, the ALJ finds/concludes that factor eight tips in favor of Claimant being an employee. The payment records indicate that Claimant was paid initially in 2015 through his trade name, Syens Construction. This is the time period when Claimant admits he was an independent service provider. However, after he returned in 2016, checks were made out directly to Claimant.

K. The ALJ also agrees that factor six weighs in favor of Claimant. At hearing, Claimant testified that he would bring small hand tools to the job site. However, he testified that the job required the use of larger, specialized tools that were provided by Mr. Hardy. Respondents presented negligible and unpersuasive evidence to refute this suggestion. Claimant testified that when he was operating under his own trade name as an independent contractor he would provide all of the tools himself.

L. The ALJ rejects Claimant’s suggestion that the fifth enumerated factor weighs in favor of an employment relationship. Outside of minimal training on how to “flash” windows, the evidence presented persuades the ALJ that Claimant was a skilled installer who required no training from Respondent-Employer. Consequently, the ALJ concludes that factor five tips in favor of Claimant being an independent contractor.

M. In this case, the ALJ finds and concludes that the evidence presented factors two and seven is critical to the determination of whether Claimant was an independent contractor or an employee at the time he suffered injuries to his leg and shoulder on March 29, 2016. An employee is a person who is subject to their employer’s control over the means and methods of their work, as well as the results. Carpet Exchange of Denver, Inc. v. Industrial Claim Appeals Office, 859 P.2d 278 (Colo. App. 1993). It is the power to control, and not the fact of control being exercised, which is the primary factor in distinguishing an employee from a contractor. Industrial Commission of Colorado v. Moynihan, 94 Colo. 438, 32 P.2d 802 (1934). Based upon the totality of the evidence presented, the ALJ finds the testimony of Claimant regarding control over the means and methods of his work persuasive. The evidence presented persuades the ALJ that Mr. Hardy had specific standards/expectations for the installation process. The evidence also convinces the ALJ that Mr. Hardy oversaw Claimant’s work and instructed him on how the work needed to be preformed rather than simply providing

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plans and specifications regarding the work. This close oversight, supervision and instruction, more probably than not, led to the March 21, 2016 disagreement which escalated into the violent confrontation described by Mr. Hardy prompting Claimant to storm off the job site.

N. Factor seven is dictating the time of performance of the job. Based upon the evidence presented, the ALJ agrees that this factor weighs in favor of Claimant being an employee of Hardy Window & Door. The ALJ credits Claimant’s testimony that his job duties were dictated, that he was told which jobs to go to and did not have control over his work day. The ALJ finds/concludes that close direction/management over Claimant’s work duties and day constitutes evidence that he (Mr. Hardy) was dictating the time of performance as opposed to providing Claimant with (as is allowed for independent contractors) a completion schedule and a range of negotiated and mutually agreeable work hours. The evidence presented convinces the ALJ that Mr. Hardy not only had the power to control and direct Claimant’s work, he did so routinely.

O. After considering the evidence as a whole, the ALJ finds and concludes that the Claimant was not free from the control and direction of Mr. Hardy nor was he engaged in an independent trade, occupation, profession, or business related to the service performed when he was injured on March 29, 2016. Consequently, Respondents have failed to carry their burden to prove that Claimant was an independent contractor when he injured his right leg and shoulder.

Claimant’s Entitlement to Medical Benefits

P. Once a claimant has established the compensable nature of his/her work injury, he/she is entitled to a general award of medical benefits and respondents are liable to provide all reasonable and necessary and related medical care to cure and relieve the effects of the work injury. Section 8-42-101, C.R.S.; Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988); Sims v. Industrial Claim Appeals Office, 797 P.2d 777 (Colo. App. 1990). However, a claimant is only entitled to such benefits as long as the industrial injury is the proximate cause of his/her need for medical treatment. Merriman v. Indus. Comm’n, 210 P.2d 448 (Colo. 1949); Standard Metals Corp. v. Ball, 172 Colo. 510, 474 P.2d 622 (1970); § 8-41-301(1)(c), C.R.S. Ongoing benefits may be denied if the current and ongoing need for medical treatment or disability is not proximately caused by an injury arising out of and in the course of the employment. Snyder v. City of Aurora, 942 P.2d 1337 (Colo. App. 1997). In other words, the mere occurrence of a compensable injury does not require an ALJ to find that all subsequent medical treatment and physical disability was caused by the industrial injury. To the contrary, the range of compensable consequences of an industrial injury is limited to those which flow proximately and naturally from the injury. Standard Metals Corp. v. Ball, supra.

Q. Where the relatedness, reasonableness, or necessity of medical treatment is disputed, Claimant has the burden to prove that the disputed treatment is causally related to the injury, and reasonably necessary to cure or relieve the effects of the injury. Ciesiolka v. Allright Colorado, Inc., W.C. No. 4-117-758 (ICAO April 7, 2003). The question of whether a particular medical treatment is reasonably necessary to cure

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and relieve a claimant from the effects of the injury is a question of fact. City & County of Denver v. Industrial Commission, 682 P.2d 513 (Colo. App. 1984). As found here, Claimant has proven by a preponderance of the evidence that he sustained a compensable injury to his right leg and shoulder on March 29, 2016. The evidence presented persuades the ALJ that these compensable “injuries” are the direct cause of Claimant’s need for medical treatment at Penrose Mountain Urgent Care. Consequently, the ALJ concludes that Respondents are liable for Claimant’s Urgent Care treatment as well as all treatment reasonable, necessary to cure and relieve Claimant from the conditions related to his industrial injury.

Termination for Cause & Claimant’s Entitlement to TTD

R. As Claimant’s injury was after July 1, 1999, sections 8-42-105(4) and 8-42- 103(1)(g), C.R.S. apply regarding his entitlement to temporary total disability (TTD) benefits. These identical provisions state, “In cases where it is determined that a temporarily disabled employee is responsible for termination of employment, the resulting wage loss shall not be attributable to the on-the-job injury.” Sections 105(4) and 103(1)(g) bar reinstatement of TTD benefits when, after the work injury, claimant causes his/her wage loss through his/her own responsibility for the loss of employment. Colorado Springs Disposal d/b/a Bestway Disposal v. Industrial Claim Appeals Office, 58 P.3d 1061 (Colo. App. 2002). Simply put, if the claimant is responsible for his/her termination of employment, the wage loss which is the consequence of claimant's actions shall not be attributable to the on-the-job injury. Anderson v. Longmont Toyota, Inc., W.C. No. 4-465-839 (ICAO February 13, 2002). Respondents shoulder the burden of proving by a preponderance of the evidence that Claimant was responsible for her termination. Colorado Compensation Insurance Authority v. Industrial Claim Appeals Office, 20 P. 3d 1209 (Colo. App. 2000).

S. The concept of "responsibility" is similar to the concept of "fault" under the previous version of the statute. PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). "Fault" requires a volitional act or the exercise of some control in light of the totality of the circumstances. Padilla v. Digital Equipment Corp., 902 P.2d 414 (Colo. App. 1994). An employee is "responsible" if the employee precipitated the employment termination by a volitional act that an employee would reasonably expect to result in the loss of employment. Patchek v. Colorado Department of Public Safety, W.C. No. 4-432-301 (September 27, 2001). “Fault” does not require “willful intent” on the part of the Claimant. Richards v. Winter Park Recreational Association, 919 P.2d 933 (Colo. App. 1996)(unemployment insurance); Harrison v. Dunmire Property Management, Inc., W.C. no. 4-676-410 (ICAO April 9, 2008). “Fault” can include poor job performance, but Claimant is not at fault if the termination is due to claimant’s physical or mental inability to perform assigned duties, Johnston v. Deluxe/Current Corporation, W.C. No. 4-376-417 (Industrial Claim Appeals Office, June 7, 1999). In this case, Claimant asserts that his was terminated because his injuries interfered with his ability to efficiently discharge his work duties. Respondents contend that Claimant voluntarily quit his job and as such committed a volitional act barring his entitlement to TTD benefits. Even assuming that Claimant voluntarily quit his job, Blair v. Art C. Klein Construction Inc., W.C. No. 4-556-576 (Industrial Claim Appeals Office, November 3, 2003), held that a claimant’s

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voluntary resignation is not dispositive of the issue of whether he is responsible for termination of his employment. The Blair Court held that the pertinent issue is the reason claimant quit because the claimant is not "responsible" where the termination is the result of the injury. See Colorado Springs Disposal v. Industrial Claim Appeals Office, supra; Gregg v. Lawrence Construction Co., W.C. No. 4-475-888 (ICAO, April 22, 2002); Bonney v. Pueblo Youth Service Bureau, W.C. No. 4-485-720 (ICAO April 24, 2002). According to Blair, “if the claimant was compelled to resign from . . . employment such that it can be said the termination was a necessary and a natural consequence of the injury, rather than the claimant's subjective choice, the claimant would not be at fault for the termination.”

T. Here Claimant appears to argue that he was constructively discharged due to unrealistic performance standards and having conflicts with Employer over acknowledging the extent of his injuries and their effect on his job performance. “Constructive discharge” is established if an employee proves that the employer, by its illegal discriminatory acts, has made working conditions so difficult that a reasonable person in the employee's position would feel compelled to resign. Derr v. Gulf Oil Corp., 796 F.2d 340, 344 (10th Cir. 1986). Evenson v. Colorado Farm Bureau, 879 P.2d 402 (Colo. App. 1993). The record evidence demonstrates from the credible testimony of Mr. Hardy that Claimant’s work speed was not the issue leading to his walking off the job. Rather, it was the quality of his work and his conscious decision to engage Mr. Hardy in a verbal fight and standoff. Considering the entire evidentiary record, the ALJ concludes that Claimant voluntarily terminated his employment in this case. Claimant exercised a degree of control over the circumstances resulting in his termination by volitionally choosing to engage his boss in a verbal fight and assuming a threatening posture before storming off the job site. The ALJ concludes that an any employee would reasonably expect such actions to result in the loss of employment. Because his termination was not compelled by the natural consequence of the work injury, Claimant is “responsible” for his job separation and his claim for TTD benefits is permanently barred. Blair v. Art C. Klein Construction Inc., supra.; Longmont Toyota, Inc., supra. Since Claimant is not entitled to TTD benefits, the issue of whether such benefits are subject to statutory offsets need not be addressed.

Average Weekly Wage

U. The overall purpose of the average weekly wage (AWW) statute is to arrive at a fair approximation of the claimant’s wage loss and diminished earning capacity resulting from the industrial injury. See Campbell v. IBM Corp., 867 P.2d 77 (Colo. App. 1993); National Fruit Prod. v. Crespin, 952 P.2d 1207 (Colo. App. 1997).

V. Section 8-42-102(2), C.R.S., sets forth certain methods of calculating the

average weekly wage. Section 8-42-102(2)(d) provides that “[w]here the employee is being paid by the hour, the weekly wage shall be determined by multiplying the hourly rate by the number of hours in a day during which the employee was working at the time of the injury or would have worked if the injury had not intervened, to determine the daily wage; then the weekly wage shall be determined from the daily wage in a manner set forth in paragraph © of this subsection (2).

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W. Section 8-42-102(3), C.R.S., permits the ALJ discretion in the method of

calculating the average weekly wage if the nature of the employment or the fact that the injured employee has not worked a sufficient length of time, has been ill or self-employed, or for any other reason, the specific methods do not fairly compute the average weekly wage. Benchmark/Elite Inc. v. Simpson, 232 P.3d 777 (Colo. 2010); Avalanche Industries, Inc. v. Clark, 198 P.3d 589 (Colo. 2008). To the extent that it may become relevant at some later date, the ALJ addresses the issue of Claimant’s AWW despite the fact that he is not entitled to TTD benefits as a consequence of being responsible for his job termination. Here, the ALJ is convinced that Claimant was paid at a rate of $20.00/hour. A more difficult question is the number of hours/days he worked per week given Claimant’s short time on the job. Claimant testified that he worked approximately thirty to forty hours per week (5 days/week). Outside of his testimony, there is scant evidence to support this contention. Moreover, Claimant agreed it was possible he never worked a full 5 day work week, noting: “It’s possible that I did not have a full week for Craig. But that would not always be by my choice.”

X. The wage records submitted into evidence support that while he was working as an independent contractor in December 2015, Claimant completed 10-12 jobs and earned $880.00. When he returned to work as an employee the wage records support a substantially lesser amount of wages. Indeed, on March 11, 2016, Claimant earned $500.00. Mr. Hardy explained that this figure was for work for 2 ½ days of work, plus a portion of a tip received from a job. Approximately one week later, on March 19, 2016, Claimant earned $540.00. This figure would equate to 27 hours (three full nine hour days) of work at $20.00/hour. The ALJ concludes that Claimant’s wage records constitute the best evidence concerning Claimant’s earnings around the time he was injured. The wage records support that Claimant’s hours increased by one-half day. Based upon the above referenced statutory authority, the ALJ concludes that the most “fair approximation” of Claimant’s AWW, as an employee of Hardy Window & Door, LLC, at the time he was injured given his limited time on the job is the last week of wages. Consequently, the ALJ finds that Claimant’s AWW is $540.00.

ORDER

It is therefore ordered that:

1. Claimant has proven by a preponderance of the evidence that he sustained a compensable injury to his right leg and shoulder on March 29, 2016.

2. Respondents have failed to prove by a preponderance of the evidence that Claimant was an independent contractor at the time of his injury.

3. Respondent’s shall pay for Claimant’s treatment at Penrose Mountain Urgent Care and all reasonable, necessary and related treatment to cure and relieve Claimant from the effects of his compensable work injuries.

4. Respondent has proven by a preponderance of the evidence that Claimant is

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responsible for the termination of his employment with Hardy Window & Door, LLC. For this reason his claim for TTD benefits is barred and the same is hereby denied and dismissed.

5. The issue of whether Claimant’s TTD benefits are subject to statutory offsets is moot.

6. Claimant’s AWW is $540.00.

7. All matters not closed by operation of law and not determined herein are reserved for future determination.

If you are dissatisfied with the Judge's order, you may file a Petition to Review the order with the Denver Office of Administrative Courts, 1525 Sherman St., 4th Floor, Denver, CO 80203. You must file your Petition to Review within twenty (20) days after mailing or service of the order, as indicated on certificate of mailing or service; otherwise, the Judge's order will be final. You may file the Petition to Review by mail, as long as the certificate of mailing attached to your petition shows: (1) That you mailed it within twenty (20) days after mailing or service of the order of the Judge; and (2) That you mailed it to the above address for the Denver Office of Administrative Courts. For statutory reference, see section 8-43-301(2), C.R.S. For further information regarding procedures to follow when filing a Petition to Review, see Rule 26, OACRP. You may access a petition to review form at: http://www.colorado.gov/dpa/oac/forms-WC.htm.

DATED: February 14, 2017

/s/ Richard M. Lamphere_______________ Richard M. Lamphere Administrative Law Judge Office of Administrative Courts 2864 S. Circle Drive, Suite 810 Colorado Springs, CO 80906

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OFFICE OF ADMINISTRATIVE COURTS STATE OF COLORADO WORKERS’ COMPENSATION NO. WC 5-021-882-01

ISSUES

The parties resolved all issues noticed for hearing except for Average Weekly Wage (AWW) prior to hearing.

FINDINGS OF FACT and CONCLUSIONS OF LAW

Based upon the evidence presented at hearing, the Judge enters the following findings of fact:

1. Claimant suffered an admitted injury on April 28, 2016, while working for Employer.

2. Claimant began working for Employer on December 26, 2015.

3. Prior to her injury, Claimant worked an average of 54.42 hours per week. Her regular rate of pay was $8.23 per hour. Her overtime rate of pay was $12.36.

4. Pursuant to section 8-42-102 (2)(d) of the Act, “where the employee is being paid by the hour, the weekly wage shall be determined by multiplying the hourly rate by the number of hours in a day during which the employee was working at the time of the injury or would have worked if the injury had not intervened.”

5. Claimant’s AWW equals the sum of her regular and overtime wages per week, which is calculated as (40 x $8.23) + (14.42 x $12.36). Claimant’s AWW thus is $329.20 in regular wages plus $209.04 for a total of $538.24.

6. Claimant’s temporary total disability compensation is 66.66% of her AWW.

7. Claimant is entitled to temporary total disability compensation from the date of her injury as the evidence supports that her injury was immediately disabling, ongoing until terminated by operation of law.

8. Respondents are entitled to an offset for any amounts already paid as temporary total disability compensation.

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ORDER

Based upon the foregoing findings of fact and conclusions of law, the Judge enters the following order:

1. Claimant’s average weekly wage is $538.24 and her temporary total disability compensation shall be based on that AWW.

2. Claimant is entitled to temporary total disability compensation from April 28, 2016 ongoing until terminated by operation of law.

3. Insurer shall pay Claimant interest at the rate of 8% per annum on compensation benefits not paid when due.

4. Respondents are entitled to an offset for any amounts already paid as temporary total disability compensation.

5. Issues not expressly decided herein are reserved to the parties for future determination.

If you are dissatisfied with the Judge's order, you may file a Petition to Review the order with the Denver Office of Administrative Courts, 1525 Sherman St., 4th Floor, Denver, CO 80203. You must file your Petition to Review within twenty (20) days after mailing or service of the order, as indicated on certificate of mailing or service; otherwise, the Judge's order will be final. You may file the Petition to Review by mail, as long as the certificate of mailing attached to your petition shows: (1) That you mailed it within twenty (20) days after mailing or service of the order of the Judge; and (2) That you mailed it to the above address for the Denver Office of Administrative Courts. For statutory reference, see section 8-43-301(2), C.R.S. For further information regarding procedures to follow when filing a Petition to Review, see Rule 26, OACRP. You may access a petition to review form at: http://www.colorado.gov/dpa/oac/forms-WC.htm.

DATED: February 14, 2017

/s/ Kimberly Turnbow Kimberly B. Turnbow Administrative Law Judge Office of Administrative Courts 1525 Sherman Street, 4th Floor Denver, CO 80203

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OFFICE OF ADMINISTRATIVE COURTS STATE OF COLORADO WORKERS’ COMPENSATION NO. 5-021-230-01

ISSUES

Did Claimant prove by a preponderance of the evidence that he suffered a compensable injury on or about March 7, 2016?

Is Claimant entitled to medical treatment for a work-related injury?

FINDINGS OF FACT

1. Claimant worked as a customer service associate for Employer. His duties included delivering snack food to retail stores, pushing and pulling carts loaded with product, stocking shelves, and removing out of date product from the shelves.

2. Claimant began working for Employer on February 22, 2016. Claimant spent the first week of employment undergoing training in a classroom setting.

3. Claimant denied receiving any training on workers’ compensation injuries or how to report a work-related injury. But Claimant’s supervisor credibly testified that the Employer’s post-injury protocols are covered during the week-long training period.

4. After a week in the classroom, Claimant began a period of field training with Mr. Randy Reeves. Mr. Reeves was a route sales representative for Employer and was also involved in training new employees. Claimant worked side-by-side with Mr. Reeves for training purposes until March 17, 2016. He would drive his personal vehicle to a store, where the product had already been delivered and was stored on pallets. Claimant would pull pallets loaded with snack foods onto the sales floor and stock the shelves. He also performed other tasks for approximately 1.5 hours such as inventory, paperwork, and ordering.

5. During Claimant’s field training, Mr. Reeves reiterated Employer’s policy that all work-related injuries must be reported to a supervisor within 24 hours.

6. Claimant noted the onset of cervical pain and left shoulder on March 7 or March 8, 2016. At hearing, he initially testified the pain began on March 8, 2016. Subsequently, he testified the injury date “was either March 7th or March 8th.” He testified that the pain began overnight between March 7 and March 8, 2016.

7. Thereafter, Claimant continued working his regular shifts and duties. He did not report a work-related injury to Employer in March 2016. Claimant provided multiple reasons why he did not report the injury. He testified he did not report the symptoms because he thought the pain might resolve. He also testified he was unfamiliar with Employer’s policies regarding reporting of work-related injuries.

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8. On Sunday, March 13, 2016, Claimant went to the Penrose-St. Francis Hospital emergency room (ER). He was diagnosed with cervical radiculopathy at C6, given medication, and instructed to follow up with his primary care provider at Peak Vista Community Health Center.

9. Claimant testified he told Mr. Reeves he was not feeling well and was in “terrible pain” before their last day working together on March 17, 2016. Claimant also testified Mr. Reeves asked him why he was “walking all crooked.” Mr. Reeves credibly testified that Claimant never told him he was in pain and he never asked Claimant about “walking crooked.”

10. Claimant called Mr. Reeves on March 20, 2016 with some work-related questions, but did not mention having neck pain or injuring himself at work.

11. Claimant continued working for Employer until March 23, 2016. He testified that he stopped working because he was in “excruciating” pain. Claimant testified he “could not move” and could not sleep.

12. Claimant had a telephone conversation with his supervisor, Mr. Isaiah Selfe, on March 23, 2016. During the conversation, Claimant neither mentioned being in pain nor hurting himself at work. Rather, Mr. Selfe first learned Claimant was in pain later that evening when Claimant sent a text message stating he was going to the emergency room for an x-ray of his shoulder. Mr. Selfe texted “did you get in an accident?” but Claimant did not reply.

13. The next day, Mr. Selfe texted Claimant the procedures for reporting work-related injuries. During this text exchange, Mr. Selfe informed Claimant he needed to contact Dr. Mat Thomas to report the injury. He also texted Claimant a telephone number to call and report the injury.

14. Claimant did not follow any of the procedures despite Mr. Selfe repeatedly contacting Claimant and requesting he do so.

15. Claimant testified he did not see Employer’s physician because he was in “excruciating pain,” and could not get out of bed to go anywhere.

16. Claimant was physically able to attend an appointment with his PCP, Dr. David Shapiro, on March 25, 2016.

17. Dr. Shapiro’s note dated April 13, 2016 states Claimant’s symptoms began six weeks earlier when he was “reaching for a heavy object over his head and felt immediate pain in his mid-back.”

18. Claimant started driving for Uber in late April 2016.

19. Although Claimant missed work because of his symptoms, he used sick leave or other noninjury-related leave, rather than activating Employer’s protocols for work-related injuries.

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20. Claimant attended 12 physical therapy sessions on referral from Dr. Shapiro in June and July 2016. Claimant was ultimately discharged due to a lack of progress regarding his neck symptomatology.

21. Claimant eventually saw Employer’s designated provider, Dr. George Johnson, on August 23, 2016. Claimant told Dr. Johnson that he started having pain in his left upper back and neck approximately two weeks after starting work for Employer. He described a prior work-related injury to his neck and left upper back in 2002. After that injury, he returned to return to regular duties but continued to have flares of left upper back and neck pain approximately every two years. The flares would typically last approximately one week and resolved without treatment.

22. Claimant told Dr. Johnson his general work for Employer “resulted in increased pain and also numbness in his hand.” He denied any specific incident, traumatic injury, or sudden pain in his shoulder or back. Dr. Johnson opined that Claimant’s symptoms were not likely related to his work activities. Instead, Dr. Johnson opined that “this condition is mostly related to pre-existing conditions including his work-related injury in 2002. I do not believe his current condition is due to the 2016 injury.” Dr. Johnson released Claimant with no treatment recommendations and no restrictions.

23. Dr. Eric Ridings performed an Independent Medical Examination (IME) on October 3, 2016 at Respondents’ request. Claimant told Dr. Ridings that in the early morning on March 7, 2016, he was reaching up to put a bag of chips on the top shelf, and felt a sudden onset of pain in his upper back with muscle spasms. Claimant stated he had no pain before that moment. Claimant discussed the 2002 work injury, but told Dr. Ridings those symptoms had “completely resolved,” and he was asymptomatic for an extended period before March 2016. Claimant subsequently changed his story after Dr. Ridings asked him about the different history reflected in Dr. Johnson’s report. Claimant demonstrated considerable pain behaviors during the IME, including groaning and complaining verbally of discomfort with all motions. Despite his outward displays of pain, Dr. Ridings noted normal myofascial tone throughout all around his neck and shoulder, which raised concerns regarding symptom magnification. Dr. Ridings agreed with Dr. Johnson’s conclusion that Claimant did not sustain a work-related injury. Dr. Ridings opined that any symptoms Claimant experienced were related to his pre-existing condition and not aggravated or accelerated by his work activities for Employer.

24. Claimant had a cervical MRI on October 11, 2016. The MRI revealed multilevel degenerative changes, including disc protrusions, facet arthropathy, and foraminal narrowing. There were no findings that would reasonably be considered acute or caused by Claimant’s work activities in March 2016.

25. Dr. Ridings subsequently reviewed the MRI report and issued a supplemental report dated October 20, 2016. Dr. Ridings opined that the degenerative changes reflected on the MRI were “long-standing, not acute.” He opined that the underlying condition was not caused, aggravated, or accelerated by Claimant’s work activities.

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26. Dr. Ridings testified in a deposition on behalf of Respondents on December 14, 2016. Dr. Ridings reiterated and expounded upon the opinions expressed in his IME reports.

27. Claimant is not a credible or persuasive witness.

28. Mr. Reeves and Mr. Selfe were credible and persuasive.

29. Dr. Ridings’ opinions are credible and persuasive.

30. Claimant has failed to prove by a preponderance of the evidence that he suffered a compensable work-related injury in March 2016.

31. Claimant has failed to prove by a preponderance of the evidence that his work activities aggravated, accelerated, or combined with a pre-existing condition to produce a disability or need for medical treatment.

CONCLUSIONS OF LAW

To receive compensation or medical benefits, a claimant must prove that he is a covered employee who suffered an injury arising out of and in the course of employment. Section 8-41-301(1), C.R.S.; see, Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo. App. 2000); City of Boulder v. Streeb, 706 P.2d 786 (Colo. 1985); Pacesetter Corp. v. Collett, 33 P.3d 1230 (Colo. App. 2001). Claimant must prove that an injury directly and proximately caused the condition for which benefits are sought. Wal-Mart Stores, Inc. v. Industrial Claim Appeals Office, 989 P.2d 251 (Colo. App. 1999); Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo. App. 1997), cert. denied September 15, 1997.

If an industrial injury aggravates, accelerates, or combines with a preexisting condition to produce disability or a need for treatment, the claim is compensable. H & H Warehouse v. Vicory, 805 P.2d 1167 (Colo. App. 1990).

A claimant is not required to identify the precise moment of injury, as long as he proves that the injury was caused by his work. Hubbard v. City Market, W.C. No. 4-934-698-01 (ICAO, November 21, 2014). Although an injury must “be traceable to a definite cause, time and place,” this can be established by showing a “causal connection between the type of work, the date the pain began, and the place of employment.” Martin Marietta Corp. v. Faulk, 407 P.2d 348, 349 (Colo. 1965). But the mere fact that a claimant experiences symptoms at work does not compel a conclusion that the symptoms were caused by the employment. Garamella v. Paul’s Creekside Grill, Inc., W.C. No. 4-519-141 (ICAO, March 6, 2002). Rather, the claimant must prove that the symptoms were proximately caused by his work activity.

The claimant must prove entitlement to benefits by a preponderance of the evidence. A preponderance of the evidence is that which leads the trier-of-fact, after considering all of the evidence, to find that a fact is more probably true than not. Page v. Clark, 197 Colo. 306, 592 P.2d 792 (1979). The facts in a workers’ compensation case

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are not interpreted liberally in favor of either claimant or respondents. Section 8-43-201, C.R.S.

The Workers’ Compensation Act recognizes a distinction between an “accident” and an “injury.” The term “accident” refers to an “unexpected, unusual, or undesigned occurrence,” whereas an “injury” is the physical trauma caused by the accident. Section 8-40-201(1), C.R.S. In other words, an “accident” is the cause, and an “injury” is the result. City of Boulder v. Payne, 426 P.2d 194 (Colo. 1967). Workers’ compensation benefits are only payable if an accident results in a compensable “injury.” The mere fact that an incident occurred at work and caused symptoms does not establish a compensable injury. Rather, a compensable injury is one that requires medical treatment or causes a disability. E.g., Montgomery v. HSS, Inc., W.C. No. 4-989-682-01 (ICAO Aug. 17, 2016).

Based on the totality of evidence presented, the ALJ concludes that Claimant did not suffer a compensable injury as a result of his work duties in March 2016. Claimant’s account of the alleged injury mechanism has been inconsistent, with no less than four different stories regarding the onset of symptoms. Dr. Shapiro’s records document the “immediate” onset of pain when reaching for a “heavy object” over his head. Claimant subsequently gave conflicting histories to Dr. Johnson and Dr. Ridings approximately six weeks apart. In fact, he told Dr. Ridings two different stories during the IME. Similarly, there were discrepancies in his hearing testimony. He testified that the pain began overnight between March 7 and March 8, 2016. That differs from the histories he gave to Dr. Johnson (gradual onset), Dr. Ridings (immediate pain when reaching up with a bag of potato chips), and Dr. Shapiro (immediate pain reaching overhead for a heavy object). In light of these and other inconsistencies in the evidentiary record, the ALJ cannot credit Claimant’s testimony or give it significant weight.

Claimant has pre-existing degenerative changes in his cervical spine that could reasonably be expected to cause neck, shoulder, and/or upper extremity symptoms. He has a long history of intermittent flare-ups, unrelated to any particular trigger. The ALJ finds no persuasive evidence that Claimant’s work activities caused a new injury, or aggravated or accelerated his pre-existing condition so as to cause disability or a need for medical treatment. Although Claimant sought treatment and missed work because of his symptoms, that was not causally related to his employment. Rather, any medical treatment Claimant received or work he missed was caused by the natural progression of his underlying pre-existing condition. Consequently, Claimant failed to prove he suffered a compensable injury.

ORDER

It is therefore ordered that:

Claimant’s claim for workers’ compensation benefits is denied and dismissed.

If you are dissatisfied with the Judge's order, you may file a Petition to Review the order with the Denver Office of Administrative Courts, 1525 Sherman St., 4th Floor, Denver,

7

CO 80203. You must file your Petition to Review within twenty (20) days after mailing or service of the order, as indicated on the certificate of mailing or service; otherwise, the Judge's order will be final. You may file the Petition to Review by mail, as long as the certificate of mailing attached to your petition shows: (1) That you mailed it within twenty (20) days after mailing or service of the order of the Judge; and (2) That you mailed it to the above address for the Denver Office of Administrative Courts. For statutory reference, see section 8-43-301(2), C.R.S. For further information regarding procedures to follow when filing a Petition to Review, see Rule 26, OACRP. You may access a petition to review form at: http://www.colorado.gov/dpa/oac/forms-WC.htm.

DATED: February 14, 2017

s/Patrick C.H. Spencer II Patrick C.H. Spencer II Administrative Law Judge Office of Administrative Courts

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OFFICE OF ADMINISTRATIVE COURTS STATE OF COLORADO W.C. No. 4-997-025-01 FULL FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER IN THE MATTER OF THE WORKERS' COMPENSATION CLAIM OF:

Claimant, v.

Employer, and

Insurer/Respondents. Hearing in the above-captioned matter was held before Edwin L. Felter, Jr., Administrative Law Judge (ALJ), on January 24, 2017, in Denver, Colorado. The hearing was digitally recorded (reference: 1/24/17, Courtroom 1, beginning at 1:30 PM, and ending at 3:30 PM). Claimant’s Exhibits 1 through 8 and 10 through 12 were admitted into evidence, without objection. Claimant’s Exhibit 9 was a copy of the transcript of the evidentiary deposition of Ronald Swarsen, M.D. was withdrawn because the original was previously filed. Respondents’ Exhibits A through H were admitted into evidence, without objection. At the conclusion of the hearing, the ALJ ruled from the bench and referred preparation of a proposed decision to counsel for the Claimant, which was filed, electronically, on February 1, 2017. On the same date, counsel for the Respondents indicated no objection as to form. After a consideration of the proposed decision, the ALJ has modified it and hereby issues the following decision.

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ISSUE

The sole issue to be determined by this decision is whether the Respondents have overcome the Division Independent Medical Evaluation (DIME) impairment rating and finding of maximum medical improvement (MMI) of Michael Janssen, D.O.

The Respondents’ burden of proof is by “clear and convincing evidence.”

FINDINGS OF FACT Based on the evidence presented at hearing, the ALJ makes the following

Findings of Fact:

Findings Based on Stipulations

1. The parties stipulated that the Claimant is entitled to post-MMI maintenance medical benefits which are reasonably necessary, and causally related, including ongoing medications.

Preliminary Findings 2. The Claimant (date-of-birth, March 23, 1957) suffered an admitted occupational back and neck injury on October 9, 2015, while in the course and scope of employment for Employer. According to the Claimant, on that date he had arrived at work and was opening the shop when he heard a sound which he went to investigate. He was startled by what he thinks were cats. He fell over tires landing on his side, injuring his neck and back (Claimant’s Exhibit 7, bates stamp 126). 3. The Respondents first filed a General Admission of Liability (GAL) on February 16, 2016, admitting to an average weekly wage (AWW) of $855.68, resulting in a temporary total disability (TTD) rate of $570.16 per week. Ultimately, the Respondents filed a Final Admission of Liability (FAL), dated May 17, 2016, admitting for TTD from October 21, 2015 through December 210, 2015; for an MMI date of January 19, 2016; for post-MMI maintenance medical benefits; and, for zero permanent partial disability (PPD), based on a note from Dr. Hudson. 4. The Claimant underwent medical treatment at Prowers Medical Center and was eventually released from treatment by a physician’s assistant on January 19, 2016.

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Division Independent Medical Examination of Michael Janssen, D.O

5. The Claimant timely objected to the FAL and requested a Division Independent

Medical Evaluation (DIME). Michael Janssen, D.O., was appointed by the Division

of Workers’ Compensation (DOWC) to perform the DIME which occurred on August

23, 2016.

6. DIME Dr. Janssen was of the opinion that the Claimant reached MMI on August 23, 2016, and that he suffered a19% whole person impairment from the injuries which he sustained for this admitted injury (Claimant’s Exhibit 4). The Respondents sought a second opinion and referred the Claimant to Gwendolyn Henke, M.D., for an independent medical examination (IME).

7. DIME Dr. Janssen issued a supplemental report on October 24, 2016, reaffirming his original opinion that the Claimant was at MMI on August 23, 2016 and had a 19% whole person permanent impairment rating. He stated:

It still remains a challenge to me on determining an exact

maximum medical improvement date. Because of the confusion, I am unable to truly delineate that the maximum medical improvement date would been referred back to the date that was suggested by the physician assistant, which was January of 2016, based upon all of the information provided to me. It is possible to extrapolate that as a maximum medical improvement date, but because this was documented (by the information I have) by a physician assistant. I would then revert back to my initial Independent Medical Examination where I felt this patient had his maximum medical improvement date which was clearly documented of 08/23/2016 for the 19% whole person impairment. I do not find any indication to make changes or alteration of this after reviewing the medical records again and the reports of Dr. Henke, based upon all of those factors.

(Claimant’s Exhibit 5, bates stamp 38).

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8. The Claimant’s IME, Ronald Swarsen, M.D., who reviewed medical records and testified by evidentiary deposition because of his unavailability on the hearing date, supported DIME Dr. Janssen’s rating and MMI determination (See Dr. Swarsen Deposition, December 5, 2016, p. 6, line 3 through p. 8, line 2; Exhibit 10). 9. The Respondents filed an Application for hearing to overcome the opinions of DIME Dr. Janssen on PPD and MMI. 10. DIME Dr. Janssen’s report, along with the testimony and report of Dr. Swarsen, demonstrate Dr. Janssen’s proper use of the AMA Guides and DOWC rating guidelines. Even though Dr. Henke disagreed with the DIME’s rating and MMI conclusions because of her disagreement on causation, the ALJ finds that the totality of the credible evidence demonstrated that DIME Dr. Janssen’s properly applied the AMA Guides and the DOWC rating guidelines. IME Gwendolyn Henke, M.D.

11. In their efforts to overcome the DIME, the Respondents relied on the opinion of Gwendolyn Henke, M.D. Dr. Henke expressed the opinion that the Claimant had not suffered permanent impairment as a result of this admitted injury because he had a pre-existing degenerative condition. Thus, she disagreed with DIME Dr. Janssen’s rating, asserting that DIME Dr. Janssen should not have given a rating because the Claimant had not suffered a work related injury or impairment. Rather, the Claimant’s current impairment, if any, was neither work related nor rateable (sic) due to pre-existing degenerative back and neck conditions as found on an MRI (magnetic resonance imaging) of November 2, 2015 (Claimant’s Exhibit 11). The ALJ infers and finds that Dr. Henke’s ultimate opinion lacked sufficient cognizance of the concept of “aggravation and acceleration” of a pre-existing condition, which the ALJ infers and finds occurred in the Claimant’s case. The Claimant’s Pre-Existing and Current Condition

12. According to the Claimant, prior to his admitted injury of October 9, 2015, he had not been treated for low back or cervical problems and had been working full duty without restrictions. He was able to perform all the essential functions of his job. Further, he had no previous workers’ compensation injury which would give rise to apportionment under § 8-42-104(5), C.R.S. 13. After the admitted injury, the Claimant continues to experience back and neck pain, and he has been prescribed medications which he continues to receive on a monthly basis, i.e., Naprosyn, Gabapentin, and Norco 5/325. The medications help reduce his pain. The Respondents do not dispute the Claimant’s entitlement to these post-MMI medical maintenance benefits.

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14. According to the Claimant, the work he is currently performing for his new employer is less physically demanding than that which he performed at the time of his October 2015 admitted injury. 15. According to Dr. Henke, on August 31, 2016, the Claimant had returned to his prior level of function pre-injury. The Claimant disputes this statement of Dr. Henke. According to the Claimant, he told Dr. Henke that his had returned to work and was working forty hours a week. The ALJ infers and finds that Dr. Henke bases her opinion that the Claimant returned to pre-injury functioning solely on this statement of the Claimant. The Claimant, however, also told Dr. Henke that he continued to have pain throughout his work day, and that his pain would vary depending on the amount of work that he was called upon to do. 16. The Claimant had non-disabling pre-existing degenerative changes to his neck and back (Claimant’s Exhibit 11). The evidence, however, is that these incipient conditions were not disabling before October 9, 2015, when the Claimant injured himself within the course and scope of employment. Rather, his injury aggravated, accelerated or combined with his pre-existing condition to cause his need for medical treatment. Ultimate Findings

17. The Claimant’s testimony was credible, persuasive and, essentially undisputed. The opinions of DIME Dr. Janssen, as corroborated by Dr. Swarsen, were more credible and persuasive that the opinions of IME Dr. Henke and they support an aggravation and acceleration of the Claimant’s pre-existing, non-symptomatic neck and back conditions by virtue of the admitted injury of October 9, 2015. 18. The ALJ makes a rational choice, based on substantial evidence, to accept the opinions of DIME Dr. Janssen and IME Dr. Swarsen, and to reject the opinions of IME Dr. Henke. 19. Although reasonable medical professionals may disagree, the ALJ credits the opinion of DIME Dr. Janssen and the supporting opinion and testimony of Dr. Swarsen. The opinion of Dr. Henke amounts to a simple difference of opinion and fails to establish that it is highly probable, un-mistakable and free from serious and substantial doubt that DIME Dr. Janssen’s opinions are clearly erroneous. Thus, Dr. Henke’s opinions fail to prove, by clear and convincing evidence that DIME Dr. Janssen’s findings of MMI and impairment have been overcome.

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CONCLUSIONS OF LAW

Based upon the foregoing Findings of Fact, the ALJ makes the following Conclusions of Law: Credibility a. In deciding whether an injured worker has met the burden of proof, the ALJ is empowered “to resolve conflicts in the evidence, make credibility determinations, determine the weight to be accorded to expert testimony, and draw plausible inferences from the evidence.” See Bodensleck v. Indus. Claim Appeals Office, 183 P.3d 684 (Colo. App. 2008);Kroupa v. Indus. Claim Appeals Office, 53 P.3d 1192, 1197 (Colo. App. 2002); Rockwell International v. Turnbull, 802 P.2d 1182, 1183 (Colo. App. 1990); Penasquitos Village, Inc. v. NLRB, 565 F.2d 1074 (9th Cir. 1977). The ALJ determines the credibility of the witnesses. Arenas v. Indus. Claim Appeals Office, 8 P.3d 558 (Colo. App. 2000). The weight and credibility to be assigned evidence is a matter within the discretion of the ALJ. Cordova v. Indus. Claim Appeals Office, 55 P.3d 186 (Colo. App. 2002); Youngs v. Indus. Claim Appeals Office, 297 P.3d 964, 2012 COA 85. The same principles concerning credibility determinations that apply to lay witnesses apply to expert witnesses as well. See Burnham v. Grant, 24 Colo. App. 131, 134 P. 254 (1913); also see Heinicke v. Indus. Claim Appeals Office, 197 P.3d 220 (Colo. App. 2008). The fact finder should consider, among other things, the consistency or inconsistency of a witness’ testimony and/or actions; the reasonableness or unreasonableness (probability or improbability) of a witness’ testimony and/or actions (this includes whether or not the expert opinions are adequately founded upon appropriate research); the motives of a witness; whether the testimony has been contradicted; and, bias, prejudice or interest. See Prudential Ins. Co. v. Cline, 98 Colo. 275, 57 P. 2d 1205 (1936); CJI, Civil, 3:16 (2005). The fact finder should consider an expert witness’ special knowledge, training, experience or research (or lack thereof). See Young v. Burke, 139 Colo. 305, 338 P. 2d 284 (1959). The ALJ has broad discretion to determine the admissibility and/or weight of evidence based on an expert’s knowledge, skill, experience, training and education. See S 8-43-210, C.R.S; One Hour Cleaners v. Indus. Claim Appeals Office, 914 P.2d 501 (Colo. App. 1995). As found, the Claimant’s testimony was credible, persuasive and, essentially undisputed. See, Annotation, Comment: Credibility of Witness Giving Un-contradicted Testimony as Matter for Court or Jury, 62 ALR 2d 1179, maintaining that the fact finder is not free to disregard un-contradicted testimony. As further found, The opinions of DIME Dr. Janssen, as corroborated by Dr. Swarsen, were more credible and persuasive that the opinions of IME Dr. Henke and they support an aggravation and acceleration of the Claimant’s pre-existing, non-symptomatic neck and back conditions by virtue of the admitted injury of October 9, 2015.

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Substantial Evidence

b. An ALJ’s factual findings must be supported by substantial evidence in the record. Paint Connection Plus v. Indus. Claim Appeals Office, 240 P.3d 429 (Colo. App. 2010); Leewaye v. Indus. Claim Appeals Office, 178 P.3d 1254 (Colo. App. 2007); Brownson-Rausin v. Indus. Claim Appeals Office, 131 P.3d 1172 (Colo. App. 2005). Also see Martinez v. Indus. Claim Appeals Office, 176 P.3d 826 (Colo. App. 2007). Substantial evidence is “that quantum of probative evidence which a rational fact-finder would accept as adequate to support a conclusion, without regard to the existence of conflicting evidence.” Metro Moving & Storage Co.v. Gussert, 914 P.2d 411 (Colo. App. 1995). Reasonable probability exists if a proposition is supported by substantial evidence which would warrant a reasonable belief in the existence of facts supporting a particular finding. See F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo. App. 1985). It is the sole province of the fact finder to weigh the evidence and resolve contradictions in the evidence. See Pacesetter Corp. v. Collett, 33 P. 3d 1230 (Colo. App. 2001). An ALJ’s resolution on questions of fact must be upheld if supported by substantial evidence and plausible inferences drawn from the record. Eller v. Indus. Claim Appeals Office, 224 P.3d 397, 399-400 (Colo. App. 2009). As found, the ALJ made a rational choice, based on substantial evidence, to accept the opinions of DIME Dr. Janssen and IME Dr. Swarsen, and to reject the opinions of IME Dr. Henke.

Aggravation/Acceleration of Pre-Existing Condition c. If an industrial disability is attributable to a pre-existing, but stable,

condition and a subsequent occupational injury occurs, the resulting disability and medical benefits are compensable if the injury has caused a pre-existing condition to become disabling. See Seifried v. Indus. Comm’n, 736 P.2d 1262 (Colo. App. 1986). Thus, when an injury occurs in a work place resulting in disability, it is compensable if the circumstances and conditions of employment have contributed to the injury sustained by the employee. See National Health labs v. Indus. Claim Appeals Office, 844 P.2d 1259 (Colo. App. 1992)[a compensable injury can result from the aggravation of a pre-existing condition]. See also H & H Warehouse v. Vicory v. ICAO, 805 P.2d 1167 (Colo. App. 1990). Consequently, an injured worker has a compensable new injury if his work related activities aggravate or accelerate, combined with a pre-existing condition to cause the need for medical treatment or produce disability for which benefits are sought. See Snyder v. Indus. Claim Appeals Office, 942 P.2d 1337 (Colo. App. 1997); Lindner Chevrolet v. Indus. Claim Appeals Office, 914 P.2d 496 (Colo. App. 1996). In admitting liability, the Respondents recognized this concept to some extent. As previously found, Dr. Henke did not clearly deal with this concept. As found, the Claimant had non-disabling pre-existing degenerative changes to his neck and back (Claimant’s Exhibit 11). The evidence, however, is that these incipient conditions were not disabling before October 9, 2015, when the Claimant injured himself within the course and scope of employment. Rather, his injury aggravated, accelerated or combined with his pre-existing condition to cause his need for medical treatment.

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Overcoming the DIME d. Section 8-42-101(3.7), C.R.S., mandates that physicians who rate the

permanent impairment of injured workers’ impairments follow the AMA Guides to the Evaluation of Permanent Impairment (Third Edition)(Revised) (AMA Guides). A DIME physician’s findings concerning MMI and permanent impairment are binding unless overcome by clear and convincing evidence. § 8-42-107(8)(b)(III), C.R.S; Cordova v. Indus. Claim Appeals Office, 55 P.3d 186-90, 189 (Colo. App. 2002). Clear and convincing evidence is “evidence which is stronger than a mere ‘preponderance’; it is evidence that his highly probable and free from serious and substantial doubt.” Leming v. Indus. Claim Appeals Office, 62 P.3d 1015, 1019 (Colo. App. 2002); Metro Moving & Storage Co v. Gussert, supra, 914 P.2d at 414; and, DiLeo v. Kotlnow, 200 Colo. 119, 613 P.2d 318 (1980). As found, although reasonable medical professionals may disagree, the ALJ credits the opinion of DIME Dr. Janssen and the supporting opinion and testimony of Dr. Swarsen. The opinion of Dr. Henke amounts to a difference of opinion and does not rise to the level that it is highly probable, un-mistakable and free from serious and substantial doubt that DIME Dr. Janssen’s opinions are erroneous. Thus, Dr. Henke’s opinions fail to prove, by clear and convincing evidence that DIME Dr. Janssen’s findings of MMI and impairment rating have been overcome.

e. The enhanced burden of proof imposed by § 8-42-108(b)(III), C.R.S., reflects an underlying assumption that the DIME, having been selected by an independent and unbiased tribunal, will provide a reliable medical opinion. Qual-Med, Inc. v. Industrial Claim Appeals Office, 961 P.2d 590, 961 P.2d 590 (Colo. App). Since the DIME physician is required to identify and evaluate all losses resulting from the industrial injury as part of the DIME’s assessment process the DIME physician’s opinion regarding causation of those losses, including pain, is also subject to the same enhanced burden of proof. Qual-Med, Inc. v. Indus. Claim Appeals Office, supra. Thus, a DIME physician’s opinion on the cause of a claimant’s permanent impairment is an inherent part of the diagnostic assessment which comprises the DIME process of determining MMI and rating permanent impairment. Id. The party disputing the DIME physician’s opinions on the issue of causation bears the burden to overcome the opinions by clear and convincing evidence. Hodges v. ATR Collision, Inc., W.C. No. 4-751-557 [Indus. Claim Appeals Office (ICAO), January 19, 2011]. As found, DIME Dr. Janssen accorded the Claimant an impairment rating for his October 2015 injury, not for pre-existing conditions.

f. To overcome DIME Dr. Janssen’s rating and MMI determination, the Respondents were required to present clear and convincing evidence, i.e. evidence which is unmistakable and free from serious or substantial doubt. De Leo v. Koltnow, supra. Respondents have not met this burden through Dr. Henke’s testimony. Although medical providers, as reasonable professionals, may disagree, this difference of opinion alone does not constitute clear and convincing evidence. Javalera v. Monte Vista Head Start, Inc., W.C. Nos. 4-532-166 & 4-523-097 (ICAO, July 19, 2004); see Shultz v. Anheuser Busch, Inc., W.C. #4-380-560 (ICAO, November 17, 2000). As found, Dr. Henke has a mere difference of opinion from DIME Dr. Janssen’s opinion. Dr.

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Henke challenged DIME Dr. Janssen’s application of the AMA Guides, yet she failed to credibly demonstrate the DIME’s error. See Wackenhut Corp. v. Indus. Claim Appeals Office, 17 P.3d 202, 204 (Colo. App. 2002); McLane Western v. Indus. Claim Appeals Office, 996 P.2d 263 (Colo. App. 1999).

g. Even deviations from the AMA Guides do not mandate either that the impairment rating or MMI date are incorrect. Whether the physician properly applied the AMA Guides is a question of fact for the ALJ. Metro Moving and Storage v. Gussert, 914 P.2d 411 (Colo. App. 1995). As found, DIME Dr. Janssen correctly applied to AMA Guides and the DOWC rating guidelines.

h. DIME Dr. Janssen’s report, along with the testimony and report of Dr. Swarsen, demonstrate Dr. Janssen’s proper use of the AMA Guides and the DOWC rating guidelines. Even though Dr. Henke disagreed with the DIME’s rating and MMI conclusions because of her disagreement on causation, the ALJ finds that the totality of the credible evidence showed that DIME Dr. Janssen’s properly applied the AMA Guides. Thus, the DIME’s opinion on causation, his 19% whole person rating, and his MMI date of August 23, 2016, have not been overcome. See § 8-42-107(8)(c), C.R.S., (2016); Qual-Med, Inc. v. Industrial Claim Appeals Office, supra.

ORDER

IT IS, THEREFORE, ORDERED THAT: A. Respondents having failed to overcome the Division Independent Medical Examiner’s (Michael Janssen, D.O.) opinions concerning a maximum medical improvement date of August 23, 2016 and his 19% whole person permanent medical impairment rating, the Respondents shall pay the Claimant permanent partial disability benefits from August 23, 2016, based upon a 19% whole person permanent medical impairment rating. B. Pursuant to the Final Admission of Liability, Respondents shall pay the costs of all authorized, causally related and reasonably necessary post-maximum medical improvement maintenance medical care and treatment, subject to the Division of Workers’ Compensation Medical Fee Schedule. C. Respondents shall pay the Claimant interest at the statutory rate of eight percent (8%) per annum on all amounts due and not paid when due.

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D. Any and all issues not determined herein are reserved for future decision. DATED this______day of February 2017.

____________________________ EDWIN L. FELTER, JR. Administrative Law Judge

If you are dissatisfied with the Judge’s order, you may file a Petition to Review

the order with the Denver Office of Administrative Courts,1525 Sherman Street, 4th Floor, Denver, CO 80203. You must file your Petition to Review within twenty (20) days after mailing or service of the order, as indicated on the certificate of mailing or service; otherwise, the Judge’s order will be final. You may file the Petition to Review by mail, as long as the certificate of mailing attached to your petition shows: (1) that you mailed it within twenty (20) days after mailing or service of the order of the Judge; and (2) that you mailed it to the above address for the Denver Office of Administrative Courts. For statutory reference, see § 8-43-301(2), C.R.S. For further information regarding procedures to follow when filing a Petition to Review, see Rule 26, OACRP. You may access a form for a petition to review at http://www.colorado.gov/dpa/oac/forms-WC.htm.

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OFFICE OF ADMINISTRATIVE COURTS STATE OF COLORADO WORKERS’ COMPENSATION NO. 4-904-837-03

ISSUES

Whether claimant has proven, by a preponderance of the evidence, that his case should be reopened pursuant to Section 8-43-303, C.R.S. based on a change of condition.

If claimant’s claim is reopened, whether claimant has proven, by a preponderance of the evidence, that the fusion surgery recommended by Dr. Mark Robinson is reasonable medical treatment necessary to cure and relieve claimant from the effects of the November 28, 2012 work injury.

If claimant’s claim is reopened, whether claimant has proven by a preponderance of the evidence that he is entitled to temporary total disability (“TTD”) benefits for the period beginning May 25, 2016 and continuing until terminated by law.

Whether the claimant sustained a serious permanent disfigurement to areas of his body normally exposed to public view, resulting in additional compensation pursuant to Section 8-42-108(1), C.R.S.

At hearing the parties stipulated to the average weekly wage (“AWW”) of $763.03 as admitted in the March 27, 2015 Final Admission of Liability (“FAL”).

The parties have reserved the issue of permanent total disability (“PTD”) benefits.

Respondents have reserved the issue of credits against any award for payments of temporary total disability (“TTD”) benefits.

FINDINGS OF FACT

1. Claimant sustained an admitted injury to his low back on November 28, 2012. The injury occurred when the claimant attempted to remove a large piece of metal from the jaw of a rock crusher. Following the injury Dr. Randal Jernigan became claimant’s authorized treating physician (“ATP”).

2. Claimant underwent a magnetic resonance image (“MRI”) on December 3, 2012 which showed mild desiccation at L2-3 with some congenital narrowing, mild disc disease, and neuroforminal narrowing at L3-4 and L4-5. A second MRI taken on December 21, 2013 showed a new disc protrusion at L2-3 and old disc protrusions at L3-4 and L4-5. In addition, a discogram conducted on March 23, 2013 showed concordant pain at L4-5.

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3. Dr. Jernigan referred claimant to Dr. Douglas Orndorff with Spine Colorado for evaluation. Based upon the MRI and discogram results, Dr. Orndorff recommended a fusion at the L4-5 level and decompression at the L3-4 and L4-5 levels. On May 17, 2013, Dr. Orndorff performed a laminectomoy and decompression at L3-4 with complete facetecotmy at L4 and interbody fusion at L4-5.

4. Dr. Jernigan testified that following the May 17, 2013 L4-5 fusion claimant appeared to have obtained “good fusion” at that level and that some of his neurological symptoms resolved. A computerized tomography (“CT”) scan taken on July 22, 2014 showed that the interbody graft at L4-5 was intact.

5. As indicated by Dr. Jernigan’s medical records, claimant returned to “light duty work” in May 2014. On May 23, 2014 Dr. Jernigan issued work restrictions that included a 20 pound lifting restriction.

6. On August 12, 2014, Dr. Jernigan decreased claimant’s lifting restriction to allow him to lift up to 30 pounds.

7. On September 2, 2014 Dr. Jernigan placed claimant at maximum medical improvement (“MMI”), assigned a permanent impairment rating of 28% whole person, and a permanent lifting restriction of 40 pounds.

8. Dr. Jernigan testified that in retrospect the 40 pound lifting restriction was “wishful thinking” because in September 2014 claimant had shown continued improvement. Dr. Jernigan further testified that even though the CT scan showed a “good” fusion, in his experience there can be some inflammation with healing for up to three years after a fusion.

9. Claimant returned to Dr. Jernigan after reaching MMI for follow up medical care. On October 29, 2014, claimant complained of continued back pain, with increasing pain in his thighs. However, as of that date claimant continued to work light duty. On December 29, 2014, claimant informed Dr. Jernigan that he was working up to nine hours a day for employer. Then on January 20, 2015, claimant informed Dr. Jernigan that he felt his back and leg pain was getting worse.

10. On February 18, 2015, claimant submitted to a Division-sponsored independent medical examination (“DIME”) with Dr. Brian Reiss. Dr. Reiss reviewed claimant’s medical records, obtained a medical history, and performed a physical examination in connection with the DIME. Following the DIME, Dr. Reiss issued an IME report in which he agreed that claimant had reached MMI as of September 2, 2014 and also agreed with a permanent impairment rating of 28% whole person. On March 27, 2015, respondents filed a final admission of liability (“FAL”) based upon this date of MMI and impairment rating.

11. In his DIME report, Dr. Reiss noted that he did not have access to claimant’s imaging records. Therefore, Dr. Reiss recommended a second surgical opinion and noted that claimant’s imaging studies should be available at this consultation.

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12. Claimant testified that Dr. Jernigan has referred him for various modes of treatment including physical therapy, massage, and injections. Claimant testified that these various treatments did not provide any long term relief of his pain symptoms.

13. Prior to being placed at MMI, claimant received bilateral transforaminal epidural steroid injections (“TFESIs”) at the L3 level performed by Dr. Robert Wallach on January 14, 2013 and by Dr. Cyril Bohachevsky on May 13, 2014.

14. Following the DIME, Dr. Jernigan referred claimant to Dr. Mark Robinson for a surgical consultation. Claimant saw Dr. Robinson on September 28, 2015. At that time, Dr. Robinson diagnosed adjacent segment disease with spondylolisthesis at claimant’s L3-4 level. Dr. Robinson initially recommended bilateral facet injections at the L3-4 level.

15. Claimant received additional injections including bilateral facet medial branch blocks at the L3-4 level, which were administered by Dr. Bohachevsky on February 1, 2016. On March 23, 2016, Dr. Bohachevsky also performed a bilateral TEFSI at the L3 level. On June 20, 2016 Dr. Perry Pak-Nin Ng performed bilateral facet joint injections at L2-3. Claimant testified that these additional injections provided little pain relief.

16. Dr. Jernigan testified that in early 2016 claimant continued to complain of low back and leg pain. Dr. Jernigan testified that on April 18, 2016 he believed claimant’s condition continued to worsen and he referred claimant back to Dr. Robinson.

17. On May 25, 2016 Dr. Jernigan determined that claimant was no longer at MMI and restricted claimant from all work, and assigned a 10 pound lifting restriction. Dr. Jernigan testified that he considered various factors in his determination that claimant was no longer at MMI. These factors included claimant’s increased discomfort, decreased range of motion, and significant increase in the use of pain medications, including narcotics. Claimant testified that he has not returned to work since Dr. Jernigan restricted him from all work on May 25, 2016.

18. Claimant returned to Dr. Robinson on September 6, 2016 and reported complaints of low back and bilateral leg pain. At that time, Dr. Robinson noted that conservative treatment, including physical therapy, has not provided claimant any relief and recommended claimant undergo additional lumbar fusion. On September 15, 2016, Dr. Robinson requested authorization for claimant to undergo a spinal fusion from L2-L4. Respondents have denied this surgery.

19. On October 10, 2016, Dr. Andrew Castro reviewed the recommendation of a fusion from L2-L4 and issued a written opinion stating that he believed surgical intervention was reasonable. Dr. Castro noted that claimant has well established adjacent segment degeneration with severe stenosis and severe degenerative changes directly adjacent to the previously fused level. Dr. Castro also opined that the adjacent segment degeneration was brought on by the prior fusion surgery.

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20. Dr. Jernigan testified that he agrees that the recommended surgery will likely help with claimant’s neuropathic pain and with his lumbar discogenic pain. Dr. Jernigan testified that in his experience when a fusion is successful there will be an increase in function and a decrease in a patient’s use of pain medication.

21. In a letter dated July 21, 2016 Dr. Jernigan noted claimant’s decreased range of motion as objective evidence of his worsening condition. In that same letter, Dr. Jernigan noted that at the exam resulting in MMI on September 2, 2014, claimant had 30 degrees of lumbar flexion and 10 degrees of lumbar extension. Then in February 2015 at the DIME with Dr. Reiss it was reported that claimant had 15 degrees of lumber flexion and 10 degrees of lumbar extension. At the time of the July 21, 2016 letter, Dr. Jernigan noted that claimant had 10 degrees of lumbar flexion and 5 degrees of lumbar extension.

22. On September 14, 2016, claimant filed a petition to reopen his workers’ compensation claim due to a worsening of condition.

23. Claimant attended an independent medical examination (“IME”) with Dr. Brian Lamden on October 13, 2016. Dr. Lamden reviewed claimant’s medical records, obtained a medical history, and performed a physical examination in connection with the IME. Following the IME, Dr. Lamden issued a written report and opined that claimant remains at MMI and does not currently require surgery. Dr. Lamden also opined that claimant’s disc bulge and disc degeneration is consistent with aging and is not adjacent segment disease.

24. Dr. Lamden testified in this matter and confirmed his opinion that claimant does not have adjacent segment disease and does not need fusion surgery at this time. In support of his opinion, Dr. Lamden testified that claimant has had multiple injections that did not provide pain relief. He also opines that because claimant’s first fusion surgery was not successful, it is less likely that there will be success with a second surgery. Dr. Lamden testified that claimant has between a 30 percent and 50 percent chance that the recommended surgery will be successful. Dr. Lamden also testified that fusion at L3-4 is not curative and claimant will continue to have low back pain. Dr. Lamden proposed that surgery would likely provide more benefit to claimant in 10 years.

25. Claimant testified that his current symptoms include low back and leg pain that varies in severity from day to day. Claimant testified that his back pain is in the area of his surgical scar on his low back. With regard to leg pain, claimant testified that previously he had pain that radiated from his low back into the back of his legs, but now that pain also radiates into the front thigh area of his legs. Claimant testified that at times he will have numbness, tingling, or burning in his legs.

26. Claimant testified that he currently uses the narcotic Fentanyl in a patch form every three days. Claimant testified that on the first day he does not experience much pain relief. On the second day, his pain is reduced, but by the third day the pain returns.

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27. Surveillance video of claimant was entered into the record at hearing showing claimant spending time fishing with members of his family on July 27, 2016. The ALJ has reviewed the video surveillance and notes that claimant’s behavior on the video appears to be in conflict with his reported functional limitations. Of note claimant is seen in the video jumping to the ground from a small boat on a trailer without any apparent discomfort. Claimant testified that although he is seen jumping from the boat in this manner, he did so instinctively and “paid for it” with increased pain over the next two or three days. The ALJ finds claimant’s testimony in this regard to be credible and persuasive.

28. In his post-hearing position statement claimant now argues that the issue of whether this claim should be reopened is moot. In support of his position claimant notes that the parties entered into a stipulation1 that stated, in part, “[t]he parties agree that respondents will not take the position that the claim is closed on account of the agreement to vacate the hearing on January 13, 2016”. This argument was not made by claimant at the November 15, 2016 hearing.

29. The ALJ is not persuaded by claimant’s argument and notes that claimant filed a Petition to Reopen on September 14, 2016. Thereafter, on September 29, 2016 claimant filed an “Unopposed Motion to Add Issue of Petition to Reopen” which was granted by the court on October 3, 2016. Claimant cannot now simultaneously take the position that 1) this claim was not closed, and that 2) the claim should be reopened. The ALJ concludes that claimant’s claim was closed and turns to the endorsed issue of whether the claim should be reopened.

30. The ALJ credits claimant’s testimony and the opinion of Dr. Jernigan over the contrary opinion of Dr. Lamden and finds that it is more likely than not that claimant’s condition has worsened since he was placed at MMI on September 2, 2014. The ALJ notes that since the date of MMI claimant’s range of motion and overall function has decreased while his use of narcotic medication has increased. The ALJ finds that claimant’s condition worsened as of May 25, 2016 when Dr. Jernigan increased claimant’s work restrictions.

31. The ALJ credits the opinions of Dr. Jernigan, Dr. Robinson, and Dr. Castro over the contrary opinion of Dr. Lamden and finds that it is more likely than not that claimant suffers from adjacent segment syndrome as a result of the November 28, 2012 work injury and the resulting May 17, 2013 surgery. The ALJ also finds that claimant has demonstrated that it is more likely than not that the recommended L2-L4 fusion surgery is reasonable and necessary to cure and relieve him from the effects of the work injury.

32. The ALJ credits claimant’s testimony that he has not returned to work since May 25, 2016 when Dr. Jernigan restricted him from no work. Therefore, the ALJ finds that claimant has demonstrated that it is more likely than not that he has experienced a wage loss that is related to his November 28, 2012 work injury.

1 This stipulation was approved by ALJ Keith Mottram in an order dated January 8, 2016.

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33. As a result of the May 17, 2013 surgery, claimant has a well healed surgical scar on his lower back. This scar is approximately 4 ½ inches long and ¼ inch wide.

CONCLUSIONS OF LAW

1. The purpose of the “Workers’ Compensation Act of Colorado” is to assure the quick and efficient delivery of disability and medical benefits to injured workers at a reasonable cost to employers, without the necessity of any litigation. Section 8-40-102(1), C.R.S. A claimant in a Workers’ Compensation claim has the burden of proving entitlement to benefits by a preponderance of the evidence. Section 8-43-201, C.R.S., 2008. A preponderance of the evidence is that which leads the trier-of-fact, after considering all of the evidence, to find that a fact is more probably true than not. Page v. Clark, 197 Colo. 306, 592 P.2d 792 (1979). The facts in a Workers’ Compensation case are not interpreted liberally in favor of either the rights of the injured worker or the rights of the employer. Section 8-43-201, supra. A Workers’ Compensation case is decided on its merits. Section 8-43-201, supra.

2. The ALJ’s factual findings concern only evidence that is dispositive of the issues involved. The ALJ has not addressed every piece of evidence that might lead to a conflicting conclusion and has rejected evidence contrary to the above findings as unpersuasive. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo. App. 2000). When determining credibility, the fact finder should consider, among other things, the consistency or inconsistency of the witness’s testimony and actions; the reasonableness or unreasonableness (probability or improbability) of the testimony and action; the motives of the witness; whether the testimony has been contradicted; and bias, prejudice, or interest. See Prudential Insurance Co. v. Cline, 98 Colo. 275, 57 P.2d 1205 (1936); CJI, Civil 3:16 (2012).

3. At any time within six years after the date of injury, the ALJ may reopen an award on the ground of a change in condition. Section 8-43-303(1), C.R.S. A change in condition refers to “a change in the condition of the original compensable injury or to a change in claimant’s physical or mental condition which can be causally connected to the original compensable injury.” Heinicke v. Industrial Claim Appeals Office, 197 P.3d 222 (Colo. App. 2008). The ALJ is not required to reopen a claim based upon a worsened condition whenever an authorized treating physician finds increased impairment following MMI. Id. The party attempting to reopen an issue or claim shall bear the burden of proof as to any issues sought to be reopened. Section 8-43-303(4), C.R.S.

4. As found, claimant has demonstrated by a preponderance of the evidence that he has a worsened condition related to the November 28, 2012 work injury. The claimant has also demonstrated by a preponderance of the evidence that his worsened condition necessitates a reopening of his workers’ compensation claim as of May 25, 2016. Claimant’s testimony and the opinion of Dr. Jernigan are found to be credible and persuasive as related to this issue.

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5. Respondents are liable for authorized medical treatment reasonably necessary to cure and relieve an employee from the effects of a work related injury. Section 8-42-101, C.R.S.; see Sims v. Industrial Claim Appeals Office, 797 P.2d 777 (Colo. App. 1990). Even though an admission of liability is filed, the claimant bears the burden of proof to establish the right to specific medical treatment. HLJ Management Group, Inc. v. Kim, 804 P.2d 250 (Colo. App. 1990).

6. As found, claimant has demonstrated by a preponderance of the evidence that the recommended L2-L4 fusion surgery is reasonable medical treatment necessary to cure and relieve claimant from the effects of the November 28, 2012 injury. As found, the opinions of Drs. Jernigan, Robinson, and Castro are credible and persuasive.

7. To prove entitlement to temporary total disability (TTD) benefits, claimant must prove that the industrial injury caused a disability lasting more than three work shifts, that he left work as a result of the disability, and that the disability resulted in an actual wage loss. PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). Section 8-42-103(1)(a) C.R.S., supra, requires claimant to establish a causal connection between a work-related injury and a subsequent wage loss in order to obtain TTD benefits. PDM Molding, Inc. v. Stanberg, supra. The term disability, connotes two elements: (1) medical incapacity evidenced by loss or restriction of bodily function; and (2) impairment of wage earning capacity as demonstrated by claimant's inability to resume his prior work. Culver v. Ace Electric, 971 P.2d 641 (Colo. 1999). There is no statutory requirement that claimant establish physical disability through a medical opinion of an attending physician; claimant's testimony alone may be sufficient to establish a temporary disability. Lymburn v. Symbios Logic, 952 P.2d 831 (Colo. App. 1997). The impairment of earning capacity element of disability may be evidenced by a complete inability to work, or by restrictions which impair the claimant's ability effectively and properly to perform his regular employment. Ortiz v. Charles J. Murphy & Co., 964 P.2d 595 (Colo. App. 1998).

8. As found, claimant has demonstrated by a preponderance of the evidence that as of May 25, 2016 he has been unable to work because of his worsened condition. This has resulted in a wage loss. As claimant’s worsened condition and resulting wage loss are causally related to the November 28, 2012 work injury, respondents shall pay claimant temporary total disability (“TTD”) benefits beginning May 25, 2016 and until terminated by law.

9. Section 8-42-108 (1), C.R.S. provides that at claimant may be entitled to additional compensation if, as a result of the work injury, he has sustained a serious permanent disfigurement to areas of the body normally exposed to public view.

10. As found, as a result of his November 28, 2012 work injury claimant has a visible disfigurement to his body consisting of a well healed surgical scar on his low back measuring 4 ½ inches long and ¼ inch wide. Therefore, claimant has sustained a serious permanent disfigurement to areas of the body normally exposed to public view. The ALJ awards claimant $800.00 for this disfigurement pursuant to Section 8-42-108 (1), C.R.S.

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ORDER

It is therefore ordered that:

1. Claimant’s petition to reopen is granted due to a worsening of his condition.

2. Respondents shall pay for the recommended L2-L4 fusion surgery.

3. Respondents shall pay TTD benefits beginning May 25, 2016 and until terminated by law.

4. Respondents shall pay claimant $800.00 for his disfigurement. Respondents shall be given credit for any amount previously paid for disfigurement in connection with this claim.

5. Insurer shall pay interest to claimant at the rate of 8% per annum on all amounts of compensation not paid when due.

6. All matters not determined herein are reserved for future determination.

If you are dissatisfied with the Judge's order, you may file a Petition to Review the order with the Denver Office of Administrative Courts, 1525 Sherman St., 4th Floor, Denver, CO 80203. You must file your Petition to Review within twenty (20) days after mailing or service of the order, as indicated on certificate of mailing or service; otherwise, the Judge's order will be final. You may file the Petition to Review by mail, as long as the certificate of mailing attached to your petition shows: (1) That you mailed it within twenty (20) days after mailing or service of the order of the Judge; and (2) That you mailed it to the above address for the Denver Office of Administrative Courts. For statutory reference, see section 8-43-301(2), C.R.S. For further information regarding procedures to follow when filing a Petition to Review, see Rule 26, OACRP. You may access a petition to review form at: http://www.colorado.gov/dpa/oac/forms-WC.htm.

DATED: February 14, 2017

Cassandra M. Sidanycz Administrative Law Judge Office of Administrative Courts 222 S. 6th Street, Suite 414 Grand Junction, Colorado 81501

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OFFICE OF ADMINISTRATIVE COURTS STATE OF COLORADO W.C. No. 4-916-293-03 FULL FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER IN THE MATTER OF THE WORKERS' COMPENSATION CLAIM OF:

Claimant, v.

Employer, and

Insurer/ Respondents. Hearing in the above-captioned matter was held before Edwin L. Felter, Jr., Administrative Law Judge (ALJ), on August 16, 2016 and December 5, 2016, in Denver, Colorado. The hearing was digitally recorded (reference: 8/16/16, Courtroom 3, beginning at 8:30 AM, and ending at 11:15 am; and, 12/5/16, Courtroom 3, beginning at 8:30 AM, and ending at 12:30 PM). The hearing was completed by the filing of the transcript of the evidentiary deposition of the Claimant, taken on December 19, 2016 and filed on January 26, 2017; and a transcript of completion of the testimony of Bruce Rabin, M.D., taken on December 19, 2016 and filed on January 26, 2017. Claimant’s Exhibits 1 through 38 were offered into evidence. All of Claimant’s Exhibits were admitted into evidence with the following exceptions: Claimant’s Exhibits 3 and 16 were withdrawn. Respondents’ objection to Exhibit 5 was sustained and it was rejected. Respondents’ objections and Exhibits 7 and 12 were overruled and these items were admitted into evidence. Respondents’ Exhibits A through O were admitted into evidence, without objection. At the conclusion of the hearing, the ALJ ordered completion of the hearing by the filing of the transcripts of the evidentiary deposition of the Claimant, taken on December 19, 2016, and a transcript of the completion of the testimony of Bruce Rabin, M.D., taken on December 19, 2016. Thereafter, the ALJ established a post-hearing

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briefing schedule, briefs to be limited to 15-pages, single-spaced. The Respondents’ opening brief was filed on January 30, 2017. The Claimant’s answer brief was filed on February 6, 2017. The Respondents’ reply brief was filed on February 8, 2017, at which time the matter was deemed submitted for decision. Respondents objected to the length of the Claimant’s answer brief in their reply brief, alleging that it is 21 pages long and requesting that pages 16 through 21 be stricken. Claimant’s answer brief, as printed out by the ALJ is 17 pages long. Consequently, Respondents may have printed the same thing in more pages. The ALJ declines to strike pages 16 and 17 of the Claimant’s answer brief.

ISSUES

The issue to be determined by this decision concerns Respondents’ request to overcome the Division Independent Medical Examination (DIME) opinion of Susan Santilli, M.D. specifically, that the Claimant’s thoracic problems and perineural cyst are causally related to an aggravation/ acceleration of the Claimant’s admitted injuries of February 28, 2013, and that the Claimant is not at maximum medical improvement (MMI) from the admitted injuries. A corollary issue is whether the surgical removal of the perineural cyst was reasonably necessary to relieve the Claimant’s thoracic pain, resulting from the admitted back injury; or, in the alternative, was the removal of the perineural cyst attributable to non-work related thoracic problems. The claimant bears the burden of proof, by a preponderance of the evidence, on the surgical issue. The Respondents bear the burden of proof, by clear and convincing evidence, on their attempt to overcome the DIME.

POSITIONS OF THE PARTIES

It is the Respondents’ position that it is highly probable, unmistakable and free from serious and substantial doubt that DIME Dr. Santilli is in error in causally relating the Claimant’s thoracic problems and perineural cyst to the admitted injury and, that the Claimant is not at MMI, thus, the Respondents contend that they have overcome the DIME by clear and convincing evidence. It follows from Respondents’ position that the surgical removal of the cyst, according to Respondents’ theory, was not work related.

The Claimant asserts that Respondents have failed to meet their burden of proof to overcome Dr. Santilli’s opinion regarding the causal relatedness of the Claimant’s thoracic problems and perineural cyst. The Claimant asserts that the surgical removal of the cyst was reasonably necessary to cure and relieve the effects of the admitted injuries. According to DIME Dr. Santilli, since the pain related to the cyst and the

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necessary surgery arecausally related to the admitted injuries, the Claimant is not at MMI for all of his industrial injuries.

It is the Claimant’s position that the following evidence (a summary) support Dr. Santilli’s opinion that the Claimant is not at MMI because his thoracic pain and an aggravation/acceleration of his perineural cyst are causally related to the admitted injuries of February 28, 2013 and March 20, 2013, for the following reasons:

1. Pain diagrams submitted to Albert Hattem, M.D., Allison Fall, M.D.,and John

Sacha, M.D., prior to November 2014, demonstrate numerous complaints which correlate with a thoracic cyst;

2. Thoracic MRI (magnetic resonance imaging) reports document the growth of the cyst after the February 28, 2013 injury;

3. Physical therapy records demonstrate complaints of thoracic pain before

November, 2014;

4. Physician reports document mid-back pain between February 28, 2013 and November, 2014;

5. Concurring opinions of Yanni Zinis, M.D., and Bruce Rabin, M.D. ,

regarding causation, support the DIME opinion;

6. Relevant opinions contained in the reports of Ron Carbaugh, Psy.D., and Jon Erickson, M.D., support the DIME opinion;

7. Records from ErgoMed pertaining to Claimant’s qualifying pre-employment physical examination showing the baseline condition of his thoracic spine,.

The Claimant contends that contrary opinions about causation by Dr. Fall, Dr.Hattem, Scott Primack,D.O., and Michael Rauzinni, M.D., and Jon Erickson, M.D., do not clearly and convincingly prove error on the part of Dr. Santilli because their opinions either are based on incomplete records or lack of expertise with respect to thoracic cysts (except Dr. Rauzinni), or they simply reflect a difference of opinion.

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FINDINGS OF FACT

Based on the evidence presented at hearing, the ALJ makes the following Findings of Fact:

Preliminary Findings 1. The Claimant was born on May 7, 1956 and is currently 60 years old. He has some college education. He was hired by the Employer in May 2012 to work as a heavy equipment operator. The Employer is a horticultural company. 2. The Claimant injured his low back and mid back on February 28, 2013 when he was removing a very tight bolt using a 3-foot pipe wrench and 4-foot breaker bar which broke, causing him to fall backwards 5 or 6 feet on a wooden stairway, knocking him unconscious. When he fell, the back of his entire spine and head struck the wooden steps. According to a Concentra clinic report, dated February 28, 2013, the Claimant was assessed with a crush injury, right ribcage and right shoulder injury. (Respondents’ Exhibit G, bate stamp 113-114). According to the Claimant, however, he never hurt his right shoulder, only his left shoulder. On March 6, 2013, he was assessed as suffering from thoracic, rib and shoulder strain(Respondents’ Exhibit G, bates stamp 116). 3. The Claimant was also injured on March 20, 2013 while at work. When he was on the same wooden stairway involved in the February 28, 2013 accident, a step collapsed, causing him to fall forward. According to a Concentra note, he suffered increased pain in his neck, back and right shoulder Respondents’ (Exhibit G, bates stamp 117). Once again, according to the Claimant he experienced increased pain to his left shoulder. 4. Respondents have admitted liability for the February 28, 2013 and March 20, 2013 injuries [See General Admissions of Liability (GALs), Claimant’s Exhibit 2]. Respondents admitted only for treatment for the neck, low back, left knee and left shoulder injuries. They denied liability for a thoracic injury. Under the mistaken belief that the Claimant’s thoracic condition and an aggravation and acceleration of the Claimant’s perineural cyst, the Respondents denied authorization of the surgical removal of the cyst by otherwise authorized treating physicians, Dr. Castro, and his referral to Dr. Lamond. 5. The two claims were consolidated into the present case, and Pinnacol Assurance has paid all benefits under the present workers’ compensation number, W.C. No. 4-891-194-02. 6. The Claimant has been treated by a number of physicians and other authorized medical providers (ATPs), including Dr. Hattem and Dr. Fall, and by physical

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therapists and a massage therapist. He has undergone physical therapy, massage therapy, medications, injections, acupuncture, and 3 surgeries (one on his lower back, one on his left shoulder, and an unauthorized surgery involving his thoracic spine). 7. The Claimant was diagnosed with cervical strain with significant degenerative changes with left side extrusion seen on MRI. He was also diagnosed with left shoulder cuff tear. On December 1, 2013, Stephen Lindenbaum, M.D., performed an arthroscopy with labral debridement on the left shoulder followed by open attempted rotator cuff repairs and subacromial decompression for a very severely retracted rotator cuff and labral irregularity. After the shoulder surgery, the Claimant continued to have pain in his left shoulder, neck, back, and, according to the Claimant and the medical records (including physical therapy notes and pain diagrams), thoracic spine area. 8. After extensive physical therapy, the Claimant underwent low back surgery by Andrew Castro, M.D., on December 16, 2014. After the back surgery, the Claimant continued to have thoracic pain and was insistent on obtaining proper diagnostics and treatment. Dr. Fall declined to authorize an MRI and discounted his thoracic complaints. Eventually Dr. Hattem ordered a thoracic spine MRI, which showed the presence of a perineural cyst at T10-T11. The Claimant’s Medical Treatment 9. The Claimant was evaluated on February 28, 2013 (Respondents’. Exhibit. F, p. 113). He complained of shoulder pain and back pain that hurt with deep breathing, and he was tender on the right side of the “T9-10th rib MCL posteriorly with red mark. . .” Id. He completed a pain diagram which showed pain in his low back on the right side and mid back (does not exclude thoracic pain) on the right side at elbow level (Respondents’ Exhibit. G, p. 184). On March 13, 2013, Jonathan Bloch, D.O., diagnosed the Claimant with a thoracic strain (emphasis supplied), rib strain, and shoulder strain (Respondents’ Exhibit. F, p. 116). The Claimant was re-evaluated on March 20, 2013 for his second accident, and the thoracic strain diagnosis was not mentioned as relating to the second admitted injury. Albert Hattem, M.D. 10. Albert Hattem, M.D., evaluated the Claimant on May 13, 2013. Dr. Hattem noted that the February 28, 2013 accident involved the Claimant’s thoracic spine (emphasis supplied), low back, and chest wall. Id. at p. 135. He ordered a thoracic MRI, which occurred May 21, 2013. It identified a “moderate sized arachnoid cyst or nerve sheath diverticulum,” which was “likely a long-standing abnormality unrelated to the patient’s injury” (Respondents’ Exhibit N, p. 416). In a second reading, it was noted to be “approximately 1 cm at the T10 level.” Id. at p. 419. The ALJ finds that it is not disputed that the Claimant had a pre-existing perineural cyst. The question

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is whether the injuries of February 28, 2013 and March 20, 2013 resulted in the cyst causing thoracic pain and necessitating surgical removal thereof sooner rather than later. 11. Dr. Hattem evaluated the Claimant on November 10, 2014 and noted, “He also now complains of pain in the upper back that began several weeks ago” (Respondents’ Ex. F, p. 157). As a diagnosis, he recorded “new-onset mid back pain.” Id. at p. 159. In this note, Dr. Hattem failed to mention his May 13, 2013 note that the Claimant’s “accident involved the Claimant’s thoracic spine.”

12. On September 8, 2015, Dr. Hattem stated the legal opinion that he did not believe the cyst was claim related (Respondent’s. Exhibit F, p. 179). He placed the Claimant at MMI on October 26, 2015. Id. at p. 181, and he assigned a 10% extremity impairment for the shoulder, and 18% impairment for his lumbar spine, and a 17% impairment for his cervical spine. Id. at p. 182. This opinion begs the question of whether or not the cyst resulted in thoracic pain, caused by the cyst affecting the Claimant’s thoracic region, which would not otherwise have occurred but for the admitted injuries. It is not disputed that the cyst was not caused by the admitted injuries. The ALJ finds that the admitted injuries caused the cyst to interact with the Claimant’s thoracic region, thus, causing thoracic pain. The ALJ infers and finds that Dime Dr. Santilli’s opinions imply that this is the case.

13. The ALJ finds that Dr. Hattem’s opinions in his reports and his deposition

testimony do not encompass a complete assessment of all the relevant medical records as are the opinions of Drs. Sharma and Erickson. There is no mention as significant, of the numerous references to thoracic pain found in the medical records from February 28, 2013 until the surgical excision of the cyst. Dr. Hattem’s analysis is largely based on that of Dr. Rauzzino: i.e., that there are no complaints of thoracic pain until November, 2014, and that the pre-existing cyst has not grown in size at all. Dr. Hattem’s qualifications as an “expert” in perineural cyst causation are not compelling, given that it was he who, as Claimant’s primary ATP, missed a correct diagnosis of the cyst until, after persistent complaints by the Claimant, he ordered an MRI which was accomplished on May 19, 2015 (Respondents’ Exhibit N, bates stamp. 420-21). Dr. Hattem finally acknowledged the existence of a cyst on June 12, 2015 (Respondents’Exhibit F, bates stamp 173). This diagnosis was two-years later, since Dr. Hattem could have reviewed the MRI dated May 21, 2013, which he ordered and which identified a right-sided cyst (albeit at T8-9 level). Dr. Hattem recognized that the Claimant injured his thoracic spine on February 28, 2013 (see his reports dated September 16, 2013 and October 26, 2015). He could have reviewed physical therapy reports and pain diagrams through 2013 through mid-2015 which referred to thoracic pain, and the Claimant persistently complained of mid back pain throughout the course of his treatment with Dr. Hattem. Dr. Hattem’s lack of expertise concerning thoracic complaints during his treatment history can be initially excused because perineural cysts are rarely seen by non-neurologist doctors in general, they are rarely found at the

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thoracic level, and they are rarely symptomatic. An occupational medicine specialist might not recognize complaints of thoracic pain to be generated by a rare condition like the perineural cyst, and he might have attributed the Claimant’s complaints to continuing problems with his left shoulder, neck, left knee or lower back. After all the records were provided to him, Dr. Hattem persisted in an ultimate opinion that the cyst is not injury related. This opinion, in the end, is only “a difference of opinion”, not clear and convincing proof of error on Dr. Santilli’s part.

Allison Fall, M.D. 14. Dr. Fall, evaluated the Claimant on March 26, 2013 (Respondents' Exhibit. I, p. 288). The Claimant’s pain diagram showed armpit level back pain, right sided front rib cage pain, neck pain, and low back pain (Respondents’ Exhibit G, p. 188). Similar pain complaints are noted on diagrams completed through August 2013. Id. at pp. 189-192. Throughout the remainder of 2013 and the first half of 2014, lumbar and cervical complaints were noted. Also on the diagrams, the Claimant would circle various pain 0-10 pain scale levels and identify which pain level pertained to which specific body part. For example, on December 30, 2013, the Claimant circled 4 for “neck,” 5 for “sh,” and 9 for “L/S,” on March 14, 2014 the Claimant noted 3 for “Sh,” 5 for “neck” and 9 for “LB,” on May 5, 2014, he noted 4 for “Sh,” 6 for “neck” and 9 for “LB,” and on June 2, 2014 he noted 4 for “sh,” 6 for “c/s,” and 9 for “L/S.” Id. at pp. 199, 204, 207, and 208. The ALJ infers and finds that part of the Respondents’ argument to overcome the DIME is that no thoracic complaints were noted at this time. Such an absence of thoracic complaints at this time does not make it highly probable, unmistakable and free from serious and substantial doubt that Dr. Santilli’s DIME opinions are in error.

15. On May 31, 2013, Dr. Fall noted that the Claimant had an injection and

“everything felt better his low back and his neck and his arm.” No mid-back complaints were noted (Respondents’ Exhibit I, p. 295). On September 16, 2013, the Claimant’s neck pain was 3/10 and low back pain at 7/10. Again, the absence of thoracic complaints at this time does not rise to the level of “clear and convincing” evidence.

16. Dr. Fall noted that the Claimant had mid-back complaints on November 3, 2014 (Respondents’ Exhibit I, p. 315). The Claimant reported pain at the thoracolumbar junction, which was sensitive during an exam with Dr. Castro the prior week and “initially” sore in therapy the prior Friday. Id. Dr. Fall documented that the Claimant was very tender to the touch on the right of the spine in the midline. Id. Notably, the associated pain diagram form from that date, which the Claimant completed and signed, contains a handwritten note that states, “new symptom @T11-T12 meeting with Dr. Castro” (Respondents’ Exhibit G, p. 216). 17. By March 20, 2015, Dr. Fall noted that the Claimant’s thoracic pain had increased (Respondents’ Exhibit I, p. 320). Dr. Sacha administered a T10 injection on

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April 16, 2015 (Respondents’. Exhibit M, p. 413). The Claimant reported that the injection resolved the pain in his thoracic area (Respondents’ Exhibit I, p. 322). On May 1, 2015, the Claimant reported to Dr. Hattem that his mid-back pain returned, and Dr. Hattem ordered a thoracic MRI. (Respondents’ Exhibit F, pp. 169-170). The MRI occurred on May 19, 2015, and it identified an 11 mm cyst at T10-11 (Respondents’. Exhibit N, p. 420). 18. Dr. Fall’s documentation of thoracic pain in her reports begins on November 3, 2014 (Respondents’Exhibit I, bates stamp. 314). Like Dr. Hattem, she missed the significance of markings in pain diagrams submitted to her before that time, for the same reasons most non-neurologists or neurosurgeons might miss them. She acknowledged that “his thoracic pain has increased” (Respondents’Exhibit I, bates stamp. 320), but she continued to describe the cyst as “of unknown etiology”, saw “no utility” for a thoracic MRI and did not recommend thoracic surgery (Respondents’Exhibit I, bates stamp 322), characterized the May 13, 2013 thoracic MRI as “unremarkable” (Respondents’ Exhibit I, bates stamp. 323), stated the opinion that Claimant’s cyst was most likely not symptomatic (Respondents’ Exhibit I, bates stamp 324) and, while she noted that a DIME was planned with Dr. Santilli, she has never commented on the correctness of Dr. Santilli’s opinions. Dr. Fall has not demonstrated that she is an expert about the causation of perineural cysts, and her pre-DIME opinions are simply differences of opinion given without supporting reasons or any cited empirical evidence. All of her opinions have been contradicted by Dr. Rabin, and some, including the efficacy of MRIs and surgery and the correlation of the cyst with thoracic pain, were contradicted by Dr. Rauzzino. As such, her opinions do not constitute sufficient or persuasive evidence of error committed by Dr. Santilli. John Sacha, M.D.

19. Dr. Sacha evaluated the Claimant on October 2, 2013 (Respondents’ Exhibit M, pp. 406-407). He diagnosed lumbosacral and cervical facet conditions. Id. According to Dr. Sacha, the Claimant had a negative thoracic outlet maneuver. Id. at p. 407

Andrew Castro, M.D.

20. The Claimant was evaluated by Dr. Castro, an orthopedic surgeon, on

December 18, 2013 (Respondents’ Exhibit K, p. 345). The Claimant complained of low back pain and neck pain. Id. Dr. Castro evaluated the Claimant on two more occasions through the first half of 2014. See Id. at pp. 348-349. Respondents’ contend that because of no clear reference to mid-back complaints, this contributes to overcoming the DIME. Not only does this not rise to the level of “clear and convincing” evidence, it does not even rise to the level of an affirmative difference of opinion.

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21. Dr. Castro performed a lumbar fusion at L4-5 on December 20, 2014. (Respondents’ Ex. K, p. 355). As of January 14, 2015, the Claimant reported to Dr. Hattem he was doing “fantastic” after surgery and was weaning himself off narcotics. (Respondents’ Exhibit F, pp. 160-161). The ALJ infers and finds that the Claimant’s statement illustrates the waxing and waning of the Claimant’s thoracic symptoms and accounts for the absence of thoracic complaints in some medical notes. 22. On June 8, 2015, Dr. Castro noted the Claimant was doing great post-lumbar surgery, but he reviewed the Claimant’s thoracic MRI and noted that the cyst was “enlarging the foramen somewhat being a likely older lesion. . .” (Respondents’ Exhibit K, p. 367). 23. Dr. Castro, who performed the Claimant’s back surgery, referred him to Rod Lamond, M.D., a neurosurgeon for a surgical consult (Respondents’ Exhibit L, bates stamp 367). In a later report, dated March 28, 2016, Dr. Castro stated the opinion that the Claimant had “symptoms with ongoing thoracic pain running around in a right dermatomal distribution consistent with his intraforaminal cyst/perineural cyst. He has been seen by two independent evaluators [presumably Dr. Santilli and Dr. Zinis], who feel that this is related to his work-related injury…. re-review of his MRI highlights a perineural cyst at T-10-T11 in the foramen. It appears to have been there for some period of time as the foramen does seem to be somewhat dilated; however, it could be flared up secondary to trauma (emphasis supplied)” (Respondents’ Exhibit L, bates stamp. 372). Dr. Castro recommended consideration of surgery. Scott Primack, D.O. 24. According to Dr. Primack, the size of the cyst never changed. His opinions in this regard are not persuasive, since Dr. Primack has limited experience with symptomatic cysts, and he has no special expertise in radiology, neurology or neurosurgery. He, too, insists that, Claimant’s pain diagrams and reports to medical providers would necessarily reflect “profound pain” with a dermatomal pattern, and he saw no evidence of such reports of pain. Like Dr. Hattem, Dr. Sharma and Dr. Fall, Dr. Primack’s opinions in this respect are merely differences of opinion from those given by DIME Dr. Santilli, Dr. Zinis and Dr.Rabin, and do not constitute clear and convincing evidence of error “ on DIME Dr. Santilli’s part. Michael Rauzzino, M.D. 25. Dr. Rauzzino, a neurosurgeon, conducted a record review. It appears that he was presented with most, if not all, of the relevant records in this case. He was of the opinion that the Claimant’s perineural cyst was not caused by the admitted February 28, 2013 accident; that the cyst has not substantially grown; that if Claimant had injured his pre-existing cyst in the accident the Claimant would have experienced immediate, agonizing pain; that Claimant’s pain diagrams do not correlate with a

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symptomatic perineural cyst between date of injury and November 2014; that Claimant’s fall would not generate enough force to injure a perineural cyst since it is located so close to the spine; that the available medical reports do not document complaints of a symptomatic cyst before November 2014; that Claimant’s thoracic pain would not be masked by pain medication, the pain of other injuries, or the beneficial effects of physical therapy; that surgery was not reasonably necessary due to an industrial injury; that Dr. Santilli’s opinion was in error because she did not have a complete medical file; that Claimant’s pain as reported to Dr. Fall on November 3, 2014 was due to a “new” condition; that Dr. Zinis is wrong about causation; and that Drs. Primack and Hattem are correct about causation. In short, Dr. Rauzzino has a categorical difference of opinion about what the medical records reveal. His difference of opinion does not rise to the level of “clear and convincing” evidence, given the contrary opinions of Dr. Zinis and Dr.Rabin , who looked at substantially the same evidence (MRI reports, pain diagrams, physical therapy reports and physician reports) and reached contrary opinions that supported Dr. Santilli’s causation opinion. With respect to his opinion that Dr. Santilli’s opinion must be in error because she did not have all the key medical documents, a close examination reveals that, while Dr. Santilli suggested that she did not have all the medical records, she certainly had sufficient medical records pertaining to the thoracic spinal complaints (See Claimant’s Exhibit 12, “Supplemental Medical Records For Dr. Santilli DIME Exam”). That set of records, prepared by the Claimant with an itemization found at Claimant’s Exhibit 12, included records from Drs. Hattem, Dr. Fall, Dr. Sacha, and Dr. Sharma (with an extensive record review), and from Concentra physical therapy. The set of records also included MRIs dated May 21, 2013 and August 20, 2015 and, importantly, the February 25, 2016 report of Dr. Zinis which contains an extensive record review of then available medical records which included a comparison of the May 2013 and August 20, 2015 MRIs. The ALJ infers and finds that DIME Dr. Santilli had sufficient medical records in order to render appropriate DIME opinions. Otherwise, she would have indicated that she could not render DIME opinions without more medical records. Therefore, the ALJ finds that Dr. Rauzinni’s suggestion that Dr. Santilli lacked key records is without merit. Jon Erickson, M.D. 26. In his report dated April 19, 2016, Dr. Erickson stated that “he noted no complaints of thoracic spine at any time on or shortly around his alleged injury” and he is stated: “There were no complaints until several months after his successful lumbar fusion.” The ALJ finds that Dr. Erickson incorrectly characterized Dr. Sharma’s report as a “definitive opinion and review” and, relying upon it, he recommended a denial of Dr. Castro’s thoracic surgery request. Dr. Erickson’s report is a partial record review because it t “piggybacks” entirely on Dr. Sharma’s report and, like Dr. Sharma before him, Dr. Erickson did not have all the relevant medical records, including pain diagrams, physical therapy reports, and MRI reports. His report is flawed like that of Dr. Sharma. The only persuasive opinions made in Dr. Erickson’s report are his recognition that

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perineural cysts can become symptomatic when associated with trauma (emphasis supplied), and that he would possibly consider changing his recommendation regarding causation after reviewing Dr. Hattem’s and Dr. Santilli’s report. The ALJ finds that Dr. Erickson’s opinions do not rise to the level of “clear and convincing” evidence. Respondents’ Independent Medical Examiner (IME), Anjmun Sharma, M.D..

27. Dr. Sharma performed an IME, at the behest of the Respondents, on

August 8, 2015. Dr. Sharma stated that the medical records did not show that the Claimant complained of thoracic pain associated with the cyst at or near the time of the injury. Dr. Sharma was of the opinion that the thoracic pain associated with the cyst was a chronic condition, and Dr. Sharma rendered the legal opinion that it was not claim related. Dr. Sharma further suggested claimant was at MMI, and he assigned permanent impairment ratings for the Claimant’s neck, low back, and shoulder totaling 23% whole person (Claimant’s Exhibit 24 at pp. 84-87). The ALJ finds that Dr. Sharma has a difference of opinion from the DIME opinions of Dr. Santilli, and it does not rise to the level of making it highly probable, unmistakable and free from serious and substantial doubt that Dr. Santilli’s opinions are erroneous.

MRI of August 20, 2015

28. The Claimant had a thoracic MRI on August 20, 2015, which was a

comparison to the May 21, 2013 MRI. The radiologist noted a 1.6 x .9 x 1 cm cyst, “unchanged from the prior study” (Respondents’. Exhibit N, p. 422). This observation is disputed by Dr. Rabin, who observed that depending on the observation vantage point (from a 3-dimensional perspective), could indicate a growing of the cyst. Regardless, the ALJ infers and finds that the admitted injuries caused an interaction between the Claimant’s thoracic region and the cyst, which caused waxing and waning pain and, ultimately, necessitated the surgical removal of the cyst.

Division Independent Medical Examination (DIME) by Susan Santilli, M.D. 29. Dr. Santilli performed the DIME on March 7, 2016. It was her opinion that the Claimant’s thoracic problems and an aggravation/acceleration of his underlying perineural cyst were related to the admitted injury of February 28, 2013. Further, it was her opinion that the Claimant was not at MMI because of the perineural cyst and its interaction with the Claimant’s thoracic region.

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Claimant’s IME by Yani Zinis, M.D. 30. Claimant underwent an IME with Dr. Zinis (Claimant’s Exhibit. 7). Dr.

Zinis noted that the Claimant reported that after the work accidents, “the majority of symptoms had been in the mid-back at the time as well as the low back.” Id. The Claimant reported there was not a discussion of his thoracic symptoms in his clinical notes because of the extensive neck and low back symptoms. Id. The ALJ infers and finds that focusing on major pain generators to the exclusion of lesser pain generators is not unreasonable. Dr. Zinis then stated that in late 2013 “very little attention to the thoracic spine” was made as treatment concentrated on his low back. Dr. Zinis concluded that “it appears that [Claimant’s] thoracic pain complaints had persisted and progressively worsened and as a result of a general lack of attention to this region by his occupational medicine treating physicians . . .” Id., p. 4. Dr. Zinis is of the opinion that the cyst was work related (at least the effects thereof after the admitted injuries), thus, corroborating DIME Dr. Santilli’s opinions.

31. In his report (Claimant’s Exhibit 7), Dr. Zinis, stated the opinions, among

other things, as follows: (a) “Of significance is Claimant’s initial clinical visit on March 26, 2013 [erroneously identified as a visit with Dr. Fall when it was actually Dr. Bloch] at which time he discussed the injury when he fell backwards from the stairs landing directly on his mid-back area, reporting hurting both his neck, mid-back, head and shoulders as he hit the stairway;” (b) During the ensuing months of September, October, and November 2013, Claimant’s medical providers seemed to concentrate on low back symptoms and lumbar radicular pain, with very little attention to the thoracic spine; (c) Claimant’s thoracic pain was post-traumatic and related to the work injury of February 18, 2013; (d) The size of Claimant’s cyst on recent MRI has expanded compared to the initial MRI and is the basis for Claimant’s persistent and progressive pain symptoms in the region; (e) This expansion “seems to be beyond the customary perineural cyst, which may occur insidiously in the general population”; (f) “It seems more likely than not that the first fall, which resulted in a direct and significant impact and contusion to the lower region from a cement or metal stair, would have jarred the spine to the extent that any small perineural cyst which may have existed certainly could have expanded and resulted in his symptoms today;” (g) When asked about the contrary causation opinions of Drs. Sharma, Fall, and Hattem, he replied that: “Perhaps because the cervical and lumbar spine were prominently involved and the primary focus of treatment, the thoracic spine was excluded until the patient recovered nicely from low back surgery;” and, (h) “Claimant is not at MMI, and that surgical excision of the cyst would be included in diagnostic treatment (Claimant’s Exhibit 7, “specific interrogatives” nos. 3-7).

Dr. Lamond and Dr. Castro 32. In a report dated September 15, 2015, Dr. Lamond reported that the Claimant’s thoracic symptoms were getting worse and his pain seemed to be

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increasing, and he was of the opinion that the Claimant had no absolute indication for surgery, but he did have relative indications for surgery (Respondents’Exhibit M, bates stamp. 400). 33. In an operative report dated July 10, 2016, Dr. Castro described a procedure that he and Dr. Lamond performed: thoracic decompression T10-T12, and posterior spinal fusion T10-T12. Dr. Castro was of the opinion that the Claimant “has severe stenosis in the neural foramen at T10-11 and T11-12 extruding into the spinal canal at the same level because of a large extradural mass. To remove this mass and decompress and stabilize the area” (Respondents’Exhibit L, bates stamp 381). Bruce Rabin, M.D. 34. Although Dr. Rabin is the Claimant’s brother, no persuasive evidence that his professional integrity, truthfulness, or degree of expertise was affected by his relationship to the Claimant. Indeed, Dr. Rabin has more expertise concerning perineural cysts than any of the other “expert” witnesses. Dr. Rabin is a board certified neurologist, a professor at Johns Hopkins University, and team neurologist for the Baltimore Ravens. He has treated scores of patients with perineural cysts over his 22 years of practice, and several that had cysts in the thoracic region. About a half a dozen had cysts affected by trauma. 35. Dr. Rabin authored “An Overview of Perineural Cysts,” which included 7 references. The overview cites, among other things: (a) for preexisting perineural cysts, symptoms can be made transiently worse by Valsalva maneuvers and persistently by trauma; (b) 85-90% of patients were shown to be satisfied with their pain relief following surgical treatment of the perineural cyst; (c) this finding is not surprising given that cysts reside on the dorsal nerve roots and frequently distort and compress the nerves in contiguous and nearby nerve roots, thus accounting for radicular symptoms of numbness, neuropathic pain, dysthesias and paresthesias; and, (d) the anatomic relationship between the nerve and the cyst also accounts for the focal, nonradiating, spine pain syndrome frequently seen in patients with “symptomatic Tarlov cysts.” (Claimant’s Exhibit 6). 36. Dr. Rabin agrees with the causation opinions of Dr. Santilli, Dr.Zinis, and Dr. Erickson- generally, that trauma can make cysts symptomatic. He is of the opinion that the Claimant’s traumatic injuries caused his cyst to become increasingly symptomatic. According to Dr. Rabin, the Claimant’s perineural cyst was aggravated and increased in size as a result of the February 28, 2013 injury. It is clear to him that a fall on a stairway, which impacted the entire spine, including the thoracic spine, aggravated the cyst. Dr. Rabin is not sure whether or not the cyst was pre-existing. He reviewed extensive medical records, and he saw no evidence of pre-existing symptoms. With respect to the Claimant’s baseline condition, Dr. Rabin was impressed that that

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Claimant passed the lifting/carrying/pushing/pulling tests in an ERGOMED pre-employment physical exam and that he reported no thoracic pain. 37. Dr. Rabin disagrees with Dr. Hattem, Dr. Sharma, Dr. Rauzzino and others that there is clearly no evidence of thoracic complaints before November 2014. He pointed to numerous pain diagrams between the first injury date and November 2014, which, in his view, show complaints involving the thoracic region. He also pointed to physical therapist reports dated August 8 and 11, 2014 and October 31, 2014 to support his opinion that there were complaints of thoracic pain made to his providers. With respect to the October 31, 2014 physical therapy report from Kristen Johnson, PT, Dr. Rabin noted that her statement that “he is still (emphasis supplied) having more pain in mid back” says that Claimant had severe pain preceding the date of the note. This evidence significantly contradicts Respondents’ argument that Claimant’s thoracic pain was “new” in November 2014. 38. Dr. Rabin agrees that the cyst is located at T10-T11 levels of the spine. He is of the opinion that the excision surgery was reasonably necessary because of the Claimant’s increasing pain and functional limitations. He is of the opinion that the cyst was ultimately not stable and that it substantially increased over the years between February 2013 and the date of surgery, and that the increase in size partially explains the increase in symptoms. Dr. Rabin explained that the size of the cyst increase is due to scarring due to trauma.

39. Dr. Rabin takes issue with the radiologist’s characterization of the cyst, based on an alleged comparison of MRIs on the August 20, 2015, to the May 21, 2013 MRI. The radiologist noted a 1.6 x .9 x 1 cm cyst, “unchanged from the prior study” (Respondents’. Exhibit N, p. 422). According to Dr. Rabin, this comparison was based on a one-dimensional view. This observation is disputed by Dr. Rabin, who observed that depending on the observation vantage point (from a 3-dimensional perspective), could indicate a growing of the cyst. Further, it is Dr. Rabin’s opinion that the cyst has grown and the ALJ finds this opinion persuasive against a backdrop of the totality of the evidence. Either way, the ALJ infers and finds that the admitted injuries caused an interaction between the Claimant’s thoracic region and the cyst, which caused waxing and waning pain and, ultimately, necessitated the surgical removal of the cyst.

40. According to Dr. Rabin, the sizes of the perineural cyst as demonstrated

by MRIs are summarized as follows, with emphasis on the largest measurement reported: (a) May 21, 2013-- “Moderate sized arachnoid cyst or nerve sheath diverticulum on the right side” (Respondents’ Exhibit N, bates stamp. 416); (b) May 21, 2013 (re-read December 22, 2016 by Malcolm Shupeck, M.D,)-- 1 cm at the T10 level (Respondents’ Exhibit N, bates stamp 418); (c) May 19, 2015-- 11 mm (1.1 cm) within T1—11 neural foramen “appearance consistent with a large perineural cyst” (Respondents’ Exhibit N, bates stamp 420); (d) August 20, 2015-- 1.6 x 0.9 x 1.0 cm at

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T10-T11 (Exhibit N, Bate p. 422); (e) June 3, 2016--1.5 x 1.0 x 1.2 cm cyst at right T10-T11 foramina (Respondents’ Exhibit N, bates stamp 424).

41. Dr. Rabin is of the opinion that the explanation of an increased report of pain in November 2014 was due to the Claimant’s discontinuation of pain medicine after shoulder surgery. Dr. Rabin denies that the appearance of severe pain in November was due to coincidence, effectively disputing Respondents’ theory that, coincidentally, Claimant’s pre-existing cyst grew dramatically in the fall of 2014 (which internally contradicts the Respondent’s arguments that the MRIs do not show the cyst growing) independent of any trauma in February 2013. The ALJ rejects the Respondents’ theory of “coincidental natural progression” of the cyst and the ALJ accepts the implied, underlying basis of DIME Dr. Santilli’s opinions that the cyst was aggravated and accelerated by the injury of February 28, 2013.

42. Dr. Rabin is not surprised by the waxing and waning of pain complaints in

the thoracic region, which can be explained by the natural course of cysts, Claimant’s on again/off again use of pain medications, and the apparent focus of his doctors on the shoulder, neck and lower back, all conditions clearly diagnosed and extensively treated.

43. Dr. Rabin is of the opinion that pain complaints in pain diagrams may not

follow strictly conventional dermatomal patterns because a layperson like the Claimant does not know about dermatomal patterns to draw with specificity his complaints on a pain drawing, and thoracic pain may be masked by medications.

44. Dr. Rabin is of the opinion that it is unrealistic to posit that a patient's

complaints must strictly follow a conventional dermatomal pattern at all times to conclude that the injury exists, that T10-T11 thoracic pain can radiate down to 6 disc levels below (or L5 level), and that the medical evidence supports a conclusion that the Claimant suffered an aggravation of his perineural cysts by virtue of the February 28, 2013 injury.

Respondents’ Experts and Pain Diagrams 45. Dr. Hattem, Dr. Primack and Dr. Rauzzino are of the opinion that the size of the cyst did not significantly increase. This is a difference of opinion from the opinions of Drs. Santilli, Zinis and Rabin that the cyst grew substantially, and the growth is an explanation for Claimant’s increasing pain. The ALJ finds the opinions of Dr. Santilli, Dr. Zinis and Dr. Rabin are more credible and persuasive regarding the size issue. The contrary opinions of Respondents’ experts regarding cyst size are merely differences of opinion, not clear and convincing evidence of error on Dr. Santilli’s part. 46. Despite the opinions of Respondents’ experts that there are few (or for some experts, no) reports of thoracic pain between February 28, 2013 and November 2014 (other than some for several weeks following the accident), numerous medical

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records corroborate the Claimant’s contention that he has consistently complained of thoracic pain since February 28, 2013 to his medical providers. For example, see: (a) Concentra pain diagrams dated February 28, March 13 and 26, 2013, May 31, 2013; September 16, 2013; October 7, 2013; November 4, 2013; January 27, 2014; February 3, 2014; August 8, 2014; and November 3, 2014 (Respondents’ Exhibit G., bates stamp184, 186, 188, 191, 193, 195, 197, 200-202, and 211, respectively). Respondents’ experts denied that any of these pain diagrams (except the diagrams through March 2013) show thoracic complaints. This conclusion is not credible when this ALJ closely examines the medical records and pain diagrams. In almost every pain diagram, the Claimant indicates some pain in the mid back region (which encompasses the thoracic region). Respondents’ experts postulate that the pain associated with a perineural cyst would necessarily follow a strict dermatomal pattern for a T10-11 cyst, which would wrap around Claimant’s navel and extend below into his inguinal area, and would not extend to Claimant’s lumbar region or up to his scapulas. Dr. Rabin, however, is of the opinion that pain from a cyst is not likely to strictly follow the T10—T11 dermatomal pattern, and that Claimant could credibly report pain above or below the traditional dermatomal pattern, including down to L5. 47. The following reports contradict the Respondents’ experts: (a) Dr. Sacha Pain Diagram August 29, 2013 (Claimant’s Exhibit 31); (b) Reports of Glenn Petersen, PA dated February 28, 2013 and March 6, 2013 (Respondents’ Exhibit G, bates stamp 113-114, 116); (c) Reports of Jonathon Bloch, M.D., dated March 13,2013 and April 3, 2013 (respondents’ Exhibit G, bates stamp 116); (d) Physical therapy reports dated August 8 and 11, 2014, and October 31, 2014 as identified by Dr. Rabin in his evidentiary deposition, completing his testimony (Claimant’s Exhibit 32); (e) Report of Dr. Hattem dated May 13, 2013 correlated to the pain diagram dated May 13, 2013. (Claimant’s Exhibit G, bates stamp 113-114); (g) Imaging of the thoracic spine May 21, 2013 (2 months post second injury date) ordered by Dr. Hattem because of continuing thoracic complaints (respondents’ Exhibit N, bates stamp 416-17); (h) Report of Dr. Hattem, dated September 16, 2013 in which he writes: “The first injury on February 28, 2013 involved his low back and mid back. The second injury on March 20, 2013 involved his cervical spine. The insurer previously requested that both these injuries be combined into one case” (Respondents’ Exhibit F, bates stamp 141); (i) Report of Dr. Hattem dated October 26, 2015, in which he writes “At the time of his March 20, 2013 work injury [Claimant] was being treated for a thoracic and lumbar spine and chest wall injury dated February 28, 2013” (Respondents’ Exhibit F, bates stamp 181); (j) Jeffrey Reimer, DPT report, dated October 8, 2013 (Claimant’s Exhibit 5); (k) Numerous physical therapy reports including reports dated October 8, 2013 (Respondents’ Exhibit H, bates stamp 254), March 24, 2014; March 28, 2014; July 25, 2014; August 8, 2014; August 11, 2014 (“…his thoracic spine and low back hurt today) ; October 31, 2014 (“…still having more pain in mid back…”); August 13, 2014; November 13, 2014; November 25, 2014; December 2, 2014 (“…still having some burning sensation in the middle of his back”); December 4, 2014; February 12, 2015 (“…having pain in mid-back”); March 27, 2015; March 30, 2015 (“Patient continues to

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complain of…a “burning sensation’…[that] starts in his thoracic spine approximately T10 that sometimes he feels is actually wrapping on both sides around his chest…”); April 7, 2015; April 15, 2015; April 24, 205; April 29, 2015; May 11, 2015; May 18, 2015 (“Most pain is in mid thoracic spine.”; June 1, 2015; and June 15, 2015 (Claimant’s Exhibit 32). The Claimant 48. The Claimant testified that he has suffered on and off from thoracic pain since the original injury of February 28, 2013, but his medical providers rarely focused on diagnostics or treatment of the T-spine until November 2014, once his left shoulder and back surgeries were accomplished. The ALJ finds the Claimant’s testimony persuasive and credible in this regard and, moreover, supported by the totality of the medical records. 49. According to the Claimant, he became more aware of his thoracic pain when he discontinued pain medication. This testimony was corroborated by physical therapy reports (See Claimant’s Exhibit 32 --reports dated October 14, 2014 and November 4 and 13, 2014). 50. In his report dated April 21, 2015, Ron Carbaugh, Psy.D., after review of the medical records and personal interview with the Claimant, concluded that the medical records do not indicate any significant difficulties or concerns with delayed recovery (Claimant’s Exhibit 27). There is no persuasive evidence whatsoever that the Claimant had any thoracic problems prior to the admitted February 28, 2013 injury. Ultimate Findings 51. The ALJ finds the Claimant’s lay testimony persuasive, credible and, essentially, undisputed. All experts agree with Dr. Santilli that, until recent surgical excision, the Claimant had a perineural cyst, also known as a Tarlov cyst, located in the T10-T11 area of his mid-back. All experts also agree that the cyst may have existed in the Claimant’s back for several years prior to his February 28, 2013 injury. Respondents’ experts all concur that the cyst preceded that injury. 52. There is no persuasive evidence in the record that the cyst was definitely caused by either of Claimant’s injuries. All of Respondents’ experts have concluded that the cyst was not traumatically caused. Five physicians, including Dr. Rabin, Dr. Erickson, Dr. Rauzinno, Dr. Hattem, and Dr. Primack, agree with Dr. Santilli that perineural cysts, while rare, can be aggravated by a traumatic event. The DIME physician concluded that the cyst was aggravated and accelerated by the admitted injury of February 28, 2013. 53. All of Respondents’ experts have concluded that the Claimant’s cyst was not traumatically aggravated. The common bases for their causation opinion are that

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the cyst has not grown substantially since first seen on MRI; that if it has grown then the growth is not due to trauma; and that Claimant never reported problems with his thoracic spine, except for several weeks after his February 28, 2013 injury, until November 2014 and, therefore, his symptoms were “new” at that time. The essence of the Respondents’ position is that the appearance of Claimant’s thoracic complaints while recovering from his accidental injuries is “coincidental”, and therefore Dr. Santilli’s causation opinion is clearly erroneous. 54. The experts in this case disagree whether the cyst has grown substantially between 2013 and surgical excision. Drs. Zinis and Rabin agree with Dr. Santilli that the cyst has grown significantly between 2013 and excision in 2016. Dr. Hattem, Dr. Primack, and Dr. Rauzzino, however, maintain a difference of opinion that the cyst has not grown significantly. This difference of opinion does not make it highly probable, unmistakable, and free from serious and substantial doubt that DIME Dr. Santilli’s opinions are in error. None of the Respondents’ experts persuasively articulate why or how DIME Dr. Santilli’s opinions are clearly erroneous, e.g. how she did not follow the AMA Guides to the Evaluation of Permanent Impairment, 3rd. ed. Rev., the Division of Workers’ Compensation Medical Treatment Guidelines. They simply have expressed a difference of opinion. 55. The experts also disagree about whether available medical records contain references to thoracic pain experienced by Claimant. As found herein above, the records do contain references to thoracic pain, albeit pain characterized as mid-back pain in some instances. 56. The ALJ finds the opinions of DIME Dr. Santilli, Dr. Zinis and Dr. Rabin more credible and persuasive than the opinions of the Respondents’ experts for the reasons stated herein above. 57. The ALJ makes a rational choice, based on substantial evidence, to accept the opinions of DIME Dr. Santilli, Dr. Zinis, and Dr. Rabin, and to reject all opinions to the contrary. 58. The Respondents have failed to prove that it is highly probable, unmistakable and free from serious and substantial doubt that DIME Dr. Santilli’s opinions concerning the causal relatedness (to the admitted injury of February 28, 2013) of the Claimant’s thoracic condition, the aggravation and acceleration of his perineural cyst, caused by the work-related trauma, and that the Claimant is not at MMI, thus, the Respondents failed to overcome the DIME opinions concerning causal relatedness and MMI by clear and convincing evidence.. 59. It follows that it is more likely than not that the surgical removal of the perineural cyst was reasonably necessary to cure and relieve the effects of the Claimant’s admitted injury of February 28, 2013. Thus, the Claimant has proven the

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causal relatedness and reasonable necessity of the removal of the cyst by a preponderance of the evidence.

CONCLUSIONS OF LAW

Based upon the foregoing Findings of Fact, the ALJ makes the following Conclusions of Law: Credibility

a. In deciding whether an injured worker has met the burden of proof, the ALJ is empowered “to resolve conflicts in the evidence, make credibility determinations, determine the weight to be accorded to expert testimony, and draw plausible inferences from the evidence.” See Bodensleck v. Indus. Claim Appeals Office, 183 P.3d 684 (Colo. App. 2008);Kroupa v. Indus. Claim Appeals Office, 53 P.3d 1192, 1197 (Colo. App. 2002); Rockwell International v. Turnbull, 802 P.2d 1182, 1183 (Colo. App. 1990); Penasquitos Village, Inc. v. NLRB, 565 F.2d 1074 (9th Cir. 1977). The ALJ determines the credibility of the witnesses. Arenas v. Indus. Claim Appeals Office, 8 P.3d 558 (Colo. App. 2000). The weight and credibility to be assigned evidence is a matter within the discretion of the ALJ. Cordova v. Indus. Claim Appeals Office, 55 P.3d 186 (Colo. App. 2002); Youngs v. Indus. Claim Appeals Office, 297 P.3d 964, 2012 COA 85. The same principles concerning credibility determinations that apply to lay witnesses apply to expert witnesses as well. See Burnham v. Grant, 24 Colo. App. 131, 134 P. 254 (1913); also see Heinicke v. Indus. Claim Appeals Office, 197 P.3d 220 (Colo. App. 2008). The fact finder should consider, among other things, the consistency or inconsistency of a witness’ testimony and/or actions; the reasonableness or unreasonableness (probability or improbability) of a witness’ testimony and/or actions (this includes whether or not the expert opinions are adequately founded upon appropriate research); the motives of a witness; whether the testimony has been contradicted; and, bias, prejudice or interest. See Prudential Ins. Co. v. Cline, 98 Colo. 275, 57 P. 2d 1205 (1936); CJI, Civil, 3:16 (2005). The fact finder should consider an expert witness’ special knowledge, training, experience or research (or lack thereof). See Young v. Burke, 139 Colo. 305, 338 P. 2d 284 (1959). The ALJ has broad discretion to determine the admissibility and/or weight of evidence based on an expert’s knowledge, skill, experience, training and education. See S 8-43-210, C.R.S; One Hour Cleaners v. Indus. Claim Appeals Office, 914 P.2d 501 (Colo. App. 1995). As found, See, Annotation, Comment: Credibility of Witness Giving Un-contradicted Testimony as Matter for Court or Jury, 62 ALR 2d 1179, maintaining that the fact finder is not free to disregard un-contradicted testimony. As found, the Claimant’s lay testimony was credible, persuasive and, essentially, undisputed. As further found, the opinions of DIME Dr. Santilli, Dr. Zinis, and Dr. Rabin were more credible than all opinions to the contrary for the reasons herein above specified.

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Substantial Evidence b. An ALJ’s factual findings must be supported by substantial evidence in the record. Paint Connection Plus v. Indus. Claim Appeals Office, 240 P.3d 429 (Colo. App. 2010); Leewaye v. Indus. Claim Appeals Office, 178 P.3d 1254 (Colo. App. 2007); Brownson-Rausin v. Indus. Claim Appeals Office, 131 P.3d 1172 (Colo. App. 2005). Also see Martinez v. Indus. Claim Appeals Office, 176 P.3d 826 (Colo. App. 2007). Substantial evidence is “that quantum of probative evidence which a rational fact-finder would accept as adequate to support a conclusion, without regard to the existence of conflicting evidence.” Metro Moving & Storage Co.v. Gussert, 914 P.2d 411 (Colo. App. 1995). Reasonable probability exists if a proposition is supported by substantial evidence which would warrant a reasonable belief in the existence of facts supporting a particular finding. See F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo. App. 1985). It is the sole province of the fact finder to weigh the evidence and resolve contradictions in the evidence. See Pacesetter Corp. v. Collett, 33 P. 3d 1230 (Colo. App. 2001). An ALJ’s resolution on questions of fact must be upheld if supported by substantial evidence and plausible inferences drawn from the record. Eller v. Indus. Claim Appeals Office, 224 P.3d 397, 399-400 (Colo. App. 2009). As found, the ALJ made a rational choice, based on substantial evidence, to accept the opinions of DIME Dr. Santilli, Dr. Zinis, and Dr. Rabin, and to reject all opinions to the contrary. Overcoming the DIME c. The party seeking to overcome a DIME physician’s opinions ( in this case the Respondents) bears the burden of proof by clear and convincing evidence. Magnetic Engineering, Inc. v. Indus. Claim Appeals Office, 5 P.3d 385 (Colo. App. 2000). Also see Leprino Foods Co. v. Indus. Claim Appeals Office, 134 P.3d 475 (Colo. App. 2005). The DIME physician's determination of MMI is binding unless overcome by "clear and convincing evidence." Metro Moving & Storage Co. v. Gussert, 914 P.2d 411 (Colo. App. 1995); See also Peregoy v. Indus. Claim Appeals Office, 87 P.3d 261 (2004); and § 8-42-107(b)-(c), C.R.S. Also see Whiteside v. Smith, 67 P.3d 1240 (Colo. 2003). Where the threshold determination of compensability is not an issue, a DIME physician’s conclusion that an injured worker’s medical problems were components of the injured worker’s overall impairment constitutes a part of the diagnostic assessment that comprises the DIME process and, as such the conclusion must be given presumptive effect and can only be overcome by clear and convincing evidence. Qual-Med, Inc. v. Indus. Claim Appeals Office, 961 P.2d 590 (Colo. App. 1998); Leprino Foods Co. v. Indus. Claim Appeals Office, 134 P.3d 475, 482 (Colo. App. 2005); Eller v. Indus. Claim Appeals Office, 224 P.3d 397, 400 (Colo. App. 2009). "Clear and convincing evidence" is evidence, which is stronger than preponderance, is unmistakable, makes a fact or facts highly probable or the converse, and is free from serious or substantial doubt. Metro Moving & Storage Co. v. Gussert, supra; Leming v. Indus. Claim Appeals Office, 62 P.3d 1015, 1019 (Colo. App. 2002). In other words, a DIME physician's finding may not be overcome unless the evidence establishes that it is

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"highly probable" that the DIME physician's opinion is incorrect. Postelwait v. Midwest Barricade, 905 P. 2d 21 (Colo. App. 1995). To overcome a DIME physician’s opinion, “there must be evidence establishing that the DIME physician’s determination is incorrect and this evidence must be unmistakable and free from serious or substantial doubt”. Adams v. Sealy, Inc., W.C. No. 4-476-254 [Indus. Claim Appeals Office (ICAO), Oct. 4, 2001]. A mere difference of medical opinion does not constitute clear and convincing evidence to overcome the opinion of the DIME physician. Javalera v. Monte Vista Head Start, Inc., W.C. Nos. 4-532-166 & 4-523-097 (ICAO, July 19, 2004); see Shultz v. Anheuser Bush, Inc., W.C. No. 4-380-560 (ICAO, Nov. 17, 2000). As found, Respondents failed to prove that it is highly probable, unmistakable and free from serious and substantial doubt that DIME Dr. Santilli’s opinions concerning the causal relatedness (to the admitted injury of February 28, 2013) of the Claimant’s thoracic condition, the aggravation and acceleration of his perineural cyst, caused by the work-related trauma, and that the Claimant is not at MMI, thus, the Respondents failed to overcome the DIME opinions concerning causal relatedness and MMI by clear and convincing evidence. The reasonable necessity of the surgical removal of the cyst is not subject to the heightened burden of proof, but to a “preponderance of the evidence” standard. Surgical Removal of the Perineural Cyst/Burden of Proof d. To be authorized, all referrals must remain within the chain of authorized referrals in the normal progression of authorized treatment. See Mason Jar Restaurant v. Indus. Claim Appeals Office, 862 P. 2d 1026 (Colo. App. 1993); One Hour Cleaners v. Indus. Claim Appeals Office, 914 P. 2d 501 (Colo. App. 1995); City of Durango v. Dunagan, 939 P.2d 496 (Colo. App. 1997). When an ATP refers an injured worker to his personal physician, under the mistaken belief that the claim was not compensable, the referral was nonetheless within the chain of authorized referrals and, thus, subsequent treatment was authorized. See Cabela v. Indus. Claim Appeals Office, 198 P.3d 1277 (Colo. App. 2008). As found, in an analogous vein, when a respondent denies authorization of a surgical procedure under the mistaken belief that the surgery is not work-related, the surgery becomes authorized, if performed by ATPs, when it has subsequently been determined that the surgery was work-related, as is the case herein.

e. The injured worker has the burden of proof, by a preponderance of the evidence, of establishing entitlement to medical benefits. §§ 8-43-201 and 8-43-210, C.R.S. See City of Boulder v. Streeb, 706 P. 2d 786 (Colo. 1985); Faulkner v. Indus. Claim Appeals Office, 12 P. 3d 844 (Colo. App. 2000); Lutz v. Indus. Claim Appeals Office, 24 P.3d 29 (Colo. App. 2000). Kieckhafer v. Indus. Claim Appeals.Office, 284 P.3d 202, 205 (Colo. App. 2012). A “preponderance of the evidence” is that quantum of evidence that makes a fact, or facts, more reasonably probable, or improbable, than not. Page v. Clark, 197 Colo. 306, 592 P. 2d 792 (1979). People v. M.A., 104 P. 3d 273 (Colo. App. 2004); Hoster v. Weld County Bi-Products, Inc., W.C. No. 4-483-341 [Indus. Claim Appeals Office (ICAO), March 20, 2002]. Also see Ortiz v. Principi, 274

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F.3d 1361 (D.C. Cir. 2001). “Preponderance” means “the existence of a contested fact is more probable than its nonexistence.” Indus. Claim Appeals Office v. Jones, 688 P.2d 1116 (Colo. 1984). As found, the Claimant has sustained his burden, by preponderant evidence, with respect to the causal relatedness sand reasonable necessity of the surgical removal of the perineural cyst.

ORDER

IT IS, THEREFORE, ORDERED THAT: A. Respondents having failed to overcome the Division Independent Medical Examination of Susan Santilli, the ALJ hereby determines that the Claimant is not a maximum medical improvement and the Respondents are liable for all treatment of his thoracic condition and the surgical removal of his perineural cyst. B. Respondents shall pay the costs of all medical care and treatment necessitated by the admitted injuries of February 28, 2013 and March 20, 2013, including treatment of the Claimant’s thoracic condition and the surgical removal of the perineural cyst, subject to the Division of Workers’ Compensation Medical Fee Schedule. C. Any and all issues not determined herein are reserved for future decision. DATED this______day of February 2017.

____________________________ EDWIN L. FELTER, JR. Administrative Law Judge

If you are dissatisfied with the Judge’s order, you may file a Petition to Review

the order with the Denver Office of Administrative Courts,1525 Sherman Street, 4th Floor, Denver, CO 80203. You must file your Petition to Review within twenty (20) days after mailing or service of the order, as indicated on the certificate of mailing or service; otherwise, the Judge’s order will be final. You may file the Petition to Review by mail, as long as the certificate of mailing attached to your petition shows: (1) that you mailed it within twenty (20) days after mailing or service of the order of the Judge; and (2) that you mailed it to the above address for the Denver Office of Administrative Courts. For statutory reference, see § 8-43-301(2), C.R.S. For further information regarding procedures to follow when filing a Petition to Review, see Rule 26, OACRP. You may access a form for a petition to review at http://www.colorado.gov/dpa/oac/forms-WC.htm.

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OFFICE OF ADMINISTRATIVE COURTS STATE OF COLORADO WORKERS’ COMPENSATION NO. 4-982-547-03

STIPULATIONS

At the commencement of hearing, the parties stipulated that if the claimed injury is determined to be compensable, Claimant’s average weekly wage (AWW) is $1,501.58. Moreover, the parties agreed that Claimant was properly referred to Dr. Paul Merchant for medical treatment. Consequently, the parties stipulated that if the claimed injury is compensable then Dr. Merchant and all his referrals are authorized providers to treat Claimant’s alleged injuries. The ALJ approves the parties’ stipulations.

REMAINING ISSUES

I. Whether Claimant established by a preponderance of the evidence that she\ sustained a compensable injury to her low back on April 17, 2015.

II. If Claimant established that she sustained a compensable injury to her low back, whether she is entitled to reasonable, necessary, and related medical treatment to cure and relieve the effects of said injury.

III. If Claimant established that she suffered a compensable back injury, whether she has proven her entitlement to temporary total disability (TTD) benefits from April 18th through April 21st, 2015 and beginning November 21, 2016 and on-going.

FINDINGS OF FACT

Based upon the evidence presented at hearing, the ALJ enters the following findings of fact:

1. Claimant is a long term employee of Employer. She has worked as a “material coordinator” in different facilities around the U.S. and world for the last 16 years. According to Claimant, she has worked at Employer’s Pueblo warehouse since 2010.

2. Claimant testified that her work duties include taking in approximately 200 “assets” per day. She explained that when the goods arrive at the warehouse she opens the box, inspects the merchandise, and then re-boxes and palletizes it for shipping.

3. The Claimant alleges that on April 17, 2015, she sustained an injury to her low back. Claimant explained that she was standing at a small table re-boxing items at waist level when she experienced intense shooting pain in her hip, buttock and leg after turning and reaching for a pair of scissors.

4. According to Claimant her leg “curled up” and she was unable to straighten it.

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Consequently, she was unable to walk and had to be transported by ambulance to Parkview Medical Centers Emergency Department (ED) where x-rays were obtained and she was given Valium and Percocet, diagnosed with a sciatic syndrome and discharged.

5. Following her discharge from the ED, Claimant rested at home over the weekend. On April 21, 2015 and Employer’s First report of Injury form was completed. Claimant also completed the medical provider designation paperwork on April 21, 2015. She selected Centrua Center for Occupational Medicine (CCOM) and was scheduled for an appointment the same day. Claimant was evaluated initially by Dr. Paul Merchant, M.D. At this appointment, Claimant reported 6/10 pain present approximately 80% of the time. Claimant completed a pain diagram depicting stabbing pain along with pins & needles sensations slightly above and below the right buttock, the outside of the right hip and on the sides of the right knee. She also reported a “previous history of a work injury in the past with associated similar episodes” of pain/dysfunction. Dr. Merchant opined that the Claimant had suffered a right sacroiliac (SI) sprain and that the cause of this problem was related to her work activity. Dr. Merchant removed Claimant from full duty work, placing her on modified duties until May 19, 2015. He also referred her to physical therapy (PT) and scheduled a follow-up appointment for May 19, 2015.

6. The Claimant originally stated in her Employee Statement concerning the April 17, 2015 injury that her symptoms were caused by a previous injury she sustained while working in another department.

7. Regarding that prior injury, Claimant testified that she filed a work injury claim in 2011, after she gradually developed increasing mid and low back soreness radiating across both hips as a consequence of repetitive lifting. Claimant had transferred to the Pueblo warehouse from a facility on Kwajalein Atoll in the Marshall Islands where her work was substantially less physically demanding than in the warehouse. Claimant related her back, hip and knee pain to her new duties in the warehouse and sought treatment for the same. Ultimately Claimant was referred to Dr. Jeffrey Jenks who preformed provocative testing for sacroilitis. The testing was positive leading Dr. Jenks to perform right sided SI joint injections which provided significant pain relief. As Claimant asserted that her pain and functional decline were related to her job duties, Respondents scheduled an independent medical examination (IME) with Dr. Timothy O’Brien.

8. Dr. O’Brien evaluated Claimant on May 2, 2012 after which he opined that her symptoms were not causally related to her work duties. According to Dr. O’Brien, Claimant’s work activities were “not sufficiently traumatic enough, vigorous enough, repetitive enough, or physically demanding enough to be considered a material contributory causative factor regarding the onset and progression of her condition.” Because Claimant’s symptoms persisted after her work activities were discontinued, Dr. O’Brien opined that her symptoms were a result of who she is “physiologically,

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anatomically and genetically as a female in her sixth decade of life who is physically deconditioned, over-weight, and lacks core strength.”

9. Based upon the evidence presented, the ALJ finds that Claimant’s job duties in the warehouse have not materially changed since 2011. She continues to take in assets for inspection and repackaging. According to her report to Dr. O’Brien during his 2012 IME, Claimant was handling items weighing 25-40 pounds at the time of her 2011 claim. In the instant case, Claimant testified that the items taken in varied in weight with some weighing as much as 50 pounds.

10. Claimant returned to modified duty performing computer related tasks including data entry, stock coding and research projects. She worked in this capacity for several months.

11. The Claimant continued medical care and treatment with CCOM under the direction of Dr. Merchant. Dr. Merchant was asked to address causation of Claimant’s symptoms by a representative of Insurer. On April 30, 2015, Dr. Merchant responded, indicating as follows: “Regarding a reasonable cause of her injury, I’m not in a position to opine, as I have no insight into how her work station is configured. Her report of a twisting, stretching motion certainly could have led to her current symptoms.” Dr. Merchant also noted that he could not comment about the mechanism of injury surrounding Claimant 2011 claim as that injury was treated at CCOM.

12. On June 18, 2015, Dr. Merchant addressed both Claimant’s current injury and her prior injury further. Dr. Merchant noted that Claimant’s “most recent injury appears to be distinctly different from her previous back injury.” According to Dr. Merchant, Claimant’s previous injury appeared to be “related to arthritis in her spine” whereas her current symptoms were related to a right sided SI injury suffered on April 17, 2015. Claimant’s conservative care, including chiropractic treatment continued.

13. On October 16, 2015, Dr. J. Raschbacher, M.D. evaluated Claimant at the request of Respondents. Following his physical examination and records review, Dr. Raschbacher opined that Claimant’s examination was “suggestive of right SI joint dysfunction.” Regarding causation, Dr. Raschbacher was “unable to relate her low back pain complaints, centered about the right SI joint, to the mechanism of injury or purported mechanism of injury described.” Dr. Raschbacher explained that in the “absence of any clear tissue injury such as compression fracture or disc herniation or something similar, the mechanism of injury is not medically one that would be anticipated to produce [Claimant’s] level of symptomatology, or symptomatology at this point lasting six months from the date of injury in spite of activity restrictions. Therefore, he did not “see a clear relation between her described mechanism of injury and the type and degree of low back pain which she currently reports”.

14. Dr. Raschbacher noted the existence of the 2011 injury claim for which he did not have records. Consequently, Dr. Raschbacher requested that the records be obtained to “see what type of bearing they might have on [Claimant’s] current claim. Following

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receipt of the additional information regarding the 2011 alleged injury, Dr. Raschbacher would go on to author an addendum to his original October 16, 2015 report.

15. On November 23, 2015, Claimant was evaluated by Dr. Stephen Scheper, to whom she had been referred by Dr. Merchant. Dr. Scheper requested pre-authorization to perform an SI injection and pelvic and lumbar X-rays for his diagnoses of sacroilitis, lumbar scoliosis, myofascial pain and lumbar facet joint arthropathy. The request was denied prompting Claimant to seek treatment with her primary care physician, Dr. Elijah. Claimant also continued her chiropractic care through Dr. Abacrombie’s offices through June 2016. According to Claimant, chiropractic treatment was successful in “un-pinching” several muscles; however, only partially effective in aligning her SI joint. Consequently, Claimant testified that she sought treatment with a physical therapist in Gainesville, Georgia who specialized in SI joint dysfunction.

16. Claimant testified that she treated with Vicky Sims in Georgia for one week during which time she actively participated in PT for 4 hours per day. According to Claimant, Ms. Sims was able to align the SI joint by the second day of treatment without force. Claimant testified that while she still feels movement in the SI joint, it is less severe.

17. As noted, Dr. Raschbacher had requested the medical records surrounding Claimant’s 2011 injury. Those records were obtained and forwarded to him. On March 2, 2016, Dr. Raschbacher authored an addendum to his October 16, 2015 IME report. In his addendum, Dr. Raschbacher notes that Claimant had a “spontaneous onset of low back pain which was diagnosed and treated as a right SI problem.” He noted further, that this prior onset of pain was “reasonably consistent, in terms of a pattern, with her injury claim for 4/17/15, in that there was not a specific significant trauma or actual injury” to explain her symptoms. Consequently, Dr. Raschbacher reiterated his prior opinion that Claimant’s need for treatment was unrelated to an industrial cause, noting specifically that he was “unable to define a clear work-related injury or likely injurious event.

18. Claimant testified that she continued to work with the employer up until November 21, 2016. At that time, she took FMLA for what she testified was ineffective treatment for and continued pain from her SI joint dysfunction. She testified that it was her private care physician for her personal medical care and not a work comp doctor that recommended she use her FMLA.

19. At hearing, Dr. Raschbacher was asked to explain his diagnoses of SI joint dysfunction and describe the types of activities that would cause such a condition. He testified that the diagnosis is a clinical one based on a constellation of findings, not simply imaging studies, including x-ray. According to Dr. Raschbacher, Claimant has findings suggestive of SI joint dysfunction but that the condition was not likely caused by her alleged work-related injury. In support of his opinion, Dr. Raschbacher explained that SI joint injuries and subsequent dysfunction are typically associated with compression and sheering forces applied to the SI joint, as with jumping or falling. He

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also indicated direct trauma could cause the condition but in the instant case there was nothing to indicate any trauma or forceful compression/sheering situation occurred that would cause her condition and associated symptoms. Rather, Dr. Raschbacher testified that turning and reaching were normal everyday activities unlikely to result injury.

20. The ALJ finds the June 18, 2015 opinions of Dr. Merchant that Claimant’s current complaints/injury are distinctly different from her previous back injury unpursuasive. While Claimant may have arthritis in her spine, she was treated with injections for SI joint dysfunction by Dr. Jenks as a consequence of a spontaneous onset of SI joint symptoms in 2011.

21. By Claimant’s report the SI joint injections administered by Dr. Jenks in 2011-12 resulted in a 90%improvment in her pain. Consequently, the ALJ finds that Claimant’s symptoms were likely emanating from her SI joint at that time. Accordingly, Dr. Merchant’s opinion that Claimant’s previous symptoms appeared to be related to “arthritis in her spine” is not convincing.

22. Based upon the evidence presented as a whole, the ALJ finds the opinions and

testimony of Dr. O’Brien and Dr. Raschbacher credible and more persuasive than the contrary opinions of Dr. Merchant and the testimony of Claimant.

23. The ALJ credits the opinions of Dr. O’Brien and Dr. Raschbacher to find that the evidence presented supports a reasonable inference that Claimant’s 2015 SI joint symptoms arose spontaneously without contribution from her work duties. Rather, the evidence presented persuades the ALJ that Claimant’s SI joint symptoms, i.e. her back, hip and knee pain probably represents a natural waxing of the condition itself which waxing was probably affected by personal factors such as Claimant’s age, weight, anatomy and genetics as suggested previously by Dr. O’Brien.

CONCLUSIONS OF LAW

Based upon the foregoing findings of fact, the ALJ draws the following conclusions of law:

General Legal Principals

A. The purpose of the Workers’ Compensation Act of Colorado, §§ 8-40-101, et seq., C.R.S., is to assure the quick and efficient delivery of disability and medical benefits to injured workers at a reasonable cost to employers, without the necessity of litigation. See § 8-40-102(1), C.R.S. The claimant shoulders the burden of proving entitlement to benefits by a preponderance of the evidence. See § 8-43-201, C.R.S. A preponderance of the evidence is that which leads the trier-of-fact, after considering all of the evidence, to find that a fact is more probably true than not. Page v. Clark, 592 P.2d 792 (Colo. 1979).

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B. Assessing weight, credibility, and sufficiency of evidence in Workers' Compensation proceeding is exclusive domain of administrative law judge. University Park Care Center v. Industrial Claim Appeals Office, 43 P.3d 637 (Colo. App. 2001). Even if other evidence in the record may have supported a contrary inference, it is for the ALJ to resolve conflicts in the evidence, make credibility determinations, and draw plausible inferences from the evidence. When determining credibility, the fact finder should consider, among other things, the consistency or inconsistency of the witness's testimony and actions; the reasonableness or unreasonableness (probability or improbability) of the testimony and actions; the motives of the witness; whether the testimony has been contradicted; and bias, prejudice, or interest. See Prudential Insurance Co. v. Cline, 57 P.2d 1205 (Colo. 1936); Bodensieck v. Industrial Claim Appeals Office, 183 P.3d 684 (Colo. App. 2008); Kroupa v. Industrial Claim Appeals Office, 53 P.3d 1192 (Colo. App. 2002). The weight and credibility to be assigned expert testimony is a matter within the discretion of the ALJ. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo. App. 2002). To the extent expert testimony is subject to conflicting interpretations, the ALJ may resolve the conflict by crediting part or none of the testimony. Colorado Springs Motors, Ltd. v. Industrial Commission, 441 P.2d 21 (Colo. 1968). As found here, the opinions and testimony of Drs. O’Brien and Raschbacher are credible and more persuasive than the contrary opinions and testimony of Dr. Merchant and Claimant.

C. The ALJ's factual findings concern only evidence and inferences found to be dispositive of the issues involved; the ALJ has not addressed every piece of evidence or every inference that might lead to conflicting conclusions and has rejected evidence contrary to the above findings as unpersuasive. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo. App. 2000).

Compensability

D. To recover benefits under the Worker’s Compensation Act, the Claimant’s injury must have occurred “in the course of” and “arise out of” employment. See § 8-41-301, C.R.S.; Horodyskyj v. Karanian 32 P.3d 470 (Colo. 2001). The phrases "arising out of” and “in the course of" are not synonymous and a claimant must meet both requirements to establish compensability. Younger v. City and County of Denver, 810 P.2d 647, 649 (Colo. 1991); In re Question Submitted by U.S. Court of Appeals, 759 P.2d 17, 20 (Colo. 1988). The latter requirement refers to the time, place, and circumstances under which a work-related injury occurs. Popovich v. Irlando, 811 P.2d 379, 381 (Colo. 1991). Thus, an injury occurs "in the course of" employment when it takes place within the time and place limits of the employment relationship and during an activity connected with the employee's job-related functions. In re Question Submitted by U.S. Court of Appeals, supra; Deterts v. Times Publ'g Co., 38 Colo. App. 48, 51, 552 P.2d 1033, 1036 (1976). Based upon the evidence presented, the ALJ finds that Respondents are not contending that Claimant's alleged injury did not occur in the course of her employment. Rather, based principally on the testimony of Dr. Raschbacher and the medical records presented, the undersigned ALJ understands Respondents contention to be that Claimant’s back, hip and leg symptoms and need for treatment following the April 17,

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2015 incident did not “arise out of” her employment. Given the evidence presented, the argument is persuasive.

E. The question of whether Claimant met her burden of proof to establish the requisite causal connection between the industrial injury and her need for medical treatment is one of fact for determination by the ALJ. City of Boulder v. Streeb, 706 P.2d 786 (Colo. 1985); Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo. App. 2000). The fact that Claimant may have experienced an onset of pain while performing job duties does not mean that she sustained a work-related injury or occupational disease. An incident which merely elicits pain symptoms without a causal connection to industrial activities does not compel a finding that the claim is compensable. F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo. App. 1985); Parra v. Ideal Concrete, W.C. No. 3-963-659 and 4-179-455 (April 8, 1988); Barba v. RE1J School District, W.C. No. 3-038-941 (June 28, 1991); Hoffman v. Climax Molybdenum Company, W.C. No. 3-850-024 (December 14, 1989). In this case, Claimant has failed to establish a causal connection between her employment related duties and the resulting condition for which medical treatment benefits are sought. Here, the evidence presented, particularly the opinions and testimony of Dr. Raschbacher, persuades the ALJ that turning while reaching for a pair of scissors is unlikely to cause, aggravate or accelerate Claimant’s pre-existing SI joint dysfunction resulting in symptoms and the need for treatment. To the contrary, the evidence presented persuades the ALJ that as in 2011, the onset of symptoms in 2015 arose spontaneously without contribution from Claimant’s work duties. Consequently, Claimant has failed to carry her burden to show that her symptoms/injury arose out of the course of employment and her claim must be denied and dismissed. As Claimant failed to prove that she suffered a compensable injury her remaining claims concerning entitlement to medical and temporary disability benefits need not be addressed further.

ORDER

It is therefore ordered that:

1. Claimant’s claim for benefits is denied and dismissed.

If you are dissatisfied with the Judge's order, you may file a Petition to Review the order with the Denver Office of Administrative Courts, 1525 Sherman St., 4th Floor, Denver, CO 80203. You must file your Petition to Review within twenty (20) days after mailing or service of the order, as indicated on certificate of mailing or service; otherwise, the Judge's order will be final. You may file the Petition to Review by mail, as long as the certificate of mailing attached to your petition shows: (1) That you mailed it within twenty (20) days after mailing or service of the order of the Judge; and (2) That you mailed it to the above address for the Denver Office of Administrative Courts. For statutory reference, see section 8-43-301(2), C.R.S. For further information regarding

9

procedures to follow when filing a Petition to Review, see Rule 26, OACRP. You may access a petition to review form at: http://www.colorado.gov/dpa/oac/forms-WC.htm. DATED: February 17, 2017

/s/ Richard M. Lamphere__________________ Richard M. Lamphere Administrative Law Judge Office of Administrative Courts 2864 S. Circle Drive, Suite 810 Colorado Springs, CO 80906

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OFFICE OF ADMINISTRATIVE COURTS STATE OF COLORADO WORKERS’ COMPENSATION NO. 4-962-049-01

ISSUES

Whether claimant has proven by a preponderance of the evidence that the left knee arthroplasty recommended by Dr. Steven Heil is reasonable medical treatment necessary to cure and relieve claimant from the effects of the May 25, 2014 work injury.

Whether claimant has proven by a preponderance of the evidence that the left side transforaminal epidural steroid injection (“TFESI”) at L2-3 recommended by Dr. Thos Evans is reasonable medical treatment necessary to cure and relieve claimant from the effects of the May 25, 2014 work injury.

Whether claimant has proven by a preponderance of the evidence that the seat chair lift recommended by Dr. Price is a reasonable medical apparatus necessary to cure and relieve claimant from the effects of the May 25, 2014 work injury.

FINDINGS OF FACT

1. Claimant worked for employer providing maintenance at employer’s ranch property. Claimant’s job duties included maintaining the irrigation system, feeding horses and buffalo on the property, and maintaining the geothermal system in the ranch residence.

2. Claimant sustained an admitted work injury on May 25, 2014 when he was involved in a motor vehicle accident (“MVA”). Claimant testified that he, his wife, and his wife’s sister were returning to employer’s property when they were rear ended by a truck driving between 55 and 60 miles per hour. This caused the vehicle claimant was driving to roll down an embankment. Respondents admitted liability for claimant’s injuries arising out of the MVA.

3. Claimant testified that the body parts he injured in the accident included his jaw, neck, low back, right ankle, right knee, and left knee.

4. Claimant testified that after the MVA he has received various modes of medical treatment including injections to his neck, low back, and both knees. Claimant testified that he had various types of injections including epidural injections to treat his back and Synvisc injections for his knees. Claimant has also undergone physical therapy, acupuncture, and temporomandibular joint (“TMJ”) treatment.

5. In addition, claimant testified that after the injury he got braces for both knees. At times, claimant uses wrist crutches (also called Canadian crutches) to assist with walking and standing. Claimant testified that he does not always use these crutches, but will use them when he is tired or in pain.

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6. Following the May 25, 2014 MVA claimant first sought medical treatment from his primary care provider, Dr. Paul Sturges, on May 28, 2014. On that date claimant reported to Dr. Sturges that he had headaches, ringing in his ears, neck aches, a sore throat, shoulder pain, back pain, and generalized body aches. Claimant did not report knee pain during his initial examination with Dr. Sturges.

7. On June 9, 2014, claimant began physical therapy with Dan Babbel, PT and reported neck pain, right headache, right patella pain, and right ankle pain. Claimant did not report left knee pain to PT Babbel on that date.

8. On August 21, 2014, claimant was seen by his authorized treating physician (“ATP”), Dr. Craig Stagg, regarding the May 25, 2014 MVA. Dr. Stagg was the physician designated by employer to treat claimant’s workers’ compensation injury. Claimant reported to Dr. Stagg that he was experiencing back pain, right ankle pain, neck pain, and head pain. Dr. Stagg recommended claimant continue physical therapy. Dr. Stagg also referred claimant to Dr. Ellen Price for acupuncture.

9. In a physical therapy report dated December 16, 2014, claimant first reported left knee pain to PT Babbel. Claimant informed PT Babbel that he was having pain of 7 out of 10 in his knees, with his right knee pain greater than his left.

10. On January 1, 2015, Dr. Douglas Scott performed an independent medical examination (“IME”) of claimant. Dr. Scott reviewed claimant’s medical records, obtained a medical history, and performed a physical examination of claimant. Following the IME, Dr. Scott issued an IME report dated February 17, 2015. At the time of the IME, claimant reported to Dr. Scott headache, low back pain, and a click over his right TM joint. In his report, Dr. Scott opined that claimant had sustained a lumbar back strain/sprain that had improved and was “approaching baseline by 11/4/2014”. There is no mention of claimant complaining of knee pain in Dr. Scott’s January 1, 2015 IME report.

11. On January 13, 2015, claimant returned to Dr. Sturges and complained of bilateral knee pain, with greater pain in his right knee than in his left. Dr. Sturges referred claimant to Dr. Richard Price for evaluation of his bilateral knee pain.

12. On January 20, 2015, x-rays were taken of claimant’s knees and showed no acute injury, with mild medial compartment joint space narrowing and small joint effusions. In addition there was evidence of a possible loose body in claimant’s left knee.

13. On January 20, 2015, claimant was seen by Dr. Richard Price and reported that his right knee felt weak and at times hyper-extended, causing him to fall. Dr. Richard Price noted that claimant’s left knee appeared normal with no tenderness and full range of motion. Dr. Price noted that the x-rays taken of claimant’s knees appeared normal.

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14. In July 16 2015, claimant notified Dr. Stagg, that he was experiencing left knee pain and that his left knee was locking. At that time, Dr. Stagg ordered a magnetic resonance image (“MRI”) of claimant’s left knee.

15. On August 19, 2015 the MRI of claimant’s left knee showed severe irregular chondromalacia in the medial femoral condle, a chronic degenerative tear of the medial meniscus, with debris and “loose bodies” in the Baker’s cyst, and severe patellofemoral degenerative joint disease (“DJD”).

16. On October 1, 2015 claimant reported to Dr. Thomas Hackett that his knees had started to bother him in the last six to seven months. Dr. Hackett diagnosed bilateral medial compartment osteoarthritis and opined that claimant’s knee pain was likely exacerbated by the MVA in May 2014. Dr. Hackett reviewed the August 19, 2015 MRI results for claimant’s left knee and noted that claimant had severe medial meniscus pathology secondary to moderate to severe medial compartment osteoarthritis. At that time, Dr. Hackett recommended physical therapy and a medial compartment unloader brace.

17. On July 1, 2016, Claimant attended an IME with Dr. Jeffery Raschbacher. In connection with the IME, Dr. Raschbacher reviewed claimant’s medical records, obtained a medical history, and performed a physical examination of claimant. Following the IME, Dr. Raschbacher issued a report and found that claimant’s left knee complaints arose well after the May 2014 MVA. Dr. Raschbacher opined that claimant’s knee issues are not related to the work injury. Dr. Raschbacher testified by deposition in this matter and confirmed his opinion that claimant’s left knee complaints are unrelated to the May 2014 work injury. Dr. Raschbacher also testified that in his opinion a left knee replacement would not be beneficial to claimant.

18. On July 16, 2016, claimant as seen by Dr. Heil and Krissy Steele, PA-C. PA-C Steele noted that she and Dr. Heil discussed with claimant the possibility of knee replacement surgery. However, PA-C Steele also noted that she and Dr. Heil had concerns that claimant could have a suboptimal outcome due to “red flags” including claimant’s “depression, work comp injury, and his chronic narcotic dependency”. On August 25, 2016, Dr. Heil noted that claimant’s last x-rays were “bone on bone” but that there was no guarantee that claimant would have a good result with knee replacement surgery. Despite these concerns, on August 30, 2016 Dr. Heil requested authorization from respondents for a left total knee arthroplasty. Respondents have denied this surgery.

19. In response to an inquiry from respondents on September 16, 2016 Dr. Stagg issued a report opining that claimant’s knee problems are degenerative in nature and unrelated to the May 25, 2014 MVA.

20. Claimant testified that his current left knee symptoms include shooting pains that feel like “needles and knives”, which makes it difficult to walk and difficult to sleep. Claimant testified that prior to the May 25, 2014 MVA he did not have any left

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knee pain or issues. He also testified that since the MVA his left knee symptoms have gotten worse.

21. Claimant testified that although he experienced low back pain prior to the MVA, the pain worsened after the MVA. Claimant testified that he now feels pain in his low back from right to left with radiating pain into his left leg down into his foot.

22. Claimant testified that he received an epidural injection from Dr. Evans and experienced a reduction in his low back pain for a number of weeks. As indicated by the medical records Dr. Evans administered a TFESI at the L4-5 level on September 21, 2015. In a record dated November 5, 2015 claimant reported to Dr. Evans that he continued to have pain relief from the September 21, 2015 injection.

23. On October 12, 2016 an MRI of claimant’s lumbar spine showed a subarticular extrusion at L2-3 with mild central canal stenosis with severe left L3 lateral recess stenosis with a left L3 nerve root compression.

24. On October 20, 2016 Dr. Evans noted that that the results of the October 12, 2016 MRI showed a change to claimant’s L2-3 level and recommended a left side TFESI at the L2-3 level. Respondents have denied the TFESI.

25. Dr. Raschbacher testified that that in his opinion claimant’s back pain is not attributable to the May 25, 2014 MVA. Dr. Raschbacher also testified that there is no objective evidence indicating that the necessity of the recommended TFESI, but only claimant’s subjective pain complaints.

26. Claimant testified that Dr. Ellen Price recommended that he utilize a seat chair lift to assist with getting in and out of chairs. In a medical record dated October 20, 2016 Dr. Price noted that claimant was “having a hard time getting out of a chair and is requesting a special lounger that [lifts] him up”. In that same note Dr. Price indicated that she would “order a power lounge chair” to assist claimant “from a seated to supine position”.

27. On November 1, 2016, Dr. Raschbacher was asked to review the medical necessity of the recommended seat chair lift. At that time of his review, Dr. Raschbacher noted that the Medical Treatment Guidelines do not provide for such a device. He further opined that such a device would not be medically necessary or related to claimant’s work injury. Dr. Raschbacher testified that in his opinion such a device would decrease claimant’s function because he would be relying upon the device to rise from a chair rather than rising himself.

28. Claimant’s spouse, Ruth Baird, testified at hearing. Ms. Baird’s testimony was consistent with claimant’s testimony regarding claimant’s physical limitations following the May 2014 MVA.

29. With regard to the left total knee arthroplasty the ALJ credits the medical records and finds that claimant did not begin to report left knee issues until December 2014. The ALJ credits the opinions of Dr. Raschbacher and Dr. Stagg over the contrary

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opinion of Dr. Hackett and finds that claimant’s left knee complaints are not related to the May 25, 2014 work injury. The ALJ does not find claimant’s testimony regarding the onset of his left knee symptoms to be credible or persuasive. The ALJ credits the medical records entered into evidence over claimant’s testimony at hearing and finds that the onset of claimant’s left knee complaints did not manifest until at least several months after the MVA. Therefore, the ALJ finds that claimant has failed to demonstrate that it is more likely than not that the recommended total left knee arthroplasty is reasonable, necessary, or related to the May 25, 2015 work injury.

30. With regard to the recommended TFESI at the L2-3 level the ALJ credits claimant’s testimony regarding his back pain and finds that he experienced greater back pain following the MVA. Unlike the left knee complaints, the medical records indicate that claimant consistently reported low back pain following the MVA. The ALJ also credits the medical records and the opinion of Dr. Evans that the prior TFESI at the L4-5 level provided claimant with prolonged pain relief. Therefore, the ALJ finds that claimant has demonstrated that it is more likely than not that the recommended TFESI at the L2-3 level is reasonable medical treatment necessary to cure or relieve him from the effects of the work injury.

31. With regard to the seat chair lift, the ALJ credits the medical records and the opinion of Raschbacher and finds that claimant has failed to demonstrate that it is more likely than not that the recommended seat lift chair is a compensable medical apparatus related to the work injury. The ALJ is persuaded by Dr. Raschbacher’s opinion that such an apparatus would not benefit claimant but instead decrease his function. Therefore, the ALJ finds that the recommended seat chair lift would not provide claimant with therapeutic relief.

CONCLUSIONS OF LAW

1. The purpose of the “Workers’ Compensation Act of Colorado” is to assure the quick and efficient delivery of disability and medical benefits to injured workers at a reasonable cost to employers, without the necessity of any litigation. Section 8-40-102(1), C.R.S. A claimant in a Workers’ Compensation claim has the burden of proving entitlement to benefits by a preponderance of the evidence. Section 8-43-201, C.R.S. A preponderance of the evidence is that leads the trier-of-fact, after considering all of the evidence, to find that a fact is more probably true than not. Page v. Clark, 197 Colo. 306, 592 P.2d 792 (1979). The facts in a Workers’ Compensation case are not interpreted liberally in favor of either the rights of the injured worker or the rights of the employer. Section 8-43-201, C.R.S., (2015). A Workers’ Compensation case is decided on its merits. Section 8-43-201, supra.

2. The ALJ’s factual findings concern only evidence that is dispositive of the issues involved. The ALJ has not addressed every piece of evidence that might lead to a conflicting conclusion and has rejected evidence contrary to the above findings as unpersuasive. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo. App. 2000). When determining credibility, the fact finder should consider, among other things, the consistency or inconsistency of the witness’s testimony and

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actions; the reasonableness or unreasonableness (probability or improbability) of the testimony and action; the motives of the witness; whether the testimony has been contradicted; and bias, prejudice, or interest. See Prudential Insurance Co. v. Cline, 98 Colo. 275, 57 P.2d 1205 (1936); CJI, Civil 3:16 (2015).

3. A compensable industrial accident is one that results in an injury requiring medical treatment or causing disability. The existence of a preexisting medical condition does not preclude the employee from suffering a compensable injury where the industrial aggravation is the proximate cause of the disability or need for treatment. See H & H Warehouse v. Vicory, 805 P.2d 1167 (Colo. App. 1990); see also Subsequent Injury Fund v. Thompson, 793 P.2d 576 (Colo. App. 1990). A work related injury is compensable if it “aggravates accelerates or combines with” a preexisting disease or infirmity to produce disability or need for treatment. See H & H Warehouse v. Vicory, supra.

4. Respondents are liable for authorized medical treatment reasonably necessary to cure and relieve an employee from the effects of a work related injury. Section 8-42-101, C.R.S.; see Sims v. Industrial Claim Appeals Office, 797 P.2d 777 (Colo. App. 1990).

5. As found, claimant has demonstrated by a preponderance of the evidence that the recommended TFESI at the L2-3 level is reasonable and necessary medical treatment related to the work injury. As found, the medical records and Dr. Evan’s opinion on this issue are found to be credible and persuasive.

6. As found, claimant has failed to demonstrate by a preponderance of the evidence that the recommended total left knee arthroplasty is reasonable and necessary medical treatment related to the work injury. As found, the medical records and the opinions of Drs. Raschbacher and Stagg on this issue are found to be credible and persuasive.

7. Section 8-42-101(1)(a), C.R.S. 2013 provides, in pertinent part, that:

Every employer, regardless of said employer's method of insurance, shall furnish such, medical ... hospital, and surgical supplies, crutches, and apparatus as may reasonably be needed at the time of the injury or occupational disease and thereafter during the disability to cure and relieve the employee from the effects of the injury.

8. In order for an apparatus to be compensable under this section, it must be "medical" in nature, "incidental" to obtaining necessary medical treatment, see Kuziel v. Pet Fair, Inc., 931 P.2d 521 ((Colo. App. 1996), or provide therapeutic relief from the effects of the injury. Cheyenne County Nursing Home v. Industrial Claim Appeals Office, 892 P.2d 443 (Colo. App. 1995). The court of appeals has narrowly construed § 8-42-101(1)(a) when determining whether a particular apparatus or service is medical in nature. See Kuziel v. Pet Fair, Inc., supra (determining that child care services were not medical in nature because they did not relieve the symptoms or effects of the injury, and

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were not directly associated with the claimant's physical needs); Bogue v. SDI Corp., 931 P.2d 477 (Colo. App. 1996)(wheelchair-accessible van was not medical aid reasonably necessary for treatment of the claimant's incomplete quadriplegia); Country Squire Kennels v. Tarshis, 899 P.2d 362 (Colo. App. 1995) (housecleaning services were not "incidental to" expense of providing reasonably necessary medical, nursing, or attendant care treatment services); Cheyenne County Nursing Home v. Industrial Claim Appeals Office, supra (stair glider was not medically necessary to relieve effects of injury); Hillen v. Tool King, 851 P.2d 289 (Colo. App. 1993)(lawn care services were unrelated to claimant's physical condition and were not prescribed to cure or relieve the claimant of the symptoms of the injury); ABC Disposal Services v. Fortier, 809 P. 1071 (Colo. App. 1990) (snow blower was not medical aid to cure or relieve the symptoms of industrial injury).

9. As found, claimant has failed to demonstrate by a preponderance of the evidence that the seat chair lift recommended by Dr. Price is a compensable medical apparatus related to the work injury. As found, Dr. Raschbacher’s opinion related to this issue is credible and persuasive.

ORDER

It is therefore ordered that:

1. Respondents shall pay for the TFESI at the L2-3 level recommended by Dr. Evans.

2. Claimant’s request for a total left knee arthroplasty is denied and dismissed.

3. Claimant’s request for a seat chair lift is denied and dismissed.

4. All matters not determined herein are reserved for future determination.

If you are dissatisfied with the Judge's order, you may file a Petition to Review the order with the Denver Office of Administrative Courts, 1525 Sherman St., 4th Floor, Denver, CO 80203. You must file your Petition to Review within twenty (20) days after mailing or service of the order, as indicated on certificate of mailing or service; otherwise, the Judge's order will be final. You may file the Petition to Review by mail, as long as the certificate of mailing attached to your petition shows: (1) That you mailed it within twenty (20) days after mailing or service of the order of the Judge; and (2) That you mailed it to the above address for the Denver Office of Administrative Courts. For statutory reference, see section 8-43-301(2), C.R.S. For further information regarding procedures to follow when filing a Petition to Review, see Rule 26, OACRP. You may access a petition to review form at: http://www.colorado.gov/dpa/oac/forms-WC.htm.

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DATED: February 17, 2017

Cassandra M. Sidanycz Administrative Law Judge Office of Administrative Courts 222 S. 6th Street, Suite 414 Grand Junction, Colorado 81501

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OFFICE OF ADMINISTRATIVE COURTS STATE OF COLORADO WORKERS’ COMPENSATION NO. WC 4-959-249-03

ISSUE

Whether Claimant has produced clear and convincing evidence to overcome the Division Independent Medical Examination (DIME) opinion of Richard L. Stieg, M.D. that she reached Maximum Medical Improvement (MMI) on July 6, 2015 with a 0% permanent impairment rating.

FINDINGS OF FACT

1. Claimant is a 56 year old female who worked for Employer as a Counter Manager of Sales or Makeup Artist beginning on June 21, 2011. Her job duties involved multiple tasks pertaining to the application and sale of makeup products. Claimant specifically engaged in makeup artistry, facial massages, stocking product displays, computer work and telephone calls. Claimant worked full-time for approximately 37.5 hours each week.

2. Claimant testified that the number of makeup sessions varied on a daily basis. When there were special promotions she could perform in excess of eight makeup sessions per shift. At other times Claimant spent much of her shift making telephone calls to arrange makeup appointments. She generally performed in excess of five complete or partial makeover sessions each day.

3. Makeover sessions lasted approximately one hour. Claimant generally spent about 45 minutes of each session applying makeup to the customer and 15 minutes completing sales through a computer. During a makeup session Claimant either stood up or sat on an elevated chair and applied makeup to a customer who sat in an elevated chair. The makeup containers and skin care products that Claimant used weighed under two pounds.

4. After approximately three years of working for Employer Claimant developed bilateral elbow pain. She initially sought treatment from her personal physician. However, injections and elbow braces did not improve her symptoms.

5. On July 9, 2014 Claimant reported her bilateral elbow symptoms to Employer. On July 11, 2014 Claimant visited Authorized Treating Physician (ATP) Brandon Reiter, M.D. for an examination. Dr. Reiter noted that Claimant had worked as a Makeup Artist for Employer for about three years. Claimant explained that “she was doing a lot of makeovers, doing repetitive use with her arms, and started getting pain in her elbows around April 9, 2014. Dr. Reiter diagnosed Claimant with bilateral epicondylitis and radial tunnel syndrome. He placed Claimant on restricted duty and noted that she had intermediate to moderate cumulative trauma conditions.

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6. On September 3, 2014 Respondent filed a General Admission of Liability (GAL) acknowledging Claimant’s symptoms. 7. Claimant also experienced bilateral wrist pain. On October 31, 2014 she underwent an EMG/Nerve conduction study with John Aschberger, M.D. The study revealed mild to moderate Carpal Tunnel Syndrome (CTS) in Claimant’s right wrist and moderate CTS in her left wrist.

8. Claimant was off of work for the period August 21, 2014 through March 4, 2015. She received Temporary Total Disability (TTD) benefits during the period. Claimant returned to transitional duty for the period March 5, 2015 through July 5, 2015 and received Temporary Partial Disability (TPD) benefits.

9. On July 6, 2015 Claimant underwent an independent medical examination with Allison M. Fall, M.D. Dr. Fall reviewed Claimant’s medical records and conducted a physical examination. She noted that Claimant suffered from bilateral epicondylitis and CTS. Applying the Division of Workers’ Compensation Medical Treatment Guidelines (Guidelines) to Cumulative Trauma Disorders, Dr. Fall concluded that Claimant’s conditions were not caused by her work as a Makeup Artist for Employer. Dr. Fall noted that Claimant had reached Maximum Medical Improvement (MMI) and did not require any work restrictions.

10. In a Discharge Summary dated July 21, 2015 Dr. Reiter diagnosed

Claimant with bilateral epicondylitis and radial tunnel syndrome. He concluded that Claimant had reached MMI on July 6, 2015. Dr. Reiter assigned Claimant 14% upper extremity impairment ratings for each of her arms. The extremity ratings converted to 8% whole person impairments. 11. Respondent challenged Dr. Reiter’s conclusions and sought a Division Independent Medical Examination (DIME). On November 3, 2015 Claimant underwent a DIME with Richard L. Stieg, M.D. Dr. Stieg noted that Claimant had been working as a Cosmetic Business Manager for Employer since June 2011. Her job duties included makeup artistry, facials, computer work, paperwork and answering telephone calls. After conducting a physical examination and reviewing Claimant’s medical records, Dr. Stieg concluded that Claimant’s bilateral upper extremity symptoms did not constitute an overuse syndrome that was caused by her work activities for Employer. He agreed with Dr. Fall because Claimant had worked for three years before her symptoms began and her symptoms continued to progress for over 12 months after she ceased working for Employer. Dr. Stieg detailed that Claimant’s symptoms “go quite beyond overuse and include electrodiagnostic evidence of distal neuropathy coupled with a story of progressive soft tissue tenderness, joint tenderness, joint changes in the hands, new dermatological symptoms and a history of dry eyes but with intermittent swelling and tearing.” He remarked that Claimant’s symptoms suggested a possible systemic cause such as Collagen Vascular Disease (i.e. Lupus) or an infectious disease (i.e. Lyme Disease). Dr. Stieg concluded that Claimant had reached MMI on July 6. 2015 with no permanent impairment.

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12. On November 19, 2015 Respondent filed a Final Admission of Liability (FAL) consistent with Dr. Stieg’s MMI and impairment determinations. Respondent also denied liability for any Permanent Partial Disability (PPD) or medical maintenance benefits. 13. Claimant subsequently underwent diagnostic testing for possible systemic disorders at the University of Colorado Hospital. A February 25, 2015 report detailed that Claimant’s “recent labs including ANA and rheumatoid factor were both normal. These tests are used to screen for autoimmune conditions.” Moreover, Claimant’s “ESR and CRP [were[ within normal limits, which are general inflammatory markers.” 14. On October 16, 2016 Claimant underwent an independent medical examination with Lynn Parry, M.D. Dr. Parry diagnosed Claimant with bilateral epicondylitis and bilateral CTS. She assigned a total 23% whole person impairment rating. Dr. Parry explained that Claimant had undergone a complete medical evaluation that did not reveal any evidence of a chronic disease, inflammatory disorder or collagen vascular disease. She determined that Claimant’s bilateral epicondylitis and CTS were caused by her work activities for Employer. In considering the Guidelines, Dr. Parry detailed that Claimant had risk factors for the development of a cumulative trauma disorder. She detailed that Claimant

worked continuously with both upper extremities without a break, using both hands in awkward positions taking orders on IPads and doing makeup. This required hyperextension at the wrists and abnormal movements of the forearm repetitively over the course of eight hours on a daily basis. I do think she meets the criteria for causation from repetitive use in abnormal positions for her lateral epicondylitis. She was given splints which she wore [at] work which caused her increased pain and continued to have no routine breaks much less breaks every 30 minutes which continue[d] to aggravate her condition in the forearm leading to bilateral carpal tunnel symptoms as well as radial tunnel irritation.

15. On January 16, 2017 the parties conducted the post-hearing evidentiary deposition of Dr. Fall. Dr. Fall maintained that Claimant’s conditions were not caused by her work as a Makeup Artist for Employer. She explained that the Guidelines provide an algorithm for determining whether symptoms are related to work activities. The algorithm specifically requires consideration of the following: (1) the individual’s diagnoses; (2) the individual’s job duties; (3) applicable primary and secondary risk factors; and (4) diagnosis-based risk factors. 16. The Guidelines include a Primary Risk Factor Definition Table for Force and Repetition/Duration. The Table requires 6 hours of greater than 50% of individual maximum force with task cycles of 30 seconds or less, or sufficient force used for at least 50% of a task cycle. The maximum force for most individuals is 3-5 kilograms. An additional Primary Risk Factor category is Awkward Posture and Repetition/Duration.

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The factor requires four hours of wrist flexion greater than 45 degrees, extension greater than 30 degrees or ulnar deviation greater than 20 degrees, six hours of elbow flexion greater than 90 degrees, six hours of supination/pronation with task cycles 30 seconds or less, or awkward posture for at least 50% of a task cycle. Other Primary Risk Factors include computer work for more than seven hours per day or at a non-ergonomically correct work station, continuous mouse use of greater than four hours or use of a handheld vibratory power tool for 6 hours or more. Additional risk factors are six hours of lifting 10 pounds greater than 60 times per hour or six hours using hand held tools weighing two or more pounds. 17. Dr. Fall detailed that Claimant did not exhibit any of the risk factors delineated in the Guidelines. Claimant did not lift greater than 10 pounds 60 times per hour over the course of six hours. She also did not use hand held tools weighing in excess of two pounds for six hours. Claimant did not use 50 percent of maximum force with her hands, use heavy tools or lift for greater than four hours. She also did not demonstrate awkward postures with high repetition or engage in seven hours of computer work with four hours of mouse usage. Dr. Fall thus supported Dr. Stieg’s conclusion that Claimant’s upper extremity symptoms were not caused by her work activities for Employer. 18. Dr. Fall disagreed with Dr. Parry’s application of the Guidelines. Dr. Fall acknowledged that diagnostic testing did not reveal a chronic disease, an inflammatory disorder or a collagen vascular disease. However, she maintained that Dr. Parry incorrectly applied the causation algorithm for cumulative trauma disorders specified in the Guidelines. She specifically disagreed with Dr. Parry that Claimant’s job duties involved a combination of force, repetition and awkward positioning that caused a cumulative trauma disorder. She remarked that the combination would have to have exceeded 50% of Claimant’s maximum force and “that is not occurring in the job of a makeup artist.”

19. Dr. Fall explained that Claimant’s job duties did not involve awkward positioning regarding wrist extension or flexion. She detailed that Claimant “is using her hands in an open environment”, “she’s dealing with air and somebody’s face”, “there’s no…forced extension or flexion that she has to hold her wrist in a certain place.” Dr. Fall noted that Claimant moved her wrists to apply makeup with brushes but there were no limitations requiring her to maintain a specific position.

20. Claimant has failed to produce clear and convincing evidence to overcome

the DIME opinion of Dr. Stieg that she reached MMI on July 6, 2015 with a 0% permanent impairment rating. Dr. Stieg noted that Claimant had been working as a Cosmetic Business Manager for Employer since June 2011. Her job duties included makeup artistry, facials, computer work, paperwork and answering telephone calls. After conducting a physical examination and reviewing Claimant’s medical records, Dr. Stieg concluded that Claimant’s bilateral upper extremity symptoms did not constitute an overuse syndrome that was caused by her work activities for Employer. He explained that Claimant had worked for three years before her symptoms began and

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her symptoms continued to progress for over 12 months after she ceased working for Employer. Dr. Stieg remarked that Claimant’s symptoms suggested a possible systemic cause or an infectious disease. He concluded that Claimant had reached MMI on July 6. 2015 with no permanent impairment.

21. The persuasive report and testimony of Dr. Fall reveal that Claimant’s job

duties did not meet the minimum thresholds for force, repetition or duration to establish a cumulative trauma condition pursuant to the Guidelines. Dr. Fall detailed that Claimant did not exhibit any of the risk factors delineated in the Guidelines. Claimant did not lift greater than 10 pounds 60 times per hour over the course of six hours. She also did not use hand held tools weighing in excess of two pounds for six hours. Claimant did not use 50 percent of maximum force with her hands, use heavy tools or lift for greater than four hours. She also did not demonstrate awkward postures with high repetition or engage in seven hours of computer work with four hours of mouse usage. Dr. Fall explained that Claimant’s job duties did not involve awkward positioning regarding wrist extension or flexion. She noted that Claimant moved her wrists to apply makeup with brushes, but there were no limitations requiring her to maintain a specific position. Dr. Fall thus supported Dr. Stieg’s conclusion that Claimant’s upper extremity symptoms were not caused by her work activities for Employer.

22. In contrast, Dr. Parry determined that Claimant’s bilateral epicondylitis and CTS were caused by her work activities for Employer. Dr. Parry explained that Claimant had undergone a complete medical evaluation that did not reveal any evidence of a chronic disease, inflammatory disorder or collagen vascular disease. In considering the Guidelines, Dr. Parry detailed that Claimant had risk factors for the development of a cumulative trauma disorder. She remarked that Claimant worked continuously with both upper extremities without a break by using both hands in awkward positions. Her hand movements required hyperextension at the wrists and abnormal movements of the forearm repetitively over the course of eight hours on a daily basis.

23. Dr. Fall persuasively disagreed with Dr. Parry’s application of the Guidelines. Dr. Fall acknowledged that diagnostic testing did not reveal a chronic disease, an inflammatory disorder or a collagen vascular disease. However, she maintained that Dr. Parry incorrectly applied the causation algorithm for cumulative trauma disorders specified in the Guidelines. She specifically disagreed with Dr. Parry that Claimant’s job duties involved a combination of force, repetition and awkward positioning that caused a cumulative trauma disorder. The combination would have to have exceeded 50% of Claimant’s maximum force and “that is not occurring in the job of a makeup artist.” Although Claimant attributed her symptoms to her work activities, a review of her job duties as a Makeup Artist reflect that they lacked the requisite force or repetition to cause her symptoms. Claimant engaged in a variety of tasks throughout each shift. Accordingly, Claimant has failed to produce unmistakable evidence free from serious or substantial doubt that Dr. Stieg’s MMI determination and 0% permanent impairment rating were incorrect.

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CONCLUSIONS OF LAW

1. The purpose of the “Workers’ Compensation Act of Colorado” (Act) is to assure the quick and efficient delivery of disability and medical benefits to injured workers at a reasonable cost to employers, without the necessity of any litigation. §8-40-102(1), C.R.S. A claimant in a Workers' Compensation claim has the burden of proving entitlement to benefits by a preponderance of the evidence. §8-42-101, C.R.S. A preponderance of the evidence is that which leads the trier-of-fact, after considering all of the evidence, to find that a fact is more probably true than not. Page v. Clark, 197 Colo. 306, 592 P.2d 792 (1979); People v. M.A., 104 P.3d 273, 275 (Colo. App. 2004). The facts in a Workers' Compensation case are not interpreted liberally in favor of either the rights of the injured worker or the rights of the employer. §8-43-201, C.R.S. A Workers' Compensation case is decided on its merits. §8-43-201, C.R.S.

2. The Judge’s factual findings concern only evidence that is dispositive of the issues involved; the Judge has not addressed every piece of evidence that might lead to a conflicting conclusion and has rejected evidence contrary to the above findings as unpersuasive. See Magnetic Engineering, Inc. v. ICAO, 5 P.3d 385, 389 (Colo. App. 2000).

3. When determining credibility, the fact finder should consider, among other things, the consistency or inconsistency of the witness's testimony and actions; the reasonableness or unreasonableness (probability or improbability) of the testimony and actions; the motives of the witness; whether the testimony has been contradicted; and bias, prejudice, or interest. See Prudential Insurance Co. v. Cline, 98 Colo. 275, 57 P.2d 1205 (1936); CJI, Civil 3:16 (2007).

4. In ascertaining a DIME physician’s opinion, the ALJ should consider all of the DIME physician’s written and oral testimony. Lambert & Sons, Inc. v. Industrial Claim Appeals Office, 984 P.2d 656, 659 (Colo. App. 1998). A DIME physician’s determination regarding MMI and permanent impairment consists of his initial report and any subsequent opinions. In Re Dazzio, W.C. No. 4-660-149 (ICAP, June 30, 2008); see Andrade v. Industrial Claim Appeals Office, 121 P.3d 328 (Colo. App. 2005).

5. A DIME physician is required to rate a claimant’s impairment in accordance with the AMA Guides. §8-42-107(8)(c), C.R.S.; Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117, 1118 (Colo. App. 2003). However, deviations from the AMA Guides do not mandate that the DIME physician’s impairment rating was incorrect. In Re Gurrola, W.C. No. 4-631-447 (ICAP, Nov. 13, 2006). Instead, the ALJ may consider a technical deviation from the AMA Guides in determining the weight to be accorded the DIME physician’s findings. Id. Whether the DIME physician properly applied the AMA Guides to determine an impairment rating is generally a question of fact for the ALJ. In Re Goffinett, W.C. No. 4-677-750 (ICAP, Apr. 16, 2008).

. 6. A DIME physician's findings of MMI, causation, and impairment are binding on the parties unless overcome by “clear and convincing evidence.” §8-42-107(8)(b)(III), C.R.S.; Peregoy v. Industrial Claim Appeals Office, 87 P.3d 261, 263

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(Colo. App. 2004). “Clear and convincing evidence” is evidence that demonstrates that it is “highly probable” the DIME physician's rating is incorrect. Qual-Med, Inc. v. Industrial Claim Appeals Office, 961 P.2d 590, 592 (Colo. App. 1998). In other words, to overcome a DIME physician's opinion, “there must be evidence establishing that the DIME physician's determination is incorrect and this evidence must be unmistakable and free from serious or substantial doubt.” Adams v. Sealy, Inc., W.C. No. 4-476-254 (ICAP, Oct. 4, 2001). The mere difference of medical opinion does not constitute clear and convincing evidence to overcome the opinion of the DIME physician. Javalera v. Monte Vista Head Start, Inc., W.C. Nos. 4-532-166 & 4-523-097 (ICAP, July 19, 2004); see Shultz v. Anheuser Busch, Inc., W.C. No. 4-380-560 (ICAP, Nov. 17, 2000).

7. The test for distinguishing between an accidental injury and an occupational disease is whether the injury can be traced to a particular time, place and cause. Campbell v. IBM Corp., 867 P.2d 77, 81 (Colo. App. 1993). “Occupational disease” is defined by §8-40-201(14), C.R.S. as:

[A] disease which results directly from the employment or the conditions under which work was performed, which can be seen to have followed as a natural incident of the work and as a result of the exposure occasioned by the nature of the employment, and which can be fairly traced to the employment as a proximate cause and which does not come from a hazard to which the worker would have been equally exposed outside of the employment.

8. A claimant is required to prove by a preponderance of the evidence that the alleged occupational disease was directly or proximately caused by the employment or working conditions. Wal-Mart Stores, Inc. v. Industrial Claim Appeals Office, 989 P.2d 251, 252 (Colo. App. 1999). Moreover, §8-40-201(14), C.R.S. imposes proof requirements in addition to those required for an accidental injury by adding the "peculiar risk" test; that test requires that the hazards associated with the vocation must be more prevalent in the work place than in everyday life or in other occupations. Anderson v. Brinkhoff, 859 P.2d 819, 824 (Colo. 1993). A claimant is entitled to recovery only if the hazards of employment cause, intensify, or, to a reasonable degree, aggravate the disability for which compensation is sought. Id. Where there is no evidence that occupational exposure to a hazard is a necessary precondition to development of the disease, the claimant suffers from an occupational disease only to the extent that the occupational exposure contributed to the disability. Id.

9. When the precipitating cause of an injury is a pre-existing condition that the claimant brings to the workplace, the injury is not compensable unless a “special hazard” of the employment combines with the pre-existing condition to contribute to the injury. In Re Shelton, W.C. No. 4-724-391 (ICAP, May 30, 2008). The rationale for the rule is that, in the absence of a special hazard, an injury due to the claimant’s pre-existing condition does not bear a sufficient causal relationship to the employment to “arise out of” the employment. Id. A condition does not constitute a “special hazard” if it is “’ubiquitous’ in the sense that it is found generally outside of the employment.” In Re Booker, W.C. No. 4-661-649 (ICAP, May 23, 2007).

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10. The mere fact a claimant experiences symptoms while performing work does not require the inference that there has been an aggravation or acceleration of a preexisting condition. See Cotts v. Exempla, Inc., W.C. No. 4-606-563 (ICAP, Aug. 18, 2005). Rather, the symptoms could represent the “logical and recurrent consequence” of the pre-existing condition. See F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo. App. 1985); Chasteen v. King Soopers, Inc., W.C. No. 4-445-608 (ICAP, Apr. 10, 2008). As explained in Scully v. Hooters of Colorado Springs, W.C. No. 4-745-712 (ICAP, Oct. 27, 2008), simply because a claimant’s symptoms arise after the performance of a job function does not necessarily create a causal relationship based on temporal proximity. The panel in Scully noted that “correlation is not causation,” and merely because a coincidental correlation exists between the claimant’s work and his symptoms does not mean there is a causal connection between the claimant’s injury and work activities.

11. In addressing cumulative trauma conditions, the Guidelines provide, in relevant part:

Indirect evidence from a number of studies supports the conclusion that task repetition up to 6 hours per day unaccompanied by other risk factors is not causally associated with cumulative trauma conditions. Risk factors that are likely to be associated with specific CTC diagnostic categories include extreme wrist or elbow postures, force including regular work with hand tools greater than 1 kg or tasks requiring greater than 50% of an individual’s voluntary maximal strength, work with vibratory tools at least 2 hours per day; or cold environments.

W.C.R.P. Rule 17, Exhibit 5, p.16. The duration of force and repetition as a primary risk factor must be greater than six hours at 50% of individual maximum force with task cycles of 30 seconds or less.

12. As found, Claimant has failed to produce clear and convincing evidence to overcome the DIME opinion of Dr. Stieg that she reached MMI on July 6, 2015 with a 0% permanent impairment rating. Dr. Stieg noted that Claimant had been working as a Cosmetic Business Manager for Employer since June 2011. Her job duties included makeup artistry, facials, computer work, paperwork and answering telephone calls. After conducting a physical examination and reviewing Claimant’s medical records, Dr. Stieg concluded that Claimant’s bilateral upper extremity symptoms did not constitute an overuse syndrome that was caused by her work activities for Employer. He explained that Claimant had worked for three years before her symptoms began and her symptoms continued to progress for over 12 months after she ceased working for Employer. Dr. Stieg remarked that Claimant’s symptoms suggested a possible systemic cause or an infectious disease. He concluded that Claimant had reached MMI on July 6. 2015 with no permanent impairment.

13. As found, the persuasive report and testimony of Dr. Fall reveal that Claimant’s job duties did not meet the minimum thresholds for force, repetition or duration to establish a cumulative trauma condition pursuant to the Guidelines. Dr. Fall detailed that Claimant did not exhibit any of the risk factors delineated in the Guidelines.

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Claimant did not lift greater than 10 pounds 60 times per hour over the course of six hours. She also did not use hand held tools weighing in excess of two pounds for six hours. Claimant did not use 50 percent of maximum force with her hands, use heavy tools or lift for greater than four hours. She also did not demonstrate awkward postures with high repetition or engage in seven hours of computer work with four hours of mouse usage. Dr. Fall explained that Claimant’s job duties did not involve awkward positioning regarding wrist extension or flexion. She noted that Claimant moved her wrists to apply makeup with brushes, but there were no limitations requiring her to maintain a specific position. Dr. Fall thus supported Dr. Stieg’s conclusion that Claimant’s upper extremity symptoms were not caused by her work activities for Employer.

14. As found, in contrast, Dr. Parry determined that Claimant’s bilateral epicondylitis and CTS were caused by her work activities for Employer. Dr. Parry explained that Claimant had undergone a complete medical evaluation that did not reveal any evidence of a chronic disease, inflammatory disorder or collagen vascular disease. In considering the Guidelines, Dr. Parry detailed that Claimant had risk factors for the development of a cumulative trauma disorder. She remarked that Claimant worked continuously with both upper extremities without a break by using both hands in awkward positions. Her hand movements required hyperextension at the wrists and abnormal movements of the forearm repetitively over the course of eight hours on a daily basis.

15. As found, Dr. Fall persuasively disagreed with Dr. Parry’s application of the Guidelines. Dr. Fall acknowledged that diagnostic testing did not reveal a chronic disease, an inflammatory disorder or a collagen vascular disease. However, she maintained that Dr. Parry incorrectly applied the causation algorithm for cumulative trauma disorders specified in the Guidelines. She specifically disagreed with Dr. Parry that Claimant’s job duties involved a combination of force, repetition and awkward positioning that caused a cumulative trauma disorder. The combination would have to have exceeded 50% of Claimant’s maximum force and “that is not occurring in the job of a makeup artist.” Although Claimant attributed her symptoms to her work activities, a review of her job duties as a Makeup Artist reflect that they lacked the requisite force or repetition to cause her symptoms. Claimant engaged in a variety of tasks throughout each shift. Accordingly, Claimant has failed to produce unmistakable evidence free from serious or substantial doubt that Dr. Stieg’s MMI determination and 0% permanent impairment rating were incorrect.

ORDER

Based upon the preceding findings of fact and conclusions of law, the Judge enters the following order:

1. Claimant has failed to overcome DIME Dr.Stieg’s conclusions that she reached MMI on July 6, 2015 with a 0% permanent impairment rating.

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2. Any issues not resolved in this Order are reserved for future determination.

If you are a party dissatisfied with the Judge’s order, you may file a Petition to Review the order with the Denver Office of Administrative Courts, 1525 Sherman Street, 4th Floor, Denver, CO 80203. You must file your Petition to Review within twenty (20) days after mailing or service of the order, as indicated on certificate of mailing or service; otherwise, the Judge’s order will be final. You may file the Petition to Review by mail, as long as the certificate of mailing attached to your petition shows: (1) That you mailed it within twenty (20) days after mailing or service of the order of the Judge; and (2) That you mailed it to the above address for the Denver Office of Administrative Courts. For statutory reference, see section 8-43-301(2), C.R.S. (as amended, SB09-070). For further information regarding procedures to follow when filing a Petition to Review, see Rule 26, OACRP. You may access a form for a petition to review at http://www.colorado.gov/dpa/oac/forms-WC.htm.

DATED: February 14, 2017.

___________________________________ Peter J. Cannici Administrative Law Judge Office of Administrative Courts 633 17th Street Suite 1300 Denver, CO 80202

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OFFICE OF ADMINISTRATIVE COURTS STATE OF COLORADO WORKERS’ COMPENSATION NO. 5-012-748-01

ISSUES

1. Did Claimant’s injury cause his wage reduction in April of 2016.

2. Whether Claimant was responsible for his termination from employment on

June 4, 2016. 3. Whether Claimant is entitled to temporary total disability (“TTD”) benefits as of

June 4, 2016, or in the alternative, entitled to TTD as of August 2, 2016 based on a worsening in his condition post-termination from Employer.

FINDINGS OF FACT

1. Employer is a large local retail appliance chain. On March 8, 2016 Employer offered Claimant employment. The offer letter stated “[t]his offer for employment does not create an employment contract for any period of time; AFO is an ‘at will’ employer. That means that both employees and AFO have the right to terminate employment at any time, with or without advance notice, and with or without cause.” Exhibit 3.

2. Claimant accepted the offer of employment and signed the offer letter on

March 8, 2016. 3. Claimant was hired with the intent that he would become a store manager.

His starting salary was $50,000 plus commission. 4. Claimant began working for Employer on March 8, 2016, starting in the

Manager-in-Training (“MIT”) program. 5. The MIT Program consists of a four-to-six week probationary program in

which employees receive classroom training on Employer’s procedures and systems at the corporate headquarters during the morning, and then implement that training as well as their sales skills at a store location during the afternoon.

6. MIT trainees are required to become proficient with Employer’s proprietary

point of sale (“POS”) software system, known as “PROFIT.” 7. Claimant testified that he believed he had up to six months to learn the

PROFIT system based on Employer’s “POS Sales Policy” that he signed on March 8, 2016. It stated that “[a]ll sales people are expected to be proficient in the AFO POS procedures and should be able to use the system with little to no help within the first 6

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months of employment. Failure to follow this above policy will lead to a review of your work performance and possible disciplinary action.” Exhibit 5.

8. Jeff Bock, Employer’s District Manager1 at the time, was involved in the

decision to hire Claimant. 9. Regarding the PROFIT system, Mr. Bock credibly testified that he was

surprised Claimant even noticed the policy because it was contained in a packet of about 25 pages that new employees receive. Mr. Bock himself was not even aware of that policy.

10. Mr. Bock was present during Claimant’s MIT classroom training and

observed Claimant struggling to learn PROFIT. 11. Employer’s executive team meets weekly to discuss the MIT participants’

progress. Early on, the team saw that Claimant was not succeeding. They noted that he failed two of the first three MIT tests.

12. Due to Claimant’s struggles to learn the PROFIT system, he was given

extra training outside of the morning classroom program during the first several weeks. Despite this extra help, Claimant did not improve his ability to complete the basic functions of a sales transaction.

13. On March 26, 2016, Claimant signed an “Employee Warning Report,”

which stated in pertinent part:

It is important that not only does [Claimant] create a relationship with the customer but that he is able to sell to the customer using the profit system and as a manager become an expert on how to navigate our systems. Michael continues to struggle to pick up profit even after repetition. On 3/22/16 I witnessed Michael not being able to pull up a customers [sic] order with their phone number. On 3/24/16 Michael was unable to write a sale or enter the customer information to create a new customer id. Michael has been in training since 3/2/16 and has been trained and coached every day to improve his skills. If Michael doesn’t show immediate improvement on Profit he may be removed from the management training program. Exhibit E.

14. At hearing, Claimant admitted that he was never able to learn the basic

PROFIT functions, and that he was never able to complete a sale on his own without help from other salespeople. He testified that he was never able to learn the system 100% because it was very complex.

1 At the time of hearing, Mr. Bock’s title had changed. He is currently the Regional Sales Director.

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15. Other managers attempted to help Claimant learn Employer’s systems, including PROFIT, to no avail.

16. Mr. Bock had numerous conversations with Claimant about learning the

PROFIT system. He credibly testified that Claimant would learn something about PROFIT, would remember it for an hour or a day, but by the next day he had no recall of what he had learned.

17. On March 28, 2016, Claimant was working at Employer’s store in Littleton

when he was hurt moving a dryer up a ramp on a dolly. He worked that day and the next, and then was off until April 1, 2016. He reported the injury to Employer on March 29, 2016. Exhibit 1.

18. Mr. Bock met with Claimant after he returned to work and discussed

moving him out of the MIT program and into a sales position, which entailed a pay cut and was essentially a demotion. Claimant accepted the demotion, and believed that his sales skills would enable him to move back into a manager position. Mr. Bock offered him the sales position as opposed to terminating his employment due to the fact that carrying a manager’s salary is a financial burden to Employer if the manager is not meeting sales goals. As will be discussed below, Claimant was not meeting sales goals.

19. On April 1, 2016, Claimant signed an Employer “Record of Conversation”

which stated: Michael has been struggling to pass new hire training test failing 2 of the 1st 3 tests. He also is very slow to assimilate our Point of Sale computer system which is holding back his development. Being proficient at our POS system is vital in a manger’s success to drive his business accurately and profitably. After discussing these issues with Michael and determining his development will mostly take much longer than expected, he has voluntarily moved into a sales associate position with sales associate pay until which time it can be determined he could be a successful manager candidate. AMFK will keep Michael at MIT pay for 3 week [sic] from 4.1.16. Michael must work hard to gain the skill necessary to navigate and write sales in POS system. Failure to gain these skills may result in his removal from sales associate position. Exhibit F.

20. Mr. Bock credibly testified, and it is found as fact, that he had no

knowledge of Claimant’s injury when he discussed moving him into a sales associate position.

21. Claimant had difficulties learning PROFIT and making sales prior to his

injury.

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22. When Claimant transitioned into a full time sales associate position, his pay became $400 per week or commission, whichever was higher.

23. Claimant’s performance was the cause of his demotion and subsequent

reduction in pay. 24. Connie Panko was the manager of Employer’s store 70, which is the first

store Claimant worked at as a sales associate after his demotion from the MIT program. As his manager, she observed Claimant’s sales abilities. She credibly testified that Claimant was very outgoing and personable, and had no trouble initiating sales or interacting with customers. However, although he was great at initiating sales, he was unable to follow through.

25. Ms. Panko credibly testified that Claimant could not find merchandise in

the store and would have to ask someone to help him and he was unable to learn the features of the products. She observed that Claimant’s ability to use the PROFIT system was quite limited, and he was unable to complete the computer portion of a sale. He was unable to use PROFIT on his own without constant, repeated help.

26. Ms. Panko personally walked Claimant through the POS process. She

asked him to take notes and he did not. She offered him the opportunity to take previously written sales from the day before and enter them into the system as practice. Claimant would not do that.

27. Ms. Panko observed Claimant interrupting other in-progress sales and

interjecting himself into those sales. Employees began complaining about Claimant. Customers complained that Claimant took too long to complete their sales.

28. Claimant tried to use sales notebooks but lost them. Ms. Panko gave him

two sales notebooks, which he lost. 29. Claimant’s sales figures were significantly lower than other sales

associates’ numbers at store 70. 30. During the time Ms. Panko was Claimant’s manager, he never improved in

his ability to use PROFIT. 31. Claimant never advised Ms. Panko that his injury was interfering with his

ability to use or learn PROFIT or with his sales. Ms. Panko never observed Claimant having trouble moving around or walking due to his injury.

32. On April 15, 2016, Claimant’s authorized treating physician initiated work

restrictions of 10 pounds maximum lifting, pushing and pulling; no repetitive kneeling or squatting; and no overhead reaching with the left arm. Exhibit 7. These restrictions did not change in May of 2016. Id.

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33. On April 25, 2016, Claimant was written up for failure to meet one aspect

of his sales goals, “out of box” sales. Exhibit G. He acknowledged the write up. Exhibit H.

34. On April 28, 2016, Claimant was placed on a Sales Improvement Plan (the

“Plan”), which was written by Mr. Bock. Exhibit I. 35. The Plan stated that “[o]n April 26, 2016 you called me to explain in your

five weeks with the company, you have not written a single personal sales because you cannot learn how to use Profit.” Id. Mr. Bock also wrote that Claimant was “creating customer issues and sales errors, to include at least three customer complaints that resulted in canceled sales totaling over $5,000 in lost revenue for [Employer].” Id.

36. The Plan further explained that:

This Plan sets forth the goals, expectations, and/or standards you must meet from April 28, 2016 through May 13, 2016. The Plan also provides you notice that this is your last opportunity to improve your sales with AF; if you do not meet the goals, expectations and standards detailed below by May 13, 2016, AF may terminate your employment. Id. (Bold in original).

37. On April 28, 2016, Claimant acknowledged the Plan and the goals he was

expected and required to reach with his signature. Id. 38. Around this time, Claimant requested a transfer to a different store. Mr.

Bock believed that transferring him would give him a fresh start; moreover, the salespeople in store 70 were becoming frustrated with Claimant. Claimant was transferred from Employer’s store 70 to store 10.

39. At store 10, Claimant’s sales numbers worsened. 40. On May 3, 2016, Employer gave Claimant an offer of a temporary

modified position of eight hours per day and no lifting, pushing, pulling, or carrying, which he accepted. Exhibit J.

41. On May 4, 2016, Respondents filed a General Admission of Liability, with

an average weekly wage of $961.54; and temporary partial disability (“TPD”) benefits from April 22, 2016 and ongoing at the rate of $374.36 per week. Exhibits B and 2.

42. On May 9, 2016 Claimant underwent an MRI of his left shoulder which

showed a complete rotator cuff tear. Exhibit 8, p. 20. Claimant testified that he was recommended for shoulder surgery early in his treatment, but that he was required to wait because the surgeon was out of the country.

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43. May 13, 2016 was the deadline contained in the Plan for Claimant to

improve or possibly be terminated. On May 12, 2016, Claimant emailed Mr. Bock to explain that his hip injury was hindering his ability to do his job. Exhibit K. The next day, Employer sent Claimant a letter explaining that it considered his May 12, 2016 email to be a request for reasonable accommodations, and provided him the following accommodations: 1) Employer would provide him a chair to sit on; 2) Employer would not require him to walk the sales floor; 3) it would not require him to perform physical labor; and 4) Employer would allow him to perform his job sitting down at all times. Also, the deadline in his Plan for improvement was extended from May 13, 2016 to June 3, 2016. Id.

44. At hearing Claimant testified that his injury affected his ability to interact

with customers and make sales because he was limping to greet customers; and because he sometimes would not get up to greet customers or walk around in the job due to hip pain. He explained that he could not be an effective sales person with the accommodations he was given because sales require walking around the store to greet and help customers.

45. Claimant testified that his injury affected his ability to learn PROFIT due to

the medication he was taking. 46. On June 1, 2016, Mr. Bock met with Claimant. He asked Claimant to write

up a sale to demonstrate his ability to complete a sales transaction on his own. The sales invoices he completed had multiple errors and took longer for him to complete than expected. Exhibit L.

47. Mr. Bock noted that Claimant failed to meet his sales goals in every area,

and in some areas was performing significantly below his peers. For example, his sales for the month of May 2016 totaled $12,584, which is below Employer’s minimum requirement for one week of sales. The next lowest performing sales associate had $54,024 in sales for that month. Id.

48. Mr. Bock credibly testified that Claimant never took seriously the warnings

and conversations about Claimant’s need to improve. 49. On June 1, 2016, Claimant started treatment with Dr. Sharon Walker, who

placed him on a seven hour work day as of that date. 50. In Claimant’s medical records, Dr. Walker states “complete rotator cuff

tear of left shoulder since 06-01-2016.” Exhibit 8. The medical records further indicate that since June 1, 2016, Appellant had bursitis of the left shoulder, strain of left hip, arthritis of left shoulder region, and degenerative tear of glenoid labrum of left shoulder. Dr. Walker states “[i]t is my opinion that it is medically probable that the patient’s complaints are the results of the patient’s work.” The ALJ credited this opinion of Dr. Walker.

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51. On June 2, 2016, Employer offered Claimant a modified duty position in

which he would be required to work eight hours. Exhibit 6. 52. The June 2, 2016 offer was not in accordance with Dr. Walker’s

restrictions because it required Claimant to work one more hour per day than his doctor had cleared him to work. Dr. Walker did not sign the eight hour modified duty offer letter. Id.

53. On June 4, 2016, Claimant was terminated for unsatisfactory work

performance. Exhibit M. 54. Mr. Bock credibly testified, and it is found as fact, that the decision to

terminate Claimant’s employment was not influenced by or related to Claimant’s injury or work restrictions in any way. Rather, it was due to his failure to improve, his failure to learn PROFIT, and his failure to meet sales goals.

55. Claimant was responsible for his termination. 56. Despite his termination, Claimant’s industrial injury caused a wage loss of

one hour per day from June 4 through August 1, 2016. Claimant is entitled to TPD benefits for that period.

57. Claimant applied for jobs during the summer of 2016 but was

unsuccessful. He credibly testified that it was very difficult to find work with his work restrictions of a seven hour work day, as well as the other restrictions.

58. Claimant had rotator cuff surgery on August 2, 2016. 59. As of August 2, 2016, Claimant was restricted from all work for

approximately six weeks. 60. On September 15, 2016, Claimant was cleared for modified work. He

began driving part time for Lyft as an independent contractor. Claimant credibly testified, and it is found as fact, that Claimant’s physician told him he could not drive for seven hours straight, and that in between passengers he must get out of the car and perform certain exercises.

61. On September 14, 2016, Dr. Walker stated that Claimant’s maximum

medical improvement (“MMI”) was unknown at that time. No ATP has placed Claimant at MMI.

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CONCLUSIONS OF LAW

General

1. The purpose of the Workers’ Compensation Act of Colorado is to assure the quick and efficient delivery of disability and medical benefits to injured workers at a reasonable cost to employers, without the necessity of litigation. § 8-40-102(1), C.R.S.

2. A preponderance of the evidence is that which leads the trier-of-fact, after considering all of the evidence, to find that a fact is more probably true than not. Page v. Clark, 197 Colo. 306, 592 P.2d 792 (1979). The facts in a workers’ compensation case are not interpreted liberally in favor of either the rights of the injured worker or the rights of the employer. § 8-43-201, C.R.S. A workers’ compensation case is decided on its merits.

3. In deciding whether Claimant has met the burden of proof, the ALJ is empowered to resolve conflicts in evidence, make credibility determinations, determine the weight to be accorded to testimony, and draw plausible inferences from the evidence. See, Brodensleck v. Industrial Claim Appeals Office, 183 P.3d 684 (Colo. App. 2008); Kroupa v. Industrial Claim Appeals Office, 53 P.3d 1192, 1197 (Colo. App. 2002); Rockwell International v. Turnbull, 802 P.2d 1182, 1183 (Colo. App. 1990).

4. When determining credibility, the fact finder should consider, among other things, the consistency or inconsistency of the witness's testimony and actions; the reasonableness or unreasonableness (probability or improbability) of the testimony and actions; the motives of the witness; whether the testimony has been contradicted; and bias, prejudice, or interest. See Prudential Insurance Co. v. Cline, 98 Colo. 275, 57 P.2d 1205 (1936); CJI, Civil 3:16 (2005).

5. An ALJ’s factual findings concern only evidence that is dispositive of the issues involved; the ALJ has not addressed every piece of evidence that might lead to a conflicting conclusion, and has rejected evidence contrary to the above findings as unpersuasive. Magnetic Engineering, Inc. v. ICAO, 5 P.3d 385 (Colo. App. 2000).

Claimant’s Termination

1. Sections 8-42-103(g), and 8-42-105(4)(a), C.R.S. both state that “[i]n cases where it is determined that a temporarily disabled employee is responsible for termination of employment, the resulting wage loss shall not be attributable to the on-the-job injury.”

2. Whether an employee is at fault for causing a separation of employment is a factual issue for determination by the ALJ. Gilmore v. Indus. Claim Appeals Office, 187 P.3d 1129, 1132 (Colo. App. 2008). Because the termination statutes constitute an affirmative defense to an otherwise valid claim to TTD benefits, Respondents have the burden of proof to establish Claimant was “responsible” for his termination from

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employment. Henry Ray Brinsfield v. Excel Corp., W.C. No. 4-551-844 (I.C.A.O. July 18, 2003).

3. Respondents met their burden of proving Claimant was responsible for his termination. Neither Claimant’s termination nor his demotion occurred because of his injury. Claimant failed to master the PROFIT system while working for Employer. This was a job requirement. Ms. Panko credibly testified that she asked Claimant to take notes when she showed him how to use PROFIT, but that he did not take notes. She was credible when she testified that she gave Claimant the opportunity to use the previous days’ sales slips to enter into PROFIT for practice, but he did not take her up on that offer. Mr. Bock credibly testified that throughout Claimant’s employment and during his conversations with Claimant, Claimant never took seriously his need to improve. It was within Claimant’s control to take advantage of these offers for help, and take seriously the warnings, and he chose not to. Thus, his demotion and his subsequent termination were within his control. Therefore, Claimant was responsible.

4. In coming to this conclusion, the ALJ considered Claimant’s argument that he believed he had six months to learn PROFIT based on one memo. That belief was not reasonable given the numerous times Claimant was counseled, both formally and informally, both in writing and orally, that he needed to improve his use of PROFIT immediately. He was put on the Plan, and the Plan was clear that his employment could be terminated within a few weeks if he did not improve. Nothing in the Plan stated or inferred he had up to six months to improve. Moreover, legally speaking that policy was not a contract. There was no offer, acceptance, or consideration. It was merely a policy. Employer had no legal obligation to give Claimant six months to learn PROFIT. Additionally, the employment offer letter given to Claimant made clear that his employment was at will and he could be terminated at any time. Also, the ALJ was not convinced that Claimant actually relied on that policy during the time of his employment, given that it was contained within 25 pages of documents and was provided to Claimant during a time when he was apparently overwhelmed trying to learn PROFIT.

5. Claimant also argued that his injury impaired his ability to learn PROFIT and make sales because of the medication and because of his hip pain. The ALJ is not persuaded. Claimant’s difficulties learning PROFIT began prior to his injury: near the beginning of his training he failed two of the first three tests. Mr. Bock had to give Claimant additional PROFIT training while he was still in the MIT program, before his injury. Claimant could not complete sales in PROFIT before his injury. Claimant never told Ms. Panko that his injury was affecting his abilities; nor did Ms. Panko observe Claimant have problems walking around the store or greeting customers. The ALJ concludes, based on all of the credible evidence in the record, that although being confined to a sitting position certainly did not help Claimant’s ability to make sales, even if the injury had not occurred and he was able to walk around freely, he would have had similar sales numbers due to his inability to learn and use PROFIT.

6. Claimant also emphasizes the fact that although on June 1, 2016 Dr. Walker restricted his work to seven hours per day, Employer offered him a modified position that called for eight hours of work per day. Employer did not present evidence

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at hearing adequately explaining why Claimant was offered an eight hour day as opposed to a seven hour day. However, Claimant was not terminated for only being cleared to work seven hours per day.

7. Based on the above as well as on the credibility of Mr. Bock, the ALJ concludes that Claimant’s work injury had nothing to do with his demotion or termination. Stated another way, Claimant’s demotion and subsequent termination from work was not a result of his injury.

8. Because Claimant was responsible for his termination, he is not entitled to TDD benefits from June 4, 2016 through August 2, 2016. §§ 8-42-103(g), and 8-42-105(4)(a), Anderson v. Longmont Toyota, 102 P.3d 323 (Colo. 2004).

TTD Benefits and Worsening of Condition

9. TTD benefits continue until employee reaches maximum medical improvement (“MMI”); returns to regular or modified employment; the employee’s physician releases the employee to return to work in writing; or the physician gives the employee written release to return to modified employment, modified employment is offered to the employee, and the employee does not start that employment. Section 8-42-105, C.R.S.

10. Significantly, “section 8-42-105(4) bars TTD wage loss claims when the voluntary or for-cause termination of the modified employment causes the wage loss, but not when the worsening of a prior work-related injury causes the wage loss.” Anderson v. Longmont Toyota at 324.

11. Whether a worsened condition caused Claimant’s wage loss is a factual question to be determined by the ALJ. Apex Transp., Inc. v. Industrial Claim Appeals Office of State, 321 P.3d 630, 632 (Col. App. 2014).

12. Change of condition refers to a change in the condition of the original compensable injury or to a change in a claimant’s physical or mental condition that can be causally connected to the original compensable injury. Chavez v. Indus. Comm’n, 714 P.2d 1328, 1330 (Colo. App.1985). Claimant has the burden of proof in seeking to reopen a claim for a worsened condition. Richards v. Indus. Claim Appeals Office, 996 P.2d 756, 758 (Colo. App. 2000).

13. Claimant has proven by a preponderance of the evidence that there was a change in his physical condition as of August 2, 2016 that was causally connected to his original compensable injury. On August 2, 2016, Claimant had rotator cuff surgery on his shoulder. That surgery was necessary specifically because of Claimant’s work injury that occurred on March 28, 2016. Respondents argue that because Claimant always needed surgery, there was no change in his condition and therefore TTD should not be awarded. That argument is not persuasive. The fact that Claimant’s surgeon was out of the country and could not perform the surgery shortly after Claimant’s injury is a fact completely outside of Claimant’s control. More importantly, however, is that

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had the surgeon been in the country and performed the surgery while Claimant was working for Employer, he would have been eligible for TTD benefits then.

14. After Claimant’s August 2, 2016 surgery, his physician restricted him from all work until September 15, 2016, when he was cleared to start driving for Lyft. The restriction from all work was also a change that was directly caused by his work injury of March 28, 2016.

15. As found, Claimant was completely off work as a result of the surgery. Therefore, the ALJ concludes that Claimant is eligible for TTD benefits from August 2, 2016 through September 14, 2016.

16. This conclusion is in accordance with the holding of Anderson v. Longmont Toyota and the underlying statutory intent of the Act: “This assurance that worsening condition compensation would not be jeopardized by passage of the bill occurred in the context of questions by legislators about the ramifications of passing the bill, and is particularly significant when paired with Representative Berry's statement, as sponsor, that the bill’s purpose was ‘to clarify that temporary total disability is for when you’re off work and injured, and it’s not for any other purpose.’" Anderson v. Longmont Toyota at 324.

TPD

17. Temporary partial disability payments must continue until an employee reaches MMI; or until the employee’s physician releases the employee in writing to return to modified employment, modified employment is offered in writing to the employee, and the employee fails to begin the employment. § 8-42-106, C.R.S.

18. There is no evidence in the record that Claimant has reached MMI or that his physician has released him to work in writing. Therefore, by this order, the ALJ makes no conclusions of law concerning the end date of Claimant’s TPD benefits.

ORDER

It is ordered that: 1. Claimant is responsible for his wage reduction and for his termination from

employment with Employer. 2. Respondents shall pay TPD benefits (for one hour per day) to Claimant from

April 22, 2016 through August 1, 2016. 3. Claimant is not entitled for TTD benefits from June 4, 2016 through August 1,

2016. 4. Respondents shall pay TTD benefits to Claimant from August 2, 2016 through

September 14, 2016. 5. Claimant is entitled to TPD benfits from September 15, 2016 and continuing.

The ALJ makes no findings concerning an end date of TPD. The parties are

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ordered to confer and attempt to resolve that issue. If no agreement is reached, either party may file an Application for Hearing on this issue.

6. Insurer shall pay 8% interest on all benefits not paid when due. 7. Insurer is entitled to a credit for temporary disability benefits paid to date.

DATED: February 15, 2017

/s/ Tanya T. Light

Tanya T. Light Administrative Law Judge Office of Administrative Courts 1525 Sherman Street, 4th Floor Denver, CO 80203

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OFFICE OF ADMINISTRATIVE COURTS STATE OF COLORADO WORKERS’ COMPENSATION NO. WC 5-011-094-02

ISSUES

1. Whether Claimant has established by a preponderance of the evidence that medical benefits related to treatment of her left shoulder are causally related to her December 17, 2015 work injury.

FINDINGS OF FACT

1. Claimant works for employer as a plant operator at a power plant and has been so employed for approximately eight years. Claimant’s duties include, but are not limited to, checking equipment, opening and closing valves, and checking and adding oil to various machines. 2. Claimant typically works twelve hour shifts on a crew with five other crew members. Claimant typically uses valve wrenches and sometimes requires the help of another crew member to open a valve. 3. During her eight years of employment, Claimant was able to perform her regular job duties and had no problems with her left wrist or left shoulder until December 17, 2015. 4. On December 17, 2015 while working Claimant lost her balance as she exited a bobcat skid steer loader. Claimant fell backwards out of the bobcat and landed on her outstretched left arm. 5. Claimant felt pain in her left wrist and shoulder when she fell. Claimant got back into the bobcat and finished the task she was performing. Claimant then notified her supervisor of the incident. Claimant continued working the rest of her shift that day. When she finished working, the clinics were closed and she went home. 6. The next day, December 18, 2015 Claimant’s wrist was swollen and she decided to go to the clinic for evaluation. 7. On December 18, 2015 Claimant was evaluated at Memorial Hospital Clinic by Jonathan Hamilton, D.O. Dr. Hamilton noted on the history of present illness that Claimant complained of being very tired recently, asked about thyroid stimulating hormones, complained of mild weight gain, and reported a fall the day prior and complained of left wrist pain. Dr. Hamilton then noted in the review of systems that Claimant reported weight loss and arthralgias/joint pain in the left wrist. On examination he noted left wrist pain with flexion/extension and mild swelling in the distal radius. Dr. Hamilton noted that Claimant had x-rays of the hand and wrist, that he was unable to view the films, but that radiology denied seeing any obvious fracture. Dr. Hamilton

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assessed hypothyroidism, pain in wrist, and fatigue. Dr. Hamilton noted that due to the limits in movement and the pain in Claimant’s distal radius, Claimant was splinted and told to follow up with Tom Doty in 7-10 days. See Exhibits W, 4. 8. On December 19, 2015 Respondent completed an incident report noting that Claimant was injured in an accidental fall from elevation to lower level. The short description indicates “sprained wrist after losing balance and falling.” Claimant did not fill out this form and it was completed by one of her supervisors. See Exhibit V. 9. On December 24, 2015 Claimant was evaluated by Thomas Doty, PA-C. PA Doty noted that Claimant had injured her left wrist at work approximately one week ago when she fell backwards on an outstretched left arm. He noted that she had immediate pain in the left wrist, increased pain over night, and was evaluated the next day at the walk in clinic. PA Doty noted Claimant was placed in a thumb SPICA and that Claimant had no history of left wrist injuries, no hand numbness, and was able to move all fingers since the incident. PA Doty noted no forearm pain, no elbow pain, no wrist pain at rest but pain with active flexion/extension. PA Doty recommended continued immobilization of the left wrist with thumb SPICA brace. See Exhibits W, 4. 10. On January 14, 2016 Claimant was evaluated by PA Doty. Claimant reported that she had been wearing her wrist brace full time since the previous visit and had not been doing any strenuous activity. PA Doty noted that Claimant had no pain symptoms, no redness, no numbness, no elbow pain, no shoulder pain, and no swollen glands. PA Doty noted slight reduction in grip strength when compared to the right side. PA Doty noted no pain with passive wrist flexion or extension and no pain with resisted wrist extension or flexion. PA Doty recommended continued immobilization of the left wrist with the thumb SPICA brace and noted the plan to begin physical therapy and slowly wean from the brace over the next three weeks. See Exhibits W, 4. 11. On January 19, 2016 Claimant underwent an initial physical therapy evaluation. It was noted that Claimant was referred by PA Doty for a sprain of the triangular fibrocartilage and contusion of the radiocarpal joint. Under the objective, Claimant’s wrist range of motion and strength were evaluated and notations were made. The areas for shoulder, elbow, hip, knee, ankle and foot, lower extremity, cervical, and lumbar were left blank and were not evaluated. See Exhibits 5, X. 12. On January 26, 2016 Claimant was evaluated by PA Doty. He noted Claimant had been to physical therapy once. Claimant also reported that although her wrist did not have as much pain as her last visit, she still had problems with some daily activities, pain with twisting movements, and pain when pushing objects with wrist in extension. PA Doty noted that Claimant had no elbow pain, no shoulder pain, no swollen glands, no fever, no chills, no cough, no shortness of breath, and no chest pain. PA Doty noted very slow improvement and that he did not believe Claimant had a significant injury of the left wrist and that he would have expected more progress. PA Doty advised Claimant to attend more physical therapy, twice weekly for the next three weeks, and then to follow up with surgeon for evaluation. He again noted that Claimant

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could wean from the wrist brace with the supervision of physical therapy. See Exhibits W, 4. 13. On February 18, 2016 Claimant was evaluated by Kevin Borchard, M.D. Claimant reported her wrist was not getting better and that she was frustrated. Dr. Borchard noted that she was referred for a left wrist injury from work. Dr. Borchard noted that Claimant had persistent pain localized to the ulnar aspect of the left wrist and that bracing and activity modification did not improve her persistent pain. Dr. Borchard noted no other pain complaints. Dr. Borchard was concerned with the wrist examination and that Claimant was two months out from the injury and continued to have pain without significant improvement. Dr. Borchard recommended a left wrist MRI for further evaluation. See Exhibits W, 4. 14. On February 25, 2016 Claimant was evaluated by Dr. Borchard. Dr. Borchard noted that the MRI of her left wrist demonstrated a non displaced and incomplete fracture of the distal radius metaphysic. For the first time, Claimant was assessed with a broken wrist, fracture of distal end of radius. Dr. Borchard recommended continued immobilization of the left wrist. See Exhibits W, 4. 15. On March 11, 2016 Claimant was evaluated by Dr. Borchard. Dr. Borchard noted that Claimant had been recently diagnosed with a wrist fracture as a result of a fall at work in December. Dr. Borchard noted that Claimant also had significant left shoulder pain since the fall and noted that Claimant had not yet been fully evaluated for the shoulder pain. Claimant reported after the fall her shoulder pain was localized to the posterior shoulder and along the scapula with weakness and positional night pain. Claimant reported the ibuprofen for both the wrist and shoulder gave her little improvement. Dr. Borchard performed a physical examination of the left shoulder and noted limited active range of motion and some positive impingement signs. Dr. Borchard ordered X-rays of the left shoulder with the history listed a left shoulder pain for three months after a fall. The X-rays were normal. Dr. Borchard opined that the clinical findings were concerning for a rotator cuff tear and ordered an MRI of the left shoulder. See Exhibits W, 4. 16. On April 1, 2016 Claimant was evaluated by Dr. Borchard. He noted that the MRI of the left shoulder had been denied and again noted his clinical findings and that he was concerned that she may have a rotator cuff tendon tear. Dr. Borchard recommended stretches and strengthening exercises that Claimant could do on her own. Claimant also reported that her left wrist fracture was doing better. See Exhibits W, 4. 17. On May 6, 2016 Claimant was evaluated by Dr. Borchard. Claimant reported her left wrist was feeling well and she continued to wear her splint at work. Claimant reported pain in the left shoulder as her biggest complaint. Dr. Borchard noted that the MRI of the left shoulder was denied and that Claimant was trying to get approval because Claimant thought her left shoulder issue may be related to the initial fall and injury. Dr. Borchard noted in the history of present illness that at the time of

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Claimant’s work injury in December, Claimant injured her left shoulder. Dr. Borchard opined that at the time of the injury, Claimant had a left wrist fracture which was a distracting injury and was more painful than the shoulder. Dr. Borchard opined that as the left wrist fracture healed, the left shoulder became more symptomatic. Dr. Borchard again felt strongly that an MRI of the left shoulder was indicated and he submitted a new request for left shoulder MRI through workers’ compensation. See Exhibits W, 4. 18. On August 31, 2016 Claimant underwent an independent medical examination performed by Allison Fall, M.D. Claimant reported falling backwards out of a bobcat and landing on her buttock with her left hand behind her. Claimant reported that her whole arm hurt and her wrist really hurt. The next day Claimant reported her wrist was more swollen and she went to a walk in clinic where they did not see a fracture and she was given a brace. Claimant reported that she told PA Doty that her arm was still really sore and that she was told it was just muscles. Claimant reported that she found out her wrist was broken a few months later and that she was in a brace. Claimant reported she told the doctors all along that her arm hurt and that Dr. Borchard was the first one who took her seriously. Claimant reported she had burning in the back of her shoulders and noticed problems with moving including pain when driving. Claimant reported whole arm pain of 7/10. Dr. Fall reviewed medical records and performed a physical examination. See Exhibit U 19. Dr. Fall opined that Claimant’s report of telling medical providers all along that her shoulder or entire arm hurt was not collaborated by the medical documentation. Dr. Fall noted that it was not until March that the shoulder complaints were noted in a visit with Dr. Borchard. Dr. Fall opined that if Claimant had suffered an acute internal injury to the left shoulder she would have had immediate pain and immediate noticeable loss of function of the left arm with difficulty raising it and that it certainly would have been noted in the medical records. Dr. Fall opined that Claimant’s reports sounded like muscular complaints in the scapular area and that there were no objective findings that required medical treatment. Dr. Fall opined that the MRI of the left shoulder was not causally related to the work injury and that the findings on the MRI were not causally related to the work injury. See Exhibit U. 20. On September 1, 2016 Claimant was evaluated by Dr. Borchard. Claimant reported that her left shoulder had gotten worse with persistent pain with overhead activity and continued positional night pain. Claimant reported that her left wrist was slow to fully recover and that she had occasional sharp pain in the dorsum of the wrist worse with increased activity. Dr. Borchard noted that the left shoulder examination continued to be consistent with rotator cuff tear or tendinitis. Dr. Borchard printed off shoulder strengthening exercises and demonstrated them to Claimant. Claimant declined injection and physical therapy due to insurance limitations. Dr. Borchard also opined that the left wrist fracture was definitely healed but that Claimant likely had a soft tissue injury at the same time that might need more time to resolve. Dr. Borchard continued to recommend an MRI of the left shoulder. See Exhibits W, 4.

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21. On September 13, 2016 Dr. Borchard wrote a letter indicating that in early March of 2016 Claimant had complaints of left shoulder pain and was recovering from a left wrist fracture. Dr. Borchard opined that in March he was concerned that Claimant may have torn or injured her rotator cuff in the left shoulder. He noted that he had ordered an MRI of the left shoulder and was still waiting for approval. He noted that he gave Claimant some strengthening and exercises to do on her own but that without the MRI he was at a standstill on getting Claimant the care and treatment that Claimant needed. See Exhibit W. 22. On October 7, 2016 Dr. Borchard wrote a letter that added that it was likely that Claimant’s wrist fracture distracted her from the left shoulder pain after the initial injury. Dr. Borchard opined that as Claimant’s wrist healed, her shoulder pain became more obvious. Dr. Borchard noted that Claimant had no prior injuries to the left shoulder. See Exhibit 4. 23. On October 18, 2016 Claimant was evaluated by Dr. Borchard. Dr. Borchard noted that Claimant had a history of left shoulder pain that had been bothering her for over the past year following a fall at work. Claimant reported continued pain in the left shoulder that was significant at work when turning valves. Claimant continued to work without restriction but had assistance turning some of the valves which helped her get through the day. Dr. Borchard noted that Claimant was able to obtain an MRI of the left shoulder which demonstrated increased signal around the rotator cuff tendon without complete tearing. Dr. Borchard noted some thinning of the tendon on the bursal aspect consistent with a bursal sided tear and increased signal within the acromial bursa. Dr. Borchard opined that Claimant would benefit from rehabilitation of the shoulder with physical therapy focused on scapular stabilization and rotator cuff strengthening. Dr. Borchard opined that shoulder arthroscopy was not recommended yet and that he believed there was a good chance that Claimant could get better with rehabilitation and non-operative management first. Dr. Borchard opined that after 2-3 months, Claimant may be a candidate for a shoulder arthroscopy if she continued to have pain. Dr. Borchard performed a subacromial injection and referred Claimant for physical therapy. See Exhibits W, 4. 24. On November 25, 2016 Claimant underwent physical therapy. Claimant reported a left shoulder injury while at work December 17, 2015 when she fell out of a bobcat and caught herself with the left hand. It was noted that initially, Claimant had more wrist pain than shoulder pain but gradually the wrist improved and the shoulder became worse. The assessment noted that the shoulder range of motion and left upper extremity strength were improving with treatment and that strengthening would continue to be emphasized. See Exhibit 7. 25. Dr. Fall testified by deposition. Dr. Fall opined that Claimant sustained no acute traumatic injury to her left shoulder as a result of the December 17, 2015 work fall. Dr. Fall opined that the mechanism of injury and the lack of initial complaints at the left shoulder supported her conclusion. Dr. Fall opined that the majority of the forces in the fall were in the hand and distal forearm consistent with the wrist injury and she

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noted no acute symptoms reported by Claimant in the left shoulder. Dr. Fall opined that an acute rotator cuff tear would have been immediately painful at the shoulder with noticeable acute findings like the inability to lift the arm. Dr. Fall opined that there were no symptoms in the shoulder reported until three months after the fall. Dr. Fall reviewed the left shoulder MRI that was taken in October of 2016 and opined that the MRI showed what you would expect in someone Claimant’s age. Dr. Fall opined that the MRI did not indicate something acute or severe trauma. Dr. Fall opined that the tearing shown on MRI was degenerative in nature. 26. Dr. Fall agreed that the doctors had not determined that Claimant broke her left arm until 2.5 months after the injury and that the initial x-rays were performed when Claimant’s left arm and wrist were swollen. Dr. Fall noted that in history of present illness she personally would not ask someone coming in for left arm problems about their glands, coughing, or chest pain unless it was someone with known cardiac disease. Dr. Fall agreed that there was no indication that the doctor examined Claimant’s glands. Dr. Fall opined that it would be unlikely for multiple providers to fail to note or document shoulder pain. 27. Claimant testified credibly at hearing. Claimant was asked by initial providers what hurt the worst and told them her wrist. The wrist was swollen and was the initial area of focus in her treatment. Claimant is credible that many of the items listed under history of present illness and review of systems were not asked or examined. Claimant is also credible that following her injury and while in a wrist brace, she was able to work but didn’t use her left arm much and had the help of her crew members. Claimant is credible that at her initial visit with Dr. Borchard he noted that she was sent to him for a wrist injury and advised that he was going to check her wrist. Claimant is credible that prior to the fall she had no limitations in her left shoulder, has had no new injuries to the left shoulder after the fall, and that she now has consistent pain and irritation in the left shoulder with certain activities. 28. Claimant’s testimony overall is found credible and persuasive and is consistent with the opinion provided by Dr. Borchard.

CONCLUSIONS OF LAW

Generally

The purpose of the Workers’ Compensation Act of Colorado, §§ 8-40-101, et seq., C.R.S. is to assure the quick and efficient delivery of disability and medical benefits to injured workers at a reasonable cost to employers, without the necessity of litigation. See § 8-40-102(1), C.R.S. The claimant shoulders the burden of proving entitlement to benefits by a preponderance of the evidence. See § 8-43-201, C.R.S. A preponderance of the evidence is that which leads the trier-of-fact, after considering all of the evidence, to find that a fact is more probably true than not. Page v. Clark, 197 Colo. 306, 592 P.2d 792 (1979).

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Assessing weight, credibility, and sufficiency of evidence in Workers' Compensation proceeding is exclusive domain of administrative law judge. University Park Care Center v. Industrial Claim Appeals Office, 43 P.3d 637 (Colo. App. 2001). Even if other evidence in the record may have supported a contrary inference, it is for the ALJ to resolve conflicts in the evidence, make credibility determinations, and draw plausible inferences from the evidence. When determining credibility, the fact finder should consider, among other things, the consistency or inconsistency of the witness's testimony and actions; the reasonableness or unreasonableness (probability or improbability) of the testimony and actions; the motives of the witness; whether the testimony has been contradicted; and bias, prejudice, or interest. Prudential Insurance Co. v. Cline, 98 Colo. 275, 57 P.2d 1205 (1936); Bodensieck v. Industrial Claim Appeals Office, 183 P.3d 684 (Colo. App. 2008). The weight and credibility to be assigned expert testimony is a matter within the discretion of the ALJ. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo. App. 2002). To the extent expert testimony is subject to conflicting interpretations, the ALJ may resolve the conflict by crediting part or none of the testimony. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968).

The ALJ's factual findings concern only evidence and inferences found to be

dispositive of the issues involved; the ALJ has not addressed every piece of evidence or every inference that might lead to conflicting conclusions and has rejected evidence contrary to the above findings as unpersuasive. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo. App. 2000).

Left Shoulder

Claimant is required to prove by a preponderance of the evidence that the conditions for which she seeks medical treatment were proximately caused by an injury arising out of and in the course of the employment. See § 8-41-301(1)(c), C.R.S. The claimant must prove a causal nexus between the claimed disability and the work-related injury. Singleton v. Kenya Corp., 961 P.2d 571 (Colo. App. 1998). A pre-existing disease or susceptibility to injury does not disqualify a claim if the employment aggravates, accelerates, or combines with the pre-existing disease or infirmity to produce a disability or need for medical treatment. Duncan v. Industrial Claim Appeals Office, 107 P.3d 999 (Colo. App. 2004); H & H Warehouse v. Vicory, 805 P.2d 1167 (Colo. App. 1990). If Claimant establishes a causal nexus, Respondents are liable to provide medical treatment that is reasonable and necessary to cure and relieve the effects of the industrial injury. See § 8-42-101(1)(a), C.R.S. The question of whether the claimant met the burden of proof to establish the requisite causal connection is one of fact for determination by the ALJ. City of Boulder v. Streeb, 706 P.2d 786 (Colo. 1985); Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo. App. 2000).

Claimant has met her burden to establish, more likely than not, that she sustained an injury to her left shoulder in the work fall on December 17, 2015. Claimant is credible and persuasive that she had pain in her left shoulder immediately, but that her left wrist was her biggest initial concern. As found above, Claimant was evaluated

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one time by Dr. Hamilton and three times by PA Doty. PA Doty noted Claimant’s wrist pain with flexion and extension on December 24, then noted Claimant had no pain in the wrist and no pain with flexion or extension on January 14, then noted on January 26 that Claimant’s pain was not as much as at the last visit and that she had problems with wrist extension. PA Doty’s reports are inconsistent. Additionally, Dr. Hamilton noted that Claimant reported both mild weight gain and weight loss at the same visit. Both Dr. Hamilton and PA Doty noted a large list of things including shoulder pain that Claimant reported not having. Despite this large list, Claimant is credible that Dr. Hamilton and PA Doty did not ask her about all of these items and that Dr. Hamilton and PA Doty did not examine all of the areas where they reported no problems. Dr. Fall opined that she would personally not ask someone coming in for left arm problems about many of the items listed including glands, coughing, or chest pain and Dr. Fall agreed that there was no indication Claimant’s glands were examined. This further is consistent with Claimant’s testimony that the large list of items, including the shoulder, were not asked about or examined by Dr. Hamilton or PA Doty.

PA Doty also noted on January 26 that he did not believe Claimant had a significant injury to her left wrist. However, approximately one month later Dr. Borchard discovered that Claimant had a fracture. Respondents argue that Dr. Hamilton, PA Doty, the physical therapist, and Dr. Borchard all initially failed to note and/or specifically noted that Cliamant denied left shoulder pain. However, both Dr. Borchard and physical therapy notes indicate a referral only for the left wrist and that only the left wrist was initially evaluated. Further, Claimant is credible that at her first visits with Dr. Hamilton and PA Doty she was asked what hurt the worst and that the wrist was then focused on. Claimant is also credible that the long list of items noted by Dr. Hamilton and PA Doty were not actually reviewed and/or evaluated. As found above, Dr. Borchard noted that Claimant was referred only for her wrist, but he later opined that Claimant had significant shoulder pain since her injury that had not been fully evaluated. Dr. Borchard later wrote a letter opining that it was likely that Claimant’s wrist fracture distracted her from the left shoulder pain after the initial injury and that as her wrist healed her shoulder pain became more obvious. Claimant is credible and persuasive that she had shoulder pain initially but that her wrist pain was worse and that the wrist was focused on initially by the first treating providers. As found above, Claimant’s left shoulder was asymptomatic prior to her December, 2015 work fall. Claimant had no trouble with her job duties including opening valves. Since the injury, Claimant has had continued shoulder pain and limitations. Claimant has established, more likely than not, that her left shoulder and need for treatment is causally related to the work injury.

ORDER

1. Claimant has established by a preponderance of the evidence that medical benefits related to treatment of her left shoulder are causally related to her December 17, 2015 work injury.

2. All matters not determined are reserved for future determination.

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If you are dissatisfied with the Judge's order, you may file a Petition to Review the order with the Denver Office of Administrative Courts, 1525 Sherman St., 4th Floor, Denver, CO 80203. You must file your Petition to Review within twenty (20) days after mailing or service of the order, as indicated on certificate of mailing or service; otherwise, the Judge's order will be final. You may file the Petition to Review by mail, as long as the certificate of mailing attached to your petition shows: (1) That you mailed it within twenty (20) days after mailing or service of the order of the Judge; and (2) That you mailed it to the above address for the Denver Office of Administrative Courts. For statutory reference, see section 8-43-301(2), C.R.S. For further information regarding procedures to follow when filing a Petition to Review, see Rule 26, OACRP. You may access a petition to review form at: http://www.colorado.gov/dpa/oac/forms-WC.htm.

DATED: February 13, 2017 /s/ Michelle E. Jones

___________________________________ Michelle E. Jones Administrative Law Judge Office of Administrative Courts 1525 Sherman Street, 4th floor Denver, CO 80203

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OFFICE OF ADMINISTRATIVE COURTS STATE OF COLORADO WORKERS’ COMPENSATION NO. WC 4-967-943-03

ISSUES

The following issues were raised for consideration at hearing:

1. Whether it is Claimant’s burden to overcome the Division independent medical examiner’s (DIME) opinion as to apportionment by clear and convincing evidence;

2. Whether Claimant has proven by clear and convincing evidence that the DIME’s opinion as to apportionment is most probably incorrect; and

3. Whether Claimant is entitled to a disfigurement award.

FINDINGS OF FACT

Having considered the evidence presented at hearing, the following Findings of Fact are entered.

1. Claimant worked for the Employer as a package car driver. On October 20,

2014, Claimant sustained an admitted industrial injury to her right knee. On the date of injury, Claimant bent down to pick up a box and heard a pop in her right knee.

2. Claimant has a pre-existing history of right knee pain complaints. On June 16,

2008, Claimant injured her right knee while at work with the Employer by squatting down to pick up a box. Claimant underwent an MRI, which revealed a medial meniscus tear and chondromalacia. Claimant underwent an arthroscopic chondroplasty to repair the torn meniscus. Claimant was placed at maximum medical improvement (MMI) on October 16, 2008. Claimant was provided with a 15% scheduled impairment rating for the lower extremity.

3. Respondents filed a Final Admission of Liability (FAL) and paid Permanent

Partial Disability (PPD) benefits. Respondents admitted for the 15% scheduled impairment rating and paid Claimant $7,397.83 in PPD benefits. An award of permanency was paid to the Claimant.

4. Prior to this 2014 workers’ compensation claim, Claimant indicated that

painful popping of her right knee continued. Claimant also stated that she gets some swelling at the end of the day. Claimant further reported to Dr. Green that prior to the 2014 injury she experienced soreness in the right knee at the end of the day.

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5. On October 20, 2014, Claimant underwent her first evaluation with Dr. Ogrodnick at Exempla. Dr. Ogrodnick noted that referring to her 2008 claim, “that was partially successful but painful popping continued.” This medical record is contrary to Claimant’s in court testimony that she was symptom free following the 2008 surgery.

6. Claimant underwent a surgical procedure on her right knee on December 16,

2014. Claimant underwent conservative post-operative care and was placed at MMI on June 26, 2015. Claimant was released to full duties at work and was provided with no impairment. Claimant reported 95% improvement and reported no pain. Claimant stated that her knees are tired after work. The physical examination of the right knee revealed full range of motion. Claimant ambulated without a limp and could perform a full deep knee bend without discomfort.

7. Respondents filed a FAL on July 1, 2015. Claimant objected to the FAL and

filed a Notice and Proposal to Select a Division independent medical examination (DIME) on July 31, 2015. Dr. Justin Green was selected as the DIME physician and Claimant underwent the DIME on February 10, 2016.

8. When Claimant presented to Dr. Green, she was complaining of ongoing right

knee pain. Dr. Green agreed with the MMI date of June 26, 2016. Dr. Green assigned Claimant a 10% scheduled impairment rating for arthritis and a 5% scheduled rating for a posterior horn medial meniscectomy impairment pursuant to Table 40 of the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition (ed. rev.) (AMA Guides). Claimant was also provided with a 9% scheduled rating for range of motion impairment.

9. Dr. Green addressed apportionment in his report. Dr. Green opined that

Claimant’s 10% rating for apportionment should be subtracted from Claimant’s prior 10% rating for arthritis. Claimant’s 5% medial posterior horn meniscectomy rating should be subtracted from her prior 5% rating. Dr. Green ultimately opined that Claimant should receive a 9% scheduled rating for the lower extremity for loss of range of motion following apportionment. Dr. Green recommended Claimant follow up with her primary care physician concerning her preexisting arthritis noted in the right knee.

10. Claimant filed an Application for Hearing on April 6, 2016, to overcome the

DIME’s opinion as to MMI, Permanent Partial Disability (PPD) benefits, and disfigurement.

11. The hearing before the undersigned Judge commenced on August 3, 2016.

At the hearing, Claimant testified inconsistent with the uncontested medical records. Claimant testified that she was not having any issues with her right knee following the surgery in 2008 and her injury in this claim in 2014. The

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medical records indicate that Claimant, per her own history to Dr. Ogrodnick, was dealing with “painful popping” in her right knee and was in pain after work.

12. Claimant testified that she was released to full duty work in June of 2015.

Claimant testified that she continues to work full duty which requires her to deliver approximately 800 to 900 packages a day. Claimant testified that she can lift 70 pounds and walk. It is inferred that an individual with a heavy workload moves at a fast pace, especially when doing it unassisted.

13. Dr. Eric Ridings persuasively testified at hearing consistent with the prior

medical records and his evaluation. Claimant saw Dr. Ridings on January 19, 2016, for a Respondent-sponsored Independent Medical Examination (IME). Dr. Ridings, after examining Claimant, and reviewing her medical history, opined that Claimant was properly placed at MMI on June 26, 2015. Claimant does not contest MMI.

14. Dr. Ridings testified that Claimant’s diagnosis for the 2014 injury was a tear of

the medial meniscus in the right knee with arthritis. In 2008, Claimant was diagnosed with a right knee meniscus tear and chondromalacia, which Dr. Ridings credibly testified was another term for arthritis. The apportioned ratings were for the same body parts.

15. Dr. Ridings testified to the fact that all three physicians in this claim, including

himself, provided apportionment of the rating, under Table 40. Dr. Ridings credibly testified, that under Table 40, a claimant is provided anywhere from a zero to ten percent rating for meniscus tears. All three physicians’ in this claim found Claimant to have a five percent scheduled rating.

16. Dr. Ridings further testified that the ten percent rating for arthritis was exactly

the same as the ratings in 2008. Dr. Ridings testified that all three physicians agreed that the arthritis was not caused, aggravated, or accelerated by Claimant’s mechanism of injury of simply squatting down. Dr. Ridings further pointed out that the DIME Dr. Green indicated that the arthritis was not work related and needed to be treated with her primary care physician. Dr. Ridings testified that he agreed with that assessment.

17. Dr. Ridings credibly testified to a reasonable degree of medical probability

that the meniscus tear had been fixed and that any ongoing symptoms are related to Claimant’s non-work related arthritis.

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CONCLUSION OF LAW

Having entered the foregoing Findings of Fact, the following Conclusions of Law are entered. General Legal Principles

1. The purpose of the Act, Section 8-40-101, et seq., C.R.S. is to assure the quick and efficient delivery of disability and medical benefits to injured workers at a reasonable cost to employers, without the necessity of litigation. Section 8-40-102(1), C.R.S. The claimant shoulders the burden of proving entitlement to benefits by a preponderance of the evidence. Section 8-43-201, C.R.S. A preponderance of the evidence is that which leads the trier-of-fact, after considering all of the evidence, to find that a fact is more probably true than not. Page v. Clark, 592 P.2d 792 (Colo. 1979) The facts in a workers' compensation case shall not be interpreted liberally in favor of either the rights of the injured worker or the rights of the employer and a worker’s compensation case shall be decided on its merits. Section 8-43-201, C.R.S.

2. The ALJ's factual findings concern only evidence and inferences found to

be dispositive of the issues involved; the ALJ has not addressed every piece of evidence or every inference that might lead to conflicting conclusions and has rejected evidence contrary to the above findings as unpersuasive. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo. App. 2000).

Apportionment in this claim

3. Claimant contends that the DIME physician’s apportionment determination

must be overcome by a preponderance of the evidence and Respondents contend that the DIME physician’s apportionment determination must be overcome by clear and convincing evidence. It is concluded that the DIME physician’s apportionment determination must be overcome by clear and convincing evidence and that the DIME physician’s apportionment determination in this matter is most probably correct.

4. In this claim Dr. Green apportioned Claimant’s rating with the rating she

received for her 2008 injury. Dr. Green ultimately opined that Claimant’s impairment rating after apportionment was a 9% scheduled rating. Respondents admitted liability for the rating and filed an FAL. The Division accepted the FAL. Claimant ultimately filed an Application for Hearing challenging the DIME opinions. Claimant is not contesting the actual rating. Claimant is contesting the application of apportionment.

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5. Under Section 8–42–107(8), C.R.S., a DIME physician's opinions concerning MMI and permanent medical impairment are binding unless overcome by clear and convincing evidence. See Leprino Foods Co. v. Indus. Claim Appeals Office, 134 P.3d 475, 482–83 (Colo.App.2005). Both determinations require the DIME physician to assess, as a matter of diagnosis, whether the various components of the claimant's medical condition are causally related to the industrial injury.

6. Under the AMA Guides, ch. 2.2, apportionment refers to determining the

various components of a claimant's overall impairment and, therefore, pertains to the causation issues inherent in the DIME rating protocol. Pub. Serv. Co. v. Indus. Claim Appeals Office, 40 P.3d 68, 71 (Colo.App.2001). The AMA Guides allow apportionment only when a prior impairment has been sufficiently identified, treated, or evaluated to be rated as a contributing factor in the subsequent disability. Askew v. Indus. Claim Appeals Office, 927 P.2d 1333, 1338 (Colo.1996). Table 40 of the AMA Guides makes no distinction between arthritis and chondromalacia, since they are the same. The AMA Guides only provides a rating for meniscal tearing.

7. Respondents appropriately took the apportionment as a matter of right

under the statute pursuant to the opinions of the DIME physician. The current version of the apportionment statute as of the date of injury is pursuant to the 2008 amendment. Apportionment is pursuant to Section 8–42–104(5)(a) which states that “the permanent medical impairment rating applicable to the previous injury to the same body part, established by an award or settlement, shall be deduced from the permanent medical impairment rating for the subsequent injury to the same body part.”

8. Martinez v. ICAO, 176 P.3d 826 (Colo. App. 2007), is controlling authority.

In that case, Claimant sought review of a final order of the ICAO panel applying the impairment rating of a DIME that apportioned prior injuries. In Martinez, Claimant underwent a DIME that assigned a permanent impairment rating. The DIME physician, determined that apportionment was indicated resulting in an adjusted whole person impairment rating of twenty-five percent. The employer and its carrier, filed a FAL consistent with the DIME physician's rating. The Court of Appeals found that apportionment of medical impairment now constitutes a pure medical determination, which when made by the DIME physician is subject to the clear and convincing standard. Id.

9. The Court in Martinez, supra, unambiguously explained, that,

Section 8-42-104(2), Colo. Sess. Laws 1990, ch. 62, at

490 (now codified as amended at § 8-42-104(2)(a), C.R.S. 2006), formerly permitted apportionment based on pre-existing impairment only if the impairment was independently

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disabling at the time of the industrial injury. See Lambert & Sons, Inc. v. Indus. Claim Appeals Office, 984 P.2d 656, 658-59 (Colo. App. 1998). That question was considered to be one of fact subject to the preponderance of the evidence standard rather than the clear and convincing standard. . Pub. Serv. Co. v. Indus. Claim Appeals Office, 40 P.3d 68, 71 (Colo. App. 2001)..

Section 8-42-104(2)(b), C.R.S. (2006), which was added in 1999 and applies to injuries suffered on or after July 1, 1999 (Colo. Sess Laws 1999, ch. 141 at 410), now provides that an award of benefits under Section 8-42-107, C.R.S. 2006, shall "exclude any previous impairment to the same body part." This statutory change renders immaterial the distinction drawn in Public Service Company v. Industrial Claim Appeals Office, supra, between the type of apportionment authorized under former § 8-42-104(2) and the type of apportionment required by the AMA Guides as part of the rating process. Under § 8-42-104(2)(b), apportionment no longer depends on the ALJ's determination of whether a previous impairment was disabling at the time of the current injury. This change indicates that apportionment of medical impairment now constitutes a pure medical determination, which when made by the DIME physician is subject to the clear and convincing standard of § 8-42-107, C.R.S.

10. The current version of the statute is pursuant to the 2008 amendment.

Apportionment is now pursuant to Section 8–42–104(5)(a), C.R.S. The statute is unambiguous and states that the permanent medical impairment rating applicable to the previous injury to the same body part, established by an award or settlement, shall be deduced from the permanent medical impairment rating for the subsequent injury to the same body part.

11. It is established in this claim that Claimant had a prior 15% scheduled

rating for the right knee for the 2008 claim which is the same body part injured in this claim. The Colorado Court of Appeals has previously held that the DIME physician's opinion on the cause of a claimant's disability is an inherent part of the diagnostic assessment which comprises the DIME process of determining MMI and rating permanent impairment. Qual Med, Inc., v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo. App. 1998); Egan v. Industrial Claim Appeals Office, 971 P.2d 664 (Colo. App. 1998).

12. Claimant provided no new medical evidence which was not reviewed by

the DIME physician to support her position on apportionment. The only testimony which was provided by Claimant in regards to her prior injury was that she was not symptomatic prior to the 2014 injury at issue in this claim. As noted, above this is not supported by the medical evidence. Additionally, whether Claimant was symptomatic or not at the time of the injury is not a necessary requirement for apportionment of a prior work-related injury.

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13. Therefore, it is found that Claimant has failed to overcome the DIME’s opinion as to apportionment. Therefore, apportionment is appropriate in this claim pursuant to Section 8-42-104(5)(a), C.R.S. and the DIME report.

14. It is found that apportionment of Claimant’s pre-existing condition should

be made in accordance with the opinions of Dr. Green. Therefore, 15% of Claimant’s scheduled impairment rating shall be apportioned for Claimant’s right knee injury. The resulting scheduled impairment rating is 9%, in accordance with the opinions of Dr. Green.

Disfigurement Award

15. The ALJ finds and concludes that as a result of her 10/20/14 work injury, Claimant has a visible disfigurement to the body consisting of two discolored arthroscopic scars on the right knee and a slight limp. Claimant has sustained a serious permanent disfigurement to areas of the body normally exposed to public view, which entitles Claimant to additional compensation. Section 8-42-108 (1), C.R.S.

ORDER

It is therefore ordered that:

1. Claimant failed to overcome the DIME physicians’ opinions by clear and convincing evidence as to apportionment in this claim. Therefore, apportionment pursuant to Section 8-42-104(5)(a), C.R.S. is appropriate. Claimant sustained a 23% scheduled impairment rating for the lower extremity as a result of the work injury, with 15% apportionment applied to Claimant’s prior work related injury. This results in a total of 9% scheduled impairment rating for the lower extremity.

2. Respondents shall be liable for workers’ compensation benefits based on a 9% scheduled impairment rating for the lower extremity.

3. The ALJ orders that Insurer shall pay Claimant $1000.00 for her

disfigurement.

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4. Insurer shall be given credit for any amount previously paid for disfigurement

in connection with this claim.

DATED: _2/15/17____

Margot W. Jones, Administrative Law Judge Office of Administrative Courts 1525 Sherman Street, 4th Floor Denver, CO 80203

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If you are dissatisfied with the Judge's order, you may file a Petition to Review the order with the Denver Office of Administrative Courts, 1525 Sherman Street, 4th Floor, Denver CO 80203. You must file your Petition to Review within twenty (20) days after mailing or service of the order, as indicated on certificate of mailing or service; otherwise, the Judge's order will be final. You may file the Petition to Review by mail, as long as the certificate of mailing attached to your petition shows: (1) That you mailed it within twenty (20) days after mailing or service of the order of the Judge; and (2) That you mailed it to the above address for the Denver Office of Administrative Courts. For statutory reference, see section 8-43-301(2), C.R.S. (as amended, SB09-070). For further information regarding procedures to follow when filing a Petition to Review, see Rule 26, OACRP. You may access a petition to review form at: http://www.colorado.gov/dpa/oac/forms-WC.htm.

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OFFICE OF ADMINISTRATIVE COURTS STATE OF COLORADO WORKERS’ COMPENSATION NO. WC 4-962-651-02

ISSUES

1. Whether Respondents have produced clear and convincing evidence to overcome the Division Independent Medical Examination (DIME) opinion of John S. Hughes, M.D. that Claimant suffered a 15% scheduled impairment for her right lower extremity as a result of her September 28, 2014 admitted industrial injuries.

2. Whether Claimant has established by a preponderance of the evidence that she is entitled to receive reasonable, necessary and related medical maintenance benefits designed to relieve the effects of her September 28, 2014 industrial injuries or prevent further deterioration of her condition pursuant to Grover v. Industrial Comm’n., 759 P.2d 705 (Colo. 1988).

3. A determination of Claimant’s Average Weekly Wage (AWW).

4. Whether Claimant is entitled to a disfigurement award pursuant to §8-42-108, C.R.S.

FINDINGS OF FACT

1. Claimant is a 78 year old female who worked as a Customer Assistance Clerk in Employer’s Fish and Meat Department. Her job duties involved serving customers, cleaning the area and restocking merchandise. On September 28, 2014 Claimant suffered admitted industrial injuries to her right knee and right wrist when she tripped over hoses and fell to the floor during the course and scope of her employment with Employer.

2. Claimant received conservative medical treatment for her injuries. On October 29, 2014 Authorized Treating Physician (ATP) Michael Tracy, D.O. determined that Claimant had reached Maximum Medical Improvement (MMI). He assigned a 31% right upper extremity impairment rating. Dr. Tracy did not assign Claimant any impairment rating for her right lower extremity. He also did not recommend any medical maintenance benefits. Dr. Tracy specifically conducted an evaluation and studies of Claimant’s right wrist condition and determined that no additional treatment was required.

3. Lloyd Thurston, M.D. was Claimant’s ATP through Concentra Medical Centers. He determined that Claimant reached MMI on November 2, 2014 and agreed with Dr. Tracy’s 31% right upper extremity impairment rating. Dr. Thurston also did not assign any impairment rating for Claimant’s right lower extremity or recommend medical maintenance benefits.

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4. On November 18, 2015 Respondents filed a Final Admission of Liability (FAL) consistent with Dr. Tracy’s MMI and impairment determinations. The FAL denied medical maintenance benefits.

5. Claimant challenged the FAL and sought a Division Independent Medical Examination (DIME). On June 27, 2016 Claimant underwent a DIME with John S. Hughes, M.D. Dr. Hughes agreed that Claimant had reached MMI on October 29, 2014. Relying on the AMA Guides for the Evaluation of Permanent Impairment Third Edition (Revised) (AMA Guides) he also assigned Claimant a 31% right upper extremity impairment rating. The rating consisted of 5% for wrist range of motion limitations and 27% for peripheral nervous system deficits. Dr. Hughes remarked that Claimant had long-standing Carpal Tunnel Syndrome (CTS) that was aggravated by her September 28, 2014 fall at work. He commented that Claimant experiences pain and weakness that interferes with the use of her right hand. Dr. Hughes recommended medical maintenance benefits in the form of an evaluation with David Bierbrauer, M.D. for possible CTS release surgery.

6. Dr. Hughes also assigned Claimant a 15% right lower extremity impairment rating based on crepitus and range of motion deficits. He specifically detailed:

There is also right lower extremity impairment stemming from traumatic chondromalacia patella. From a clinical perspective, I perceive that she has an increase in patellafemoral crepitation over that present in her left knee that equates to a 25% severity grade, and this would be multiplied by the 20% lower extremity value given to this diagnosis on Table 40 to yield a specific disorder impairment of 5% lower extremity. There is also range of motion impairment that is subject to adjustment for flexion deficits in the left knee and this would be an additional 10% impairment of the lower extremity. These would combine to yield 15% impairment of the lower extremity.

7. On December 6, 2016 Claimant underwent an independent medical examination with John D. Sanidas, M.D. Dr. Sanidas also testified at the hearing in this matter. After reviewing Claimant’s medical records and conducting a physical examination Dr. Sanidas agreed with Drs. Tracy and Hughes that Claimant had reached MMI on October 29, 2014. He assigned Claimant a 29% right upper extremity impairment rating. The rating was similar to the 31% ratings assigned by Drs. Tracy and Hughes.

8. In contrast to Dr. Hughes, Dr. Sanidas maintained that Claimant did not warrant an impairment rating for her right lower extremity. Dr. Sanidas explained that Dr. Hughes erred in two respects by assigning Claimant a 15% right lower extremity impairment rating. He specifically asserted that: (1) Dr. Hughes should not have assigned an impairment rating for range of motion loss because Claimant exhibited the same range of motion deficits in her right leg as in her uninjured left leg; and (2) Dr.

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Hughes erred in assigning right lower extremity impairment ratings for both range of motion loss and crepitus.

9. Dr. Sanidas performed range of motion testing on both of Claimant’s lower extremities so that he could use Claimant’s uninjured left leg as a guide for evaluating her right leg. When Dr. Sanidas performed the contralateral testing of Claimant’s bilateral lower extremities, he assigned a 7% impairment rating for impaired range of motion in each leg. Because the left leg provided a baseline for Claimant’s injured right leg and the legs demonstrated the same range of motion limitations, Dr. Sanidas did not assign an impairment rating for Claimant’s right lower extremity. Dr. Sanidas reasoned:

I found the uninjured left lower extremity, this knee was a certain percent of loss of range of motion. Then comparing it with the injured range of motion, it was the same. So we have an uninjured knee, range of motion, due to the aging process or whatever, no major injuries of 7 percent. So when I did the measurements of the injured knee, that equals 7 percent. So I subtracted the two of them and it’s zero. They zero out.

10. Relying on the AMA Guides, Dr. Sanidas also detailed that Dr. Hughes erroneously assigned Claimant impairment ratings for both crepitus and range of motion deficits in her right lower extremity. The section of the AMA Guides titled “Joint Crepitation with Motion” states:

The evaluator must use judgment and avoid duplication of impairment when other findings, such as synovial hypertrophy, carpal collapse with arthritic changes, or limited motion are present. The latter findings may indicate a greater severity of the same underlying pathological process and take precedence over joint crepitation, which should not be rated in these instances.

Dr. Sanidas explained that the simultaneous assignment of an impairment rating for right lower extremity range of motion loss and right lower extremity crepitation is not in compliance with the AMA Guides.

11. Dr. Sanidas also determined that Claimant did not warrant medical maintenance benefits for her industrial injuries. He specified that Claimant “is doing well on her home exercise program and I conclude consequently that she not need maintenance care, just to continue what she is doing with the walking and lifting of weights.”

12. On November 3, 2016 Respondents’ counsel authored a letter to Dr. Thurston regarding medical maintenance treatment for Claimant. Dr. Thurston responded that she did not require medical maintenance care.

13. Respondents acknowledged that Claimant earned an Average Weekly Wage (AWW) of $303.58. The determination was predicated on Claimant’s earnings for one year prior to her September 28, 2014 industrial injuries. In contrast, Claimant

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contends that her AWW should be increased to $325.63 based on her earnings for the 12 weeks prior to her injuries.

14. Claimant reasoned that her earnings for the year prior to her industrial injuries did not constitute a fair approximation of her wage loss and diminished earning capacity because she took several weeks off from work in April 2014 to visit her sister in Germany. Claimant initially explained that she was not paid for the leave she took in April 2014. However, Claimant’s wage records reflect that Employer paid her without interruption during April 2014. Moreover, during Respondents’ cross examination of Claimant at the hearing in this matter she acknowledged that she could have received vacation pay during the period. Because Claimant received vacation pay from Employer during her trip to Germany the one year period prior to Claimant’s September 28, 2014 industrial injuries is the appropriate time period for calculating her AWW. Utilizing a full year of Claimant’s earnings accounts for any temporary fluctuations in her pay. Accordingly, an AWW of $303.58 constitutes a fair approximation of Claimant’s wage loss and diminished earning capacity.

15. At the hearing in this matter Claimant underwent a disfigurement evaluation. As a result of her September 28, 2014 industrial injuries, Claimant sustained permanent disfigurement to her right upper extremity in the form of right arm atrophy. Claimant also exhibited a noticeable limp while walking across the courtroom. The disfigurement is serious, permanent and normally exposed to public view. Claimant is thus entitled to a disfigurement award in the amount of $1400.00.

16. Respondents have failed to produce clear and convincing evidence to overcome the DIME opinion of Dr. Hughes that Claimant suffered a 15% scheduled impairment for her right lower extremity as a result of her September 28, 2014 admitted industrial injuries. Dr. Hughes compared Claimant’s uninjured left knee to her right lower extremity in ascertaining impairment attributable to the September 28, 2014 industrial incident. In fact, he noted that Claimant exhibited a 3% range of motion deficit in her left knee and a 13% range of motion deficit in her injured right knee. Dr. Hughes thus specifically assigned Claimant a 10% right lower extremity impairment rating for range of motion deficits. He also assigned Claimant a 5% right lower extremity impairment rating for crepitus based on §3.1(j) of the AMA Guides. The section grants a physician discretion to assign an additional rating “only when other factors have not rated the extent of impairment.” Dr. Hughes thus exercised his discretion pursuant to §3.1(j) to assign the 5% extremity rating for right lower extremity crepitus. Combining the range of motion and crepitus ratings yields a total 15% right lower extremity impairment.

17. In contrast, Dr. Sanidas determined that Claimant did not warrant an impairment rating for right lower extremity range of motion deficits because both of her legs demonstrated the same range of motion limitations. Claimant’s right lower extremity limitations were thus not attributable to the September 28, 2014 industrial incident. Moreover, Dr. Sanidas explained that the simultaneous assignment of an impairment rating for right lower extremity range of motion loss and right lower extremity crepitation is not in compliance with the AMA Guides. However, the record reveals that

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Dr. Hughes considered Claimant’s uninjured left knee range of motion limitations in ascertaining an impairment rating for Claimant’s right lower extremity range of motion loss. Furthermore, §3.1(j) of the AMA Guides specifically grants a physician discretion to assign an additional rating when other factors have not rated the extent of impairment. Based on Dr. Hughes’ consideration of Claimant’s uninjured left knee and proper exercise of discretion in determining a right lower extremity impairment rating, the record reveals that Dr. Sanidas simply disagreed with Dr. Hughes’ impairment determinations. Accordingly, Respondents have failed to produce unmistakable evidence free from serious or substantial doubt that Dr. Hughes’ 15% right lower extremity impairment rating was incorrect.

18. Claimant has failed to establish that it is more probably true than not that she is entitled to receive reasonable, necessary and related medical maintenance benefits designed to relieve the effects of her September 28, 2014 industrial injuries or prevent further deterioration of her condition. Initially, Dr. Hughes remarked that Claimant had long-standing CTS that was aggravated by her September 28, 2014 fall at work. He commented that Claimant experiences pain and weakness that interferes with the use of her right hand. Dr. Hughes recommended medical maintenance benefits in the form of an evaluation with David Bierbrauer, M.D. for possible CTS release surgery. However, Claimant’s ATP’s Drs. Tracy and Thurston did not recommend medical maintenance benefits for Claimant. Dr. Tracy specifically conducted an evaluation and studies of Claimant’s right wrist condition and determined that no additional treatment was required. Furthermore, Dr. Sanidas noted that Claimant did not warrant medical maintenance benefits for her industrial injuries. Accordingly, based on the persuasive opinions of Claimant’s ATP’s Drs. Tracy and Thurston as well as the determination by Dr. Sanidas, Claimant’s request for medical maintenance benefits is denied and dismissed.

CONCLUSIONS OF LAW

1. The purpose of the “Workers’ Compensation Act of Colorado” (Act) is to assure the quick and efficient delivery of disability and medical benefits to injured workers at a reasonable cost to employers, without the necessity of any litigation. §8-40-102(1), C.R.S. A claimant in a Workers' Compensation claim has the burden of proving entitlement to benefits by a preponderance of the evidence. §8-42-101, C.R.S. A preponderance of the evidence is that which leads the trier-of-fact, after considering all of the evidence, to find that a fact is more probably true than not. Page v. Clark, 197 Colo. 306, 592 P.2d 792 (1979); People v. M.A., 104 P.3d 273, 275 (Colo. App. 2004). The facts in a Workers' Compensation case are not interpreted liberally in favor of either the rights of the injured worker or the rights of the employer. §8-43-201, C.R.S. A Workers' Compensation case is decided on its merits. §8-43-201, C.R.S.

2. The Judge’s factual findings concern only evidence that is dispositive of the issues involved; the Judge has not addressed every piece of evidence that might lead to a conflicting conclusion and has rejected evidence contrary to the above findings as unpersuasive. See Magnetic Engineering, Inc. v. ICAO, 5 P.3d 385, 389 (Colo. App. 2000).

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3. When determining credibility, the fact finder should consider, among other things, the consistency or inconsistency of the witness's testimony and actions; the reasonableness or unreasonableness (probability or improbability) of the testimony and actions; the motives of the witness; whether the testimony has been contradicted; and bias, prejudice, or interest. See Prudential Insurance Co. v. Cline, 98 Colo. 275, 57 P.2d 1205 (1936); CJI, Civil 3:16 (2007).

Overcoming the DIME

4. In ascertaining a DIME physician’s opinion, the ALJ should consider all of the DIME physician’s written and oral testimony. Lambert & Sons, Inc. v. Industrial Claim Appeals Office, 984 P.2d 656, 659 (Colo. App. 1998). A DIME physician’s determination regarding MMI and permanent impairment consists of his initial report and any subsequent opinions. In Re Dazzio, W.C. No. 4-660-149 (ICAP, June 30, 2008); see Andrade v. Industrial Claim Appeals Office, 121 P.3d 328 (Colo. App. 2005).

5. A DIME physician is required to rate a claimant’s impairment in accordance with the AMA Guides. §8-42-107(8)(c), C.R.S.; Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117, 1118 (Colo. App. 2003). However, deviations from the AMA Guides do not mandate that the DIME physician’s impairment rating was incorrect. In Re Gurrola, W.C. No. 4-631-447 (ICAP, Nov. 13, 2006). Instead, the ALJ may consider a technical deviation from the AMA Guides in determining the weight to be accorded the DIME physician’s findings. Id. Whether the DIME physician properly applied the AMA Guides to determine an impairment rating is generally a question of fact for the ALJ. In Re Goffinett, W.C. No. 4-677-750 (ICAP, Apr. 16, 2008).

. 6. A DIME physician's findings of MMI, causation, and impairment are binding on the parties unless overcome by “clear and convincing evidence.” §8-42-107(8)(b)(III), C.R.S.; Peregoy v. Industrial Claim Appeals Office, 87 P.3d 261, 263 (Colo. App. 2004). “Clear and convincing evidence” is evidence that demonstrates that it is “highly probable” the DIME physician's rating is incorrect. Qual-Med, Inc. v. Industrial Claim Appeals Office, 961 P.2d 590, 592 (Colo. App. 1998). In other words, to overcome a DIME physician's opinion, “there must be evidence establishing that the DIME physician's determination is incorrect and this evidence must be unmistakable and free from serious or substantial doubt.” Adams v. Sealy, Inc., W.C. No. 4-476-254 (ICAP, Oct. 4, 2001). The mere difference of medical opinion does not constitute clear and convincing evidence to overcome the opinion of the DIME physician. Javalera v. Monte Vista Head Start, Inc., W.C. Nos. 4-532-166 & 4-523-097 (ICAP, July 19, 2004); see Shultz v. Anheuser Busch, Inc., W.C. No. 4-380-560 (ICAP, Nov. 17, 2000).

7. As found, Respondents have failed to produce clear and convincing evidence to overcome the DIME opinion of Dr. Hughes that Claimant suffered a 15% scheduled impairment for her right lower extremity as a result of her September 28, 2014 admitted industrial injuries. Dr. Hughes compared Claimant’s uninjured left knee to her right lower extremity in ascertaining impairment attributable to the September 28, 2014 industrial incident. In fact, he noted that Claimant exhibited a 3% range of motion deficit in her left knee and a 13% range of motion deficit in her injured right knee. Dr.

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Hughes thus specifically assigned Claimant a 10% right lower extremity impairment rating for range of motion deficits. He also assigned Claimant a 5% right lower extremity impairment rating for crepitus based on §3.1(j) of the AMA Guides. The section grants a physician discretion to assign an additional rating “only when other factors have not rated the extent of impairment.” Dr. Hughes thus exercised his discretion pursuant to §3.1(j) to assign the 5% extremity rating for right lower extremity crepitus. Combining the range of motion and crepitus ratings yields a total 15% right lower extremity impairment.

8. As found, in contrast, Dr. Sanidas determined that Claimant did not warrant an impairment rating for right lower extremity range of motion deficits because both of her legs demonstrated the same range of motion limitations. Claimant’s right lower extremity limitations were thus not attributable to the September 28, 2014 industrial incident. Moreover, Dr. Sanidas explained that the simultaneous assignment of an impairment rating for right lower extremity range of motion loss and right lower extremity crepitation is not in compliance with the AMA Guides. However, the record reveals that Dr. Hughes considered Claimant’s uninjured left knee range of motion limitations in ascertaining an impairment rating for Claimant’s right lower extremity range of motion loss. Furthermore, §3.1(j) of the AMA Guides specifically grants a physician discretion to assign an additional rating when other factors have not rated the extent of impairment. Based on Dr. Hughes’ consideration of Claimant’s uninjured left knee and proper exercise of discretion in determining a right lower extremity impairment rating, the record reveals that Dr. Sanidas simply disagreed with Dr. Hughes’ impairment determinations. Accordingly, Respondents have failed to produce unmistakable evidence free from serious or substantial doubt that Dr. Hughes’ 15% right lower extremity impairment rating was incorrect.

Medical Maintenance Benefits

9. To prove entitlement to medical maintenance benefits, a claimant must present substantial evidence to support a determination that future medical treatment will be reasonably necessary to relieve the effects of the industrial injury or prevent further deterioration of his condition. Grover v. Industrial Comm’n., 759 P.2d 705, 710-13 (Colo. 1988); Stollmeyer v. Industrial Claim Appeals Office, 916 P.2d 609, 611 (Colo. App. 1995). Once a claimant establishes the probable need for future medical treatment he “is entitled to a general award of future medical benefits, subject to the employer's right to contest compensability, reasonableness, or necessity.” Hanna v. Print Expediters, Inc., 77 P.3d 863, 866 (Colo. App. 2003); see Karathanasis v. Chilis Grill & Bar, W.C. No. 4-461-989 (ICAP, Aug. 8, 2003). Whether a claimant has presented substantial evidence justifying an award of Grover medical benefits is one of fact for determination by the Judge. Holly Nursing Care Center v. Industrial Claim Appeals Office, 919 P.2d 701, 704 (Colo. App. 1999).

10. As found, Claimant has failed to establish by a preponderance of the evidence that she is entitled to receive reasonable, necessary and related medical maintenance benefits designed to relieve the effects of her September 28, 2014 industrial injuries or prevent further deterioration of her condition. Initially, Dr. Hughes

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remarked that Claimant had long-standing CTS that was aggravated by her September 28, 2014 fall at work. He commented that Claimant experiences pain and weakness that interferes with the use of her right hand. Dr. Hughes recommended medical maintenance benefits in the form of an evaluation with David Bierbrauer, M.D. for possible CTS release surgery. However, Claimant’s ATP’s Drs. Tracy and Thurston did not recommend medical maintenance benefits for Claimant. Dr. Tracy specifically conducted an evaluation and studies of Claimant’s right wrist condition and determined that no additional treatment was required. Furthermore, Dr. Sanidas noted that Claimant did not warrant medical maintenance benefits for her industrial injuries. Accordingly, based on the persuasive opinions of Claimant’s ATP’s Drs. Tracy and Thurston as well as the determination by Dr. Sanidas, Claimant’s request for medical maintenance benefits is denied and dismissed.

Average Weekly Wage

11. Section 8-42-102(2), C.R.S. requires the Judge to determine a claimant's AWW based on his earnings at the time of injury. The Judge must calculate the money rate at which services are paid to the claimant under the contract of hire in force at the time of injury. Pizza Hut v. ICAO, 18 P.3d 867, 869 (Colo. App. 2001). However, §8-42-102(3), C.R.S. authorizes a Judge to exercise discretionary authority to calculate an AWW in another manner if the prescribed methods will not fairly calculate the AWW based on the particular circumstances. Campbell v. IBM Corp., 867 P.2d 77, 82 (Colo. App. 1993). The overall objective in calculating an AWW is to arrive at a fair approximation of a claimant's wage loss and diminished earning capacity. Ebersbach v. United Food & Commercial Workers Local No. 7, W.C. No. 4-240-475 (ICAO May 7, 1997). Therefore, §8-42-102(3), C.R.S. grants an ALJ substantial discretion to modify the AWW if the statutorily prescribed method will not fairly compute a claimant’s wages based on the particular circumstances of the case. In Re Broomfield, W.C. No. 4-651-471 (ICAP, Mar. 5, 2007).

12. As found, Claimant reasoned that her earnings for the year prior to her industrial injuries did not constitute a fair approximation of her wage loss and diminished earning capacity because she took several weeks off from work in April 2014 to visit her sister in Germany. Claimant initially explained that she was not paid for the leave she took in April 2014. Claimant’s wage records reflect that Employer paid her without interruption during April 2014. Moreover, during Respondents’ cross examination of Claimant at the hearing in this matter she acknowledged that she could have received vacation pay during the period. Because Claimant received vacation pay from Employer during her trip to Germany the one year period prior to Claimant’s September 28, 2014 industrial injuries is the appropriate time period for calculating her AWW. Utilizing a full year of Claimant’s earnings accounts for any temporary fluctuations in her pay. Accordingly, an AWW of $303.58 constitutes a fair approximation of Claimant’s wage loss and diminished earning capacity.

Disfigurement

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13. Section 8-42-108, C.R.S. provides that a claimant may obtain additional compensation if she is seriously disfigured as the result of an industrial injury. As found, as a result of Claimant’s September 28, 2014 industrial injuries, she sustained permanent disfigurement to her right upper extremity in the form of right arm atrophy. Claimant also exhibited a noticeable limp while walking across the courtroom. The disfigurement is serious, permanent and normally exposed to public view. Claimant is thus entitled to a disfigurement award in the amount of $1400.00.

ORDER

Based upon the preceding findings of fact and conclusions of law, the Judge enters the following order:

1. Claimant suffered a 15% scheduled impairment for her right lower extremity as a result of her September 28, 2014 admitted industrial injuries.

2. Claimant’s request for medical maintenance benefits is denied and

dismissed. 3. Claimant earned an AWW of $303.58. 4. Claimant shall receive disfigurement benefits in the amount of $1,400.00.

5. Any issues not resolved in this order are reserved for future determination.

If you are a party dissatisfied with the Judge’s order, you may file a Petition to Review the order with the Denver Office of Administrative Courts, 1525 Sherman Street, 4th Floor, Denver, CO 80203. You must file your Petition to Review within twenty (20) days after mailing or service of the order, as indicated on certificate of mailing or service; otherwise, the Judge’s order will be final. You may file the Petition to Review by mail, as long as the certificate of mailing attached to your petition shows: (1) That you mailed it within twenty (20) days after mailing or service of the order of the Judge; and (2) That you mailed it to the above address for the Denver Office of Administrative Courts. For statutory reference, see section 8-43-301(2), C.R.S. (as amended, SB09-070). For further information regarding procedures to follow when filing a Petition to Review, see Rule 26, OACRP. You may access a form for a petition to review at http://www.colorado.gov/dpa/oac/forms-WC.htm.

DATED: February 16, 2017.

___________________________________ Peter J. Cannici

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Administrative Law Judge Office of Administrative Courts 633 17th Street Suite 1300 Denver, CO 80202

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OFFICE OF ADMINISTRATIVE COURTS STATE OF COLORADO WORKERS’ COMPENSATION NO. WC 4-953-478-02

ISSUES

1. Determination of Claimant’s average weekly wage (AWW). 2. Whether Claimant has established by a preponderance of the evidence an entitlement to temporary partial disability (TPD) benefits from September 13, 2015 through April 2, 2016. 3. Determination of Claimant’s permanent partial disability (PPD) impairment rating.

FINDINGS OF FACT

1. Claimant sustained an admitted injury to his right lower extremity on June 17, 2014. 2. On June 17, 2014 Claimant was cleaning, unloading, and moving boxes in an unloading area of a conference center when a marble stone fell onto his right leg in between his ankle and his knee. Soon afterwards, a second stone fell onto the first stone causing it to crack and fall onto Claimant’s right foot. 3. Claimant felt a bone sticking out underneath his skin. Claimant’s manager helped Claimant lift the stone off of his right leg and Claimant was transported from the conference center to Denver Health Medical Center (DHMC) by ambulance. 4. At DHMC Claimant was evaluated in the emergency department where it was noted that a heavy marble had fallen onto Claimant’s right lower leg. Deformity of the right lower leg was viewed and Claimant was given Fentanyl and Morphine. See Exhibit 14. 5. Claimant underwent several x-rays and CT scans of his right lower extremity on June 17, 2014. The scans showed that showed proximal tibial and fibular shaft fractures in the right leg and a distal second metatarsal shaft fracture in the right foot. It was noted that the second metatarsal fracture in the right foot found on the CT scans would need foot x-rays in order to evaluate the full fracture. See Exhibit 14. 6. On June 18, 2014 Claimant underwent surgery for his tibia and fibula fractures. The procedure performed was surgical fixation of the right tibia fracture with intramedullary nail. See Exhibit 14.

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7. On July 7, 2014 Claimant was evaluated at DHMC. X-rays showed that the surgical fixation of the tibia and fibula were intact and well aligned. Notes indicated that Claimant could begin to bear weight as tolerated and noted it would be a slow progression. See Exhibit 14. 8. On July 18, 2014 Claimant was evaluated by Martin Kalevik, D.O. Claimant reported increased calf swelling and pain into the foot with swelling into the foot. Dr. Kalevik noted he had received information from DHMC and went over it with Claimant including the report of a second metatarsal fracture in the right foot with minimal displacement. See Exhibit 11. 9. On July 31, 2014 Claimant was evaluated by Dr. Kalevik. Claimant had continued pain into the right leg and foot. Dr. Kalevik noted that Claimant was supposed to start therapy on Monday for his leg, but was concerned that Claimant’s foot fracture had not been addressed. Dr. Kalevik reviewed an x-ray of the right foot that showed a mid shaft fracture with mild displacement on the second metatarsal. Dr. Kalevik did not want Claimant to put a lot of pressure on the right foot and noted that the right foot fracture was not addressed by DHMC. See Exhibit 11. 10. On August 14, 2014 Claimant was evaluated by Dr. Kalevik. Claimant reported some continued pain in the right leg and right foot but also reported that in the last two days he noticed pain and swelling developing in his left foot. Dr. Kalevik performed an x-ray of the left foot that showed healing fractures of the mid second metatarsal with callous formation as well as a possible fracture at the base of the fourth metatarsal and a definite fracture of the fifth metatarsal base. Dr. Kalevik noted that Claimant had tibia-fibula fracture and surgery on the right, right second metatarsal fracture, and left second midshaft fracture and base fourth and fifth metatarsal fractures. Dr. Kalevik noted that an orthopedist needed to review the foot fractures, and Dr. Kalevik put Claimant into a boot on the left foot. See Exhibit 11. 11. On August 18, 2014 Claimant underwent x-rays of his right leg and foot that were interpreted by Patrick McCormick, M.D. The impression provided on the right leg was unchanged alignment of fixated right tibial diasphyseal fracture with signs of early healing and healing of right proximal fibular fracture. The impression provided on the right foot was healing of the right second metatarsal fracture. The findings included that the right leg had decreased bone density, and that the right foot showed a callus formation surrounding a mildly displaced mid second metatarsal spiral fracture. Dr. McCormick also found that bone density was decreased and that Claimant had an old and healed fifth metatarsal fracture. See Exhibit 14. 12. On August 18, 2014 Claimant was also evaluated by David Hak, M.D. Dr. Hak noted that Claimant was status post non operative management of a metatarsal fracture and status post IM nailing of a complex tibial shaft fracture. Dr. Hak noted that Claimant was doing well but had pain with weight bearing and activities. See Exhibit 14.

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13. On September 11, 2014 Claimant was evaluated by Kevin Nagamani, M.D. Claimant reported quite a bit of pain in the bilateral feet, left worse than right. Dr. Nagamani noted that the imaging showed left second, fourth, and fifth metatarsal fractures with healing taking place, and on the right side a second metatarsal shaft fracture also with some healing present. Dr. Nagamani recommended Claimant remain in boots to protect the bilateral feet and to allow healing to continue. See Exhibit 20. 14. In December of 2014 it was noted that Claimant’s fibular shaft fractures were healed, but that his right tibial shaft fracture was healing and a second non displaced less conspicuous fracture was visible in the anterior cortex of the proximal right tibia. It was noted that Claimant had been slow to heal. See Exhibit 14. 15. On December 15, 2014 Claimant underwent CT scans of his bilateral feet that were interpreted by Steven Ross, M.D. The findings on the right foot included osteopenic bones with no evidence of acute fracture and minimal soft tissue swelling on the dorsal aspect of the forefoot. The findings on the left foot included osteopenic bones, healed distal second and proximal fifth metatarsal fractures and some soft tissue swelling about the forefoot. See Exhibit 14. 16. On December 23, 2014 Claimant was evaluated by Dr. Nagamani. Dr. Nagamani opined that the bilateral multiple metatarsal fractures showed complete healing on CT scan. Dr. Nagamani opined that Claimant had complete bony healing of his fractures and could progress with therapy as tolerated but that no further orthopedic intervention was necessary for Claimant’s bilateral feet. See Exhibit 20. 17. On January 7, 2015 Claimant was evaluated by Dr. Kalevik. Claimant reported that his feet felt fine but that he continued to have pain in the midshaft of the right leg. Dr. Kalevik opined that the right metacarpal fracture and three left metatarsal fractures of Claimant’s feet appeared to be healed and noted that Claimant had been released for the foot fractures. See Exhibit 11. 18. On January 26, 2015 Claimant was evaluated by Michael Fleirl, M.D. Dr. Flierl noted that Claimant had a delayed union of the tibial fracture. Dr. Flierl recommended a bone stimulator to stimulate bony healing progress of the tibia fracture and felt Claimant had a delayed union rather than a nonunion. The hope was that the bone stimulator would complete the bony healing process. See Exhibit 14. 19. On March 30, 2015 Claimant was evaluated by Dr. Flierl. Dr. Flierl opined that x-rays showed marked interval healing of the tibia and fibula fractures. Dr. Flierl informed Claimant that the bony union was complete and that the tenderness Claimant reported overlying the distal interlocking screw hematocrit could be resolved by hardware removal, but opined that the hardware should stay in for at least an additional three months. See Exhibit 14.

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20. On July 14, 2015 Claimant underwent hardware removal surgery with Dr. Hak to remove the distal interlock screw, midshaft diasphyseal blocking screw, and proximal locking screw from the right tibia. See Exhibit 14. 21. On August 21, 2015 Claimant was evaluated by Dr. Kalevik. Dr. Kalevik noted that Claimant was working and was off pain killers. Dr. Kalevik provided work restrictions of standing 2-4 hours per day, alternating and provided restrictions of no kneeling, no crawling, no squatting, and no climbing. See Exhibit 11. 22. On September 18, 2015 Claimant was evaluated by Dr. Kalevik. Claimant reported that he was doing better. Claimant’s work restrictions were kept at standing 2-4 hours per day and no kneeling, no crawling, no squatting, and no climbing. See Exhibit 11. 23. On October 8, 2015 Claimant underwent physical therapy performed by Greg McCall, PT. PT McCall noted considerable limitations in multiple ranges of motion but especially with strait leg raise and prone knee flexion. On October 19, 2015 PT Mitchell noted that Claimant continued to complain of knee pain and bilateral foot pain and that Claimant believed the rod was interfering with knee flexion. PT McCall recommended continued physical therapy. See Exhibit 15. 24. On October 26, 2015 Claimant was evaluated by Steven Stacey, M.D. Dr. Stacey noted that Claimant was 1.5 years out from fixation of a right proximal third tibia fracture and opined that Claimant was radiographically healed. Dr. Stacey opined that he was unsure why Claimant had continuing pain in the middle portion of the tibia. Dr. Stacey opined that Claimant’s decreased sensation was in a non anatomic distribution. Dr. Stacey opined that he had nothing further to offer Claimant from an orthopedic standpoint and that Claimant’s fractures were certainly healed and no further hardware removal or surgery would be of any benefit. See Exhibit 14. 25. On October 30, 2015 Claimant was evaluated by Dr. Kalevik. Claimant reported doing better and that he felt he could do more on his job. Dr. Kalevik increased the work restrictions to allow Claimant to be on his feet for 4-6 hours per shift. See Exhibit 11. 26. On November 19, 2016 Claimant was evaluated by Dr. Kalevik. Dr. Kalevik noted that the pain and swelling increased when Claimant went to more hours on his feet at work and put Claimant’s work restrictions back at 2-4 hours on his feet per shift. See Exhibit 11. 27. On December 3, 2015 Claimant was evaluated by Dr. Kalevik where his work restrictions were changed to allow 3-4 hours on his feet per shift. On December 17, 2015 Dr. Kalevik provided Claimant work restrictions of 4-5 hours per shift on the feet. See Exhibit 11.

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28. On January 19, 2016 Claimant was evaluated by Dr. Kalevik. Claimant reported that he was only working 5 hour shifts because that was all the work that Employer had available for him. The restrictions of no crawling, no kneeling, no squatting, and no climbing continued but Dr. Kalevik removed the restriction on amount of time allowed on feet. See Exhibit 11. 29. On February 11, 2016 Claimant was evaluated by Dr. Kalevik. It was noted that Claimant had pretty much normal activity but the work restrictions of no crawling, no kneeling, no squatting, and no climbing continued. See Exhibit 11. 30. On March 11, 2016 Claimant was evaluated by Dr. Kalevik. Claimant reported that he was doing much better and had minimal pain complaints. Dr. Kalevik noted that Claimant had fractures to the right lower leg when marble came down and hit Claimant’s right leg. Dr. Kalevik noted that Claimant also had fractures involving both feet with the metatarsals. Dr. Kalevik noted Claimant had evidence of fracture on the 2nd and 5th metatarsal on the right which had healed and on the 4th and 5th metatarsal on the left which had healed. Dr. Kalevik noted that Claimant had been released by all the orthopedists and specialists. Dr. Kalevik opined that Claimant was at maximum medical improvement. Dr. Kalevik released Claimant to full duty work with no restrictions. Dr. Kalevik performed an impairment rating and provided a lower extremity impairment of 8%. Dr. Kalevik opined that the toe measurements bilaterally were within normal limits and that Claimant had no current pain in the foot or toes. Dr. Kalevik provided a hind foot impairment rating of 6% and a knee impairment rating of 2%. See Exhibit E. 31. On June 29, 2016 Claimant underwent a Division Independent Medical Examination (DIME) performed by John Hughes, M.D. Claimant reported working in a conference center setting up for an event when he attempted to move a big box, the box fell over, and pieces of marble hit his right leg. Claimant reported being pinned to the ground and then being taken to Denver Health Medical Center where he was admitted and had surgery the next day. Dr. Hughes reviewed medical records and performed a physical examination. Dr. Hughes assessed: work related crush mechanism injury sustained over the right lower leg on June 17, 2014; closed right proximal one-third tibia/fibular fracture post intramedullary nailing surgery on June 18, 2014 and hardware removal surgery July 14, 2015; osteopenia with occult bilateral metatarsal fractures, with no residual evidence of subacuity by bone scan criteria; post-traumatic contractures with range of motion limitations involving Claimant’s right knee, ankle/hindfoot, and feet/toes; diabetes mellitus; and diabetic peripheral neuropathy. Dr. Hughes opined that on physical examination, the left toe ranges of motion were fairly good but that there were restrictions in right toe ranges of motion. See Exhibits 9, F. 32. Dr. Hughes agreed with the MMI date of March 11, 2016 and opined that Claimant’s injuries had reached a point of medical stability. Dr. Hughes opined that there was no documentation to support that Claimant sustained left lower extremity trauma on June 17, 2014. Dr. Hughes opined that Claimant sustained a 27% impairment of the lower extremity. On the lower extremity impairment worksheet for the foot, Dr. Hughes noted the great toe at 8%, the second toe at 1%, the third toe at 1%,

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the fourth toe at 1%, and the fifth toe at 2% for a total foot impairment of 13% which he converted to a lower extremity impairment percent of 9%. He also rated the hindfoot impairment at 13% and the knee impairment at 7%. See Exhibits 9, F. 33. Dr. Hughes testified by deposition in this matter. Dr. Hughes noted that at DHMC there was no mention on June 17, 2014 of any left foot injury or left foot findings. Dr. Hughes opined that the findings in Claimant’s left foot were not related to the work injury. Dr. Hughes opined that there was evidence of trauma with residuals affecting the function of Claimant’s right ankle/hind foot, knee joints, and several toes that he rated. At deposition, Dr. Hughes indicated that on further review he would not attribute the range of motion losses of the toes that he observed and measured to the work related injuries and noted an initial lack of bilateral foot pain or foot fractures at DHMC. Dr. Hughes indicated that the 9% lower extremity rating for the foot would not be related but that the second page of his rating including the 13% hindfoot, and 7% knee he continued to believe were work related and combined to be a 19% lower extremity impairment. 34. On cross-examination, Dr. Hughes changes his opinion. Dr. Hughes noted that there was a CT scan at DHMC on June 17, 2014 that showed a second metatarsal fracture and documented a fracture sustained at the time of the work related right lower leg injury and foot crush. Dr. Hughes noted although there was no mention of foot pain or foot fractures in the emergency treatment records, the CT and x-rays showed a minimally displaced second metatarsal shaft fracture on the right. Dr. Hughes opined that was most likely a traumatic fracture and blow to the middle of the bone. Dr. Hughes then reverted back to his original opinions on permanent impairment including the reduced active ranges of motion of the toes in the right foot at 27% lower extremity. Dr. Hughes noted that only the second metatarsal was broken and that no other toes were fractured at the time of the work injury. Dr. Hughes opined that when he performed his examination, he compared the right foot to the other foot and found global active range of motion loss and that the trauma was limited to the second metatarsal of the right foot, but he found losses of active range of motion involving all five toes of the foot. Dr. Hughes noted that the impairment for the second toe included 1 percent impairment of the foot as outlined in his worksheet. 35. Claimant testified at hearing that the marble fell onto his right leg between his ankle and his knee, that a second piece of marble also fell on top of the first piece, causing breakage that then landed on his foot. Claimant testified that he cannot move his right foot as well today as before he got hurt. Claimant testified that he cannot move his toes as well either and that he can move the toes on his left foot a little, but that he can’t move the toes on his right foot. Claimant presented no testimony surrounding any loss of wages from September 13, 2015 through April 2, 2016. Claimant overall is found credible and persuasive. 36. Wage records show that, on average, Claimant worked 40 hours per week for Employer. During certain periods of time, Employer would be busier than other periods of time. Claimant occasionally worked overtime hours and over 40 hours per

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week. Claimant also occasionally worked fewer than 40 hours per week. At the time of his injury, Claimant was earning $11.89 per hour. Approximately one year prior to his injury, Claimant was earning $11.27 per hour. In the year prior to his injury, Claimant earned gross wages of $23,449.84. This divided by 52 weeks is $450.96 per week.

CONCLUSIONS OF LAW

Generally

The purpose of the Workers’ Compensation Act of Colorado, §§ 8-40-101, et seq., C.R.S. is to assure the quick and efficient delivery of disability and medical benefits to injured workers at a reasonable cost to employers, without the necessity of litigation. See § 8-40-102(1), C.R.S. The claimant shoulders the burden of proving entitlement to benefits by a preponderance of the evidence. See § 8-43-201, C.R.S. A preponderance of the evidence is that which leads the trier-of-fact, after considering all of the evidence, to find that a fact is more probably true than not. Page v. Clark, 197 Colo. 306, 592 P.2d 792 (1979).

Assessing weight, credibility, and sufficiency of evidence in Workers'

Compensation proceeding is exclusive domain of administrative law judge. University Park Care Center v. Industrial Claim Appeals Office, 43 P.3d 637 (Colo. App. 2001). Even if other evidence in the record may have supported a contrary inference, it is for the ALJ to resolve conflicts in the evidence, make credibility determinations, and draw plausible inferences from the evidence. When determining credibility, the fact finder should consider, among other things, the consistency or inconsistency of the witness's testimony and actions; the reasonableness or unreasonableness (probability or improbability) of the testimony and actions; the motives of the witness; whether the testimony has been contradicted; and bias, prejudice, or interest. Prudential Insurance Co. v. Cline, 98 Colo. 275, 57 P.2d 1205 (1936); Bodensieck v. Industrial Claim Appeals Office, 183 P.3d 684 (Colo. App. 2008). The weight and credibility to be assigned expert testimony is a matter within the discretion of the ALJ. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo. App. 2002). To the extent expert testimony is subject to conflicting interpretations, the ALJ may resolve the conflict by crediting part or none of the testimony. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968).

The ALJ's factual findings concern only evidence and inferences found to be

dispositive of the issues involved; the ALJ has not addressed every piece of evidence or every inference that might lead to conflicting conclusions and has rejected evidence contrary to the above findings as unpersuasive. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo. App. 2000).

Average Weekly Wage

Section 8-42-102(2), C.R.S., requires the ALJ to base the claimant's average weekly wage (AWW) on his earnings at the time of injury. However, under certain

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circumstances the ALJ may determine the claimant's AWW from earnings received on a date other than the date of injury. Avalanche Industries, Inc. v. Clark, 198 P.3d 589 (Colo. 2008); Campbell v. IBM Corp., 867 P.2d 77 (Colo. App. 1993). Specifically, § 8-42-102(3), C.R.S., grants the ALJ discretionary authority to alter the statutory formula if for any reason it will not fairly determine the claimant's AWW. Coates, Reid & Waldron v. Vigil, 856 P.2d 850 (Colo. 1993). The overall objective in calculating the AWW is to arrive at a fair approximation of the claimant's wage loss and diminished earning capacity. Campbell v. IBM Corp., supra.

The ALJ concludes Claimant’s average weekly wage is $475.60. This amount is Claimant’s hourly rate at the time of his injury of $11.89 multiplied by 40 hours per week. As found above, Claimant worked on average 40 hours per week with periods of time where he worked more and periods where he worked less. The ALJ concludes that a fair approximation of his wage loss and diminished earning capacity is to take 40 hours and multiply it by Claimant’s hourly wage at the time of his injury. Respondents argue that the appropriate wage includes the gross wages for the year prior to the injury divided by 52 weeks and argue that the appropriate AWW is $450.96. However, the ALJ does not find this persuasive as Claimant was earning slightly more hourly when he was injured as compared to earlier in the year prior to getting a raise in his hourly rate. The ALJ also rejects Claimant’s arguments that fairness requires the ALJ order AWW at the same rate that Respondents have previously admitted to in multiple general admissions and in the final admission. AWW has been properly raised as an issue for hearing and after review of the wage records and evidence, the ALJ concludes that Claimant’s AWW is $475.60.

Temporary Partial Disability (TPD)

Section 8-42-106, C.R.S. provides that in cases of temporary partial disability, the employee shall receive sixty-six and two-thirds percent of the difference between the employee’s average weekly wage at the time of the injury and the employee’s average weekly wage during the continuance of the temporary partial disability. It also provides that TPD payments shall continue until the employee reaches maximum medical improvement. See §8-42-106(2)(a), C.R.S.

Claimant has failed to establish an entitlement to TPD benefits for the period of

September 13, 2015 through April 2, 2016. As found above, Claimant failed to testify or present evidence indicating that his injury caused him disability that led to wage loss during this time period. Medical appointments during this time period and from August 21, 2015 through February 11, 2015 note that Claimant was working and note Claimant’s different work restrictions involving no crawling, kneeling, squatting, or climbing as well as different restrictions on how long Claimant was able to be on his feet. On March 11, 2016 Claimant was placed at maximum medical improvement and released to full duty work. Claimant has failed to show any wage loss between September 13, 2015 and March 11, 2016 when he was placed at MMI that was due to temporary partial disability. Rather, the evidence and records indicate that Claimant was working and do not establish any wage loss. Further, TPD benefits end pursuant to statute once an employee reaches MMI. As found above, Claimant reached MMI on

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March 11, 2016 and thus has also not established any entitlement to TPD benefits through April 2, 2016. Claimant’s request for TPD benefits from September 13, 2015 through April 2, 2016 is denied and dismissed as no credible evidence has been presented to indicate any entitlement to benefits during this time period.

Permanent Partial Disability (PPD) impairment rating

The increased burden of proof required by the DIME procedures is not applicable

to scheduled injuries. Section 8-42-107(8)(a), C.R.S. states that “when an injury results in permanent medical impairment not set forth in the schedule in subsection (2) of this section, the employee shall be limited to medical impairment benefits calculated as provided in this subsection (8)." Therefore, the procedures set forth in §8-42-107(8)(c), C.R.S., which provide that the DIME findings must be overcome by clear and convincing evidence, are applicable on to non-scheduled injuries. The court of appeals has stated in this respect that: Scheduled and non-scheduled impairments are treated differently under the Act for purposes of determining permanent disability benefits. In particular, the procedures of § 8-42-107(8)(c), which states that a DIME finding as to permanent impairment can be overcome only by clear and convincing evidence and that such finding is a prerequisite to a hearing on permanent impairment, have been recognized as applying only to non-scheduled impairments. Egan v. Industrial Claim Appeals Office, 971 P.2d 664 (Colo. App. 1998); Delaney v. Industrial Claim Appeals Office, 30 P.3d 691, 693 (Colo. App. 2000).

Claimant has the burden of showing the extent of his scheduled impairment by a

preponderance of the evidence. Maestas v. American Furniture Warehouse and G.E. Young and Company, W.C. No. 4-662-369 (2007); Burciaga v. AMB Janitorial Services, Inc. and Indeminity Care ESIS Inc., W.C. No. 4-777-882 (2010). Respondents are not required to overcome the scheduled impairment rating assigned by the DIME and the usual preponderance of the evidence burden of proof applies for Claimant to prove entitlement to benefits. Id.

Here, it is not disputed that the injury is a scheduled injury. Claimant has not

sustained functional impairment to a part of the body off the schedule. After weighing the evidence and assessing the probative value to determine the appropriate scheduled impairment rating, the ALJ concludes that Claimant has met his burden to establish that he has sustained a 20% lower extremity impairment rating. As found above, both Dr. Hughes and Dr. Kalevik opined that Claimant sustained permanent partial impairment ratings for the right hind foot and right knee. Dr. Kalevik opined that the hindfoot rating was 6% and that the knee rating was 2%. Dr. Hughes opined that the hindfoot rating was 13% and that the knee rating was 7%. The ALJ credits the opinion of Dr. Hughes over that of Dr. Kalevik in rating both the hindfoot and the knee. The ALJ finds Dr. Hughes’ rating to be overall more consistent with the medical records and with Claimant’s limitations from the injury. The ALJ also credits the conclusion of Dr. Hughes that Claimant has limitations in range of motion of his right second metatarsal that relate to the work injury. Although Dr. Kalevik found that the bilateral toes were within normal measurement limits, the ALJ finds the opinion of Dr. Hughes noting

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limitations in the range of motion of the right toes/foot as compared to the left to be persuasive and consistent with Claimant’s credible testimony.

However, the ALJ finds that Claimant has only established that rating the second

metatarsal range of motion deficit on the right foot is appropriate as only the second toe was broken in the work related incident. Claimant has failed to establish an injury to any toes other than the right second metatarsal which was shown by scans at DHMC to be fractured on the date of injury. Taking the second metatarsal rating of 1% and excluding Dr. Hughes’ ratings of the great toe, third toe, fourth toe, and little toe, leaves a lower extremity impairment (part I) for the foot at 1%. This combines with Dr. Hughes persuasive 13% hind foot rating and 7% knee rating. On the combined values chart, this amounts to a scheduled lower extremity impairment rating of 20%. Claimant has established by a preponderance of the evidence that this is the appropriate rating and Dr. Hughes’ opinion is found persuasive.

ORDER

1. Claimant’s average weekly wage is $475.60. 2. Claimant has failed to establish by a preponderance of the evidence an entitlement to temporary partial disability benefits from September 13, 2015 through April 2, 2016. His claim for TPD benefits for this period of time is denied and dismissed. 3. Claimant has established by a preponderance of the evidence an entitlement to a 20% lower extremity impairment rating. Respondents shall admit for and pay for this rating.

4. Respondent shall pay interest to Claimant at the rate of 8% per annum on all amounts of compensation not paid when due.

5. All matters not determined are reserved for future determination.

If you are dissatisfied with the Judge's order, you may file a Petition to Review the order with the Denver Office of Administrative Courts, 1525 Sherman St., 4th Floor, Denver, CO 80203. You must file your Petition to Review within twenty (20) days after mailing or service of the order, as indicated on certificate of mailing or service; otherwise, the Judge's order will be final. You may file the Petition to Review by mail, as long as the certificate of mailing attached to your petition shows: (1) That you mailed it within twenty (20) days after mailing or service of the order of the Judge; and (2) That you mailed it to the above address for the Denver Office of Administrative Courts. For statutory reference, see section 8-43-301(2), C.R.S. For further information regarding procedures

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to follow when filing a Petition to Review, see Rule 26, OACRP. You may access a petition to review form at: http://www.colorado.gov/dpa/oac/forms-WC.htm.

DATED: February 16, 2017 /s/ Michelle E. Jones

___________________________________ Michelle E. Jones Administrative Law Judge Office of Administrative Courts 1525 Sherman Street, 4th floor Denver, CO 80203

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OFFICE OF ADMINISTRATIVE COURTS STATE OF COLORADO WORKERS’ COMPENSATION NO. 5-020-679-01

ISSUES

Whether Claimant suffered a compensable injury that arose out of the course and scope of his employment while working for Respondent on March 30, 2016.

Whether Claimant suffered wage loss as a result of a compensable injury and is owed Temporary Total Disability benefits as result of the injuries sustained on March 30, 2016.

What was Claimant’s average weekly wage while working for Respondent?

Whether Respondent carried workers’ compensation insurance on March 30, 2016.

Whether medical treatment received by Claimant on and after March 30, 2016 was reasonable, necessary, related and authorized.

Whether penalties for failing to carry workers’ compensation insurance on March 30, 2016 should be awarded.

PROCEDURAL STATUS

Employer was given notice of the December 15, 2016 workers’ compensation hearing. Both entities identified as Respondent-Employer were given proper and timely notice of the request to engage in discovery. Both Mile High Energy Solutions and Colorado Smart Staff, Inc. were served a copy of the Notice of Hearing and Claimant’s discovery requests by certified mail. However, both failed to appear for the hearing.

On December 20, 2016 the undersigned ALJ issued a properly addressed show cause order to Respondent ordering Respondent to state why any defenses to the instant claim should not be denied and dismissed. Respondent was ordered to show good cause, in writing, why their failure to attend the December 15, 2016 hearing should be excused. This ALJ issued an Order to Show Cause which provided ten (10) days from December 20, 2016 for Respondent to show good cause for its failure to attend the hearing. The Order to Show Cause was served on Mile High Energy Solutions and Colorado Smart Staff, Inc. Neither Mile High Energy Solutions, nor Colorado Smart Staff, Inc. served a Response, nor did either entity provide good cause for the failure to attend the hearing as ordered by this ALJ.

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FINDINGS OF FACT

Based upon the evidence presented at hearing, the Judge enters the following findings of fact:

1. Claimant was an employee of Respondent when he was involved in a motor vehicle accident on March 30, 2016. Claimant testified his employer was Mile High Energy Solutions. Claimant was injured as a result of this accident.

2. Claimant suffered injuries arising out of the course and scope of his employment while working for Respondent-Employer.

3. Respondent did not timely designate an ATP; therefore, Claimant was free to select his own medical provider.

4. Claimant sought treatment from the following providers: Sky Ridge Medical Center, Douglas Family Medicine, P.C., and Canyon Ridge Chiropractic. The physicians employed by these providers who treated Claimant are ATPs.

5. Claimant received emergency medical treatment at Sky Ridge Medical Center. Claimant treated with Brian Rudiak, D.C., who provided treatment to his cervical, thoracic and lumbar spine, as well as shoulders.

6. Claimant was prescribed medications related to his compensable injuries and filled those prescriptions at a Walgreen’s Pharmacy. These prescriptions were reasonable, necessary and related to Claimant’s work-related injuries.

7. All care received at Sky Ridge Medical Center was authorized, reasonable, necessary and related to Claimant’s work-related injuries.

8. All other care received from Douglas Family Medicine, P.C., and Canyon Ridge Chiropractic, as well as any referrals made in the course of his treatment from those facilities and other physicians who treated Claimant’s work-related injuries were reasonable, necessary, related and authorized.

9. All medical bills arising from the March 30, 2016 work-related incident were for reasonable, necessary treatment related to the work-related incident. Each treatment that was billed is authorized.

10. Claimant’s medical bills were admitted at hearing. The medical bills related to his March 30, 2016 are at least $7,400.00; these may also be greater than that amount.

11. Claimant was taken off work from March 31 to April 6, 2016 by B. Douglas Hallmark, M.D. at Douglas Family Medicine.

12. Claimant was not released to full duty by any ATP, nor did he reach MMI.

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13. Claimant’s work-related injuries resulted in limitations that prevented him from performing his regular job, as they limited his activities. Claimant is entitled to Temporary Total Disability (TTD) benefits from March 31, 2016 to May 16, 2016.

14. Judicial notice has been taken that 46 days elapsed between the date of injury and May 16, 2016. TTD is calculated based on that time period.

15. Claimant’s average weekly wage based on § 8-42-102, C.R.S. is $673.00 per week.

16. Respondent did not carry workers’ compensation insurance at the time of Claimant’s March 30, 2016 work-related injury. Respondent is subject to a penalty under the Colorado Workers’ Compensation Act for the failure to carry insurance.

17. Claimant testified he reported his injury to Kirsten Courtney, whom he identified as the daughter of the owner. The owner was identified as Michael Courtney.

18. A Worker’s Claim for Compensation was completed on May 19, 2016.1

19. Respondent failed to file a timely First Report of Injury regarding Claimant’s injuries to the Division of Workers’ Compensation.

20. Respondent offered no contrary evidence at hearing.

21. Based upon evidence at hearing and DOWC records, Mile High Energy Solutions and Colorado Smart Staff, Inc. are one and the same. Neither entity appeared for hearing or no did either entity respond to the Order to Show Cause.

22. All defenses to the issues ripe for determination are dismissed.

23. No ATP has placed Claimant at MMI.

CONCLUSIONS OF LAW

Based upon the foregoing findings of fact, the Administrative Law Judge draws the following conclusions of law: General

The purpose of the Workers’ Compensation Act of Colorado (Act), § 8-40-101, et seq., C.R.S., is to assure the quick and efficient delivery of disability and medical benefits to injured workers at a reasonable cost to employers, without the necessity of litigation. § 8-40-102(1), C.R.S. The facts in a workers' compensation case must be interpreted neutrally, neither in favor of the rights of Claimant nor in favor of the rights of Respondents. § 8-43-201(1), C.R.S.

1 Exhibit 9, p. 168.

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A Workers' Compensation case is decided on its merits. § 8-43-201, C.R.S. The ALJ's factual findings concern only evidence and inferences found to be dispositive of the issues involved; the ALJ has not addressed every piece of evidence or every inference that might lead to conflicting conclusions and has rejected evidence contrary to the above findings as unpersuasive. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo. App. 2000).

Generally, Claimant shoulders the burden of proving entitlement to benefits by a preponderance of the evidence. § 8-43-201(1), C.R.S. A preponderance of the evidence is that which leads the trier-of-fact, after considering all of the evidence, to find that a fact is more probably true than not. Page v. Clark, 197 Colo. 306, 592 P.2d 792 (1979).

Compensability

The legal standard applicable to the compensability issue found in § 8-41-301(1)(c), C.R.S., provides as a condition for the recovery of workers’ compensation benefits the injury must be “proximately caused by an injury or occupational disease arising out of and in the course of the employment”. Claimant was required to prove by a preponderance of the evidence that at the time of the injury she was performing service arising out of and in the course of the employment, and that the injury or occupational disease was proximately caused by the performance of such service. § 8-41-301(1)(b) & (c), C.R.S. The question of whether the claimant met the burden of proof is one of fact for determination by the ALJ. City of Boulder v. Streeb, 706 P.2d 786 (Colo. 1985); Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo. App. 2000).

As found, Claimant was an employee, working for Employer when he was injured in the MVA which occurred on March 30, 2016. Claimant proved he was performing duties for Employer and his injuries arose out of and were in the course of his employment. As such, he suffered a compensable injury and is entitled to wage and medical benefits under the Colorado Workers’ Compensation Act.

Medical Benefits

Having determined Claimant suffered a compensable injury, Respondents are liable to provide medical treatment that is reasonable and necessary to cure and relieve the effects of the industrial injury. § 8-42-101(1)(a), C.R.S. The question of whether Claimant proved treatment is reasonable and necessary is one of fact for the ALJ. Kroupa v. Industrial Claim Appeals Office, 53 P.3d 1192 (Colo. App. 2002).

If, upon notice of the injury, Employer fails forthwith to designate an ATP, the right of selection passes to Claimant. Rogers v. Industrial Claim Appeals Office, 746 P.2d 565 (Colo. App. 1987). The employer’s obligation to appoint an ATP arises when it has some knowledge of the accompanying facts connecting an injury to the employment such that a reasonably conscientious manager would recognize the case might result in a claim for compensation. Bunch v. Industrial Claim Appeals Office, 148

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P.3d 381 (Colo. App. 2006). As found, Claimant notified Employer of his industrial injury and was not provided a list of physicians. (Finding of Fact 3). Therefore, the right of selection passed to Claimant.

As determined in Findings of Fact 4-8, Claimant received treatment to cure and relieve the effects of his industrial injury. The treatment provided by these health care providers was reasonable and necessary. Respondent-Employer is liable to pay for those benefits.

TTD Benefits

To prove entitlement to TTD benefits, Claimant must prove that the industrial injury caused a disability lasting more than three work shifts; that he left work as a result of the disability; and that the disability resulted in an actual wage loss. Anderson v. Longmont Toyota, 102 P.3d 323 (Colo. 2004); PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995); City of Colorado Springs v. Industrial Claim Appeals Office, 954 P.2d 637 (Colo. App. 1997). § 8-42-103(1)(a), C.R.S., requires Claimant to establish a causal connection between a work-related injury and a subsequent wage loss in order to obtain TTD benefits. PDM Molding, Inc. v. Stanberg, supra.

The term disability connotes two elements: (1) Medical incapacity evidenced by loss or restriction of bodily function; and (2) Impairment of wage earning capacity as demonstrated by Claimant's inability to resume his prior work. Culver v. Ace Electric, 971 P.2d 641 (Colo. 1999). The impairment of earning capacity element of disability may be evidenced by a complete inability to work, or by restrictions which impair Claimant's ability effectively and properly to perform his regular employment. Ortiz v. Charles J. Murphy & Co., 964 P.2d 595 (Colo. App. 1998). TTD benefits ordinarily continue until one of the occurrences listed in § 8-42-105(3), C.R.S.; City of Colorado Springs v. Industrial Claim Appeals Office, supra.

As found, Claimant was disabled as a result of his industrial injury. He was not released to full duty by any ATP, nor did he reach MMI. Therefore, Claimant is entitled to TTD from March 31, 2016 to May 16, 2016 when he returned to work.

Penalties

The ALJ concluded Respondent–Employer failed to carry workers’ compensation insurance as required by Colorado law. There was no contrary evidence in the record. This violation of the Act subjects Respondent–Employer to penalties, pursuant to § 8-43-408(1), C.R.S. Therefore, Respondent–Employer is required to pay an additional fifty percent(50%) on wage and medical benefits awarded to Claimant.

ORDER

Based upon the foregoing findings of fact and conclusions of law, the Judge enters the following order:

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1. Respondent shall pay Claimant’s medical expenses (including any applicable co-pays) at Sky Ridge Medical Center, Douglas Family Medicine, P.C., and Canyon Ridge Chiropractic pursuant to the Colorado Workers’ Compensation Fee Schedule.

2. Respondent–Employer is required to pay an additional fifty percent (50%) on wage and medical benefits awarded to Claimant, pursuant to § 8-43-408(1), C.R.S.

3. Respondent shall pay Claimant TTD benefits at the rate of $448.67 per week, plus 50%, commencing March 31, 2016 and ending May 16, 2016. At present, Respondent shall pay Claimant the total $4,422.59 in Temporary Total Disability for the 46 day period of March 31, 2016 to May 16, 2016. (This amount includes the 50% increase).

4. Employer shall pay Claimant interest at the rate of 8% per annum on compensation benefits not paid when due.

5. In lieu of payment of the above compensation and benefits to the Claimant, the Respondent-Employer shall: a. Deposit the sum of $15,000.00 with the Division of Workers' Compensation,

as trustee, to secure the payment of all unpaid compensation and benefits awarded. The check shall be payable to and sent to the Division of Workers' Compensation, P.O. Box 300009, Denver, Colorado 80203-0009, Attention: Sue Sobolik, Subsequent Injury Fund; or

b. File a bond in the sum of $15,000.00 with the Division of Workers'

Compensation within ten (10) days of the date of this order: (1) Signed by two or more responsible sureties who have received prior

approval of the Division of Workers' Compensation; or (2) Issued by a surety company authorized to do business in Colorado. The bond shall guarantee payment of the compensation and benefits

awarded. 6. IT IS FURTHER ORDERED: Respondent-Employer shall notify the Division of Workers' Compensation of payments made pursuant to this Order. 7. IT IS FURTHER ORDERED: That the filing of any appeal, including a petition to review, shall not relieve Employer of the obligation to pay the designated sum to the trustee or to file the bond. §8-43-408(2), C.R.S.

8. Issues not expressly decided herein are reserved to the parties for future

determination.

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If you are dissatisfied with the Judge's order, you may file a Petition to Review the order with the Denver Office of Administrative Courts, 1525 Sherman St., 4th Floor, Denver, CO 80203. You must file your Petition to Review within twenty (20) days after mailing or service of the order, as indicated on certificate of mailing or service; otherwise, the Judge's order will be final. You may file the Petition to Review by mail, as long as the certificate of mailing attached to your petition shows: (1) That you mailed it within twenty (20) days after mailing or service of the order of the Judge; and (2) That you mailed it to the above address for the Denver Office of Administrative Courts. For statutory reference, see section 8-43-301(2), C.R.S. For further information regarding procedures to follow when filing a Petition to Review, see Rule 26, OACRP. You may access a petition to review form at: http://www.colorado.gov/dpa/oac/forms-WC.htm.

DATED: February 15, 2017

Digital signature

___________________________________ Timothy L. Nemechek Administrative Law Judge Office of Administrative Courts 1525 Sherman Street, 4th floor Denver, CO 80203

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OFFICE OF ADMINISTRATIVE COURTS STATE OF COLORADO WORKERS’ COMPENSATION NO. WC 4-922-884-06

ISSUES

1. Whether Respondents have overcome the opinion of division independent medical examination (DIME) physician Dr. Bloch on maximum medical improvement (MMI) and permanent partial disability (PPD) impairment rating by clear and convincing evidence.

FINDINGS OF FACT

1. Claimant is employed by Employer as a full time package delivery driver. On June 26, 2013 while so employed, Claimant sustained a compensable low back injury after pulling a 70 pound box while in a squatted position inside his delivery truck. 2. On June 28, 2013 Claimant was evaluated for the injury by James Rafferty, D.O. Claimant reported the sudden onset of low back pain two days prior that began when he was in a squatted position and was pulling on a heavy box. Claimant reported that the pain was localized to the low back and did not radiate into his lower extremities but that he had occasional tingling in his posterior thighs after sitting for an extended period of time. Claimant reported the pain was worse when bending and twisting and improved when sitting. Claimant reported prior minor back strains but no significant problems with his back in the past. Claimant reported that he saw a chiropractor every six weeks for an adjustment and that according to his chiropractor, he may have mild degenerative changes in his spine. On examination, Dr. Rafferty noted a normal range of motion with minimal discomfort with flexion as well as palpation positive for minimal tenderness at the left L4-5 facet joint, right L5-S1 facet joint, and bilateral SI joints. Dr. Rafferty assessed lumbar strain, provided medications, and recommended stretching exercises and ice/heat. See Exhibit I. 3. On July 5, 2013 Claimant was evaluated by Dr. Rafferty. Claimant reported being 25% better overall. Claimant reported that his pain was localized to the lumbar spine on the right side and that it radiated into his buttock but not into the right lower extremity. Claimant reported continued intermittent posterior left thigh tingling that was also improving. On examination, Dr. Rafferty noted that the lumbar spine had no gross abnormalities, essentially normal range of motion, and that Claimant had right sided low back discomfort at terminal flexion and rotation to the right caused discomfort over the facet line at L4-5 and L5-S1 on the right side. See Exhibit I. 4. On August 1, 2013 Claimant was evaluated by Dr. Rafferty. Claimant reported his past improvement had essentially resolved and that his condition was staying the same. Claimant reported grinding in his lumbar spine with movement and a generalized weakness in his legs, better described as a generalized ache in his bilateral lower extremities. Claimant reported a sense of numbness in the buttocks on occasion. Claimant reported no radiation of pain into his distal lower extremities and no sensory

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changes distal to his knees. On examination Dr. Rafferty noted essentially normal range of motion that felt tight over the right side of the low back with flexion, and minimal discomfort overlying the right L5-S1 facet joint at terminal extension. Dr. Rafferty ordered x-rays and an MRI of the lumbar spine. See Exhibit I. 5. On August 21, 2013 Claimant underwent an MRI of his lumbar spine. The impression provided was L1-L2 disc herniation that may be affecting the traversing right L2 nerve, L4-L5 lateral recess narrowing that could be affecting the traversing L5 nerves, and moderate foraminal narrowing at L5-S1. Following the MRI, Dr. Rafferty referred Claimant to chiropractic care with Dr. Gridley and to pain specialist Dr. Kawasaki. See Exhibit 4. 6. On September 10, 2013 Claimant was evaluated by Robert Kawasaki, M.D. Claimant reported back pain and tightness and that he had developed some numbness into his buttock region into the hamstring. Dr. Kawasaki noted that Claimant had undergone physical therapy but that he had not done any work conditioning type of activities. On examination, Dr. Kawasaki noted that Claimant’s lumbar spine revealed some mild flattening of the lordotic curvature, tenderness to palpation primarily in the lower lumbar segments and the lumbosacral junction, and some increased discomfort with lumbar forward flexion. Dr. Kawasaki reviewed Claimant’s MRI. Dr. Kawasaki provided an impression of lumbar strain. Dr. Kawasaki also provided an impression of multilevel degenerative disc changes which appear to be mostly age related changes with most significant changes at the L1-2 level, and opined that Claimant was asymptomatic for right L2 radiculopathy. Dr. Kawasaki continued to state that there was moderate change at the L4-5 level with bilateral L5 nerve root compression as a potential and noted that Claimant had some gluteal pain and pain in the posterior thigh region which may be coming from L5 nerve root irritation. Dr. Kawasaki also provided the impression of multiple schmorl’s nodes and possible Schuermann’s congenital abnormality of endplates. Dr. Kawasaki opined that Claimant mostly had a lumbar strain with underlying spondylosis. Dr. Kawasaki noted that Claimant had some mechanical dysfunction which may be treated well with a trial of chiropractic manipulation and acupuncture. Dr. Kawasaki noted that Claimant appeared to be making improvement overall and that the disc herniation at L1-2 was asymptomatic and Claimant had no groin or anterior thigh pain which would correlate with the herniation. Dr. Kawasaki referred Claimant to Dr. Gridley. See Exhibit L. 7. On September 20, 2013 Claimant was evaluated by Dr. Gridley. Claimant reported back pain with tightness and numbness in the buttocks extending into the upper hamstrings with no extremity symptoms below the hamstrings. Claimant reported benefiting in the past from chiropractic treatment. Dr. Gridley noted that Claimant showed slow forward bending with fingertips just to the mid shins with discomfort, right greater than left, in the lumbosacral spine. Dr. Gridley noted that Clamant extended well with only minimal discomfort approximately 80% of normal. Dr. Gridley noted that Claimant’s pain was increased with extension rotation maneuvers, right greater than left. On palpation, Dr. Gridley noted quite tonic and guarded musculature in the lower parathoracics from T8-9 into the lumbosacral junction, right greater than left and that

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Claimant was very spasmodic through the paralumbars, bilateral QLs, gluteus medius and minimus, right piriformis, and TFL. See Exhibit L 8. On October 24, 2013 Claimant returned to Dr. Rafferty. Dr. Rafferty noted that Claimant had last been seen two months prior where he was making slow and steady progress. Dr. Rafferty did not examine Claimant’s lumbar spine but assessed lumbar strain and multi level degenerative changes of the lumbar spine. Dr. Rafferty recommended that Claimant continue and finish treatment with Dr. Gridley, continue and finish a work hardening program, and continue current work restrictions of lifting 60 pounds maximum. Dr. Rafferty noted that it was unlikely that Claimant was not sufficiently fit to lift more than 40 and that it was probable that Claimant was sufficiently fit to return to full duty work. Dr. Rafferty noted he would recheck Claimant in three weeks and that placement at MMI and return to work full duty was likely. See Exhibit I. 9. On December 11, 2013, Claimant was evaluated by Dr. Rafferty. Claimant reported he was doing well and had only mild discomfort with stiffness in his low back. Claimant reported that Dr. Kawasaki was of the opinion that Claimant could safety return to full duty work. Claimant reported being ready to return to his usual duties at work. Dr. Rafferty assessed lumbar strain and multi-level degenerative changes of the lumbar spine. Dr. Rafferty noted on examination that Claimant had full range of motion, that Claimant’s motion was slow but pain free, and that Claimant had minimal tenderness over the bilateral L5-S1 facet joints. Dr. Rafferty opined that no additional treatment was needed, Claimant was at MMI, Claimant had no permanent impairment, and that Claimant could return to full duty work. Dr. Rafferty noted that maintenance care could include a follow visit with Dr. Kawasaki and two additional visits with Dr. Gridley one per month for the next two months. See Exhibit I. 10. On December 13, 2013, Respondents filed a final admission of liability (FAL) consistent with Dr. Rafferty’s report, noting a MMI date of December 11, 2013 and an impairment rating of 0%. See Exhibit 1. 11. Claimant objected to the FAL and requested a DIME. 12. On January 6, 2015 Claimant underwent an independent medical evaluation (IME) performed by Kathie McCranie, M.D. Claimant reported intermittent grabbing pain in the low back that comes and goes a couple times a day with burning/aching pain on the right side of the low back. Claimant reported some weakness in his legs and a burning/aching sensation on the right side of his low back. Claimant reported a prior work related lumbar sprain in 2008 or 2009 where he was off work for a couple of weeks and underwent treatment. Dr. McCranie reviewed medical records and performed a physical examination. Dr. McCranie provided impressions of lumbar strain 6/26/13 resolved at time of MMI, lumbar degenerative disk disease predating work injury, and multiple schmorl’s nodes with probably scheuermann’s syndrome. See Exhibit M.

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13. Dr. McCranie noted that Claimant had a prior work related lumbar strain in 2008 or 2009, and was also treated with chiropractic care in March of 2012 with x-rays confirming lumbar degenerative disk disease at that time. Dr. McCranie noted that Claimant improved with chiropractic care but continued to have flare ups intermittently throughout 2012 and 2013 with activities such as shoveling and golfing before the work related strain in June of 2013. Dr. McCranie noted that a disc protrusion was found at the L1-2 level but that there were no symptoms correlating with the MRI finding of protrusion at that level. Dr. McCranie noted that at the time of MMI on 12/13/13, Claimant was pain free and had full range of motion. She noted that Claimant’s reports of right lower extremity paresthesias began 3-4 months post MMI. Dr. McCranie opined that Claimant had reached MMI on 12/11/13. She opined that Claimant was pain free, had full range of motion, and had benefited from conservative treatment. Dr. McCranie also opined that Claimant had no permanent impairment. Dr. McCranie opined that it would not be unusual that Claimant was now complaining of pain due to his past medical history consistent with intermittent lumbar pain complaints which she opined were likely related to Claimant’s multi level degenerative disk disease. See Exhibit M. 14. Dr. McCranie opined that flare-ups of pain occurred prior to Claimant’s work injury and would be expected to continue after the injury, although they would be unrelated to the injury. Dr. McCranie also noted that although Claimant now had some mild loss of range of motion, this also would not be unusual given Claimant’s degenerative disk disease which can be progressive in nature. Dr. McCranie opined that the flare ups of pain and the loss of range of motion were not related to Claimant’s work related injury which she opined was a lumbar strain. See Exhibit M. 15. On January 21, 2015 Claimant underwent a DIME performed by Jonathon Bloch, D.O. Dr. Bloch noted that following injury Claimant treated conservatively with medications and physical therapy, plateaued in care, then was referred for chiropractic/acupuncture care with some good response. Dr. Bloch noted that by December 3, 2013 Claimant felt well enough to try full duty and was told there was nothing more to do for him and that his case could be closed. Claimant reported not attending any maintenance visits as he did not understand that maintenance care was still allowed after case closure. Claimant reported that his pain never resolved but maintained the same low grade of 3/10 with higher pain exacerbations with activity. Claimant reported that he continued to do home exercises and stretching and regularly used heat and ice to maintain his current level of activity and unrestricted job performance. Claimant reported he had ongoing right achy burning 3/10 low back pain, stiffness, and decreased flexibility. Claimant reported bilateral leg weakness most notable when trying to stand after prolonged sitting, numbness in the bilateral hips to buttocks, and an off/on tingling in his right foot posteriorly at the heel cup. 16. Dr. Bloch reviewed medical records and examined Claimant. Dr. Bloch opined that Claimant had an L5 right sided radicular complaint that was not fully worked up or treated during the course of Claimant’s treatment prior to MMI. Dr. Bloch noted that Claimant was not symptom free at MMI and that Claimant’s back had remained painful since placement at MMI and his return to full duty work. Dr. Bloch disagreed

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with Dr. McCranie and opined that there were only two instances prior where Claimant sought care with his private chiropractor for minor short lived back strains and that both incidents resolved to a pain free baseline easily and quickly without sequel well prior to the work injury. Dr. Bloch opined that Claimant did not suffer from any significant preexisting ongoing low back pain prior to June of 2013 and noted Claimant’s work in heavy labor for 26 years with Employer. Dr. Bloch opined that there were objective findings on the MRI that corresponded specifically to symptoms consistent with an L5 spinal lesion that Claimant was not complaining of before the work injury and that was not attributed to any of Claimant’s pre existing conditions. Dr. Bloch opined that Claimant was not at MMI and suggested further workup including an EMG/NCS of the right lower extremity to look for correlation between the radicular symptoms and the MRI findings that pointed toward an L5 location that had not been fully worked up or treated. Dr. Bloch also recommended repeating an MRI to asses for changes and opined that Claimant may be a candidate for a trial of spinal steroid injections and recommended an evaluation by Dr. Kawasaki after the new updated MRI. Dr. Bloch opined that work restrictions were not necessary and that Claimant could continue full duty work. See Exhibit 2. 17. On July 10, 2015 Claimant was evaluated by Tanya Kern, M.D. Dr. Kern noted that Claimant had moderate decrease in range of motion with pain in the lumbar spine and a painful left side with bending and right rotation. She recommended Claimant’s case be reopened and noted that Claimant had persistent pain since December of 2013. Dr. Kern agreed with Dr. Bloch’s recommendations to repeat an MRI, have an EMG and refer back to Dr. Kawasaki. See Exhibit O. 18. On July 31, 2015 Claimant was evaluated by Dr. Kern. Dr. Kern assessed lumbar strain and right lumbar radiculopathy. Dr. Kern continued to note moderate decrease in range of motion with pain in the lumbar spine. Dr. Kern placed Claimant on work restrictions of lifting a maximum of 15 pounds. See Exhibit O. 19. On August 17, 2015 Claimant underwent an EMG performed by Patricia Soffer, M.D. Dr. Soffer noted that the electrophysiologic studies performed, EMG and NCVs of both lower extremities and lumbar paraspinals, were normal. Dr. Soffer opined that there was no electrophysiologic evidence of neuropathy or radiculopathy. See Exhibit O. 20. On September 11, 2015 Claimant was evaluated by Dr. Kern. Dr. Kern noted that Claimant would continue chiropractic care, she increased his work restrictions to lifting a maximum of 25 pounds, and noted that Claimant would be at MMI in 4-5 weeks. See Exhibit O. 21. On October 5, 2015 Claimant was evaluated by Dr. Kern. Dr. Kern placed Claimant at MMI and opined that he was able to return to full duty work. Dr. Kern assessed right lumbar radiculopathy and lumbar strain. Dr. Kern noted that Claimant’s case was closed, and that she needed an hour appointment to perform an impairment rating and that she had only 15 minutes that day. See Exhibit O.

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22. On October 14, 2015 Dr. Kern performed an impairment rating. Dr. Kern noted that the two IME’s by Dr. McCranie and Dr. Bloch disagreed about Claimant’s December 2013 MMI date and that Dr. Bloch had recommended additional evaluation and treatment including a repeat MRI and an EMG. Dr. Kern noted that Claimant’s case was then reopened in January of 2015, that she placed Claimant on restrictions again due to a flare of pain, and that she referred Claimant for MRI, EMG, and repeat consultation with Dr. Kawasaki as well as for additional chiropractic visits. Dr. Kern noted that Claimant decided not to have an MRI or an EMG and also did not want to try spinal injections. Dr. Kern opined that Claimant had a 10% impairment of the whole person pursuant to the 3rd Edition of the AMA Guidelines to the Evaluation of Permanent Impairment, that Claimant remained at full duty, and that Claimant had no scheduled maintenance care. See Exhibit O. 23. On December 11, 2015, Claimant returned to DIME physician Dr. Bloch for a follow up DIME. Dr. Bloch noted that following the initial DIME, Claimant had been further worked up with an EMG that was negative, more physical therapy, and chiropractic care. Dr. Bloch noted that Claimant was again placed at MMI on October 5, 2015 by Dr. Kern and Dr. Bloch agreed with October 5, 2015 as the date of Claimant’s MMI. Dr. Bloch noted that Claimant continued to have soreness exacerbated by heavy workload but tolerated full duty work. Dr. Bloch noted that the continued back pain could be considered axial back pain without a radicular component. Dr. Bloch agreed with the MMI date of October 5, 2015 and opined that the care and workup for Claimant had now been reasonably completed. Dr. Bloch opined that Claimant had decreased pain and radicular symptoms, tolerated full duties better, and that there was a good idea of the medical maintenance that would allow Claimant to continue tolerating full duties. Dr. Bloch did not re-measure Claimants range of motion and opined that the rating provided at the prior DIME examination was unchanged and that Claimant had suffered an 18% whole person impairment. See Exhibit 3. 24. Respondents objected to Dr. Bloch’s DIME impairment rating and MMI date and set this matter for hearing to overcome both the impairment rating and the MMI date. 25. At hearing, Dr. McCranie testified. Dr. McCranie noted that Claimant had prior chiropractic treatment on and off from 2012-2013 where he would periodically have flared back pain, would treat with a chiropractor, his symptoms would subside, then he would later return again with pain. Dr. McCranie opined that the findings on MRI at L4-5, L5-S1, and L1-2 were not work related and were degenerative changes. She further opined that the L1-L2 disc herniation had no correlation. She opined that the treatment from June of 2013 to December of 2013 was reasonable and necessary but that by December of 2013 Claimant was back at baseline and was back to normal flares of back pain that waxed and waned. Dr. McCranie opined that Dr. Bloch erred. Dr. McCranie noted that just because there was a change on MRI, Dr. Bloch had rated it as part of the injury, but that the MRI finding at L1-L2 was not a clear contributing factor to Claimant’s condition. She opined that it was clear error to rate Claimant just based on

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the L1-L2 finding on MRI when nothing on Claimant’s exam was specific to L1-L2 and opined that there was no impairment suffered at L1-2 as a result of the work injury. Dr. McCranie also opined that Claimant had no disc lesion or soft tissue lesion at L4-5 and that there was no objective medical evidence or basis to use Table 53 for the L4-5 level. Dr. McCranie opined that the L4-5 and L5-S1 issues on MRI were degenerative changes. She opined that since Claimant had no objective medical evidence of disc lesion or soft tissue lesion at L4-5, and since Claimant also had no findings on exam or impairment specific to L1-2, Dr. Bloch erred and Claimant was not entitled to a Table 53 impairment. Dr. McCranie noted that the only disc herniation/lesion was at L1-L2 but that the herniation was not work related and noted that Claimant had no symptoms consistent with the L1-L2 herniation. She pointed to Dr. Kawasaki and Dr. Rafferty as agreeing that L1-L2 herniation was not causing any symptoms. She opined that it was clear error to rate just because the L1-L2 level showed a herniation when there was nothing from Claimant’s exams specific to L1-L2. She also opined that since L4-L5 had no lesion or herniation, there was no objective medical evidence to support a Table 53 impairment in this case. 26. Dr. McCranie opined that the loss of range of motion is only completed if someone has a Table 53 impairment and since Claimant did not have a Table 53 impairment there would be no rating for any loss of range of motion. Dr. McCranie opined that there was inadequate support for a Table 53 diagnosis. Dr. McCranie also noted that Dr. Kern did not provide a table 53 rating. Dr. McCranie also opined that even assuming a Table 53 impairment existed, Dr. Bloch had erred by putting 7% under Table 53-II-B and that Claimant would be at a 5% in that category. Dr. McCranie also opined also that the range of motion from Dr. Kern was 10% and opined that Dr. Bloch’s numbers in rating were in error even if Claimant had a Table 53 diagnosis. 27. Ronald Swarsen, M.D. testified at hearing. Dr. Swarsen did not physically examine Claimant but reviewed medical records. Dr. Swarsen opined that Dr. Bloch had complied with the Division rating system directions and with the AMA Guides on permanent impairment rating. Dr. Swarsen disagreed with Dr. McCranie. Dr. Swarsen noted that someone can have an impairment and an impairment rating and still be able to work full duty. He opined that there were obviously differences of opinion but that neither Dr. Bloch nor Dr. McCranie had clearly erred. Dr. Swarsen agreed that in order to receive a rating, there had to be a Table 53 diagnosis and opined that the doctors had disagreed as to whether this existed but that neither had clearly erred. Dr. Swarsen opined that Dr. Bloch’s impairment rating was consistent with the AMA guides, the directives of the DOWC, and the Division’s rating tips and that Dr. Bloch’s opinions were supported by the record. 28. Dr. Bloch testified by deposition in this matter. Dr. Bloch opined that Claimant’s pain complaints were consistent with the MRI findings and consistent with injury Claimant sustained. Dr. Bloch opined that Claimant’s care was consistent, that it worked, and that Claimant got better. Dr. Bloch noted that at L4-5, the MRI did not show a soft tissue injury to a disc and did not show any other disc lesions. Dr. Bloch noted that at the initial DIME evaluation, he recommended a more recent picture, a new

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MRI and an EMG study, of Claimant’s lumbar spine due to Claimant’s reported nerve distribution pain. Dr. Bloch testified that he was concerned that there was an aggravation of Claimant’s L5 nerve root that would be related to the industrial injury. Dr. Bloch believed Claimant was not at MMI because he wanted to see if Claimant had a radicular component and believed it was an important thing to work up before letting Claimant go. Dr. Bloch opined that at the follow-up DIME he reviewed the EMG that was negative, that he knew then that Claimant’s did not have a radicular lesion at L4-5 and that Claimant had been properly diagnosed so MMI was appropriate at the follow up DIME. Dr. Bloch noted that after the negative EMG, Claimant had manual therapy, Claimant was ruled out for injections, and after additional care Claimant got better and was brought to MMI at the follow up DIME. Dr. Bloch opined that MMI was inappropriate in December of 2013 at the first DIME because at that point the workup was incomplete. 29. Dr. Bloch opined that Claimant passed validity tests on the range of motion measurement performed at the DIME and that he believed Claimant was giving effort on the range of motion. Dr. Bloch opined that Claimant’s true lumbar range of motion was 35%. Dr. Bloch noted that Claimant’s range of motion could very easily appear like normal range of motion during a DOT exam without use of the bubble inclinometer. Dr. Bloch opined that none of the range of motion would be apportioned in this case since Claimant did not have prior impairments or disabilities. Dr. Bloch opined that Claimant’s pre-existing arthritis did not cause any sort of loss, loss of use, or derangement to Claimant’s body, system, or function. Dr. Bloch opined that even if Claimant was working full duty and functionally able to do his job, Claimant still had permanent impairment and a Table 53-II-B impairment by definition. Dr. Bloch noted that even though Claimant was functioning at full duty, Claimant had ongoing pain that lasted more than six months, hypertonicity of the lumbar spine, decreased range of motion, and pain with full extension. Dr. Bloch opined that Claimant had a back injury, was pain free before, but had flared up back pain after getting a 70 pound box out from other boxes at work and opined that the impairment rating was proper. 30. Prior to the June, 2013 work injury, Claimant had received chiropractic care with Michael Cartwright, D.C. On March 27, 2012 Claimant reported that he was reaching toward a dog with a ball and his back went out. Claimant treated and received adjustments between March 27, 2012 and April 28, 2012. By April 4, 2016 Dr. Cartwright noted that Claimant was 90% better with just a little ache. On April 16, 2012 Dr. Cartwright noted that Claimant was doing really well with no pain. See Exhibit G. 31. On May 23, 2012 Claimant was evaluated by Dr. Cartwright. Claimant reported pain on Monday after golfing Sunday that was better that day. On June 30, 2012 Claimant was evaluated by Dr. Cartwright and Claimant reported a sore lumbar spine. On August 4, 2012 Claimant was evaluated and reported no issues and that he was feeling good. Similarly on September 29, 2012 Claimant was evaluated and reported that he was feeling good. See Exhibit G.

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32. On March 1, 2013 Claimant was evaluated by Dr. Cartwright and reported pain at the right SI and gluteal pain since Sunday while shoveling. On March 5, 2013 Claimant was evaluated and reported that he was much better with a little ache while at work. By March 12, 2013 Claimant reported that he was improved with no more pain. See Exhibit G.

CONCLUSIONS OF LAW

Generally

The purpose of the Workers’ Compensation Act of Colorado, §§ 8-40-101, et seq., C.R.S. is to assure the quick and efficient delivery of disability and medical benefits to injured workers at a reasonable cost to employers, without the necessity of litigation. See § 8-40-102(1), C.R.S. The claimant shoulders the burden of proving entitlement to benefits by a preponderance of the evidence. See § 8-43-201, C.R.S. A preponderance of the evidence is that which leads the trier-of-fact, after considering all of the evidence, to find that a fact is more probably true than not. Page v. Clark, 197 Colo. 306, 592 P.2d 792 (1979).

Assessing weight, credibility, and sufficiency of evidence in Workers'

Compensation proceeding is exclusive domain of administrative law judge. University Park Care Center v. Industrial Claim Appeals Office, 43 P.3d 637 (Colo. App. 2001). Even if other evidence in the record may have supported a contrary inference, it is for the ALJ to resolve conflicts in the evidence, make credibility determinations, and draw plausible inferences from the evidence. When determining credibility, the fact finder should consider, among other things, the consistency or inconsistency of the witness's testimony and actions; the reasonableness or unreasonableness (probability or improbability) of the testimony and actions; the motives of the witness; whether the testimony has been contradicted; and bias, prejudice, or interest. Prudential Insurance Co. v. Cline, 98 Colo. 275, 57 P.2d 1205 (1936); Bodensieck v. Industrial Claim Appeals Office, 183 P.3d 684 (Colo. App. 2008). The weight and credibility to be assigned expert testimony is a matter within the discretion of the ALJ. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo. App. 2002). To the extent expert testimony is subject to conflicting interpretations, the ALJ may resolve the conflict by crediting part or none of the testimony. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968).

The ALJ's factual findings concern only evidence and inferences found to be

dispositive of the issues involved; the ALJ has not addressed every piece of evidence or every inference that might lead to conflicting conclusions and has rejected evidence contrary to the above findings as unpersuasive. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo. App. 2000).

Overcoming DIME on MMI

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The party seeking to overcome the DIME physician’s finding regarding MMI bears the burden of proof by clear and convincing evidence. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, supra. Clear and convincing evidence is that quantum and quality of evidence which renders a factual proposition highly probable and free from serious or substantial doubt. Thus, the party challenging the DIME physician's finding must produce evidence showing it highly probable the DIME physician’s finding concerning MMI is incorrect. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo. App. 1995). The question of whether the party challenging the DIME physician’s finding regarding MMI has overcome the finding by clear and convincing evidence is one of fact for the ALJ.

MMI exists at the point in time when “any medically determinable physical or

mental impairment as a result of injury has become stable and when no further treatment is reasonably expected to improve the condition.” See § 8-40-201(11.5), C.R.S. Under the statute MMI is primarily a medical determination involving diagnosis of the claimant’s condition. Berg v. Industrial Claim Appeals Office, 128 P.3d 270 (Colo. App. 2005); Monfort Transportation v. Industrial Claim Appeals Office, 942 P.2d 1358 (Colo. App. 1997). A determination of MMI requires the DIME physician to assess, as a matter of diagnosis, whether various components of the claimant’s medical condition are causally related to the industrial injury. Martinez v. Industrial Claim Appeals Office, 176 P.3d 826 (Colo. App. 2007). A finding that the claimant needs additional medical treatment (including surgery) to improve his injury-related medical condition by reducing pain or improving function is inconsistent with a finding of MMI. MGM Supply Co. v. Industrial Claim Appeals Office, 62 P.3d 1001 (Colo. App. 2002); Reynolds v. Industrial Claim Appeals Office, 794 P.2d 1090 (Colo. App. 1990); Sotelo v. National By-Products, Inc., W.C. No. 4-320-606 (I.C.A.O. March 2, 2000). Similarly, a finding that additional diagnostic procedures offer a reasonable prospect for defining the claimant’s condition or suggesting further treatment is inconsistent with a finding of MMI. Abeyta v. WW Construction Management, W.C. No. 4-356-512 (ICAO May 20, 2004); Hatch v. John H. Garland Co., W.C. No. 4-638-712 (ICAO August 11, 2000). Thus, a DIME physician’s findings concerning the diagnosis of a medical condition, the cause of that condition, and the need for specific treatments or diagnostic procedures to evaluate the condition are inherent elements of determining MMI. Therefore, the DIME physician’s opinions on these issues are binding unless overcome by clear and convincing evidence. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo. App. 2002).

Respondents have failed to meet their burden to overcome the opinion of DIME

physician Dr. Bloch that Claimant reached MMI on October 5, 2015. As found above, at the initial DIME in January of 2015, Dr. Bloch opined that Claimant was not at MMI. At that time, Dr. Bloch believed that Claimant’s potential L4-5 radiculopathy had not been sufficiently worked up and that an additional diagnostic procedure should be done. Dr. Bloch believed that additional diagnostic procedure (EMG and/or repeat MRI) offered a reasonable prospect to further define Claimant’s condition or suggest further treatment. His opinion in January of 2015 that these additional diagnostic procedures offered a reasonable prospect for further define Claimant’s condition was inconsistent with a finding of MMI. Dr. Bloch is credible and persuasive that MMI was not appropriate until

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Claimant returned later after having undergone these additional diagnostic tests, had additional treatment, and had been fully worked up. When Claimant returned for the follow up DIME, Dr. Bloch believed that Claimant’s condition was stable and that there was no further treatment reasonably expected to improve the condition. At the follow up DIME Dr. Bloch had all the work-up and diagnostic testing he believed was needed to make that determination. At the initial DIME, Dr. Bloch reasonably believed based on Claimant’s continued symptoms that MMI had not been met as there were potential diagnostic tests that could suggest further treatment to improve Claimant’s condition. Dr. Bloch’s concern is consistent with the concern noted by Dr. Kawasaki on September 10, 2013 that Claimant’s gluteal pain and pain in the posterior thigh may be coming from L5 nerve root irritation. Although the tests ultimately came back negative, at the time they were ordered Claimant was not at MMI since there were potential diagnostic tests and potential treatment that could reasonably be expected to improve Claimant’s condition. Respondents have failed to show by clear and convincing evidence that the determination of MMI as of October 5, 2015 was in error. The October 5, 2015 MMI date was after the diagnostic tests came back negative and after there was nothing further to offer Claimant that could reasonably improve Claimant’s condition.

Overcoming DIME on Impairment Rating

A DIME physician must apply the AMA Guides when determining the claimant’s medical impairment rating. See § 8-42-101(3.7), C.R.S.; §8-42-107(8)(c), C.R.S. The finding of a DIME physician concerning the claimant’s medical impairment rating shall be overcome only by clear and convincing evidence. Clear and convincing evidence is that quantum and quality of evidence which renders a factual proposition highly probable and free from serious or substantial doubt. Thus, the party challenging the DIME physician's finding must produce evidence showing it highly probable the DIME physician is incorrect. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo. App. 1995).

As a matter of diagnosis the assessment of permanent medical impairment

inherently requires the DIME physician to identify and evaluate all losses that result from the injury. Mosley v. Industrial Claim Appeals Office, 78 P.3d 1150 (Colo. App. 2003). Consequently, a DIME physician’s finding that a causal relationship does or does not exist between an injury and a particular impairment must be overcome by clear and convincing evidence. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo. App. 2002); Qual-Med, Inc. v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo. App. 1998). The rating physician’s determination concerning the cause or causes of impairment should include an assessment of data collected during a clinical evaluation and the mere existence of impairment does not create a presumption of contribution by a factor with which the impairment is often associated. Wackenhut Corp. v. Industrial Claim Appeals Office, 17 P.3d 202 (Colo. App. 2000).

The questions of whether the DIME physician properly applied the AMA Guides,

and ultimately whether the rating was overcome by clear and convincing evidence present questions of fact for determination by the ALJ. Wackenhut Corp. v. Industrial Claim Appeals Office, supra. A mere difference of opinion between physicians does not

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necessarily rise to the level of clear and convincing evidence. Gonzales v. Browning Ferris Industries of Colorado, W.C. No. 4-350-36 (ICAO March 22, 2000).

Respondents have met their burden by clear and convincing evidence to show

that it is highly probable that Dr. Bloch’s impairment rating is incorrect. Dr. Bloch indicated that Claimant qualified for a Table 53-II-B impairment rating, yet provided 7% under Table 53-II-C when the correct percentage under Table 53-II-B for the lumbar spine is listed as 5%. Additionally, Dr. Bloch indicated that Claimant qualified for 12% range of motion impairment for the lumbar spine but failed to re-measure range of motion at the follow up DIME. At the follow up DIME Dr. Bloch just continued his prior rating which was completed approximately 11 months prior despite having noted that Claimant had received more treatment and had improved. By comparison, Dr. Kern completed range of motion in October of 2015 at the time of MMI and found Claimant’s range of motion in the lumbar spine to warrant a 10% rating. This was improved from the rating performed by Dr. Bloch in January of 2015. By listing the wrong percentage under Table 53 and by and failing to re-measure range of motion at the follow up DIME despite noting improvement, Dr. Bloch clearly erred. At most, Dr. Bloch should have provided a 15% whole person impairment rating which would include the 5% Table 53 impairment and the 10% range of motion.

Although it is clear that Dr. Bloch erred in the calculation of potential impairment,

the Respondents further have met their burden to show by clear and convincing evidence that a Table 53 diagnosis does not exist in this case and that Claimant is not entitled to an impairment rating due to a specific disorder of the spine related to intervertebral disc or other soft tissue lesion. The only intervertebral disc or soft tissue lesion issue Claimant has, as shown by objective MRI testing, is at L1-2. Claimant is asymptomatic for the L1-2 area. Although Claimant has this pathology, Claimant has no impairment at this level. At the initial DIME evaluation, Dr. Bloch provided a Table 53 diagnosis for specific disorder of the spine under table 53-II-B and listed level L4-5 as the involved level since Claimant’s symptoms were at L4-5. However, Claimant does not have an intervertebral disc issue at L4-5 or a soft tissue lesion at L4-5. Dr. Bloch acknowledged that the EMG testing that Claimant underwent verified that there were no radicular symptoms coming from L4-5. Dr. Bloch also acknowledged that there is no intervertebral disc issue or soft tissue lesion at L4-5. This disqualifies Claimant for an L4-5 Table 53 impairment.

Section II-B of Table 53 provides for impairments for intervertebral disc or other

soft tissue lesions when un-operated with medically documented injury and a minimum of six months of medically documented pain and rigidity with or without muscle spasm associated with none to minimal degenerative changes on structural tests. Dr. Bloch noted there was a disc/soft tissue lesion shown on MRI at L1-L2, and that Claimant had objective findings of hypertonicity, muscle pattern strain, stiffness, and guarding at full ranges of motion in the lumbar spine. Dr. Bloch noted that Claimant had a lumbar injury at work and that although the decision not to place Claimant at MMI was due to concern for radiculopathy at L4-5, there were other areas in the lumbar spine that were aggravated by the work injury. Dr. Bloch opined that the impairment rating was proper

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since Claimant had a disc herniation in the lumbar spine, general lumbar soreness in the lumbar spine, hypertonicity, muscle spasm, straightening of the lumbar spine, decreased range of motion in the lumbar spine, and pain with full extension and range of motion. Dr. Bloch considered that the work injury aggravated pathology in the entire lumbar spine. Dr. Bloch is not found credible or persuasive. Additionally, the opinion of Dr. Swarsen that Dr. Bloch and Dr. McCranie simply had a difference of medical opinion is not found credible or persuasive. Dr. Swarsen failed to explain the discrepancy in the Table 53 percentages given by Dr. Bloch and also failed to credibly explain why failing to repeat range of motion after almost 11 months was appropriate. Additionally, it is noted that Dr. Kern failed to provide or list a Table 53 diagnosis. Dr. Kern also listed in her final report that she believed Claimant did not undergo EMG testing. Although Dr. Kern provided range of motion measurements and a 10% rating, Dr. Kern failed to establish or show that any Table 53 diagnosis was appropriate and also had incorrect information and was unaware that Claimant had undergone an EMG that was negative. The opinion of Dr. McCranie is the most credible and Dr. McCranie was able to persuasive identify how and why Dr. Bloch had erred. Dr. McCranie is found to be credible, persuasive, and her opinions are consistent with the objective medical records.

At the initial DIME Dr. Bloch listed the Table 53 diagnosis as involving L4-5. Dr.

Bloch then later noted at deposition that he rated the entire lumbar spine, believed the entire spine was aggravated, and pointed to the herniation at L1-2. However, the medical records and objective tests show that Claimant is asymptomatic at L1-2. The work injury did not aggravate L1-2 or cause any medically documented pain, rigidity, or muscle spasm at L1-2. Rather, the medical records repeatedly document concern at a lower level throughout the treatment with pain lower and at the L4-5 level. The concerning level throughout the treatment was L4-5. However, L4-5 does not have any intervetebral disc or other soft tissue lesion. Therefore, Claimant does not have a Table 53 impairment and does not qualify for a rating under Table 53. Respondents have presented evidence that is highly probable and free from serious or substantial doubt that Dr. Bloch erred in calculating an impairment rating and that Claimant does not qualify for an impairment rating under Table 53. With no Table 53 rating, Claimant does not qualify for a range of motion impairment rating for the lumbar spine and the ALJ concludes that the proper impairment rating is 0%.

ORDER

1. Respondents have failed to overcome the DIME physician’s opinion on MMI by clear and convincing evidence. Claimant reached MMI on October 5, 2015.

2. Respondents have overcome the DIME physician’s opinion on permanent

impairment by clear and convincing evidence. Claimant does not qualify for a Table 53 impairment and the proper permanent impairment rating is 0%.

3. All matters not determined herein are reserved for future determination.

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If you are dissatisfied with the Judge's order, you may file a Petition to Review the order with the Denver Office of Administrative Courts, 1525 Sherman St., 4th Floor, Denver, CO 80203. You must file your Petition to Review within twenty (20) days after mailing or service of the order, as indicated on certificate of mailing or service; otherwise, the Judge's order will be final. You may file the Petition to Review by mail, as long as the certificate of mailing attached to your petition shows: (1) That you mailed it within twenty (20) days after mailing or service of the order of the Judge; and (2) That you mailed it to the above address for the Denver Office of Administrative Courts. For statutory reference, see section 8-43-301(2), C.R.S. For further information regarding procedures to follow when filing a Petition to Review, see Rule 26, OACRP. You may access a petition to review form at: http://www.colorado.gov/dpa/oac/forms-WC.htm.

DATED: February 9, 2017 /s/ Michelle E. Jones

___________________________________ Michelle E. Jones Administrative Law Judge Office of Administrative Courts 1525 Sherman Street, 4th floor Denver, CO 80203

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OFFICE OF ADMINISTRATIVE COURTS STATE OF COLORADO WORKERS’ COMPENSATION NO. 5-006-772-01

ISSUES

1. Whether Claimant has demonstrated by a preponderance of the evidence that he suffered a compensable left upper extremity injury during the course and scope of his employment with Employer on December 23, 2014.

2. Whether Claimant has proven by a preponderance of the evidence that he is entitled to receive reasonable, necessary and related medical treatment for his industrial injury.

FINDINGS OF FACT

1. Claimant is a 36 year old former Idaho State College and International basketball player. On December 23, 2014 he was exiting Employer’s gym after a basketball training class, fell on ice and injured his left arm.

2. Claimant testified that in 2014 he started running basketball camps at Employer’s Monaco fitness facility through his nonprofit organization “Become a Champion.” He noted that his organization rented gym space from Employer. Employer’s General Manager approached him about becoming an employee. In September 2014 Employer’s Monaco Facility Manager Ben Tinsley hired him to run basketball training classes. After Claimant was hired he received training, took online classes and attended meetings to review Employer’s employment manual.

3. Claimant explained that he was hired to work on a commission basis. He specifically would receive a commission from each client who participated in the training sessions. Claimant did not initially have any clients but arranged demo training classes for potential clients in an attempt to encourage people to sign up and pay a fee for regular classes. When he went to Employer’s Monaco facility to conduct the training sessions, he showed his badge, signed a chart to note he was there and began the sessions.

4. In Claimant’s September 17, 2014 Application for Employment with Employer his job description was a Basketball Instructor. Employer’s Risk and Litigation Specialist Lisa Dreiling testified that Claimant’s job was to set up basketball clinics. Claimant would consult with Employer about the timing of the clinics and develop a marketing poster to be posted at the Monaco facility.

5. Ms. Dreiling explained that Claimant was hired as a non-exempt staff member earning $8.00 per hour. Additionally, Claimant would earn 60% of the revenue received through clinics and camps that he conducted. Ms. Dreiling remarked that,

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although Claimant’s primary pay was through commissions, the $8.00 hourly rate existed to compensate him for attending meetings and trainings.

6. Ms. Dreiling testified that Employer’s Paycom System was used by employees to record their time and keep track of commissions. Every employee received a username and password to access the Paycom System. She explained that, if Claimant had worked any hours or ran any clinics for Employer, he would have been paid. However, Claimant’s Paycom records reflect that he never earned any wages from Employer.

7. Ms. Dreiling explained that Employer kept track of all the clinics or camps its instructors were running. However, there is no record that Claimant conducted any clinics or camps in 2014. Ms. Dreiling noted that Employer’s Employee Handbook established requirements for employee time recording.

8. Claimant testified that Mr. Tinsley wanted to keep track of when he came in for the demo classes and the attendees of the classes. Claimant thus signed in on a chart to log his attendance. Claimant did not clock in or out and confirmed that his name would not have appeared on any timesheets. Claimant explained that Mr. Tinsley designated the times he needed to be at Employer’s facility and the times were posted on a flyer.

9. Ms. Dreiling explained that there was no correlation between written paper notes and the Paycom System. The Employee Handbook provided that employees were required to track their time using the Paycom system. An employee would thus not be logging hours with a manager or supervisor. Ms. Dreiling was surprised by Claimant’s representations that he was logging hours and providing free demos without receiving compensation because she was not familiar with any practice or policy at Employer that permitted employees to work without getting paid.

10. Claimant testified he ran the demo training classes with another employee named Kelly. He ran a few classes in October but the primary demo classes occurred in November and December 2014 on Tuesday and Thursday nights. He drafted a flyer for the basketball camps with Kelly but the flyer had to be approved by Employer’s Manager Adam. The flyer outlined the nature of the basketball training sessions and specified that Claimant was providing free demo sessions from November 18, 2014 through December 30, 2014. The flyer outlined that the training sessions would occur from either 7:30-8:30 p.m. or 8:30-9:30 p.m. Claimant remarked that the flyer was posted at Employer’s Monaco location.

11. Claimant maintained that he did not expect to get paid and was not paid for the demo training classes. He knew he would be conducting the demo classes to gain clients and would receive compensation once his clients started paying for the training classes after January 1, 2015. Claimant remarked that the demo classes were a success and there were 20-30 people who were ready to sign up and pay for the classes.

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12. On December 23, 2014 Claimant arrived at Employer’s Monaco facility at approximately 7:15 p.m. in preparation for a 7:30 p.m. demo class. After the second demo session ended at about 9:30 p.m. he cleaned up the gym area. As he was leaving the facility it was snowing. Claimant slipped and fell while descending steps outside Employer’s Monaco facility. He landed on his outstretched, left arm.

13, On December 24, 2014 at approximately 1:14 a.m. Claimant visited the Swedish Medical Center Emergency Room for an examination. An x-ray of Claimant’s left arm revealed a radial fracture and avulsion of the ulnar styloid. Physicians splinted Claimant’s left wrist and recommended follow-up with an orthopedic surgeon.

14. Claimant testified that on December 24, 2014 he went to Employer’s Monaco facility and tried to find Mr. Tinsley to report his injury. Although Mr. Tinsley was not available Claimant obtained the number for Employer’s corporate office. When he spoke to Employer’s corporate office he was advised that he was not an employee and nothing could be done for his injury. He did not complete an incident report.

15. On December 26, 2014 Claimant told Mr. Tinsley about the injury. Mr. Tinsley responded that Employer was not going to cover the injury. On the same date Claimant also spoke to Ms. Dreiling about his left arm injury. He told Ms. Dreiling that he was working a basketball training class at the Employer’s Monaco location on December 23, 2014. She advised Claimant that he was not an employee and would not receive Workers’ Compensation benefits.

16. Although Ms. Dreiling acknowledged that Claimant contacted her on December 26, 2014 to report his injury, she provided a contradictory account of the conversation. Ms. Dreiling explained that she interviewed Claimant about how he was injured, what he had been doing when he was injured and whether he was working at the time. Claimant responded that he had been playing basketball, so Ms. Dreiling inquired whether he was working at that the time. Claimant admitted that he had not been working.

17. Ms. Dreiling conducted an investigation of the December 23, 2014 incident after she spoke to Claimant. She explained that none of Employer’s managers could confirm that Claimant was working on the evening of the incident. Ms. Dreiling subsequently informed Claimant that his left arm injury would not be covered under Workers’ Compensation because he had not been working for Employer on December 23, 2014.

18. On December 28, 2014 Claimant returned to the Swedish Medical Center Emergency Room and reported increased left wrist irritation due to the splint and tingling in his fingers. He received a new splint.

19. On January 5, 2015 Claimant visited Orthopedic Surgeon Steven J. Morgan, M.D. for an evaluation. Dr. Morgan recommended surgery for Claimant’s distal radioulnar joint disruption.

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20. On January 7, 2015 Claimant underwent left arm surgery with Dr. Morgan. Claimant specifically underwent an open reduction and internal fixation.

21. On January 19, 2015 Claimant returned to Dr. Morgan for an evaluation. Dr. Morgan referred Claimant for physical therapy and prescribed pain medications.

22. Ms. Dreiling testified that Claimant was terminated in February 2015 as part of a quarterly review. She explained that employment records are reviewed to determine those employees who needed performance reviews and those who were no longer working for Employer. Claimant’s supervisor Mr. Tinsley completed an employee separation form on February 10, 2015. Mr. Tinsley remarked that there were no future partnerships, camps or arrangements with Claimant. He also noted on the separation form that Claimant had “never worked any hours.”

23. Claimant has demonstrated that it is more probably true than not that he suffered a compensable left upper extremity injury during the course and scope of his employment with Employer on December 23, 2014. In Claimant’s September 17, 2014 application for employment with Employer his job description was a Basketball Instructor. Claimant credibly testified that after he was hired he received training, took online classes and attended meetings to review Employer’s employment manual. Claimant ran a few demo classes in October but the primary classes occurred in November and December 2014 on Tuesday and Thursday nights. Claimant was hired by Employer as a non-exempt staff member earning $8.00 per hour. Claimant would also earn 60% of the revenue received through clinics and camps that he conducted. He did not expect to receive compensation and was not paid for the demo training classes. Claimant knew he would be conducting the demo classes to gain clients and would receive compensation once his clients started paying for the training classes after January 1, 2015.

24. Claimant credibly explained that on December 23, 2014 he arrived at Employer’s Monaco facility at approximately 7:15 p.m. in preparation for a 7:30 p.m. demo class. After the second demo session ended at about 9:30 p.m. he cleaned up the gym area. As he was leaving, Claimant slipped and fell on ice while descending steps outside Employer’s Monaco facility. He landed on his outstretched, left arm. The December 23, 2014 demo training class was part of Claimant’s regular job duties for Employer. Based on Claimant’s credible testimony and the employment records, Claimant suffered a left upper extremity injury during the course and scope of his employment with Employer on December 23, 2014.

25. Claimant has proven that it is more probably true than not that he is entitled to receive reasonable, necessary and related medical treatment for his December 23, 2014 industrial injury. Claimant obtained medical treatment in the form of emergency care, left arm surgery, physical therapy and medications. Claimant’s treatment was designed to cure or relieve the effects of his left arm injury. His treatment was reasonable, necessary and related to his December 23, 2014 industrial injury. Accordingly, Respondents are financially responsible for Claimant’s medical expenses.

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CONCLUSIONS OF LAW

1. The purpose of the “Workers’ Compensation Act of Colorado” (Act) is to assure the quick and efficient delivery of disability and medical benefits to injured workers at a reasonable cost to employers, without the necessity of any litigation. §8-40-102(1), C.R.S. A claimant in a Workers' Compensation claim has the burden of proving entitlement to benefits by a preponderance of the evidence. §8-42-101, C.R.S. A preponderance of the evidence is that which leads the trier-of-fact, after considering all of the evidence, to find that a fact is more probably true than not. Page v. Clark, 197 Colo. 306, 592 P.2d 792 (1979); People v. M.A., 104 P.3d 273, 275 (Colo. App. 2004). The facts in a Workers' Compensation case are not interpreted liberally in favor of either the rights of the injured worker or the rights of the employer. §8-43-201, C.R.S. A Workers' Compensation case is decided on its merits. §8-43-201, C.R.S.

2. The Judge’s factual findings concern only evidence that is dispositive of the issues involved; the Judge has not addressed every piece of evidence that might lead to a conflicting conclusion and has rejected evidence contrary to the above findings as unpersuasive. See Magnetic Engineering, Inc. v. ICAO, 5 P.3d 385, 389 (Colo. App. 2000).

3. When determining credibility, the fact finder should consider, among other things, the consistency or inconsistency of the witness's testimony and actions; the reasonableness or unreasonableness (probability or improbability) of the testimony and actions; the motives of the witness; whether the testimony has been contradicted; and bias, prejudice, or interest. See Prudential Insurance Co. v. Cline, 98 Colo. 275, 57 P.2d 1205 (1936); CJI, Civil 3:16 (2007).

Compensability

4. For a claim to be compensable under the Act, a claimant has the burden of proving that he suffered a disability that was proximately caused by an injury arising out of and within the course and scope of employment. §8-41-301(1)(c) C.R.S.; In re Swanson, W.C. No. 4-589-645 (ICAP, Sept. 13, 2006). Proof of causation is a threshold requirement that an injured employee must establish by a preponderance of the evidence before any compensation is awarded. Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844, 846 (Colo. App. 2000); Singleton v. Kenya Corp., 961 P.2d 571, 574 (Colo. App. 1998). The question of causation is generally one of fact for determination by the Judge. Faulkner, 12 P.3d at 846.

5. As found, Claimant has demonstrated by a preponderance of the evidence that he suffered a compensable left upper extremity injury during the course and scope of his employment with Employer on December 23, 2014. In Claimant’s September 17, 2014 application for employment with Employer his job description was a Basketball Instructor. Claimant credibly testified that after he was hired he received training, took online classes and attended meetings to review Employer’s employment manual. Claimant ran a few demo classes in October but the primary classes occurred in November and December 2014 on Tuesday and Thursday nights. Claimant was hired

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by Employer as an non-exempt staff member earning $8.00 per hour. Claimant would also earn 60% of the revenue received through clinics and camps that he conducted. He did not expect to receive compensation and was not paid for the demo training classes. Claimant knew he would be conducting the demo classes to gain clients and would receive compensation once his clients started paying for the training classes after January 1, 2015.

6. As found, Claimant credibly explained that on December 23, 2014 he arrived at Employer’s Monaco facility at approximately 7:15 p.m. in preparation for a 7:30 p.m. demo class. After the second demo session ended at about 9:30 p.m. he cleaned up the gym area. As he was leaving, Claimant slipped and fell on ice while descending steps outside Employer’s Monaco facility. He landed on his outstretched, left arm. The December 23, 2014 demo training class was part of Claimant’s regular job duties for Employer. Based on Claimant’s credible testimony and the employment records, Claimant suffered a left upper extremity injury during the course and scope of his employment with Employer on December 23, 2014.

Medical Benefits

7. Respondents are liable for authorized medical treatment that is reasonable and necessary to cure or relieve the effects of an industrial injury. §8-42-101(1)(a), C.R.S.; Colorado Comp. Ins. Auth. v. Nofio, 886 P.2d 714, 716 (Colo. 1994). A pre-existing condition or susceptibility to injury does not disqualify a claim if the employment aggravates, accelerates, or combines with the pre-existing condition to produce a need for medical treatment. Duncan v. Industrial Claim Appeals Office, 107 P.3d 999, 1001 (Colo. App. 2004). The determination of whether a particular treatment modality is reasonable and necessary to treat an industrial injury is a factual determination for the ALJ. In re of Parker, W.C. No. 4-517-537 (ICAP, May 31, 2006); In re Frazier, W.C. No. 3-920-202 (ICAP, Nov. 13, 2000).

8. As found, Claimant has proven by a preponderance of the evidence that he is entitled to receive reasonable, necessary and related medical treatment for his December 23, 2014 industrial injury. Claimant obtained medical treatment in the form of emergency care, left arm surgery, physical therapy and medications. Claimant’s treatment was designed to cure or relieve the effects of his left arm injury. His treatment was reasonable, necessary and related to his December 23, 2014 industrial injury. Accordingly, Respondents are financially responsible for Claimant’s medical expenses.

ORDER

Based upon the preceding findings of fact and conclusions of law, the Judge enters the following order:

1. Claimant suffered a compensable left arm injury during the course and scope of his employment with Employer on December 23, 2014.

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2. Respondents are financially responsible for Claimant’s reasonable necessary and related medical expenses for his left arm injury.

3. Any issues not resolved in this Order are reserved for future determination.

If you are a party dissatisfied with the Judge’s order, you may file a Petition to Review the order with the Denver Office of Administrative Courts, 1525 Sherman Street, 4th Floor, Denver, CO 80203. You must file your Petition to Review within twenty (20) days after mailing or service of the order, as indicated on certificate of mailing or service; otherwise, the Judge’s order will be final. You may file the Petition to Review by mail, as long as the certificate of mailing attached to your petition shows: (1) That you mailed it within twenty (20) days after mailing or service of the order of the Judge; and (2) That you mailed it to the above address for the Denver Office of Administrative Courts. For statutory reference, see section 8-43-301(2), C.R.S. (as amended, SB09-070). For further information regarding procedures to follow when filing a Petition to Review, see Rule 26, OACRP. You may access a form for a petition to review at http://www.colorado.gov/dpa/oac/forms-WC.htm.

DATED: February 6, 2017.

_______________________ Peter J. Cannici Administrative Law Judge Office of Administrative Courts 1525 Sherman Street, 4th Floor Denver, CO 80203

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OFFICE OF ADMINISTRATIVE COURTS STATE OF COLORADO WORKERS’ COMPENSATION NO. WC 5-010-884-02

ISSUES

1. Whether Claimant has established by a preponderance of the evidence that he sustained a compensable mental impairment during the course and scope of his employment with Employer on March 24, 2016.

2. Whether Claimant has proven by a preponderance of the evidence that the medical treatment he has received was authorized, reasonable and necessary to cure or relieve the effects of a work-related injury.

3. Whether Claimant has demonstrated by a preponderance of the evidence that he is entitled to receive Temporary Total Disability (TTD) benefits for the period March 25, 2016 through March 31, 2016.

FINDINGS OF FACT

1. Claimant works for Employer as a Police Officer. On March 24, 2016 Claimant was dispatched to a scene in which a 77 year old veteran was armed with a knife and behaving erratically. The individual remained in a highly agitated state and repeatedly asked Claimant to shoot him. He pointed the knife at his chest and also pointed the knife directly at Claimant. Claimant was in a doorway with only a narrow hallway behind him.

2. Claimant explained that he has never shot anyone in his 25 year career and was concerned about the effect a shooting might have in the current political environment. Claimant eventually convinced the individual to drop the knife. He then apprehended the individual and removed him from the scene. The incident lasted for approximately 30-45 minutes. Claimant noted that he suffered an “adrenaline dump” during the incident that took a while to get through his system.

3. Claimant testified that approximately 30 minutes after the incident he began to experience lightheadedness, chest pains and a headache. Claimant’s blood pressure reading after the incident was 220/140.

4. Claimant was transported by ambulance to the Swedish Medical Center Emergency Room for an evaluation. Records reveal that he was suffering from “chest pain due to anxiety/panic attack” because of “a stress response.” The records did not reflect any “radiographic evidence for acute cardiopulmonary disease.” Claimant remained overnight at Swedish Medical Center and was released to return to work without restrictions on March 27, 2016.

5. Employer referred Claimant to designated medical provider Denver Health and Hospital Authority for an evaluation. On March 28, 2016 Claimant visited Lori

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Szczukowski, M.D. for an examination. Dr. Szczukowski reported that on March 24, 2016 Claimant was involved in a “very stressful situation” in which a person had a knife. She diagnosed Claimant with an acute stress reaction. Dr. Szczukowski directed Claimant to his personal medical provider and to remain off of work until his blood pressure was under control.

6. On March 28, 2016 Claimant visited personal medical provider Richard M. Sims, M.D. for an examination. Dr. Sims noted that Claimant was following up from a hospital visit for chest pains and elevated blood pressure. After receiving blood pressure medications Claimant’s readings continued to fluctuate. Claimant reported that he also periodically suffered headaches. Claimant’s blood pressure was elevated upon examination.

7. On April 1, 2016 Claimant returned to regular employment. He missed work for the period March 25, 2016 through March 31, 2016 because of his elevated blood pressure.

8. On April 25, 2016 Dr. Sims determined that Claimant’s blood pressure was under control. He specifically noted that Claimant suffered from hypertension that was well-controlled with medications.

9. On July 31, 2016 Dr. Sims authored a letter regarding the March 24, 2016 incident. He noted that he had been Claimant’s family practice physician since January 14, 2008. Claimant visited him regularly for preventative care and never required medications to treat high blood pressure prior to March 24, 2016. Dr. Sims explained that Claimant’s blood pressure on March 24, 2016 was “very high” and could be considered “life threatening.” His symptoms of dizziness, chest pains, a headache and blurred vision constituted signs of “hypertensive urgency.” Dr. Sims explained that Claimant’s elevated blood pressure was caused by the stressful situation that he encountered on March 24, 2016 while performing his duties as a Police Officer for Employer. He remarked that “it is very common to see a spike/rise in blood pressure with patients that [have] to handle an extremely stressful situation.” Moreover, Claimant’s transport and admission to the Swedish Medical Center Emergency Room on March 24, 2016 was a direct result of his elevated blood pressure because of “his work related stressful situation.” Dr. Sims summarized that the March 24, 2016 incident was the “precipitating factor” for the spike in Claimant’s blood pressure and necessity for medical treatment.

10. Claimant’s personnel file reflects that he has received numerous awards, letters of commendation and recognition in his annual job review for incidents in which he has responded to suicidal calls. Claimant testified that during one of incidents the suicidal individual was not armed. In another incident an individual was armed with a knife, but Claimant explained that he was not the lead officer on the call. Moreover, in another call in which a suicidal individual was wielding a sword, Claimant remarked that he was a back up officer who was assisting during the incident. Finally, Claimant received the Superior Tactics and Response Award for responding to a suicidal call with a woman who “had barricaded herself inside the apartment and was clearly an imminent

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danger to herself and others.” Disarming a suicidal party is thus not outside of Claimant’s usual work experience. None of the preceding incidents caused Claimant to develop elevated blood pressure or chest pains. Claimant recognized that police officers generally encounter situations where individuals present risks to themselves and others.

11. Claimant testified that he did not suffer any lasting effects from the March 24, 2016 incident. He remarked that he is currently working full duty without restrictions. Claimant acknowledged that no medical professional has diagnosed him with a permanent disability as a result of the March 24, 2016 incident.

12. Claimant has failed to establish that it is more probably true than not that he suffered a permanent mental impairment from an accidental injury arising out of and in the course and scope of his employment. Claimant’s contention that he suffered from a mental impairment is predicated on a March 24, 2016 incident involving a suicidal individual brandishing a knife. Claimant explained that approximately 30 minutes after the incident he began to experience lightheadedness, chest pains and a headache. Claimant’s blood pressure after the incident was highly elevated. Claimant was transported by ambulance to the Swedish Medical Center Emergency Room because he was suffering from “chest pain due to anxiety/panic attack.” Dr. Sims explained that Claimant’s elevated blood pressure was caused by the stressful situation that he encountered on March 24, 2016 while performing his duties as a Police Officer for Employer. He summarized that the March 24, 2016 incident was the “precipitating factor” for the spike in Claimant’s blood pressure and necessity for medical treatment.

13. The mental impairment statute in the Workers’ Compensation Act requires a psychologically traumatic event that would evoke significant symptoms of distress in workers in similar circumstances. Initially, Claimant has not demonstrated that he suffered from a “recognized, permanent disability” as a result of the March 24, 2016 incident. In fact, Claimant testified that he did not suffer any lasting effects from the incident. He remarked that he is currently working full duty without restrictions. Claimant also acknowledged that no medical professional has diagnosed him with a permanent disability as a result of the March 24, 2016 incident. Moreover, Claimant has not produced “testimony of a licensed physician or psychologist that the incident constituted a “psychologically traumatic event.” Although Dr. Sims noted that Claimant’s elevated blood pressure was caused by a “stressful situation” on March 24, 2016, he did not testify at the hearing in this matter or detail that the incident was “psychologically traumatic.” Finally, Claimant has not demonstrated that the March 24, 2016 incident was generally outside a worker's usual experience that would evoke significant symptoms of distress in a similarly situated worker. Claimant’s personnel file reflects that he has received numerous awards, letters of commendation and recognition in his annual job review for incidents in which he has responded to suicidal calls. Disarming a suicidal party is thus not outside of Claimant’s usual work experience. None of the incidents caused Claimant to develop elevated blood pressure or chest pains. Claimant recognized that police officers generally encounter situations where individuals present risks to themselves and others. Accordingly, Claimant has failed to demonstrate that he suffered from a permanent mental impairment as a result

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of a psychologically traumatic event that was outside of a similarly situated worker’s experience while working as a Police Officer for Employer.

CONCLUSIONS OF LAW

1. The purpose of the “Workers’ Compensation Act of Colorado” (Act) is to assure the quick and efficient delivery of disability and medical benefits to injured workers at a reasonable cost to employers, without the necessity of any litigation. §8-40-102(1), C.R.S. A claimant in a Workers' Compensation claim has the burden of proving entitlement to benefits by a preponderance of the evidence. §8-42-101, C.R.S. A preponderance of the evidence is that which leads the trier-of-fact, after considering all of the evidence, to find that a fact is more probably true than not. Page v. Clark, 197 Colo. 306, 592 P.2d 792 (1979); People v. M.A., 104 P.3d 273, 275 (Colo. App. 2004). The facts in a Workers' Compensation case are not interpreted liberally in favor of either the rights of the injured worker or the rights of the employer. §8-43-201, C.R.S. A Workers' Compensation case is decided on its merits. §8-43-201, C.R.S.

2. The Judge’s factual findings concern only evidence that is dispositive of the issues involved; the Judge has not addressed every piece of evidence that might lead to a conflicting conclusion and has rejected evidence contrary to the above findings as unpersuasive. See Magnetic Engineering, Inc. v. ICAO, 5 P.3d 385, 389 (Colo. App. 2000).

3. When determining credibility, the fact finder should consider, among other things, the consistency or inconsistency of the witness's testimony and actions; the reasonableness or unreasonableness (probability or improbability) of the testimony and actions; the motives of the witness; whether the testimony has been contradicted; and bias, prejudice, or interest. See Prudential Insurance Co. v. Cline, 98 Colo. 275, 57 P.2d 1205 (1936); CJI, Civil 3:16 (2007).

4. For a claim to be compensable under the Act, a claimant has the burden of proving that she suffered a disability that was proximately caused by an injury arising out of and within the course and scope of employment. §8-41-301(1)(c) C.R.S.; In re Swanson, W.C. No. 4-589-645 (ICAP, Sept. 13, 2006). Proof of causation is a threshold requirement that an injured employee must establish by a preponderance of the evidence before any compensation is awarded. Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844, 846 (Colo. App. 2000); Singleton v. Kenya Corp., 961 P.2d 571, 574 (Colo. App. 1998). The question of causation is generally one of fact for determination by the Judge. Faulkner, 12 P.3d at 846.

5. The Workers’ Compensation Act has authorized recovery for a broad range of physical injuries, but has “sharply limited” a claimant’s potential recovery for mental injuries. Mobley v. King Soopers, WC No. 4-359-644 (ICAP, Mar. 9, 2011). Enhanced proof requirements for mental impairment claims exist because “evidence of causation is less subject to direct proof than in cases where the psychological consequence follows a physical injury.” Davidson v. City of Loveland Police Department, WC No. 4-292-298 (ICAP, Oct. 12, 2001), citing Oberle v. Industrial Claim

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Appeals Office, 919 P.2d 918 (Colo. App. 1996). A claimant experiencing physical symptoms caused by emotional stress is subject to the requirements of the mental stress statutes. Granados v. Comcast Corporation, WC No. 4-724-768 (ICAP, Feb. 19, 2010); see Esser v. Industrial Claim Appeals Office, 8 P.3d 1218, 1221 (Colo. App. 2000), affd 30 P.3d 189 (Colo. 2001) (determining that chest pains and elevated blood pressure do not constitute physical injuries when precipitated by mental stress and must be evaluated as mental impairment claims under §8-41-301(2)(a), C.R.S.).

6. Section 8-41-301(2)(a), C.R.S. imposes additional evidentiary requirements regarding mental impairment claims. The section provides, in relevant part: A claim of mental impairment must be proven by evidence supported by

the testimony of a licensed physician or psychologist. For purposes of this subsection (2), “mental impairment” means a recognized, permanent disability arising from an accidental injury arising out of and in the course of employment when the accidental injury involves no physical injury and consists of a psychologically traumatic event that is generally outside of a worker's usual experience and would evoke significant symptoms of distress in a worker in similar circumstances. A mental impairment shall not be considered to arise out of and in the course of employment if it results from a disciplinary action, work evaluation, job transfer, lay-off, demotion, promotion, termination, retirement, or similar action taken in good faith by the employer.

The definition of “mental impairment” consists of two clauses that each contains three elements. The first clause requires a claimant to prove the injury consists of: “1) a recognized, permanent disability that, 2) arises from an accidental injury involving no physical injury, and 3) arises out of the course and scope of employment. Davison v. Industrial Claim Appeals Office, 84 P.3d 1023, 1030 (Colo. 2004). The second clause requires the claimant to prove the injury is: “1) a psychologically traumatic event, 2) generally outside a worker's usual experience, and 3) that would evoke significant symptoms of distress in a similarly situated worker.” Id.

7. As found, Claimant has failed to establish by a preponderance of the evidence that he suffered a permanent mental impairment from an accidental injury arising out of and in the course and scope of his employment. Claimant’s contention that he suffered from a mental impairment is predicated on a March 24, 2016 incident involving a suicidal individual brandishing a knife. Claimant explained that approximately 30 minutes after the incident he began to experience lightheadedness, chest pains and a headache. Claimant’s blood pressure after the incident was highly elevated. Claimant was transported by ambulance to the Swedish Medical Center Emergency Room because he was suffering from “chest pain due to anxiety/panic attack.” Dr. Sims explained that Claimant’s elevated blood pressure was caused by the stressful situation that he encountered on March 24, 2016 while performing his duties as a Police Officer for Employer. He summarized that the March 24, 2016 incident was the

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“precipitating factor” for the spike in Claimant’s blood pressure and necessity for medical treatment.

8. As found, the mental impairment statute in the Workers’ Compensation

Act requires a psychologically traumatic event that would evoke significant symptoms of distress in workers in similar circumstances. Initially, Claimant has not demonstrated that he suffered from a “recognized, permanent disability” as a result of the March 24, 2016 incident. In fact, Claimant testified that he did not suffer any lasting effects from the incident. He remarked that he is currently working full duty without restrictions. Claimant also acknowledged that no medical professional has diagnosed him with a permanent disability as a result of the March 24, 2016 incident. Moreover, Claimant has not produced “testimony of a licensed physician or psychologist that the incident constituted a “psychologically traumatic event.” Although Dr. Sims noted that Claimant’s elevated blood pressure was caused by a “stressful situation” on March 24, 2016, he did not testify at the hearing in this matter or detail that the incident was “psychologically traumatic.” Finally, Claimant has not demonstrated that the March 24, 2016 incident was generally outside a worker's usual experience that would evoke significant symptoms of distress in a similarly situated worker. Claimant’s personnel file reflects that he has received numerous awards, letters of commendation and recognition in his annual job review for incidents in which he has responded to suicidal calls. Disarming a suicidal party is thus not outside of Claimant’s usual work experience. None of the incidents caused Claimant to develop elevated blood pressure or chest pains. Claimant recognized that police officers generally encounter situations where individuals present risks to themselves and others. Accordingly, Claimant has failed to demonstrate that he suffered from a permanent mental impairment as a result of a psychologically traumatic event that was outside of a similarly situated worker’s experience while working as a Police Officer for Employer.

ORDER

Based upon the preceding findings of fact and conclusions of law, the Judge enters the following order: Claimant’s request for Workers’ Compensation benefits is denied and dismissed.

If you are a party dissatisfied with the Judge’s order, you may file a Petition to Review the order with the Denver Office of Administrative Courts, 1525 Sherman Street, 4th Floor, Denver, CO 80203. You must file your Petition to Review within twenty (20) days after mailing or service of the order, as indicated on certificate of mailing or service; otherwise, the Judge’s order will be final. You may file the Petition to Review by mail, as long as the certificate of mailing attached to your petition shows: (1) That you mailed it within twenty (20) days after mailing or service of the order of the Judge; and (2) That you mailed it to the above address for the Denver Office of Administrative Courts. For statutory reference, see section 8-43-301(2), C.R.S. (as amended, SB09-070). For further information regarding procedures to follow when filing a Petition to Review, see Rule 26, OACRP. You may access a form for a petition to review at http://www.colorado.gov/dpa/oac/forms-WC.htm.

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DATED: February 8, 2017.

___________________________________ Peter J. Cannici Administrative Law Judge Office of Administrative Courts 1525 Sherman Street, 4th Floor Denver, CO 80203

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OFFICE OF ADMINISTRATIVE COURTS STATE OF COLORADO WORKERS’ COMPENSATION NO. WC 5-014-691-01

ISSUES

Whether rehabilitation treatment recommended by Dr. Chan is reasonably needed.

FINDINGS OF FACT

Based upon the evidence presented at hearing, the Judge enters the following findings of fact:

1. Claimant suffered an admitted lower back strain injury on March 21, 2016.

2. Claimant treated with several treatment providers between the date of injury and November 11, 2016, when she was released at MMI by her ATP, Dr. Fox.

3. During Claimant’s treatment, she was referred by her ATP Dr. Fox to Dr. Wernick at Dimensions Pain Management. Soon after she began seeing Dr. Wernick, she underwent a random drug screen in which her urine sample was found to have methamphetamine and amphetamine at a reportable level. These drugs had not been prescribed by a treating provider and their presence was not expected. Due to the positive findings, Dr. Wernick discharged Claimant from care.

4. Claimant continued treatment for her back pain and was subsequently referred to Dr. Samuel Chan with Mile High Sports & Rehabilitation Medicine. On October 24, 2016, Dr. Chan recommended drug rehabilitation or weaning to get Claimant off of narcotic pain medications.

5. Dr. Chan’s October 24, 2016, report notes findings of another urine drug screen which were positive for amphetamines and morphine derivatives which also were not expected.

6. In response to Dr. Chan’s recommendation, Respondents filed an Application for Hearing to challenge the reasonableness and relatedness of Dr. Chan’s rehabilitation recommendation pursuant to W.C.R.P. 16.

7. In support of Respondent’s W.C.R.P. challenge to reasonableness and relatedness, they obtained a records review opinion from Dr. Kathy McCranie, who opined that substance abuse rehabilitation was not related to Claimant’s work injury.

8. Claimant did not file a Response to the Application for Hearing. 9. On November 7, 2016, Claimant returned to her ATP, Dr. Fox. At this

visit, Claimant indicated that her injury had returned to baseline. Claimant requested that her case be closed, and that she be released at MMI without restrictions.

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10. Dr. Fox’s release from care specifically states that post-MMI Maintenance care is not recommended.

11. In response to Dr. Fox’s report, Respondents filed a Final Admission of Liability on January 6, 2017, admitting for 0% impairment and denying post-MMI maintenance care.

12. As of the date of this order, Claimant has not contested the Final Admission of Liability, and the time to do so has expired.

CONCLUSIONS OF LAW

Based upon the foregoing findings of fact, the Judge draws the following conclusions of law:

Rule 17 of the Office of Administrative Courts' Rule of Procedure allows an ALJ to enter summary judgment where there are no disputed issues of material fact. OACRP 17, 1 Code Colo. Reg. 104-3 at 7. Additionally, to the extent that it does not conflict with OACRP 17, C.R.C.P. 56 also applies in workers' compensation proceedings. Fera v. Industrial Claim Appeals Office 169 P.3d 231, 233 (Colo. App. 2007).

Summary judgment is appropriate when pleadings, affidavits, admissions and other admissible evidence demonstrate that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Churchey v. Adolph Coors, 759 P.2d 1336, 1339 (Colo. 1988).

In this case, Respondents are entitled to summary judgment because all pleadings and evidence establish that there is no issue of disputed material fact concerning the reasonableness and relatedness of the substance abuse rehabilitation recommended by Dr. Chan.

Since Respondents contested the recommended treatment, Claimant has requested to be discharged from care with no impairment, maintenance care or restrictions, has not filed a Response to the Application for Hearing, has not contested the Final Admission, has not submitted a case information sheet, and has not contested the issues for hearing as indicated in her email of February 16, 2017.

Claimant has had notice and an opportunity to be heard on multiple occasions and has failed to take any action to contest Respondents’ challenge to the recommended care.

Claimant has not endorsed any issues, witnesses or evidence for hearing. Claimant requested and was granted release at MMI with no impairment or

maintenance care. Claimant has not contested the Final Admission filed by Respondents more than

30 days ago.

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ORDER

Based upon the foregoing findings of fact and conclusions of law, the Judge enters the following order:

1. The recommendation for substance abuse rehabilitation recommended by Dr. Chan is not reasonable or related to this Claim and is therefore properly denied pursuant to WCRP 16.

2. Issues not expressly decided herein are reserved to the parties for future determination.

3. If you are dissatisfied with the Judge's order, you may file a Petition to

Review the order with the Denver Office of Administrative Courts, 1525 Sherman St., 4th Floor, Denver, CO 80203. You must file your Petition to Review within twenty (20) days after mailing or service of the order, as indicated on certificate of mailing or service; otherwise, the Judge's order will be final. You may file the Petition to Review by mail, as long as the certificate of mailing attached to your petition shows: (1) That you mailed it within twenty (20) days after mailing or service of the order of the Judge; and (2) That you mailed it to the above address for the Denver Office of Administrative Courts. For statutory reference, see section 8-43-301(2), C.R.S. For further information regarding procedures to follow when filing a Petition to Review, see Rule 26, OACRP. You may access a petition to review form at: http://www.colorado.gov/dpa/oac/forms-WC.htm.

DATED: February 21, 2017

/s/ Kimberly Turnbow Kimberly B. Turnbow Administrative Law Judge Office of Administrative Courts 1525 Sherman Street, 4th Floor Denver, CO 80203

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OFFICE OF ADMINISTRATIVE COURTS STATE OF COLORADO WORKERS’ COMPENSATION NO. 4-832-507-06

ISSUES

Did Employer prove by a preponderance of the evidence that Claimant’s melanoma did not result from his work as a firefighter?

STIPULATIONS

The parties stipulated that Claimant meets the threshold requirements of § 8-41-209: Claimant has been a firefighter for more than twenty years, Claimant suffered an onset of skin cancer (melanoma) specifically enumerated under § 8-41-209, and there is no evidence showing that Claimant had melanoma when Employer hired him.

The parties further stipulated Claimant’s average weekly wage (AWW) is $1,415.25. As a result of the effects of his skin cancer, Claimant lost pay for 1,135 hours. Should the Judge find Claimant’s claim compensable, the following physicians and providers to whom they referred Claimant are authorized treating providers: Dr. Sperber, Dr. Dillon, Dr. McVicker, Dr. Kurbegov, and the National Cancer Institute.

FINDINGS OF FACT

1. Claimant works as a firefighter for Employer. On October 24, 2009, Claimant was diagnosed with invasive melanoma. At the time of his diagnosis, Claimant had been working as a firefighter for Employer for more than twenty years. Claimant earned a promotion to Captain, effective the day before the hearing.

2. In October 2009, Claimant sought medical attention for a raised, pink lesion on his left anterior chest wall. The lesion arose in the setting of a compound or dysplastic nevus (atypical mole). A biopsy on October 29, 2009 revealed early-stage malignant melanoma. On December 2, 2009, Claimant underwent radical resection of the lesion. Claimant also had three other lesions removed, with varying amounts of dysplasia.

3. Claimant progressed well clinically until June 2010, when he developed a mild headache that progressed significantly over a 24-hour period, causing some altered mentation. Claimant underwent an MRI scan of his brain on June 30, 2010, which revealed a large mass in the right temporal lobe. Claimant was diagnosed with a central nervous system lesion and suspected malignant melanoma.

4. On July 2, 2010, Claimant underwent surgery to resect the tumor from his right temporal lobe. The pathology report showed metastatic melanoma of the brain. Claimant also had a left subcutaneous nodule excised from his left arm pit, which also confirmed positive for metastatic disease. On August 4, 2010, Claimant had a nodule

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excised from the thoracic area of his back that revealed metastatic melanoma in the subcutaneous space.

5. The National Cancer Institute accepted Claimant for high-dose interleukin interfusion therapy. A repeat brain MRI on October 7, 2010 was unremarkable. By August 21, 2012, Claimant’s physicians reported he was disease-free — except for one nodule in his right hip area. Claimant’s physicians released him to follow-up in one year.

6. Claimant typically works three twenty-four hour shifts, which consisted of 24 hours on, 24 hours off, 24 hours on, 24 hours off, followed by four days off. Claimant essentially works ten days per month. On average, 80% of the calls to which Claimant responds are medical calls, or non-fire calls. Twenty percent of the calls are “fire related,” including burning food on stoves, dumpster fires, and automobile fires. Approximately 2% of the fire-related calls involved structural fires.

7. Employer issues personal protective equipment, or “Bunker Gear,” which is fabricated with Nomex (a flame resistant fiber). The Bunker Gear comprises boots, pants, a jacket, a hood, gloves, and a helmet. When Claimant began working for Employer, firefighters did not clean the Bunker Gear. Employer now mandates gross decontamination of Bunker Gear at the scene of each fire and a thorough washing every six months. Claimant wears a T-shirt, polo shirt, or button-down shirt underneath his Bunker Gear, which protects the skin of his trunk from contact with his jacket.

8. During his firefighting career, Claimant has engaged in several firefighting activities: suppression and overhaul (mop-up) phases of fighting structural and commercial fires, fighting grass fires, fighting wildland fires, hazmat responses, and responding to traffic accidents. The mop-up phase of a fire exposes firefighters to embers and extremely dirty soot, which covers personal protective equipment and turns to black gunk in the firefighter’s nostrils.

9. Employer also issues each firefighter a self-contained breathing apparatus (SCBA), equipped with a mask and tank. Since 1983, firefighters have worn SCBA systems during the fire suppression stage of firefighting. Sometime after the year 2000, Employer also required firefighters to wear SCBA systems during the mop-up phase of firefighting.

10. Firefighters may be exposed to exhaust while working in various fire stations, where vacuum systems designed to remove exhaust from fire engines sometimes leak. Depending on the fire station assignment, Claimant participated in washing soot from the inside walls of fire stations as often as twice per year.

11. By 2000, Employer began deploying firefighters to fight wildland fires. Employer typically deploys firefighters to fight one to two wildland fires per summer. Fighting a wildland fire usually requires firefighters to spend one to two weeks deployed at the fire staging site. When fighting wildland fires, Claimant worked 16 hours per day. On some wildland fires, Claimant has been deployed as long as five weeks. When

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fighting wildland fires, Claimant typically wears a jacket and helmet, which leaves his face and neck exposed to soot and sunlight.

12. Claimant experiences significantly greater exposure to sunlight while deployed to fight wildland fires. Claimant also experiences significantly greater exposure to sunlight when training in the sun, where he wears shorts and a T-shirt for 8 to 10 hours per day. Claimant can use sunblock at times, when he has the opportunity to apply it before being dispatched.

13. Dr. Ragini Kudchadkar performed an independent medical examination (IME) at Employer’s request on September 30, 2011. Dr. Kudchadkar also testified at hearing as an expert in the areas of Oncology and Dermatology. Dr. Kudchadkar specializes in treating patients with melanoma.

14. According to Dr. Kudchadkar, Claimant’s intrinsic factors, such as genetic and hereditary factors, make him more susceptible to damage from solar ultraviolet (UV) radiation. Dr. Kudchadkar explained:

Melanoma development is multifactorial, and not all factors are known that contribute to melanoma development. Likely it’s a combination of one’s genetic predisposition as well as UVA/UVB damage to melanocytes of the skin.

****

How much the occupational risk of firefighting contributes or causes the development of melanoma is unknown. The data shows a slightly higher … rate of melanoma in the firefighting population in some studies, others show no correlation.

15. Dr. Yelena Globina, an Occupational Medicine Clinical Fellow, performed a telephonic IME, record review and literature review at the request of Claimant’s union. Dr. Globina discussed medical literature which shows that firefighters are regularly exposed to known carcinogens despite the use of protective gear. Dr. Globina also reviewed literature which showed a significantly increased risk for melanoma among firefighters. Ultimately, Dr. Globina concluded that several types of research demonstrate an increased risk for melanoma due to occupational exposures of firefighting.

16. Dr. Elizabeth Delzell, a Professor of Epidemiology, performed a literature review at Employer’s request. Dr. Delzell opined that the evidence from epidemiologic studies of professional firefighters does not support a causal relationship between firefighting and melanoma.

17. Dr. Annyce Mayer performed an IME at Claimant’s request. Dr. Mayer also testified at hearing as an expert in the areas of Occupational and Environmental Medicine. Dr. Mayer evaluated the occupational relationship of Claimant’s past firefighting exposures to his malignant melanoma.

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18. Dr. Mayer persuasively opined that the medical evidence presented by Employer failed to demonstrate that Claimant’s melanoma did not occur as a result of his job. Although the exact cause of Claimant’s cancer is unknown, Claimant’s cancer is likely the result of the synergistic interaction between non-occupational factors and his occupational exposures as a firefighter. The ALJ finds Dr. Mayer’s opinions regarding causation credible and persuasive.

19. Dr. Mayer relied on medical literature showing the risk of contracting melanoma is significantly greater for firefighters than the general population. The LeMasters study shows 32% increased risk, the meta-analysis by Howe and Birch showed 73% increased risk, and the Bates study showed 50% increased risk.

20. Dr. Mayer discussed the distinction between assessing relative risk versus absolute risk in determining causation of cancer and pointed out that elevated relative risk does not equal causation. Dr. Mayer explained:

relative risk is a factor that can make it more likely that someone may develop the cancer, but what we see is that there are a lot of people who have the same and equal risk factors and very few of them actually go on to develop the cancer. So that risk really isn’t the whole reason why that person developed the cancer.

21. Dr. Mayer noted that Claimant’s mother and brother share many of his risk factors, yet neither has been diagnosed with melanoma. Indeed, Claimant’s only relative diagnosed with melanoma was his maternal grandmother, who only required local excision at age 70. Melanoma risk increases with age, and it is more common for people in their 70s and 80s to develop the disease than someone in their 40s. Thus, Claimant’s diagnosis at a much younger age suggests that other factors, including occupational exposures, combined with familial risk and unknown genes to create melanoma.

22. Claimant testimony at hearing was credible and persuasive.

23. Dr. Mayer’s opinions are more persuasive than medical opinions in the record to the contrary.

24. Employer has failed to prove by a preponderance of the evidence that Claimant’s melanoma did not occur on the job.

CONCLUSIONS OF LAW

Section 8-41-209 (the “firefighter cancer statute”) provides:

(1) Death, disability, or impairment of health of a firefighter of any political subdivision who has completed five or more years of employment as a firefighter, caused by cancer of the brain, skin, digestive system hematological system or genitourinary system and resulting from

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his or her employment as a firefighter, shall be considered an occupational disease.

(2) Any condition or impairment of health described in subsection (1) of this section:

(a) Shall be presumed to result from a firefighter’s employment if, at the time of becoming a firefighter or thereafter, the firefighter underwent a physical examination that failed to reveal substantial evidence of such condition or impairment of health that preexisted his or her employment as a firefighter; and

(b) Shall not be deemed to result from the firefighter’s employment if the firefighter’s employer or insurer shows by a preponderance of the medical evidence that such condition or impairment did not occur on the job.

Proof by a preponderance of the evidence requires the proponent to establish

that the existence of a “contested fact is more probable than its nonexistence.” Page v. Clark, 592 P.2d 792 (Colo. 1979). In general, “medical probability” or “more likely than not” means the existence of a contested fact is more than 50% likely.

Once a firefighter has met the threshold requirements of the firefighter cancer statute, the burden shifts to respondents to prove by a preponderance of the evidence that the firefighter’s cancer was not caused by his or her employment. Here, the parties stipulated that the statutory threshold requirements are met, thereby shifting the burden to Employer.

The firefighter cancer statute has been the subject of significant litigation and appellate case law since its passage. The Supreme Court recently provided the definitive interpretation of the statute in City of Littleton v. Industrial Claim Appeals Office, 370 P.3d 157 (Colo. 2016) and the companion case Industrial Claim Appeals Office v. Town of Castle Rock, 370 P.3d 151 (Colo. 2016). Although Claimant’s claim was originally remanded for reconsideration of compensability under the Court of Appeals’ decision in the Town of Castle Rock v. Industrial Claim Appeals Office, 373 P.3d 609 (Colo. App. 2013), the ALJ will apply the standards subsequently enunciated by the Supreme Court.

In City of Littleton, the Supreme Court held that the statutory presumption embodied by § 8-41-209(2) “is substantive in that it remains in the case as a substitute for evidence.” Id. at 165. But the court emphasized that the statutory presumption “is not conclusive, or irrebuttable.” Id. at 168. The employer can overcome the presumption by proving, by a preponderance of the evidence, that the firefighter’s cancer “did not occur on the job.” Id. at 165. Nevertheless, the employer faces a “formidable” burden, “because the employer is tasked with proving a negative.” Id. at 172.

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City of Littleton clarified the types of evidence the employer can use to rebut the statutory presumption and prove that a firefighter’s cancer is not work-related. The employer can attempt to meet its burden either with evidence addressing “general causation” or evidence regarding “specific causation.” The court stated “the employer may establish, by a preponderance of the medical evidence, either: (1) that a firefighter’s known or typical occupational exposures are not capable of causing the type of cancer at issue; or (2) that the firefighter’s employment did not cause the firefighter’s particular cancer, where, for example, the claimant firefighter was not exposed to the cancer-causing agent, or where the medical evidence renders it more probable that the cause of the claimant’s cancer was not job-related.” Id.

The evidence presented by Employer addresses both general and specific causation. Dr. Kudchadkar disputes the scientific validity of the statutory presumption that firefighting causes melanoma, and opined “I do not believe with the scientific evidence available at this time that there is a cause and effect relationship between firefighting and melanoma.” Dr. Delzell expressed similar opinions and conclusions. Dr. Kudchadkar opined that “the degree to which [Claimant’s] profession contributed to his disease is unknown.”

Regarding specific causation, rather than attempt to prove a specific, alternative exposure or causal agent that would account for Claimant’s cancer, Employer focused on the relative risk of factors such as Claimant’s familial history, ancestry, history of dysplastic nevi and sun exposure compared to the risk associated with firefighting.

Industrial Claim Appeals Office v. Town of Castle Rock, 370 P.3d 151, 157 (Colo. 2016), the companion case to City of Littleton, held that an employer “is not required to prove a specific alternate cause of the firefighter’s cancer.” The court further held that the employer can rely on “particularized risk-factor evidence” to prove that a firefighter’s cancer is not related to his employment.

In accordance with Town of Castle Rock, supra, the ALJ has carefully considered the evidence of hereditary, lifestyle, and other non-occupational risk factors presented by Employer. The ALJ appreciates the opinions of Employer’s expert on this complex issue but finds the opinions and testimony of Dr. Mayer more persuasive. The evidence demonstrates several risk factors for melanoma, including increased risk associated with working as a firefighter. Firefighters are exposed to a wide variety of established and suspected carcinogens. There are several epidemiological studies that show an increased occurrence of melanoma in firefighters as compared to the general population. The medical experts all agree that ancestry, multiple nevi, and sun exposure are risk factors. But the Claimant’s increased risk of melanoma from relative risk factors does not diminish firefighting’s causal role in the development of the disease. The ALJ is persuaded by Dr. Mayer’s opinion that Claimant’s non-occupational risk factors do not constitute a preponderance of the medical evidence that his melanoma did not occur on the job.

Based on the totality of the evidence presented, the ALJ concludes that Employer failed to prove by a preponderance of the evidence that Claimant’s cancer did

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not occur on the job. Therefore, Claimant’s melanoma is occupationally-related and compensable under § 8-41-209.

ORDER

It is therefore ordered that:

1. Claimant’s melanoma is a compensable occupational disease.

2. Employer shall pay for the reasonable and necessary medical care to cure and relieve the effects of Claimant’s melanoma, including treatment provided by Dr. Sperber, Dr. Dillon, Dr. McVicker, Dr. Kurbegov, and the National Cancer Institute.

3. Employer shall pay Claimant temporary disability benefits based on the stipulated AWW for 1,135 hours of missed time as a result of the injury. If the parties cannot agree on the specific amount of temporary disability benefits to which Claimant is entitled, either party may request a hearing on that issue.

4. Employer shall pay statutory interest in the amount of 8% per annum on all amounts of compensation not paid when due.

5. All matters not determined herein are reserved for future determination.

If you are dissatisfied with the Judge's order, you may file a Petition to Review the order with the Denver Office of Administrative Courts, 1525 Sherman St., 4th Floor, Denver, CO 80203. You must file your Petition to Review within twenty (20) days after mailing or service of the order, as indicated on the certificate of mailing or service; otherwise, the Judge's order will be final. You may file the Petition to Review by mail, as long as the certificate of mailing attached to your petition shows: (1) That you mailed it within twenty (20) days after mailing or service of the order of the Judge; and (2) That you mailed it to the above address for the Denver Office of Administrative Courts. For statutory reference, see section 8-43-301(2), C.R.S. For further information regarding procedures to follow when filing a Petition to Review, see Rule 26, OACRP. You may access a petition to review form at: http://www.colorado.gov/dpa/oac/forms-WC.htm.

DATED: February 21, 2017

s/Patrick C.H. Spencer II Patrick C.H. Spencer II Administrative Law Judge Office of Administrative Courts

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OFFICE OF ADMINISTRATIVE COURTS STATE OF COLORADO WORKERS’ COMPENSATION NO. 5-018-699-01

ISSUES

Whether claimant has proven by a preponderance of the evidence that he suffered a compensable injury on June 19, 2016 arising out of and in the course and scope of his employment with employer.

If claimant has proven a compensable injury, whether claimant has proven by a preponderance of the evidence that the medical treatment he received from Valley View Hospital, Glenwood Medical Associates, and Mountain Radiology was reasonable, necessary, and related to the work injury.

If claimant has proven a compensable injury, whether claimant has proven by a preponderance of the evidence that he is entitled to temporary total disability (“TTD”) benefits.

If claimant has proven a compensable injury, whether claimant has proven by a preponderance of the evidence that he is entitled to temporary partial disability (“TPD”) benefits.

FINDINGS OF FACT

1. Claimant began working for employer in April 2016 as a night stocker at the Glenwood Springs store. On June 19, 2016 claimant was kneeling at work while stocking shelves. Claimant testified that when he stood up he twisted his left knee and heard a “pop”. Claimant testified that he continued working, but noted that his left knee became red and swollen. Claimant reported this incident to employer and was then assisted by employer in completing an incident report. During that time, employer provided claimant with ice for his knee.

2. Claimant testified that a manager, “Dolores”, offered to take him for medical treatment in Rifle, Colorado. However, claimant was not taken for medical treatment on the day of the injury. Claimant testified that he submitted to a drug test on June 21, 2016 and was notified by “Renee” in Human Resources that she had scheduled him an appointment to see Dr. Bruce Lippman, Sr.

3. Claimant saw Dr. Lippman on June 21, 2016. Claimant testified that at that time his left knee continued to be red and swollen. Dr. Lippman drained fluid from claimant’s left knee and sent that fluid for testing. At that time Dr. Lippman restricted claimant from work.

4. In the June 21, 2016 medical records Dr. Lippman noted that there was a small abrasion on the anterior of claimant’s left patella and determined that claimant had

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a sprained left knee with associated cellulitis. Dr. Lippman opined that the “portal of entry” for the cellulitis was a small abraded area over the anterior surface of the patella.

5. On June 21, 2016 an x-ray of claimant’s left knee showed no acute bony abnormality, but a large amount of soft tissue swelling to suggest some prepatellar bursitis.

6. A follow up appointment with Dr. Lippman was scheduled for June 22, 2016. However, claimant arrived late for that appointment and was instructed to reschedule. On June 24, 2016 claimant did not return to Dr. Lippman, but instead sought treatment at the emergency room (“ER”) for swelling of his left knee. The ER physician began claimant on a course of intravenous (“IV”) antibiotics.

7. On June 27, 2016 Dr. Lippman noted that the fluid drained from claimant’s knee on June 21, 2016 “grew out a staph”.

8. On July 18, 2016 a magnetic resonance image (“MRI”) was taken of claimant’s left knee and showed no internal derangement, with soft tissue findings consistent with prepatellar bursitis. A second MRI of claimant’s left knee taken on October 7, 2016 was deemed unremarkable with resolution of the prepatellar subcutaneous edema and fluid.

9. Claimant testified that since the work injury his condition has worsened. He testified that his left knee is red, swollen, and painful. Claimant also testified that he uses a cane because he has difficulty walking.

10. Surveillance video entered into evidence at hearing showed claimant walking without a limp and without a cane. In the video claimant is seen lifting and carrying various items without difficulty.

11. Claimant testified that he last worked for employer on June 19, 2016 and has not returned to work with any employer. However, the surveillance video entered into evidence indicates that claimant is working for The Fireplace Expert. Claimant testified that The Fireplace Expert is owned by his brother-in-law and that on the day of the video surveillance he was “helping” his brother-in-law, but was not “working” for him. The ALJ does not find claimant’s testimony in this regard to be credible or persuasive.

12. Respondents sent claimant for an independent medical examination (“IME”) with Dr. Tashof Bernton on September 14, 2016. Dr. Bernton reviewed claimant’s medical records, obtained a medical history, and performed a physical examination of claimant in connection with the IME. Following the IME, Dr. Bernton issued a report in which he opined that claimant suffered an acute sprain of his left knee associated with prepatellar bursitis. Dr. Bernton also opined that the infection in claimant’s knee was not directly related to claimant’s work injury and that claimant likely had an underlying cellulitis related to claimant’s habitual self scratching.

13. Dr. Bernton testified by deposition in this matter and confirmed his opinion that the infection in claimant’s left knee is unrelated to claimant’s work injury. Dr.

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Bernton also testified that claimant suffered a minor knee strain that would have resolved on its own within a month without medications. The ALJ finds Dr. Bernton’s testimony to be credible and persuasive.

14. The ALJ credits the medical records and the opinion of Dr. Bernton and finds that claimant has failed to demonstrate that it is more likely than not that he sustained an injury at work on June 19, 2016 that necessitated medical treatment. Although claimant suffered a mild knee strain on June 19, 2016, that injury did not necessitate medical treatment. The ALJ finds that the claimant has failed to establish that the underlying infection of his left knee was related to the minor knee strain.

15. The ALJ credits the medical records and the opinion of Dr. Bernton and finds that claimant has failed to demonstrate that it is more likely than not that the infection in his left knee arose out of or in the course of his employment with employer. Although claimant had an underlying cellulitis, the ALJ finds that the mild knee strain claimant suffered on June 19, 2016 did not aggravate, accelerate, or combine with the underlying infection. Therefore, any treatment claimant received related to that infection was not related to any injury at work.

CONCLUSIONS OF LAW

1. The purpose of the “Workers’ Compensation Act of Colorado” is to assure the quick and efficient delivery of disability and medical benefits to injured workers at a reasonable cost to employers, without the necessity of any litigation. Section 8-40-102(1), C.R.S. A claimant in a Workers’ Compensation claim has the burden of proving entitlement to benefits by a preponderance of the evidence. Section 8-43-201, C.R.S. A preponderance of the evidence is that leads the trier-of-fact, after considering all of the evidence, to find that a fact is more probably true than not. Page v. Clark, 197 Colo. 306, 592 P.2d 792 (1979). The facts in a Workers’ Compensation case are not interpreted liberally in favor of either the rights of the injured worker or the rights of the employer. Section 8-43-201, C.R.S., (2015). A Workers’ Compensation case is decided on its merits. Section 8-43-201, supra.

2. The ALJ’s factual findings concern only evidence that is dispositive of the issues involved. The ALJ has not addressed every piece of evidence that might lead to a conflicting conclusion and has rejected evidence contrary to the above findings as unpersuasive. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo. App. 2000). When determining credibility, the fact finder should consider, among other things, the consistency or inconsistency of the witness’s testimony and actions; the reasonableness or unreasonableness (probability or improbability) of the testimony and action; the motives of the witness; whether the testimony has been contradicted; and bias, prejudice, or interest. See Prudential Insurance Co. v. Cline, 98 Colo. 275, 57 P.2d 1205 (1936); CJI, Civil 3:16 (2015).

3. A compensable industrial accident is one that results in an injury requiring medical treatment or causing disability. The existence of a preexisting medical condition does not preclude the employee from suffering a compensable injury where

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the industrial aggravation is the proximate cause of the disability or need for treatment. See H & H Warehouse v. Vicory, 805 P.2d 1167 (Colo. App. 1990); see also Subsequent Injury Fund v. Thompson, 793 P.2d 576 (Colo. App. 1990). A work related injury is compensable if it “aggravates accelerates or combines with “a preexisting disease or infirmity to produce disability or need for treatment.” See H & H Warehouse v. Vicory, supra. Respondents are liable for authorized medical treatment reasonably necessary to cure and relieve an employee from the effects of a work related injury. Section 8-42-101, C.R.S.; see Sims v. Industrial Claim Appeals Office, 797 P.2d 777 (Colo. App. 1990).

4. As found, claimant has failed to demonstrate by a preponderance of the evidence that he suffered a compensable injury to his left knee. As found, the medical records and the opinion of Dr. Bernton are credible and persuasive with regard to this issue.

ORDER

It is therefore ordered that:

1. Claimant’s claim for benefits is denied and dismissed.

If you are dissatisfied with the Judge's order, you may file a Petition to Review the order with the Denver Office of Administrative Courts, 1525 Sherman St., 4th Floor, Denver, CO 80203. You must file your Petition to Review within twenty (20) days after mailing or service of the order, as indicated on certificate of mailing or service; otherwise, the Judge's order will be final. You may file the Petition to Review by mail, as long as the certificate of mailing attached to your petition shows: (1) That you mailed it within twenty (20) days after mailing or service of the order of the Judge; and (2) That you mailed it to the above address for the Denver Office of Administrative Courts. For statutory reference, see section 8-43-301(2), C.R.S. For further information regarding procedures to follow when filing a Petition to Review, see Rule 26, OACRP. You may access a petition to review form at: http://www.colorado.gov/dpa/oac/forms-WC.htm.

DATED: February 22, 2017

Cassandra M. Sidanycz Administrative Law Judge Office of Administrative Courts 222 S. 6th Street, Suite 414 Grand Junction, Colorado 81501

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OFFICE OF ADMINISTRATIVE COURTS STATE OF COLORADO W.C. No. 5-021-332-02 FULL FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER IN THE MATTER OF THE WORKERS' COMPENSATION CLAIM OF: ,

Claimant, v. ,

Employer, and ,

Insurer/ Respondents. Hearing in the above-captioned matter was held before Edwin L. Felter, Jr., Administrative Law Judge (ALJ), on January 26, 2017, in Denver, Colorado. The hearing was digitally recorded (reference: 1/26/17, Courtroom 1, beginning at 8:30 AM, and ending at 12:15 PM). Claimant’s Exhibits 1 through 15 were admitted into evidence, without objection. Respondents’ Exhibits A through M were admitted into evidence, with the following exceptions: Claimant’s objection to Respondents’ Exhibit H was overruled and it was admitted into evidence; and, Respondents withdrew pages 134 to 137 of Respondents’ Exhibit J. At the conclusion of the hearing, the ALJ established a post-hearing briefing schedule: Claimant’s opening brief was filed on January 31, 2017. Respondents’ answer brief was filed on February 7, 2017. Claimant’s reply brief, if any, was due on February 9, 2017, however, a reply brief was not filed, and the matter was submitted for decision on February 9, 2017.

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ISSUES

The issues to be determined by this decision concern whether the Claimant

suffered a compensable injury to his low back, as a result of jumping approximately five feet off the back of a flatbed truck in the course and scope of his employment as a laborer for the Employer on June 11, 2016; if so, whether the medical benefits rendered by SCL Physicians Inc., which is the Employer’s designated provider, Rehabilitation Associates of Colorado, P.C., and Front Range Orthopedics and Spine, which were referrals from the Employer’s designated provider, are reasonably necessary and causally related to the Claimant’s injury of June 11, 2016; whether the Respondents authorized treating physicians (ATPs) refused to treat the Claimant for non-medical reasons and whether, after receiving notice of a refusal to treat, the Employer designated a new provider; whether the Claimant was responsible for his termination from employment on July 20, 2016, through a volitional act on his part, testing positive for marijuana on July 10, 2016 after he left work, that he reasonably could have known would result in his termination such that temporary total disability (TTD) indemnity benefits should properly be terminated; and, “late reporting” on injury by the Claimant.

The Claimant bears the burden of proof, by a preponderance of the evidence, on

all issues with the exception of the Respondents’ “responsibility for termination” defense, for which the Respondents bear the burden of proof by preponderant evidence, and “late reporting.”

FINDINGS OF FACT Based on the evidence presented at hearing, the ALJ makes the following

Findings of Fact:

Preliminary Findings

1. The parties stipulated, and the ALJ finds if compensable, that the Claimant’s an average weekly wage (AWW) is $613.08 and lost health benefits, which by COBRA letter, are in the amount of $97.62 a week, thus, entitling the Claimant to an AWW of $710.69.

2. The Claimant is 31 years old, having a date of birth of August 23, 1985. 3. Prior to June 11, 2016, the Claimant had no ongoing symptoms or

functional limitations in his low back. He had never been provided medical treatment for low back issues and he had been an employee of the Employer, hired through a temporary agency, since October of 2015. He became a full-time employee on February 29, 2016.

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The Injury 4. On Saturday, June 11, 2016, the Claimant was loading a flatbed truck in the course and scope of his employment as a laborer for the Employer when, after the truck was loaded he jumped from the back of the flatbed truck, a distance of approximately 5 feet, landing on uneven ground and feeling a pop in his low back and shooting pain down his left leg. The Claimant did not report the injury on Saturday, June 11, 2016. The event was un-witnessed and Respondents’ argue, essentially, that it did not happen because of the Claimant’s delay in reporting it in writing. There is no persuasive evidence contra-indicating the occurrence of the event. 5. On Sunday, June 12, 2016, the Claimant stayed at home, relaxed played with his children and in the early morning hours of Monday, June 13, 2016, went to the emergency room (ER) at the Medical Center of Aurora with complaints of pain shooting down his leg. According to the Claimant, he exchanged text messages with the Employer, indicating that he had back pain and was at the ER. The Employer witnesses corroborate this fact. 6. On Wednesday, June 15, 2016, the Claimant returned to work and provided his supervisor, John Morales, with the excuse from his June 13, 2016 ER visit excusing him from work from June 13, 2016 through June 14, 2016 [See Claimant’s Exhibit 3, Bate Stamp (hereinafter “BS”) 8]. Supervisor Morales testified at hearing that he did not inquire of the Claimant whether the ER visit was related to a workplace injury. The ALJ infers and finds that Supervisor Morales, as a reasonably prudent employer representative, had a “due diligence” obligation of inquiring whether or not the ER visit was work-related and, if it was work-related, send the Claimant to an Employer designated medical provider. 7. After June 11, 2016, the Claimant’s job duties were modified to accommodate the pain he was having in his left leg and low back. Again, Supervisor Morales appeared to be oblivious of whether the Claimant’s condition was work related, which does not amount to the actions or inactions of a reasonably prudent employer. 8. On Tuesday, June 21, 2016, the Claimant again returned to the ER at the Medical Center of Aurora where he was again treated for pain complaints stemming from his low back pain and was taken off of work for two days (See Claimant’s Exhibit 3, BS 9). 9. On Thursday, June 23, 2016, the Claimant returned to work and again provided Supervisor Morales with the excuse from work. Supervisor Morales again testified that he did not inquire of the Claimant whether his low back and left leg pain complaints were work related or not. Again, the ALJ infers and finds that a reasonably

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prudent employer/supervisor would make further inquiry concerning work-relatedness or lack thereof. 10. On Friday, July 7, 2016, the Claimant again reported to the Medical Center of Aurora ER for treatment of sciatic neuritis and pain in his leg (See Claimant’s Exhibit 3, BS 10). He was taken off work for two to three days and upon returning to work provided the release to his supervisor, John Morales, who testified again that he did not inquire of the Claimant whether the injury was work related or not. 11. On July 11, 2016, the Claimant again reported to the Medical Center of Aurora ER, and this time was taken off work for three to four days (See Claimant’s Exhibit 3, BS 11). Prior to bringing the ER slip in to Supervisory Morales, the Claimant credibly testified that he called the State of Colorado, Division of Workers’ Compensation (DOWC) Customer Service Line, and was informed that he had to report his injury in writing. 12. On July 14, 2016, the Claimant provided Supervisor Morales with the July 11, 2016, ER excuse from work and a Report of Injury, which stated as follows:

I Armando Weaver give you this notice that my injury was a work related injury the date of the incident is June 11, 2016 when loading truck on Sat with Lacey and Nick I jumped off back to grab and when I hit ground my left foot hit uneven ground and I felt a pain in my left leg. I went to the ER on June 13, 2016 and sent you a text letting you know my leg was hurt and I was going in to see why. I again sent you a text letting you know it was in fact sciatica. I went back to work on June 15, 2016 with no questions or anything from you concerning my leg. We next had a discussion in your office about why I had missed those days and I told you I was hurt here at work and you said I see by your Dr. notes but still nothing from Company end about my injury so this is a written accord of my injury and how I am continuing process myself.

(See Claimant’s Exhibit 4, BS 14) 13. Supervisor Morales agreed that the Claimant provided him with the written Notification of Injury on July 14, 2016, but disagreed that the Claimant had previously told him that his low back injury was work related, although Supervisor Morales, as a reasonably prudent employer, had a “due diligence” obligation if he had any suspicion that Claimant’s injury may be work related.

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Medical 14. After the written report of injury was received by the Employer, the Claimant was sent to the Employer’s designated provider, SCL Physicians, where he was evaluated by authorized treating physician (ATP) Dean Prok, M.D., who rendered the opinion that the Claimant’s “objective findings were consistent with the history and a work-related mechanism of injury (See Claimant’s Exhibit 7, BS 19). ATP Dr. Prok’s opinion on the issue of a work-related mechanism of injury never changed (See Claimant’s Exhibit 7, BS 19-22). 15. When the Claimant was sent to SCL Physicians on July 14, 2016, he was required to take an alcohol/drug test and fill out a testing form. That test came back reflecting he was “hot” (tested positive) for the use of marijuana. The Claimant did not work after July 14, 2016 and shortly thereafter the Employer made a decision to fire him, keeping him on the payroll until July 20, 2016 (but not working). 16. On July 20, 2016, the Claimant underwent an MRI (magnetic resonance imaging) at ATP Dr. Prok’s direction which came back reflecting that the Claimant had :

[L]arge central predominant disc protrusion with associated annular tear [at L5-S1]. The disc protrusion extends into the spinal canal, with the AP diameter of the thecal sac measuring 5-6 mm. Additionally, there is probable posterior displacement and impingement/compression of the descending S1 nerve roots within the lateral recesses. In combination with mild endplate osteophyte edging, there is mild stenosis of the neural foramen, right greater than left. Mild degenerative facet arthropathy.

(See Claimant’s Exhibit Tab 8, BS 30). 17. On July 25, 2016, the Claimant was evaluated, at ATP Dr. Prok’s request, by ATP Nicholas Olsen, D.O., at Rehabilitation Associates of Colorado. ATP Olsen issued a report which set forth in pertinent part:

Dear Dr. Prok: Thank you for referring Armando [Claimant] for an interventional consultation. [Claimant] is a 30-year-old right-hand dominant gentleman who was previously employed with Nexus Corporation. He states when jumping off the back of the truck to grab a tool he landed in a pothole. He landed in an awkward position and felt a pop in his back. He

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suffered unbearable pain which has persisted through today’s appointment.

* * *

WORK HISTORY The patient was a warehouse worker for Nexus Corporation. He would pull, pack and fabricate greenhouses. He would load trucks with materials. He notes his job was very heavy in its physical demands. He was performing his regular duties when he injured his back. He states he was fired on 7/7/16.

* * *

NEUROLOGICAL EXAMINATION Sensory examination demonstrates a decrease to pinprick in the left L5 and S1 dermatome with mild deficit in the L4 dermatome. Plantar responses are flexor.

* * *

IMAGING STUDIES An MRI is reviewed from 7/20/16. I had both films and report. This demonstrates a large paracentral disc protrusion with an annular rent at L5-S1.

* * *

ASSESSMENT 1. History of work-related injury when jumping off the back of a work truck on 6/11/16.

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* * *

We will plan on a left L5-S1 transforaminal epidural steroid injection to be completed under fluoroscopy.

(See Claimant’s Exhibit 11, BS 35-37). 18. On August 11, 2016, following the Claimant’s evaluation with ATP Olsen, he was sent to Front Range Orthopedics and Spine where he treated with authorized treating provider (“ATP”) Matthew R. Gerlach, M.D. ATP Dr. Gerlach’s record reflects:

Patient words: [Claimant] is being seen today at the request of his workman’s compensation physician, Dr. Prok, for evaluation of low back pain. The patient states that he hopped off of a truck and felt a pop in his left low back and buttock region. The patient complains of left leg radicular symptoms that begin on his posterior hip to his posterior thigh, lower leg, and plantar foot. He also complains of numbness in his left foot. The patient was initially seen at Aurora South Hospital after the injury occurred, where he was given a prescription of Norco, an instructed to rest for 4 days. The patient then followed-up with Dr. Prok on 7/18/16, and sent for an MRI and x-rays at Touchstone on 7/20/16. The patient was then referred to Dr. Olsen, who is a pain specialist. The patient states that ESI injections were recommended, but W/C denied the request for the injections. He continues to have intractable left leg pain impairing work and daily activities. The patient is a 30 year old male who presents with lumbar radiculopathy. The injury occurred 2 month(s) ago.

* * *

MRI of lumbar spine was reviewed and demonstrates the follow: L5-S1 large central/left paracentral disc herniation causing severe nerve compression, moderate disc degeneration

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IMPRESSION: Chief complaint: low back pain radiating to left leg

* * *

The patient’s large disc herniation at L5-S1 is primary cause of the patient’s severe left leg radiculopathy. Symptoms have persisted for 2 months since abrupt onset following work injury. The patient has failed to improve with conservative management. He continues to have intractable pain impairing activities of daily living. Treatment options discussed. At this stage MicroDiscectomy surgery is strongly indicated and is treatment option w/ highest likelihood of decreasing the patient’s radiculopathy pain and restoring functional capacity. (emphasis supplied).

(See Claimant’s Exhibit 12, BS 40 and 42). 19. On August 25, 2016 the Claimant returned to ATP Dr. Gerlach who noted:

IMPRESSION: Chief complaint: low back pain radiating to left leg The patient’s large disc herniation at L5-S1 is primary cause for the patient’s severe left leg radiculopathy. Symptoms have persisted for 2 months since abrupt onset following work injury. The patient has failed to improve with conservative management. He continues to have intractable pain impairing activities of daily living. Treatment options discussed. At this stage MicroDiscectomy surgery is strongly indicated and is treatment option w/ highest likelihood of decreasing the patient’s radiculopathy pain and restoring functional capacity (emphasis supplied).

(See Claimant’s Exhibit 12, BS 47)

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Declining to Further Treat for Non-Medical Reasons 20. On August 29, 2016 the Claimant had his last appointment with ATP Dr. Prok who noted that:

Dr. Gerlach recommended surgery for microdiscectomy to occur as the thing that would be most beneficial and indicated currently based on discussion with Dr. Gerlach’s office that I have had as well as Dr. Gerlach’s notes. Patient reports his insurance claim has been under dispute and he has a lawyer helping him and he has a hearing coming up on this topic. He was told by Dr. Olsen’s office that they did not authorized further treatment and our office was also told that no further treatment after today was authorized (emphasis supplied).

* * *

As we discussed at length today, patient has reportedly been denied and no further care is able to be authorized at this time here or by Dr. Olsen.

* * *

If authorization for the procedure is determined covered by the insurance in the future, he may return back any time to see us back, and in that case I would like to see him in about 3 weeks, and he would see Dr. Olsen soon, and see Dr. Gerlach as soon as possible for procedure once authorized and preoperative clearance has occurred for procedure for microdiscectomy as recommended by Dr. Gerlach.

* * *

Patient is not a MMI for the injury complaints, but reportedly has been denied further care by the

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insurance, and therefore would have further care separate from the Workers’ Compensation system (emphasis supplied).

(See Claimant’s Exhibit 7, BS 23 and 25). 21. On September 26, 2016 after the Claimant had retained counsel, the Claimant’s attorney wrote to the Respondents as follows:

It has come to our attention that on September 21, 2016 [sic August 29, 2016] [Claimant] was informed by your Client’s designated medical provider that they were no longer treating him. We are treating this as a refusal to tender medical care and the right to select a physician has passed to [Claimant] who has selected his Medicaid physician Asha Kamat, M.D., located at 14707 E. 2nd Ave., Suite, 150, Aurora, CO 80111. Section 8-43-404(5), C.R.S., implicitly contemplates that the Respondent will designate a physician who is willing to provide treatment. See Ruybal v. University Health Science Center, 768 P.2d 1259 (Colo. App. 1988); Tellez v. Teledyne Waterpik, W.C. No. 3-990-062, (March 24, 1992), aff’d., Teledyne Water Pic v. Industrial Claim Appeals Office, (Colo. App. 92CA0643, December 24, 1992) (not selected for publication). Therefore, if the physician selected by the Respondent refuses to treat the Claimant for non-medical reasons, and the Respondent fails to appoint a new treating physician, the right of selection passes to the Claimant, and the physician selected by the Claimant is authorized. See Ruybal v. University Health Science Center, supra; Teledyne Water Pic v. Industrial Claim Appeals Office, supra; Buhrmann v. University of Colorado Health Sciences Center, W.C. No. 4-253-689 (November 4, 1996); Ragan v. Dominion Services, Inc., W.C. No. 4-127-475, (September 3, 1993). Your authorized treating physician has refused to treat Claimant for non-medical reasons. This is your notice that Claimant will select its own treating physician, unless the Respondents designate a physician who is willing to treat the condition.

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(See Claimant’s Exhibit 14, BS 61-62).

22. The Claimant has never been contacted by the Respondents to return to either ATP Dr. Prok, ATP Dr. Olsen, or ATP Dr. Gerlach.

23. After the Claimant’s workers’ compensation medical treatment was denied

for non-medical reasons, the Claimant on his own, through Medicaid, treated at Rocky Mountain Pain Specialists, at the direction of his primary care physician Asha Kamat, M.D., with Charmin Sjoberg, a nurse practitioner (NP), who saw him on two occasions under Medicaid and referred the Claimant out to Colin Buchanan M.D., to have the microdiscectomy surgery at L5-S1 previously discussed and requested by ATP Dr. Gerlach.

Independent Medical Examination (IME) by Ethan Moses, M.D. 24. On November 18, 2016, prior to hearing, the Respondents’ retained the services of Dr. Moses to perform an IME and give an opinion on the causal relatedness of the Claimant’s low back industrial injury (See Respondents Exhibit H, BS 36-39). 25 On November 22, 2016, Dr. Moses rendered an opinion that although it was possible the Claimant could have herniated a disc jumping off the back of his truck but in his opinion the Claimant was at MMI (maximum medical improvement) after his original evaluation on July 14, 2016, but should still follow the temporary work restrictions assigned by ATP Dr. Prok on August 29, 2016. Dr. Moses report also indicated that the Claimant should be better as “90% of patients with radicular findings would be expected to have an excellent outcome and return to work after eight months of appropriate treatment,” in spite of the fact that the Claimant has only had two months of treatment (See Claimant’s Exhibit 15, BS 71-72). The ALJ finds that Dr. Moses’ opinion is internally contradictory unless one could infer that he meant “permanent” restrictions instead of “temporary” restrictions after MMI. Indeed, Dr. Moses’ opinion is contradicted by the Claimant’s ATPs and the ALJ finds that his opinions on the “possibility” of a work-related herniated disc is refined by the “probability” opinions of the ATPs. Further, his opinion concerning MMI is contradicted by the weight of the evidence. Therefore, the ALJ finds that Dr. Moses’ opinions are lacking in credibility. 26. The ALJ finds the opinions of ATPs Dr. Prok, Dr. Olsen and Dr. Gerlach on causality are more persuasive and credible than the opinion of the Respondents’ expert Ethan Moses, M.D., because the opinions are based on a more thorough analysis of the Claimant’s medical situation and because Dr. Moses gives the opinion that the temporary work restrictions assigned by ATP Dr. Prok are appropriate even though the Claimant had no work restrictions prior to June 11, 2016 (See for example Claimant’s Exhibit 12, BS 71). ATPs Dr. Olsen and Dr. Gerlach connect the mechanics of the Claimant’s injury to the objective medical evidence of a disc bulge and, thus, their

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opinions outweigh the opinion of the Respondents’ expert, Dr. Moses. The mechanics of injury or the appropriateness thereof is a critical ingredient of the Claimant’s injury. ATPs Dr. Prok and Dr. Gerlach were of the opinion that the Claimant’s mechanism of injury was consistent with the Claimant’s injury. 27. Dr. Moses leaves open the possibility that the Claimant’s low back injury “could provoke an annular tear in an individual with an underlying degenerative lumbar spine disorder or possibly exacerbate his preexisting degenerative annular tear disc herniation” (See Claimant’s Exhibit 15, BS 69). In the final analysis, Dr. Moses’ opinion is somewhat of a non-opinion insofar as he is of the opinion that the Claimant was at MMI as of the date of his original evaluation of July 14, 2016 (See Claimant’s Exhibit 15, BS 72) but should remain on work restrictions assigned by ATP dr. Prok on August 29, 2016 (See Claimant’s Exhibit 15, BS 71). Accordingly, the ALJ does not find Dr. Moses opinion credible or persuasive.

Temporary Total Disability 28. As found herein above, the Claimant’s restrictions have never been lifted and the Employer chose to no longer offer the Claimant modified duties as he was performing when he was fired. None of the Claimant’s ATPs have declared him to be at MMI nor have they released him to return to work without restrictions. The Claimant has been unable to work at his pre-injury job, or the modification thereof, since July 11, 2016. He has earned no wages since that time and has, thus, experienced a 100% temporary wage loss since that time. Therefore, he has been temporarily sand totally disabled since July 11, 2016. Late Reporting 29. The Respondents contend that the Claimant should be penalized for the 29 days from the date of injury, June 11, 2016, until the Claimant served Supervisor Morales with a written notification of injury on July 14, 2016, despite the fact that the Claimant had been working at modified duty at full wages during this period of time. This is also despite the fact that On Wednesday, June 15, 2016, the Claimant returned to work and provided his supervisor, John Morales, with the excuse from his June 13, 2016 ER visit excusing him from work from June 13, 2016 through June 14, 2016 [See Claimant’s Exhibit 3, Bate Stamp (hereinafter “BS”) 8]. Supervisor Morales testified at hearing that he did not inquire of the Claimant whether the ER visit was related to a workplace injury. The ALJ infers and finds that Supervisor Morales, as a reasonably prudent employer representative, had a “due diligence” obligation of inquiring whether or not the ER visit was work-related and, if it was work-related, send the Claimant to an Employer designated medical provider. 30. After June 11, 2016, the Claimant’s job duties were modified to accommodate the pain he was having in his left leg and low back. Again, Supervisor

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Morales appeared to be oblivious of whether the Claimant’s condition was work related, which does not amount to the actions or inactions of a reasonably prudent employer. On Tuesday, June 21, 2016, the Claimant again returned to the ER at the Medical Center of Aurora where he was again treated for pain complaints stemming from his low back pain and was taken off of work for two days (See Claimant’s Exhibit 3, BS 9). On Thursday, June 23, 2016, the Claimant returned to work and again provided Supervisor Morales with the excuse from work. Supervisor Morales again testified that he did not inquire of the Claimant whether his low back and left leg pain complaints were work related or not. Again, the ALJ infers and finds that a reasonably prudent employer/supervisor would make further inquiry concerning work-relatedness or lack thereof. On Friday, July 7, 2016, the Claimant again reported to the Medical Center of Aurora ER for treatment of sciatic neuritis and pain in his leg (See Claimant’s Exhibit 3, BS 10). He was taken off work for two to three days and upon returning to work provided the release to his supervisor, John Morales, who testified again that he did not inquire of the Claimant whether the injury was work related or not. On July 11, 2016, the Claimant again reported to the Medical Center of Aurora ER, and this time was taken off work for three to four days (See Claimant’s Exhibit 3, BS 11). Prior to bringing the ER slip in to Supervisory Morales, the Claimant credibly testified that he called the State of Colorado, Division of Workers’ Compensation (DOWC) Customer Service Line, and was informed that he had to report his injury in writing. 31. The ALJ infers and finds that the Employer, through its authorized representative, reasonably should have inquired whether the Claimant’s excused time off work and modified duty was work-related, but the Employer did nothing. Although the Claimant never mentioned work-relatedness when furnishing Morales excuses from work and did not clearly do so until July 14, 2016. There was no evidence that the Employer displayed a sign in conformity with § 8-43-102 (1) (b), C.R.S., to trigger the “written” reporting requirement. Nonetheless, the Claimant did not affirmatively report the work-relatedness of his condition until July 14, 2016. He was earning full wages between the date of injury, June 11, 2016, and July 14, 2016. Consequently, if a “late reporting” penalty of “up to one day’s compensation is appropriate, the ALJ determines that it should be one dollar per day, in the aggregate amount of $29.00.. Unemployment Insurance Benefits 32. The Claimant has had no employment since July 10, 2016, but he did receive unemployment insurance (UI) benefits in the approximate amount of $2,300, for the time period between July 1, 2016 through the end of September, 2016.

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Responsibility for Termination Defense 33. On July 20, 2016, the Claimant was terminated from employment by the Employer for his July 14, 2016 “hot” UA (testing positive for marijuana), based upon a violation of the Employer’s Employee Handbook, section IV (D) which states:

Engaging in off-duty sale, purchase, transfer, use or possession of illegal drugs or controlled substances may have a negative effect on an employee’s ability to perform his/her work for the Company (emphasis supplied).. In such circumstances, the employee is subject to discipline up to an including termination.

(See Respondents’ Exhibit J, BS 120. 34. There is no persuasive evidence that the Employer had a policy that provided for discipline up to termination for a violation of the law, generally, much less for a violation of Federal law. 35. Dina White testified at hearing that she was hired as a controller for the Employer but took over for a short period of time as a Human Resource (HR) Director. White testified that the Claimant was terminated under Section IV (D) of the Employer’s Employee Handbook for his positive drug test on July 14, 2016. White testified that she had no idea what the Claimant’s work for the Employer entailed. Further, she had no idea how a positive drug test would impact the Claimant’s work. White also testified that the Claimant’s last day of work was July 7, 2016, and that his positive drug test results did not occur until July 14, 2016. The Employer offered no persuasive evidence that the Claimant’s off duty use of marijuana, resulting in a positive test, had any “negative” impact on his work. Indeed, the Claimant never worked for the Employer again after his positive test. 36. The Claimant testified that he was not using marijuana at the time he was injured on June 11, 2016, and in fact did not use marijuana until after his fourth ER visit of July 11, 2016. His testimony in this regard is undisputed. The Claimant stated that the ER physician advised him that because he did not have insurance and did not have a workers’ compensation claim, that he would have to pay for medication in the form of Naprosyn, Tylenol and marijuana to help with his pain. The Claimant testified he used marijuana after July 11, 2016 to address the pain from his low back. 37. The ALJ infers and finds that the Claimant could not reasonably have known that the recreational or self-medicating use of marijuana, off of work, could reasonably lead to his termination from employment since such use was legal under the Constitution of the State of Colorado, Article XVIII. The ALJ further infers and finds that

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the Claimant cannot be held to a similar crystalline standard as judges who may not use marijuana because it violates Federal law. See Colorado Judicial Ethics Advisory Board (CJEAB), Advisory Opinion 2014-01 (July 31, 2014) [stating that the Code of Judicial Conduct, Rule 1.1 (B) prohibits a judge from violating the law and the use of marijuana violates federal law]. In Colorado Bar Association (CBA) Formal Ethics Opinion 124 (July 2012), the CBA opined that a lawyer’s use of medical marijuana did not violate the Rules of Professional of Professional Conduct. See 41 The Colorado Lawyer 28 (July 2012). The Committee noted that a lawyer’s medical use of marijuana, although not violating Colorado law, could result in arrest and prosecution for violation of Federal law. Also see “Representing Clients in the Marijuana Industry, Navigating State and Federal Rules,” 43 The Colorado Lawyer 61 (August 2015). To say the least, the situation involving the recreational use of marijuana, off of work, is ambiguous for lawyers and even more ambiguous for the average citizen or employee. 38. the Claimant was not terminated for violation of any laws, including Federal laws See Claimant’s Exhibit 9, BS 33)..He was terminated for “testing positive for marijuana. At the time the Claimant tested positive for marijuana, the Employer immediately made a decision to terminate his employment, knowing full well that the Claimant would not be returning to work. According to Supervisor John Morales, alternative duty work was available past July 10. This contention is self-contradictory in light of the Employer’s decision to terminate the Claimant’s employment. From the Employer ‘s perspective, there could be a negative effect of off-duty marijuana usage for work after July 10, while the Claimant remained on the payroll but the Employer had no intention of actually having the Claimant come in and work at alternative work duty. This is a logical non sequitur. Consequently, the Employer’s argument that the Claimant’s use of marijuana, off work, may have a “negative effect” on his job performance is without merit, since the Claimant’s return to any work was not contemplated by the Employer.

39. The Respondents produced no persuasive evidence to establish that the Claimant committed a volitional act when he tested positive for marijuana on July 14, 2016 following his June 11, 2016 injury and his last day of work of July 7, 2016. As found, The Claimant did not use marijuana until the fourth emergency room visit on July 11, 2016, when the doctors indicated to him that his injury was not covered under private insurance and that it was being challenged under workers’ compensation and, therefore, he needed to find a way to deal with his pain. The Claimant credibly testified that he was not using marijuana at the time of his injury and as of the last day worked on or about July 7th or 10th and did not start using it until July 11th. His testimony in this regard is undisputed, other than Respondents asking the ALJ to draw an inference, without supporting underlying facts, that the Claimant must have used it before. This is analogous to arguing that proof of one instance of marijuana use justifies characterizing a person as a “pothead.” This generalized rationale is not only unwarranted but it could brand any accomplished citizen who ever admitted to trying the marijuana as a “pothead.” The Respondents failed to establish how the Claimant’s use of marijuana on July 11, 2016 negatively affected his performance at work, when he last worked on July

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10th. Therefore, the Respondents failed, as found, to prove their affirmative defense of “responsibility for termination” and the Claimant should not be barred from receiving TTD benefits.

Ultimate Findings 40. The ALJ finds the opinions of ATPs Dr. Prok, Dr. Olsen and Dr. Gerlach

on causality are more persuasive and credible than the opinion of the Respondents’ expert Ethan Moses, M.D., as found herein above.

41. As found herein above, Dr. Moses, leaves open the possibility that the Claimant’s low back injury “could provoke an annular tear in an individual with an underlying degenerative lumbar spine disorder or possibly exacerbate his preexisting degenerative annular tear disc herniation.” In the final analysis, Dr. Moses opinion is not persuasive or credible.

42. The ALJ finds that the Claimant’s testimony is consistent with the medical records and is, therefore, credible and persuasive.

43. The ALJ makes a rational choice between two conflicting set of opinions and accepts the opinions of ATP Dr. Prok, Dr. Olsen and Dr. Gerlach on causality and rejects the opinion of Dr. Moses, insofar as it is inconsistent with the opinions of other doctors.

44. The Claimant has proven that it is more likely than not that he suffered an on-the-job occupational injury which aggravated, accelerated, and/or combined with a preexisting disease or infirmity to produce the need for treatment for his low back and left leg, and the treatment is a compensable consequence of the industrial injury. The ALJ finds that it is reasonably probable and more likely than not that the Claimant suffered a compensable occupational injury to his left leg and low back jumping off the back of a truck after loading it in the course and scope of his employment as a laborer for the Employer. Further, the Claimant has proven, by a preponderance of the evidence, all other issues that he designated.

45. All medical care rendered by the Claimant’s ATP Dean Prok, M.D., at SCL Physicians and its referrals to ATP Nicholas Olsen, D.O., at Rehabilitation Associates, and ATP Matthew Gerlach, M.D., at Front Range Orthopedics and Spine Center from July 14, 2016 until care was denied on August 29, 2016 was “reasonably necessary and causally related” to the Claimant’s low back injury and are authorized.

46. Because the Respondents refused to tender care after August 29, 2016 for non-medical reasons, the right to select a physician passed to the Claimant, who selected Asha Kamat, M.D., who referred the Claimant to Charmin Sjoberg, NP, who referred the Claimant to Colin Buchanan, M.D. Therefore, Asha Kamat, M.D. became the Claimant’s ATP and his referrals after August 29, 2016 for treatment on the Claimant’s back and left leg are reasonably necessary, causally related to the compensable injury, and authorized.

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47. As stipulated, the Claimant’s AWW is $710.69 (including COBRA benefits), which yields a TTD rate of $473.79 per week, or $67.68 per day.

48. The Employer, as a reasonably prudent employer, should have inquired further concerning work-relatedness once the Claimant furnished Supervisor Morales with the first ER excuse from work for back problems. Even if the Claimant did not file a written report of his injury until July 14, 2016, he was continuing to work for the Employer at full wages and there was no credible evidence that the Employer had a regulation sign concerning “written’ reporting of injuries in conformity with § 8-43-102 (1) (b), C.R.S. Therefore, based on substantial mitigation, the ALJ determines that a daily penalty of one dollar per days for the 29-day delay in making a written notification on injury is warranted.

49. The Claimant has been temporarily and totally disabled since July 14, 2016 and continuing. The period from July 14, 2016 through the hearing date, January 26, 2017, both dates inclusive, equals 197 days. Gross TTD benefits for this period equal $13,332.96. When the 100% UI offset of $2,300.00, plus the aggregate daily penalty of $29 for the Claimant’s untimely report of work-relatedness, net aggregate benefits through July 14, 2016, equal $11,003.96.

50. The Respondents have proven, by preponderant evidence that the Claimant failed to make a written report of a work-related injury until July 14, 2016. The Respondents failed to prove, by a preponderance of the evidence that the Claimant was responsible for his termination from employment by virtue of a volitional act on his part that he reasonably could have known would get him fired. Unlike unemployment insurance law, the consequences of the off-duty use of marijuana is ambiguous in a workers’ compensation sense, whereby a reasonable worker may not believe that off duty use of marijuana could result in a denial of TTD benefits that he was otherwise entitled to receive.

RESPONDENTS’ ARGUMENTS CONCERNING “RESPONSIBILITY FOR

TERMIATION” DEFENSE

Respondents argue that they have proven their “responsibility for termination” defense begin to consume marijuana edibles until July 11, 2016, a date occurring just after the last time he attended work for the Employer; (2) the Claimant testified that he knew that he would be required to report for a drug screen immediately after reporting his injury; (3) he also testified that he knew that he would be terminated if his drug screen was "hot," which means the test showed the presence of a non-prescribed, controlled substance; (4) the Employer’s drug policy allows for termination if an employee has a positive drug screen; (5) the Employer confronted the Claimant with the positive drug screen and terminated him effective July 22, 2016. The Claimant never worked again for the Employer after being confronted with the positive drug screen.

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Respondents argue that the holding in Coates v. Dish Network, Inc., 350 P.3d 849 (Colo. 2015) applies to the facts in the present case. In Coates, the Colorado Supreme Court held that an employer policy, in the context of UI benefits, provided a proper basis for termination of an employee who used medical marijuana because such usage is a violation of federal law. Coates involved an employer’s right to terminate employment and disqualify the employee from receiving UI benefits. Coates involved a violation of an employer policy and nothing more. Coates is clearly distinguishable from the present case because the test in worker’s compensation involves “a volitional act that a reasonable employee may believe would lead to his termination from employment.” As found, even a lawyer’s recreational use of marijuana does not violate the Rules of Professional Conduct because it is legal under the Colorado Constitution. Respondents also argue that the holding in Beinor v. Indus. Claim Appeals Office, 262 P.3d 970 (Colo. App. 2011), applies to the facts in the present case. The court held that an employee is barred from collecting unemployment compensation benefits when he/she is properly terminated after a valid toxicology screen demonstrating the presence of marijuana metabolites and pursuant to a published employer policy which prohibits the presence, in the worker’s system, during working hours, of controlled substances that are not medically prescribed. Unlike the facts in the present case, the Beinor employer had a zero-tolerance policy and Beinor violated a clear employer policy that differs substantially from the Employer’s policy in the present case. Respondents further argue that the language of the UI disqualification statute is analogous to the language of §8-42-112.5, C.R.S., which allows an employer to impose a 50% penalty on indemnity workers’ compensation benefits when an injury results from the presence in his system, during working hours (emphasis supplied), of controlled substances that are not medically prescribed. In the UI sense, employers may fire an employee for violation of a company policy concerning zero tolerance for marijuana in the system. The facts in the present case are significantly distinguishable. There is no persuasive proof that Claimant had marijuana in his system during working hours, much less that his injury resulted from marijuana in the Claimant’s system. Respondents would have the ALJ infer that the Claimant delayed filing a written report of injury for one month because he knew that he would test positive for marijuana. This argument is disingenuous in light of the finding herein above that the Claimant’s supervisor, as a reasonably prudent supervisor should have inquired whether or not the Claimant’s ER visits and excuses from work for back pain, with written ER excuses furnished to his supervisor, beginning on June 13, 2016, two days after the injury of June 11, 2016. As found, the Claimant credibly testified that he contacted the DOWC on July 11, 2016 and was told that he had to file a written notice of injury, which he promptly did. In a stretched argument, the Respondents contend that while the Claimant was still an employee on the books but not working as of the time he tested positive until he was terminated on July 22. The presence of marijuana “negatively affected” the Claimant being on the books. Supervisor John Morales testified that alternative duty

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work was available past July 10. This is an interesting argument that does not add up, i.e., although the Claimant tested positive and this could “negatively” impact his job performance, Supervisor Morales vaguely implied that alternative work was available

Lastly, Respondents argue that the Claimant should be penalized for late reporting of his injury. Respondents are correct, however, because of considerable mitigation, the ALJ determines herein below that the penalty should be de minimis.

CONCLUSIONS OF LAW

Based upon the foregoing Findings of Fact, the ALJ makes the following Conclusions of Law: Credibility a. In deciding whether an injured worker has met the burden of proof, the ALJ is empowered “to resolve conflicts in the evidence, make credibility determinations, determine the weight to be accorded to expert testimony, and draw plausible inferences from the evidence.” See Bodensleck v. Indus. Claim Appeals Office, 183 P.3d 684 (Colo. App. 2008);Kroupa v. Indus. Claim Appeals Office, 53 P.3d 1192, 1197 (Colo. App. 2002); Rockwell International v. Turnbull, 802 P.2d 1182, 1183 (Colo. App. 1990); Penasquitos Village, Inc. v. NLRB, 565 F.2d 1074 (9th Cir. 1977). The ALJ determines the credibility of the witnesses. Arenas v. Indus. Claim Appeals Office, 8 P.3d 558 (Colo. App. 2000). The weight and credibility to be assigned evidence is a matter within the discretion of the ALJ. Cordova v. Indus. Claim Appeals Office, 55 P.3d 186 (Colo. App. 2002); Youngs v. Indus. Claim Appeals Office, 297 P.3d 964, 2012 COA 85. The same principles concerning credibility determinations that apply to lay witnesses apply to expert witnesses as well. See Burnham v. Grant, 24 Colo. App. 131, 134 P. 254 (1913); also see Heinicke v. Indus. Claim Appeals Office, 197 P.3d 220 (Colo. App. 2008). The fact finder should consider, among other things, the consistency or inconsistency of a witness’ testimony and/or actions; the reasonableness or unreasonableness (probability or improbability) of a witness’ testimony and/or actions (this includes whether or not the expert opinions are adequately founded upon appropriate research); the motives of a witness; whether the testimony has been contradicted; and, bias, prejudice or interest. See Prudential Ins. Co. v. Cline, 98 Colo. 275, 57 P. 2d 1205 (1936); CJI, Civil, 3:16 (2005). The fact finder should consider an expert witness’ special knowledge, training, experience or research (or lack thereof). See Young v. Burke, 139 Colo. 305, 338 P. 2d 284 (1959). The ALJ has broad discretion to determine the admissibility and/or weight of evidence based on an expert’s knowledge, skill, experience, training and education. See S 8-43-210, C.R.S; One Hour Cleaners v. Indus. Claim Appeals Office, 914 P.2d 501 (Colo. App. 1995). As found, the opinions of ATPs Dr. Prok, Dr. Olsen and Dr. Gerlach on causality are more persuasive and credible than the opinion of the Respondents’ expert Ethan Moses,

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M.D., as found herein above. Also, Dr. Moses, leaves open the possibility that the Claimant’s low back injury “could provoke an annular tear in an individual with an underlying degenerative lumbar spine disorder or possibly exacerbate his preexisting degenerative annular tear disc herniation.” In the final analysis, Dr. Moses opinion was not persuasive or credible. As further found, the Claimant’s testimony was consistent with the medical records and was, therefore, credible and persuasive.

Substantial Evidence

b. An ALJ’s factual findings must be supported by substantial evidence in the record. Paint Connection Plus v. Indus. Claim Appeals Office, 240 P.3d 429 (Colo. App. 2010); Leewaye v. Indus. Claim Appeals Office, 178 P.3d 1254 (Colo. App. 2007); Brownson-Rausin v. Indus. Claim Appeals Office, 131 P.3d 1172 (Colo. App. 2005). Also see Martinez v. Indus. Claim Appeals Office, 176 P.3d 826 (Colo. App. 2007). Substantial evidence is “that quantum of probative evidence which a rational fact-finder would accept as adequate to support a conclusion, without regard to the existence of conflicting evidence.” Metro Moving & Storage Co.v. Gussert, 914 P.2d 411 (Colo. App. 1995). Reasonable probability exists if a proposition is supported by substantial evidence which would warrant a reasonable belief in the existence of facts supporting a particular finding. See F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo. App. 1985). It is the sole province of the fact finder to weigh the evidence and resolve contradictions in the evidence. See Pacesetter Corp. v. Collett, 33 P. 3d 1230 (Colo. App. 2001). An ALJ’s resolution on questions of fact must be upheld if supported by substantial evidence and plausible inferences drawn from the record. Eller v. Indus. Claim Appeals Office, 224 P.3d 397, 399-400 (Colo. App. 2009). As found, the ALJ made a rational choice between two conflicting set of opinions, based on substantial evidence, and accepted the opinions of ATP Dr. Prok, Dr. Olsen and Dr. Gerlach on causality and rejected the opinion of Dr. Moses, insofar as it is inconsistent with the opinions of other doctors.

Compensability

c. A compensable injury is one that arises out of and in the course of employment. § 8-41-301(1) (b), C.R.S. The "arising out of test is one of causation. If an industrial injury aggravates or accelerates a preexisting condition, the resulting disability and need for treatment is a compensable consequence of the industrial injury. Thus, a claimant's personal susceptibility or predisposition to injury does not disqualify the claimant from receiving benefits. H & H Warehouse v. Vicory, 805 P.2d 1167 (Colo. App. 1990). An injured worker has a compensable new injury if the employment-related activities aggravate, accelerate, or combine with the pre-existing condition to cause a need for medical treatment or produce the disability for which benefits are sought. § 8-41-301(1) (c), C.R.S. See Merriman v. Indus. Comm'n, 120 Colo. 400, 210 P.2d 448 (1949); Anderson v. Brinkoff, 859 P.2d 819 (Colo. 1993); National Health

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Laboratories v. Indus. Claim Appeals Office, 844 P.2d 1259 (Colo. App. 1992); Snyder v. Indus. Claim Appeals Office, 942 P.2d 1337 (Colo. App. 1997). Also see § 8-41-301(1) (c), C.R.S; Parra v. Ideal Concrete, W.C. No. 4-179-455 [Indus. Claim Appeals Office (ICAO), April 8, 1998]; Witt v. James J. Keil Jr., W.C. No. 4-225334 (ICAO, April 7, 1998). As found, the incident of June 11, 2016, aggravated and accelerated the Claimant's underlying asymptomatic left leg and low back condition. Therefore, he sustained a compensable injury on June 11, 2016.

Medical Care and Treatment

d. Because this matter is compensable, Respondents are liable for medical treatment which is causally related and reasonably necessary to cure or relieve the effects of an industrial injury. § 8-42-101(1) (a), C.R.S; Snyder v. Indus. Claim Appeals Office, 942 P.2d 1337 (Colo. App. 1997). Pursuant to § 8-43-404 (5) (a) (I) (A), C.R.S., the employer is required to furnish an injured worker a list of at least two physicians or two corporate medical providers, in the first instance. An employer’s right of first selection of a medical provider is triggered when the employer has knowledge of the accompanying facts connecting the injury to the employment. Jones v. Adolph Coors Co., 689 P. 2d 681 (Colo. App. 1984). An employer must tender medical treatment forthwith on notice of an injury or its right of first selection passes to the injured worker. Rogers v. Indus. Claim Appeals Office, 746 P.2d 565 (Colo. App. 1987). As found, all medical care rendered by the Claimant’s ATP Dean Prok, M.D., at SCL Physicians and its referrals to ATP Nicholas Olsen, D.O., at Rehabilitation Associates, and ATP Matthew Gerlach, M.D., at Front Range Orthopedics and Spine Center from July 14, 2016 until care was denied on August 29, 2016 was “reasonably necessary and causally related” to the Claimant’s left leg and low back injury and is authorized.

e. To be a compensable benefit, medical care and treatment must be causally related to an industrial injury or occupational injury. Dependable Cleaners v. Vasquez, 883 P.2d 583 (Colo. App. 1994). The Claimant's medical treatment is causally related to the right shoulder injury. Also, medical treatment must be reasonably necessary to cure and relieve the effects of the industrial occupational injury. § 8-42-101(1) (a), C.R.S; Morey Mercantile v. Flynt, 97 Colo. 163, 47 P.2d 864 (1935); Sims v. Indus. Claim Appeals Office, 797 P.2d 777 (Colo. App. 1990). As found, all of the Claimant's medical care and treatment at SCL Physicians, and the surgery recommended by ATP Dr. Gerlach, is reasonably necessary to cure and relieve the effects of the June 11, 2016 compensable injury and it is causally related thereto. As further found, on and after August 29, 2016 all of the Claimant's medical care and treatment at Rocky Mountain Pain Specialists and by Asha Kamat, M.D., and dr. Kamat’s referrals was and is reasonably necessary and causally related to the Claimant's June 11, 2016 injury.

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Respondents' Refusal to Treat for Non-Medical Reasons and Claimant's Right of Selection f. Where a treating physician refuses to render care to a claimant the right of selection passes to the claimant. See Rogers v. Indus. Claim Appeals Office, 746 P.2d 565 (Colo. App. 1987). In the present case, the record establishes that the ATPs refused medical care for non-medical reasons. This triggered the Claimant's right to select a new physician. See Ruybal v. University of Colorado Health Sciences Center, 768 P.2d 1249 (Colo. App. 1988). The refusal to treat herein was not based on a company doctor's "medical judgment" concerning the Claimant's need for treatment, but rather on a Respondents' selected medical evaluator's opinion concerning legal issues of causality and compensability, i.e., the insurance carrier denied the claim. Under the circumstances, it was a refusal to provide medical care when the Respondents related the Claimant's low back problems to a preexisting disease for legal, not medical, reasons. As a result of the foregoing, the right to select a physician passed to the Claimant who selected Dr. Kamat, M.D. Therefore, Dr. Kamat and all of Dr. Kamat’s referrals are authorized. To be authorized, all referrals must remain within the chain of authorized referrals in the normal progression of authorized treatment. See Mason Jar Restaurant v. Indus. Claim Appeals Office, 862 P. 2d 1026 (Colo. App. 1993); One Hour Cleaners v. Indus. Claim Appeals Office, 914 P. 2d 501 (Colo. App. 1995); City of Durango v. Dunagan, 939 P.2d 496 (Colo. App. 1997). Average Weekly Wage g. An AWW calculation is designed to compensate for total temporary wage loss. Pizza Hut v. Indus. Claim Appeals Office, 18 P. 3d 867 (Colo. App. 2001). See § 8-42-102, C.R.S. As found, Claimant has experienced a 100% wage loss since July 14, 2016. As stipulated and found, the Claimant’s AWW is $710.69. Temporary Total Disability

h. To establish entitlement to temporary disability benefits, a claimant must prove that the industrial injury has caused a “disability,” and that he has suffered a wage loss that, “to some degree,” is the result of the industrial disability. § 8-42-103(1), C.R.S; PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). When a temporarily disabled employee loses his employment for other reasons which are not his responsibility, the causal relationship between the industrial injury and the wage loss necessarily continues. Disability from employment is established when the injured employee is unable to perform the usual job effectively or properly. Jefferson Co. Schools v. Headrick, 734 P.2d 659 (Colo. App.1986). This is true because the employee’s restrictions presumably impair his opportunity to obtain employment at pre-injury wage levels. Kiernan v. Roadway Package System, W.C. No. 4-443-973 (ICAO, December 18, 2000). Claimant’s termination in this case, as found, was not his fault but as a result of the Employer’s decision to terminate the Claimant for off-duty use of marijuana and the Employer’s interpretation of its policies.. There is no statutory

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requirement that a claimant must present medical opinion evidence from of an attending physician to establish a physical disability. See Lymburn v. Symbois Logic, 952 P.2d 831 (Colo. App. 1997). Rather, the Claimant’s testimony alone is sufficient to establish a temporary “disability.” Id. As found, the Claimant has been temporarily and totally disabled since July 14, 2016 and continuing.

i. Once the prerequisites for TTD are met (e.g., no release to return to full duty, MMI has not been reached, a temporary wage loss is occurring in modified employment or modified employment is no longer made available, and there is no actual return to work), TTD benefits are designed to compensate for a 100% temporary wage loss. See Eastman Kodak Co. v. Industrial Commission, 725 P. 2d 107 (Colo. App. 1986); City of Aurora v. Dortch, 799 P. 2d 461 (Colo. App. 1990). As found, the Claimant has been temporarily and totally disabled since July 14, 2016 and continuing. The period from July 14, 2016 through the hearing date, January 26, 2017, both dates inclusive, equals 197 days. Gross TTD benefits for this period equal $13,332.96. When the 100% UI offset of $2,300.00, plus the aggregate daily penalty of $29 for the Claimant’s untimely report of work-relatedness, net aggregate benefits through July 14, 2016, equal $11,003.96.

Responsibility for Termination j. A claimant found to be responsible for his or her own termination is barred from recovering temporary disability benefits under the Act. §§ 8-42-103(1)(g), 8-42-105(4). Anderson v. Longmont Toyota, Inc., 102 P.3d 323 (Colo. 2004). Because the termination statutes constitute an affirmative defense to an otherwise valid claim for temporary disability benefits, the burden of proof is on the Respondents to establish that a claimant was "responsible" for the termination from employment. Henry Ray Brinsfield v. Excel Corporation, W.C. No. 4-551-844 (ICAO, July 18, 2003). Whether an employee is at fault for causing a separation of employment is a factual issue for determination by the ALJ. Gilmore v. Indus. Claim Appeals Office, 187 P.3d 1129 (Colo. App. 2008). In Colorado Springs Disposal v. Indus. Claim Appeals Office, 58 P.3d 1061 (Colo. App. 2002), the court held the term “responsible” as used in the workers’ compensation termination statutes reintroduces the concept of “fault” as it was understood prior to the Supreme Court’s decision in PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). Thus, a finding of fault requires a volitional act or the exercise of a degree of control by a claimant over the circumstances leading to the termination. Gilmore v. Industrial Claim Appeals Office, supra; Padilla v. Digital Equipment Corp., 902 P.2d 414 (Colo. App. 1994), opinion after remand, 908 P.2d 1185 (Colo. App. 1995); Brinsfield v. Excel Corp., supra. Violation of an employer’s policy does not necessarily establish that a claimant acted volitionally with respect to a discharge from employment. Gonzales v. Industrial Commission, 740 P.2d 999 (Colo. 1987). Yet, a claimant may act volitionally if he is aware of what the employer requires and deliberately fails to perform accordingly. Gilmore v. Industrial Claim Appeals Office, supra. In any event, however, the word "responsible" does not refer to an employee's injury or injury-producing activity since that would defeat the Act's major purpose of

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compensating work-related injuries regardless of fault and would dramatically alter the mutual renunciation of common law rights and defenses by the employers and the employees alike under the Act. Hence, the termination statutes are inapplicable where an employer terminates an employee because of the employee's injury or injury-producing conduct. Colorado Springs Disposal v. Industrial Claim Appeals Office of State of Colorado, supra. Although, in an employment law sense, an employer may terminate an employee without consequences if the employer does not discriminate against a protected class (civil rights) or breach a contract of employment. The 10th Circuit of the United States may be characterized as an “employment-at-will” jurisdiction. The present case, however, is not an employment case. It falls within the narrow confines of “responsible for termination” through a volitional act that the employee may reasonably believe can get him fired. k. The Claimant sustained a disabling industrial injury on June 11, 2016. On July 20, 2016, the Employer terminated his employment, as found, because of an alleged violation of company policy, with regard to drug use “which has a negative effect on an employee’s ability to perform his/her work.” The termination letter provided by the Employer did not set forth what the “negative effect” was that the Claimant was alleged to have committed, nor did it allege a violation of law on the part of the Claimant. Further, the Claimant was not working at the time of his drug use, as found, and the Employer had no intention of returning the Claimant to any work with the Employer, modified or otherwise.

l. The totality of the circumstances must be considered in determining whether a claimant committed a volitional act warranting termination. The fact that an employer discharged an employee, even in accordance with the employer’s policy, does not establish that the claimant acted volitionally, or exercised control over the circumstances of termination for the purpose of barring the claimant from receiving TTD benefits pursuant to the Workers’ Compensation Act. See Gonzalez v. Indus. Comm’n, 740 P.2d 999 (Colo. 1987); Goddard v. EG&G Rocky Flats, Inc., 888 P.2d 369 (Colo. App. 1994)[cited with approval in Kneffer v. Kenton Manor, W.C. 4-557-781 (ICAO, March 17, 2004); Bookout v. Safeway, Inc., W.C. 4-798-629 (ICAO December 15, 2010)[claimant not at fault for termination for violating “no call – no show” policy when wrongly incarcerated]; Hall v. Wal-Mart Stores, Inc., W.C. 4-601-953 (ICAO, March 18, 2004)[The respondents cannot adopt a strict liability personnel policy which usurps the statutory definition of “responsibility” for termination where the claimant engaged in a fight at work but did not provoke assault]; Bonney v. Pueblo Youth Service Bureau, W.C. 4-485-720 (ICAO, April 24, 2002) [The claimant was not responsible for failure to comply with the employer’s absence policy if the claimant was not physically able to notify the employer]; see e.g., Bell v. Indus. Claim Appeals Office, 93 P .3d 584, (Colo. App. 2004) [The claimant was not at fault for termination for refusing to sign settlement agreement waiving statutory rights].

m. Irrespective of how the Employer defines “negative effect” for the purposes

of enforcing its internal policy of terminating employees who have a positive drug test,

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the determination of whether the Claimant was “responsible for termination” is subject to a different standard. In order for a finding that the Claimant was responsible for termination and thus, not entitled to TTD benefits, the Respondents must prove that the Claimant committed a volitional act that he reasonably knew would lead to his termination. Under the evidence, as found, established that the Claimant did not use marijuana until one month after his admitted industrial injury and at a time he was not working for the Employer.

n. As found, the Respondents produced no persuasive evidence to establish

that the Claimant committed a volitional act when he tested positive for marijuana on July 14, 2016 following his June 11, 2016 injury and his last day of work of July 7, 2016. As found, The Claimant did not use marijuana until the fourth emergency room visit when the doctors indicated to him that his injury was not covered under private insurance and that it was being challenged under workers’ compensation and, therefore, he needed to find a way to deal with his pain. The Claimant credibly testified that he was not using marijuana at the time of his injury and as of the last day worked on or about July 7th or 10th and did not start using it until July 11th. His testimony in this regard is undisputed, other than Respondents asking the ALJ to draw an inference, without supporting underlying facts, that the Claimant must have used it before. This is analogous to arguing that proof of one instance of marijuana use justifies characterizing a person as a “pothead.” This generalized rationale is not only unwarranted but it could brand any accomplished citizen who ever admitted to trying the marijuana as a “pothead.” The Respondents failed to establish how the Claimant’s use of marijuana on July 11, 2016 negatively affected his performance at work, when he last worked on July 10th. Therefore, the Respondents failed, as found, to prove their affirmative defense of “responsibility for termination” and the Claimant should not be barred from receiving TTD benefits. Late Reporting Penalty o. Section 8-43-102 (1) (a), C.R.S., provides for a penalty of up to one day’s compensation for each day’s failure to report a work-related injury. See Postlewait v. Midwest Barricade, 905 P.2d 21 (Colo. App. 1995). Late Reporting” is an affirmative defense and it is Respondents burden to prove it by preponderant evidence. As found, Respondents have sustained their burden with respect to "late reporting," however, there is considerable mitigation, as found herein above, which warrants a penalty of one dollar per day for 29 days. Unemployment Insurance (UI) Offset p. Section 8-42-103 (1) (f), C.R.S., provides for a 100% offset for UI benefits. As found, the Claimant received UI benefits in the approximate amount of $2,300, for the time period between July 1, 2016, through the end of September, 2016, and this amount is subject to a100% offset against TTD benefits.

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Burden of Proof

q. The injured worker has the burden of proof, by a preponderance of the evidence, of establishing the compensability of an industrial injury and entitlement to benefits. §§ 8-43-201 and 8-43-210, C.R.S. See City of Boulder v. Streeb, 706 P. 2d 786 (Colo. 1985); Faulkner v. Indus. Claim Appeals Office, 12 P. 3d 844 (Colo. App. 2000); Lutz v. Indus. Claim Appeals Office, 24 P.3d 29 (Colo. App. 2000). Kieckhafer v. Indus. Claim Appeals.Office, 284 P.3d 202, 205 (Colo. App. 2012). Also, the burden of proof is generally placed on the party asserting the affirmative of a proposition. Cowin & Co. v. Medina, 860 P.2d 535 (Colo. App. 1992). A “preponderance of the evidence” is that quantum of evidence that makes a fact, or facts, more reasonably probable, or improbable, than not. Page v. Clark, 197 Colo. 306, 592 P. 2d 792 (1979). People v. M.A., 104 P. 3d 273 (Colo. App. 2004); Hoster v. Weld County Bi-Products, Inc., W.C. No. 4-483-341 [Indus. Claim Appeals Office (ICAO), March 20, 2002]. Also see Ortiz v. Principi, 274 F.3d 1361 (D.C. Cir. 2001). “Preponderance” means “the existence of a contested fact is more probable than its nonexistence.” Indus. Claim Appeals Office v. Jones, 688 P.2d 1116 (Colo. 1984). As found, the Claimant has satisfied his burden with respect to compensability; medical benefits (including treatment by Dr. Kamat and his referrals); AWW; TTD benefits from July 14, 2016 and continuing. Respondents have satisfied their burden with respect to the UI offset and “late reporting” (as found, however, there is substantial mitigation). The Respondents have failed to meet their burden with respect to the “responsibility for termination’ affirmative defense.

ORDER IT IS, THEREFORE, ORDERED THAT: A. Respondents shall pay all the costs of medical care and treatment for the Claimant’s compensable left leg and low back injuries of June 11, 2016, including the costs of treatment by authorized treating physician, Asha Kamat, M.D. and Dr. Kamat’s referrals, subject to the Division of Workers’ Compensation Medical Fee Schedule. B. Respondents’ affirmative defense of “responsibility for termination” is hereby denied and dismissed. C. Respondents are entitled to an unemployment insurance benefit offset of $2,300.00. D. The Claimant is assessed a daily penalty of one dollar per day for his 29 day failure to timely report the work-related nature of his injury, in the total amount of $29.00.

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E. Respondents shall pay the Claimant temporary total disability benefits of $473.79 per week, or $67.68 per day, from July 14, 2016 through the hearing date, January 26, 2017, both dates inclusive, a total of 197 days, in the aggregate amount of $13,332.96, less the 100% UI offset of $2,300.00, and the daily penalty of $29 for the Claimant’s untimely report of work-relatedness, for net aggregate benefits through January 26, 2017 of $11,003.96. from January 27, 2017 until discontinuance of temporary disability benefits is warranted by law, Respondents shall continue to pay the Claimant $473.79 per week in temporary total disability benefits.

F. Any and all issues not determined herein are reserved for future decision. DATED this______day of February 2017.

____________________________ EDWIN L. FELTER, JR. Administrative Law Judge

If you are dissatisfied with the Judge’s order, you may file a Petition to Review

the order with the Denver Office of Administrative Courts,1525 Sherman Street, 4th Floor, Denver, CO 80203. You must file your Petition to Review within twenty (20) days after mailing or service of the order, as indicated on the certificate of mailing or service; otherwise, the Judge’s order will be final. You may file the Petition to Review by mail, as long as the certificate of mailing attached to your petition shows: (1) that you mailed it within twenty (20) days after mailing or service of the order of the Judge; and (2) that you mailed it to the above address for the Denver Office of Administrative Courts. For statutory reference, see § 8-43-301(2), C.R.S. For further information regarding procedures to follow when filing a Petition to Review, see Rule 26, OACRP. You may access a form for a petition to review at http://www.colorado.gov/dpa/oac/forms-WC.htm.

STATE OF COLORADO OFFICE OF ADMINISTRATIVE COURTS W. C. No. 4-910-076-02 ___________________________________________________________________________ FULL FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER DENYING SUMMARY

JUDGMENT ON THE “PENALTY” ISSUE ___________________________________________________________________________ IN THE MATTER OF THE WORKERS’ COMPENSATION CLAIM OF:

Claimant, v. Employer, and Insurer/Respondents. ___________________________________________________________________________ On February 7, 2017, the Respondents filed a Motion for Summary Judgment, with attached supporting documents (Exhibits 1 through 7), consisting of pleadings and official documents in the above-captioned case. On February 22, 2017, the Claimant filed her Response to Respondents’ Motion for Summary Judgment, with attached official documents (Exhibits A through G). Hearing in the above-captioned matter is scheduled for May 18, 2017, on the issue of “penalties.” The matter has been assigned to Edwin L. Felter, Jr., Administrative law Judge (ALJ) for decision on the Motion for Summary Judgment. The matter was ready for decision on February 22, 2017, and the ALJ hereby issues the following decision.

ISSUE FOR SUMMARY JUDGMENT

The issue to be determined by this decision concerns whether there are genuine issues of disputed material fact involving whether or not the above-referenced case was closed as to the “penalty” issue, during the pendency of a Remand by the Industrial Claim Appeals Office (ICAO) on the issue of penalties, because the Claimant did not file a timely objection to the latest Final Admission of Liability, dated September 21, 2016 (filed during the pendency of appellate proceedings on the issue of penalties).

As the moving party, the Respondents bear the burden of proving, by preponderant evidence that there are no genuine issues of disputed material fact concerning case closure on the issue of penalties.

FINDINGS OF FACT

Based on the evidence contained in the file, pleadings and exhibits, the ALJ makes the following Findings of Fact: Preliminary Findings 1. The Claimant sustained an admitted industrial injury to her right wrist on January 28, 2013 (W.C. No. 4-910-076-02). The Respondents filed a Final Admission of Liability (FAL), dated April 10, 2014, terminating temporary partial disability (TPD) benefits and admitting for zero permanent partial disability (PPD) benefits (Exhibit 1, attached to Respondents’ Motion). Claimant filed no timely objection to this FAL. The FAL for zero PPD was based on the report of a nurse practitioner and not a Level II accredited physician and was, therefore, a nullity in terms of requiring a timely objection, however, the Claimant subsequently sought penalties against the Respondents for allegedly improperly terminating temporary disability benefits, contrary to § 8-43-203 (2) (b) (II) (A), C.R.S., and Rule 5-5 of the Workers’ Compensation Rules of Procedure (WCRP), 7 CCR 1101-3. 2. W.C. No.4-977-328 involves a march 9, 2015 date of injury to the Claimant’s shoulder. The shoulder injury claim went to hearing on Claimants Application for Hearing on the allegation that Respondents had improperly terminated TTD. At that hearing, the Respondents sought to recover an overpayment allegedly arising out of the wrist injury from Claimant on the shoulder claim. ALJ Laura Broniak denied that request and also found that the wrist injury was never closed because Respondents improperly filed a FAL, based on the report of what they knew was a nurse practitioner, and not a Level II accredited physician.(Exhibit A, attached to Claimant’s Response).

3. On November 9, 2015, John M. Connell, Esq., entered his appearance as

counsel for Claimant in the W.C. No. 4-910-076-02 (Exhibit 2, attached to Respondents’ Motion). On February 8, 2016 (approximately one year and ten months after Respondents filed the defective April 10, 2014, FAL), the Claimant filed a Request to the Director of the Division of Workers’ Compensation (DOWC) for penalties against the Respondents, requesting the Director enter an order imposing penalties against Respondents pursuant to § 8-43-203(2)(B)(II)(A), C.R.S., and WCRP Rule 5-5, for improper termination of benefits by filing a FAL that did not contain a Level II accredited physician’s report finding the Claimant was at maximum medical improvement (MMI), or an evaluation by a Level II accredited physician determining permanent impairment (Exhibit 3, attached to Respondents’ Motion).

4. On March 7, 2016, the Director of the DOWC entered a Director’s Order

awarding penalties against Respondents. Respondents filed a timely Petition to Review the

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Director’s Order granting penalties. After the parties submitted their briefs, the Director entered a Supplemental Order, dated June 10, 2016, again awarding penalties against Respondents. Respondents filed a timely Petition to Review the Director’s Supplemental Order.

Findings on Case Closure, re: Penalties

5. On June 20, 2016, Respondents filed a General Admission of Liability (GAL) in

W.C. No. 4-910-076-02 (the wrist injury),admitting liability for additional medical treatment based on the recommendation of Claimant’s authorized treating physician (ATP). [Exhibit 4, attached to Respondents’ Motion]. On September 21, 2016, Respondents filed a FAL, again admitting liability for zero PPD benefits based upon the opinion of Claimant’s ATP (Exhibit 5, attached to Respondents’ Motion). The September 21, 2016, FAL, filed during the pendency of an appeal of the Director’s Supplemental Order of June 10, 2016 on the issue of penalties, did not admit liability for penalties, and specifically stated “all benefits not specifically admitted are denied (Exhibit 5, attached to Respondents’ Motion). The ALJ infers and finds that the filing of September 21, 2016 FAL, during the pendency of an appeal to the industrial Claim Appeals office (ICAO), postures an “end-run” around the normal appellate processes as found herein below.

6. The FAL of September 21, 2016 was flawed because it listed the correct W.C.

number but mistakenly listed the date of injury as March 9, 2015 (the shoulder claim) and had attached a Notice and Proposal [to select a Division Independent Medical Examiner (DIME)] that made the same mistake. Claimant filed a timely Notice and Proposal under the March 9, 2015 injury (Exhibit E. attached to Claimant’s Response). Based on the confused dates and the fact that Claimant was not at MMI, the Claimant would have the ALJ infer and find that the Notice and Proposal was being filed for the wrist claim, and the confusion created by Respondents’ mistake on the FAL was carried over by Claimant. The ALJ infers and finds that this flaw is not a minor matter. Indeed, it may render the FAL a nullity, thus, eliminating the underpinnings of the Respondents’ Motion for Summary Judgment. The Claimant filed no timely objection to the FAL, dated September 21, 2016, or file an Application for Hearing on “any disputed issue ripe for hearing (including the “penalty” issue) within 30 days of September 21, 2016,” inferentially because of the pendency of Remand proceedings pursuant to ICAO’s Remand Order, as found herein below.. Respondents’ argument, in this regard, would disingenuously accomplish an “end-run” around normal appellate proceedings and effectively negate ICAO’s Remand Order by the actions of an insurer claims representative, who filed the FAL.

7. On September 22, 2016 (one day after the Respondents filed the September

21, 2016 FAL, which was silent on “penalties” and, for that matter, on degree of PPD), ICAO entered an Order of Remand, which set aside the Director’s Supplemental Order, dated June 10, 2016, remanding for further proceedings (Exhibit 6, attached to Respondents’ Motion).

8. The ALJ finds that there are genuine issues of disputed fact to be heard at an

evidentiary hearing on ICAO’s Remand.

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RESPONDENTS’ ARGUMENTS

Respondents argue that Section 8-43-203(2)(b) (II),(A), C.R.S. applies, without regard to the pendency of an ICAO Remand. The subsection provides that: An admission of liability for final payment of compensation must include a

statement that this is the final admission by the workers' compensation insurance carrier in the case ,that the claimant may contest this admission if the claimant feels entitled to more compensation, to whom the claimant should provide written objection, and notice to the claimant that the case will be automatically closed as to the issues admitted in the final admission if the claimant does not, within thirty days after the date of the final admission, contest the final admission in writing and request a hearing on any disputed issues that are ripe for hearing.

Respondents argue that the case closed on October 21, 2016 (30 days from the date Respondents filed their September 21, 2016 FAL which denied liability for all benefits not specifically admitted. According to the Respondents’ argument, the automatic closure of issues raised in an uncontested FAL is part of a statutory scheme designed to promote, encourage, and ensure prompt payment of compensation to an injured worker without the necessity of a formal administrative determination in cases not presenting a legitimate controversy. Peregoy v. Indus. Claim Appeals Office, 87 P.3d 261, 262 (Colo. App. 2004); Dyrkopp v. Indus. Claim Appeals Office, 30 P.3d 821, 822 (Colo. App. 2001). This argument simplistically ignores the pendency of appellate proceedings on the very issue that Respondents contend that Claimant is now foreclosed from pursuing because of her failure to file a timely objection to the FAL. Once a claimant has failed to object to a FAL, the issues resolved by the FAL are not subject to further litigation unless they are reopened pursuant to § 8-43-303, C.R.S; Peregoy v. Indus. Claim Appeals Office, supra; Berg v. Indus. Claim Appeals Office, 128 P.3d 270, 272 (Colo. App. 2005). Ordinarily, this is the true status of the law, except when the FAL is interposed to negate appellate proceedings in progress which, in the present case, resulted in an ICAO Remand Order one day after the filing of the “defective” FAL.

CONCLUSIONS OF LAW

Summary Judgment

a. Pursuant to Office of Administrative Courts Rules of Procedure (OACP) Rule 17, 1 CCR 1101-3, “any party may file a motion for summary judgment seeking resolution of any endorsed issue for hearing.” Summary judgment may be sought in a workers’ compensation proceeding. See Fera v. Indus. Claim Appeals Office, 169 P.3d 231, 232 (Colo. App. 2007). The OAC Rule allows a party to support its Motion with affidavits, transcripts of testimony, medical reports, or employer records. A motion for summary judgment may be supported by

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pleadings, depositions, answers to interrogatories, and admissions on file. C.R.C.P. 56; See also Nova v. Indus. Claim Appeals Office, 754 P.2d 800 (Colo. App. 1988) [C.R.C.P. and C.R.E. apply insofar as they are not inconsistent with the procedural or statutory provisions of the Act]. As found, the Respondents’ Motion for Summary Judgment is supported by official documents as is the Claimant’s Response to Respondents’ Motion for Summary Judgment.

b. Summary judgment is appropriate when the pleadings show that there is no

genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. C.R.C.P. 56(c); Churchey v. Adolph Coors Co., 759 P.2d 1336 (Colo. 1988). This rule allows the parties to pierce the formal allegation of the pleadings and save the time and expense connected with trial when, as a matter of law, based on undisputed facts, one party could not prevail. See Drake v. Tyner, 914 P.2d 519 (Colo. Ct. App. 1996). As found, the documentary evidence and the arguments of counsel reveal that this matter has had a confusing history, thus, creating genuine issues of disputed material fact concerning the Claimant’s penalty claim and ICAO’s ultimate Remand Order, including the flawed nature of the September 21, 2016 FAL

c. Once the moving party shows specific facts probative of a right to judgment, it

becomes necessary for the non-moving party to set forth facts showing that there is a genuine issue for hearing. See Miller v. Van Newkirk, 628 P.2d 143 (Colo. App. 1980). As found, the Respondents’ Motion for Summary Judgment fails to show specific facts probative of their right to summary judgment. The Claimant’s Response, however, shows that there are genuine issues of disputed material fact concerning the progression of the Claimant’s penalty claim.

ORDER

IT IS, THEREFORE, ORDERED THAT: A. Respondents Motion for Summary Judgment on the penalty Issue, and request to strike the Claimant’s Application for Hearing, is hereby denied and dismissed. B. The scheduled hearing of May 18, 2017 shall proceed.

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C. Any and all issues not determined herein are reserved for future decision. DATED this______day of February 2017.

____________________________ EDWIN L. FELTER, JR. Administrative Law Judge

If you are dissatisfied with the Judge’s order, you may file a Petition to Review the order with the Denver Office of Administrative Courts,1525 Sherman Street, 4th Floor, Denver, CO 80203. You must file your Petition to Review within twenty (20) days after mailing or service of the order, as indicated on the certificate of mailing or service; otherwise, the Judge’s order will be final. You may file the Petition to Review by mail, as long as the certificate of mailing attached to your petition shows: (1) that you mailed it within twenty (20) days after mailing or service of the order of the Judge; and (2) that you mailed it to the above address for the Denver Office of Administrative Courts. For statutory reference, see § 8-43-301(2), C.R.S. For further information regarding procedures to follow when filing a Petition to Review, see Rule 26, OACRP. You may access a form for a petition to review at http://www.colorado.gov/dpa/oac/forms-WC.htm.

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OFFICE OF ADMINISTRATIVE COURTS STATE OF COLORADO WORKERS’ COMPENSATION NO. 4-968-333-02

ISSUES

1. Did Claimant prove by a preponderance of the evidence she cannot earn any wages in the same or other employment?

2. Did Claimant prove by a preponderance of the evidence she suffered whole person impairment to her right shoulder?

FINDINGS OF FACT

1. Claimant worked for Employer as a kitchen aide. On November 18, 2014 she injured her right shoulder while moving a cart loaded with food trays. The cart became stuck on a transition in the floor between two rooms. Claimant pulled the cart with additional force, causing it to lunge toward her. She developed immediate pain in her right shoulder.

2. Employer referred Claimant to Concentra for authorized treatment. At her initial visit on November 19, 2014, Claimant reported she had felt her shoulder briefly come out of place, and the trays on the top of the cart then fell onto her upper body. She reported right shoulder, neck and scapular pain radiating to the right upper arm. She denied any prior injuries to these parts of her body. Cervical x-rays revealed degenerative disc disease and retrolisthesis at C4-5 and C5-6. Shoulder x-rays showed moderate degenerative changes in the glenohumeral joint. Claimant was diagnosed with cervical and shoulder strains.

3. Claimant started physical therapy on November 20, 2014. Her physical therapy records document repeated evaluation and treatment of the musculature surrounding the right shoulder, including the neck and upper back.

4. Claimant underwent a right shoulder MRI on December 4, 2014, which showed a full thickness tear of the supraspinatus tendon, a tear of the long head of the biceps, a tear/degeneration of the superior labrum, and arthrosis of the glenohumeral and acromioclavicular joints.

5. Claimant saw PA-C Kenneth Ginsburg at Concentra on December 8, 2014. She was still having pain in and around the right shoulder. Physical examination of the shoulder revealed tenderness of the AC joint, glenohumeral joint, humeral neck and right trapezius muscle, and right-sided muscle spasm. Because of her ongoing symptoms, PA-C Ginsburg referred Claimant for an orthopedic evaluation with Dr. Wiley Jinkins. He also gave Claimant work restrictions of no more than 5 pounds lifting, and no reaching away from the body or above chest level.

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6. Claimant saw Dr. Jinkins the next day. She was still symptomatic but seemed to be improving slowly with therapy. She was tolerating full-time work. Dr. Jinkins thought her examination was consistent with shoulder impingement and a biceps tendon injury. Dr. Jinkins felt there was “an excellent chance” Claimant would respond to conservative treatment without surgical intervention. He gave Claimant an injection in her right shoulder and asked her to follow-up in a month.

7. At her next visit with PA-C Ginsburg on January 2, 2015, Claimant’s shoulder pain and range of motion were improved, but she still had exacerbations and she felt as if her joint was “going out of place and locking” with activities involving lifting or reaching. She also had intermittent numbness in her right thumb. She had no neck pain, but still had right trapezius, parascapular, and anterior shoulder pain. Her examination showed tenderness around the shoulder, including the right trapezius and paraspinal musculature, with right-sided muscle spasm.

8. Claimant saw Dr. Jinkins again on January 13, 2015. She reported significant benefit from the previous injection, and her pain level was down to 2-4/10, depending on activity. Dr. Jinkins did not think Claimant needed another injection since she was doing so well. He recommended that she reinitiate physical therapy to improve range of motion and muscle strength. He did not recommend surgery at that time due to her good response to conservative treatment.

9. Claimant’s next visit with PA-C Ginsburg took place on January 20, 2015. She reported worsening symptoms “because she feels that her employer is making her exceed her work restrictions, which is causing increased right shoulder, trapezius pain with numbness down her right arm.” Her physical examination was similar to the previous exams. PA-C Ginsburg referred Claimant to Dr. Shimon Blau to evaluate her upper extremity numbness.

10. Dr. Jinkins reevaluated Claimant on February 10, 2015. She reported her pain was improved, particularly on her second day off of work over the weekend. Dr. Jinkins administered a second steroid injection to the shoulder. Neither Dr. Jinkins nor Claimant favored pursuing surgical intervention.

11. Claimant saw Dr. Blau on March 2, 2015. She described ongoing right shoulder pain radiating up into the right side of her neck. The pain was better in the morning, at a level of 1/10. At work, her pain increased to 4/10. She also noted tingling in her right upper extremity into the thumb and second and third digits, which was particularly noticeable when driving. On physical examination, she had slight limitation with right-side bending and rotation of the cervical spine due to pain. There was tenderness to palpation along the mid-to-lower right cervical paraspinal musculature, and all around the right shoulder. Shoulder range of motion was somewhat reduced, and she had difficulty reaching behind her back. Her neurological examination was unremarkable, but based on her symptom complex, Dr. Blau diagnosed right carpal tunnel syndrome. He recommended a right carpal tunnel injection, with consideration of a cervical MRI if she did not improve.

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12. Claimant reported significant benefit from the carpal tunnel injection at her follow-up appointment with Dr. Blau on April 13, 2015. She was still having pain in the right upper arm, which radiated up to the shoulder and neck. Her symptoms were typically worse after work. Dr. Blau planned to “monitor” the carpal tunnel syndrome.

13. Claimant continued to participate in physical therapy, with slow but steady improvement. Therapy records document ongoing symptoms and limitations in the musculature proximal to the shoulder joint.

14. Claimant began participating in massage therapy in May 2015. Her primary complaints were pain in the right shoulder, neck, and arm, and headaches. The therapist indicated treatment would focus on Claimant’s “right upper trapezius, levator scapula, supraspinatus, infraspinatus, deltoid (all), coracobrachialis, biceps brachii, triceps, and pectoralis major.” Although many of the session notes are somewhat difficult to read, it is clear that the massage therapist consistently worked on Claimant’s parascapular and upper trapezius areas.

15. At her June 10, 2015 appointment with PA-C Ginsburg, Claimant reported the right hand numbness had almost completely resolved since the wrist injection. Her shoulder pain was significantly improved, with “just mild pain to [the] right scapular area.” Physical examination revealed scapular tenderness, with normal shoulder range of motion.

16. Claimant had her final visit with Dr. Blau on June 22, 2015. She was still enjoying significant benefit from the carpal tunnel injection, and her tingling had resolved. She reported occasional right shoulder pain which radiated “up.” On examination she had minor pain in the right lower cervical musculature. Dr. Blau discharged Claimant from his care.

17. Dr. Jinkins discharged Claimant the next day, opining that she would not require surgery or additional orthopedic treatment.

18. Claimant saw Dr. Randall Jones on July 7, 2015 for an MMI evaluation. Dr. Jones noted Claimant was working on a 10-pound lifting restriction, and “anything more increases [her] pain or with reaching out.” He did not recommend an FCE due to concerns about worsening her rotator cuff tear. Dr. Jones opined that Claimant was at MMI, and assigned a 5% upper extremity/3% whole person rating for right shoulder range of motion deficits. He gave Claimant permanent work restrictions consisting of no lifting greater than 10 pounds, no lifting or reaching above chest height, and no reaching out to lift.

19. Claimant requested a DIME, which was performed by Dr. Anjmun Sharma on October 30, 2015. Dr. Sharma agreed with Dr. Jones’ date of MMI and his decision to rate only Claimant’s shoulder. Dr. Sharma noted, “the patient did not injure her neck, she only injured the right shoulder.” On physical examination, Claimant was tender to palpation on the trapezius and levator scapulae. She had good strength, but reduced

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range of motion. Dr. Sharma assigned a 14% upper extremity/8% whole person rating for shoulder range of motion deficits.

20. Dr. Timothy Hall performed an Independent Medical Examination (IME) at Claimant’s request on April 6, 2016. Claimant told Dr. Hall she continued to experience significant symptoms and limitations despite treatment. On physical examination, Claimant’s shoulder and cervical range of motion were limited. She was very tender along the parascapular area and along the biceps. Dr. Hall appreciated significant hypertonicity/spasm through the neck and parascapular area involving the splenius capitis, levator scapulae, trapezius, and to a lesser extent rhomboid, with active trigger points. Dr. Hall diagnosed chronic myofascial pain in the cervical area, shoulder rotator cuff tear and biceps tear with ongoing pain and functional limitations, and carpal tunnel syndrome. He agreed that Claimant was at maximum medical improvement. He noted her condition had regressed somewhat since stopping therapy, but that was not unexpected. He agreed that she had been appropriately treated with conservative measures, but continued to have functional deficits in her shoulder and neck involving her upper extremity and right upper quadrant. Dr. Hall opined that Claimant should be rated for her neck and her right shoulder, and calculated a 8% whole person cervical rating. He adopted Dr. Jones’ shoulder rating, which combined with the cervical rating to produce an overall 11% whole person impairment. Dr. Hall noted Claimant’s counsel had asked him to comment on “conversion to whole person.” He opined that Claimant’s injury “is more involved than just her shoulder. Her parascapular area and neck are involved. She has considerable functional deficits that affect her as a whole person.” He agreed with the work restrictions outlined by Dr. Jones in his MMI report.

21. Claimant has been under work restrictions since her date of injury. Employer provided modified duties, and although she had pain, Claimant continued working until after she was placed at MMI. Employer was unable or unwilling to accommodate her permanent restrictions on a long-term basis, and she was terminated in December 2015.

22. Claimant underwent two vocational evaluations in connection with her claim for permanent total disability benefits. Cynthia Bartmann performed Respondents’ vocational evaluation on March 15, 2016. Ms. Bartmann noted the work restrictions provided by Dr. Jones and Dr. Sharma. Ms. Bartmann testified that she typically prefers to use restrictions from the treating physician in evaluating an individual’s ability to work. Therefore, she based her opinions primarily on Dr. Jones’s restrictions. Ms. Bartmann noted Claimant received her primary education in Germany, which ultimately allowed her to teach children up to the fifth grade. Claimant received her GED in 1998 after coming to the United States. Although German is Claimant’s primary language, she can read and write in English with no difficulty. Based on her prior work experience, Ms. Bartmann opined that Claimant has transferable skills in the areas of cashiering and teacher assistant. Additionally, Ms. Bartmann identified several unskilled entry-level occupations Claimant can perform. Ultimately, Ms. Bartmann concluded Claimant is employable in a variety of occupations such as hotel night auditor or front desk clerk, teacher aide, tutor, dressing room attendant, small products assembler, unarmed security guard, child care worker, and hostess.

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23. Rodney Wilson conducted Claimant’s vocational evaluation on April 6, 2016. Besides interviewing Claimant regarding her work history and perceived functional abilities, Mr. Wilson administered some basic aptitude tests in reading and mathematics. Based on her scores, he opined she can read an academic textbook, understand an employer handbook or interpret a technical manual. She may have difficulty performing occupations that involve bookkeeping or record keeping activities. She scored poorly on tests designed to assess clerical abilities and upper extremity dexterity. Mr. Wilson opined that Claimant cannot return to past work, and her injury-related limitations preclude the transferability of any acquired work skills to other occupations. Based on his review of the medical and vocational factors, Mr. Wilson opined that Claimant cannot earn any wages and is permanently and totally disabled as a result of her industrial injury.

24. Dr. Hall, Mr. Wilson, and Ms. Bartmann testified at the hearing. Each expert reiterated and expanded upon the opinions expressed in their written reports.

25. Regarding Claimant’s work restrictions, Dr. Hall modified his opinions somewhat as compared to those stated in his report. He opined that Claimant should not lift over 10 pounds with the left arm, but only 5 pounds occasionally with the right arm. He opined that she should not perform upper extremity activities “outside of the ergonomic box,” but did not specifically define that term.

26. Mr. Wilson reiterated his opinions that Claimant cannot work in any occupation. He specifically disagreed that Claimant can perform any of the jobs outlined by Ms. Bartmann. Mr. Wilson opined that many of the identified jobs were incompatible with Dr. Hall’s limitation on Claimant’s ability to reach “outside the ergonomic box.”

27. Ms. Bartmann clarified that she primarily relied upon the specific requirements of individual jobs rather than generic job descriptions provided by vocational resources such as the Dictionary of Occupational Titles. She agreed that many positions within occupations such as cashier, assembler and unarmed security guard have demands outside of Claimant’s restrictions. But she described subsets of jobs within those larger occupational titles that are consistent with Claimant’s restrictions. For example, she noted cashiers at certain fast food restaurants that simply take orders, and everything is performed below chest level with minimal to no lifting. She described security positions where the individual primarily monitors video screens and performs periodic door checks. She described tutor positions working with small groups or one-on-one with children in a sedentary setting. Ms. Bartmann referenced sedentary assembler positons involving small products that are brought to and taken away from the worker, with minimal lifting. Ms. Bartmann indicated she did not know how to interpret Dr. Hall’s limitation of no reaching “outside the ergonomic box,” and did not incorporate it into her analysis.

28. Crediting the opinions expressed by Dr. Jones in his MMI report, and agreed to by Dr. Hall in his IME report, Claimant is limited to work requiring no lifting greater than 10 pounds, no pushing or pulling greater than 10 pounds, no reaching or

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lifting over chest height, and no reaching out to lift. These are the limitations Ms. Bartmann used to conduct her employability assessment.

29. Ms. Bartmann’s opinions regarding Claimant’s ability to work are credible and persuasive.

30. Claimant failed to prove by a preponderance of the evidence she is permanently and totally disabled.

31. Dr. Hall’s findings and opinions regarding functional impairment beyond the arm are credible and persuasive.

32. Claimant proved by a preponderance of the evidence she has functional impairment not listed on the schedule of disabilities.

33. Claimant sustained 8% whole person impairment to her right shoulder because of the industrial injury.

CONCLUSIONS OF LAW

A. Permanent Total Disability

A claimant is considered permanently and totally disabled if she cannot “earn any wages in the same or other employment.” Section 8-40-201(16.5)(a), C.R.S. The term “any wages” means wages in excess of zero. McKinney v. Industrial Claim Appeals Office, 894 P.2d 42 (Colo. App. 1995). To prove permanent total disability, the claimant does not have to show that the industrial injury is the sole cause of her inability to earn wages. Rather, the claimant must demonstrate that the industrial injury is a “significant causative factor” in her permanent total disability. Seifried v. Industrial Commission, 736 P.2d 1262 (Colo. App. 1986). It is not sufficient that an industrial injury merely creates some disability which ultimately contributes to permanent total disability. Rather, Seifried requires the claimant to prove a “direct causal relationship” between the industrial injury and the disability. Lindner Chevrolet v. Industrial Claim Appeals Office, 914 P.2d 496 (Colo. App. 1995).

In determining whether the claimant can earn wages, the ALJ may consider a wide variety of “human factors.” Weld County School District RE-12 v. Bymer, 955 P.2d 550 (Colo. 1988). These factors include the claimant’s physical condition, mental abilities, age, employment history, education, training, and the “availability of work” the claimant can perform within her commutable labor market. Id. Another human factor is the claimant’s ability to obtain and maintain employment within her limitations. See Professional Fire Protection, Inc. v. Long, 867 P.2d 175 (Colo. App. 1993). The ability to earn wages inherently includes consideration of whether the claimant is capable of getting hired and sustaining employment. See e.g., Case v. The Earthgrains Co., W.C. No. 4-541-544 (ICAO, September 6, 2006); Cotton v. Econo Lube N. Tune, W.C. No. 4-220-395 (ICAO, January 16, 1997). If the evidence shows the claimant cannot “sustain” employment, the ALJ can find she is not capable of earning wages. Joslins Dry Goods Co. v. Industrial Claim Appeals Office, 21 P.3d 866, 868 (Colo. App. 2001).

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As found, Claimant failed to prove by a preponderance of the evidence she is permanently and totally disabled. Rather, the preponderance of persuasive evidence demonstrates that Claimant remains capable of sustaining employment in a variety of sedentary and sedentary-light occupations.1 The work restrictions outlined by Dr. Jones, and agreed to by Dr. Hall in his IME report, are reasonable in light of Claimant’s injury and ongoing symptoms. Although Dr. Hall opined that Claimant should not perform reaching “outside the ergonomic box,” he did not define that term. The ALJ is not aware of any standard definition of the “ergonomic box,” and therefore does not accept that as an additional limitation on Claimant’s ability to work. The ALJ recognizes that Claimant’s permanent restrictions, coupled with her age, education, and work experience, significantly limit the range of work she can perform. But the ALJ is persuaded there are still some jobs in the competitive economy consistent with Claimant’s limitations. Ms. Bartmann persuasively opined that Claimant can work and earn wages in occupations such as night auditor, front desk clerk, dressing room attendant, building security monitor, cashier, sedentary assembler, and hostess.

Nor is the ALJ persuaded that Claimant’s pain would limit her ability to sustain work consistently. She was able to work within her restrictions until December 2015. There is no persuasive evidence that her condition subsequently deteriorated to the point that she could no longer maintain even sedentary employment. Indeed, Claimant admitted she could still perform her modified job had Employer been willing to allow it. The Claimant’s demonstrated ability to maintain modified duty work with Employer further persuades the ALJ she retains the ability to tolerate the minimally demanding occupations identified by Ms. Bartmann.

B. Whole person impairment

Whether a claimant has sustained scheduled or whole person impairment is a question of fact for determination by the ALJ. Strauch v. PSL Swedish Healthcare System, 917 P.2d 366, 368 (Colo. App. 1996). In resolving this question, the ALJ must determine “the situs of the functional impairment,” which is not necessarily the site of the injury itself. Id. The schedule of disabilities refers to the loss of “an arm.” Section 8-42-107(2)(a). In other words, if the claimant has a functional impairment to part(s) of his body other than the “arm,” she has sustained a whole person impairment and must be compensated under § 8-42-107(8).

The ALJ can consider medical evidence when determining this issue, can also credit lay evidence such as the claimant’s testimony regarding pain and reduced function. Olson v. Foley’s, W.C. No. 4-326-898 (ICAO, September 12, 2000).

There is no requirement that functional impairment take any particular form, and “pain and discomfort which interferes with the claimant’s ability to use a portion of the body may be considered ‘impairment’ for purposes of assigning a whole person 1Although a 10 pound lifting restriction generally places a worker in the “sedentary” physical demand level, there are some “light” jobs compatible with that limitation. As Ms. Bartmann explained, certain jobs are classified as “light” due to standing and/or walking requirements, even though they do not require lifting greater than 10 pounds.

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impairment rating.” Martinez v. Albertson’s LLC, W.C. No. 4-692-947 (ICAO, June 30, 2008). Referred pain from the primary situs of the initial injury may establish proof of functional impairment to the whole person. E.g., Latshaw v. Baker Hughes, Inc., W.C. No. 4-842-705 (ICAO, December 17, 2013); Mader v. Popejoy Construction Co., Inc., W.C. No. 4-198-489 (ICAO, August 9, 1996) (pain in shoulders, chest, back, and neck, which restricted claimant’s ability to perform overhead activities supported whole person impairment).

Pain and limitation in the trapezius, neck, and scapular area can functionally impair an individual beyond the arm. E.g. Steinhauser v. Azco, Inc., W.C. No. 4-808-991 (ICAO, January 11, 2012) (pain and muscle spasm in scapular and trapezial musculature warranted whole person impairment); Franks v. Gordon Sign Co., W.C. No. 4-180-076 (ICAO, March 27, 1986) (supraspinatus attaches to the scapula, and is therefore properly considered part of the “torso,” rather than the “arm”); Martinez v. Albertson’s LLC, W.C. No. 4-692-947 (ICAO, June 30, 2008) (pain affecting the trapezius and difficulty sleeping on injured side supported ALJ’s finding of whole person impairment).

As found, the preponderance of persuasive evidence shows that Claimant suffers functional impairment in areas beyond her “arm.” Claimant has complained of pain in the musculature surrounding her shoulder throughout her course of treatment. The medical records repeatedly document pain in areas of Claimant’s body proximal to her arm, including the trapezius and scapular areas. PA-C Ginsburg documented palpable right-sided muscle spasms on more than one occasion. Claimant received extensive treatment directed to these areas in physical therapy and massage therapy. She was still symptomatic in those areas at the DIME evaluation, and Dr. Sharma noted she was “tender to palpation on the trapezius and levator scapulae.” Dr. Hall found similar findings in his IME, as well as spasm and trigger points in areas proximal to her arm.

Claimant’s proximal symptoms are documented well enough that Dr. Hall opined Claimant warrants a cervical impairment rating. By contrast, the DIME determined that the symptoms proximal to Claimant’s arm are not the result of any specific neck injury or ratable cervical condition. The DIME’s finding that Claimant has no ratable cervical impairment is binding unless overcome by clear and convincing evidence, and neither party challenged the DIME’s rating. Based on the totality of evidence presented, the ALJ concludes that the symptoms in areas such as Claimant’s trapezius and parascapular musculature are most likely manifestations of her shoulder injury.

The ALJ is not persuaded by Respondents’ argument that the DIME’s decision not to assign a cervical rating means Claimant’s proximal symptoms cannot serve as a basis for a finding of whole person impairment unless Claimant overcomes the DIME. On the contrary, those symptoms and associated limitations can be referenced to demonstrate whole person impairment because the DIME found no ratable cervical impairment. Cf. Warthen v. Industrial Claim Appeals Office, 100 P.3d 581 (Colo. App. 2004) (cervical symptoms cannot support a whole person shoulder rating where those symptoms are subsumed into cervical impairment rating); see also Abeyta v. Wackenhut Services, W.C. No. 4-519-399 (ICAO, September 16, 2004); Johnson-Wood

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v. City of Colorado Springs, W.C. No. 4-536-198 (ICAO, June 20, 2005) (“nothing in Warthen requires claimants to prove the existence of functional impairment beyond the extremity, which is separately ratable before being entitled to compensation based on the whole person impairment conversion of the extremity rating”). Whether a claimant has a scheduled or whole person impairment is a question of fact for the ALJ, on which the DIME’s opinion is not entitled to any special weight. Although the opinions and findings of a DIME may also be relevant to this determination, a DIME’s opinion regarding the situs of functional impairment is not entitled to any special weight. Cass v. Kaiser-Hill Company, W.C. No. 4-491-465 (ICAO, June 3, 2002).

The persuasive evidence demonstrates that Claimant’s proximal symptoms produce functional limitations that interfere with her ability to perform various activities, including working, personal hygiene, sleeping, and interacting with her grandchildren. She has permanent work restrictions which preclude her from lifting more than 10 pounds and reaching above chest height.

The totality of evidence persuades the ALJ that Claimant sustained functional impairment to parts of her body not listed on the schedule. Claimant is entitled to PPD benefits based on the DIME’s 8% whole person rating for the left shoulder.

ORDER

It is therefore ordered that:

1. Claimant’s claim for permanent total disability benefits is denied and dismissed.

2. Insurer shall pay PPD benefits based on an 8% whole person rating. Insurer may take credit for any PPD benefits previously paid to Claimant in this claim.

3. Insurer shall pay statutory interest to Claimant at the rate of 8% per annum on all amounts of compensation not paid when due.

4. All matters not determined herein, or otherwise closed by operation of law, are reserved for future determination.

If you are dissatisfied with the Judge's order, you may file a Petition to Review the order with the Denver Office of Administrative Courts, 1525 Sherman St., 4th Floor, Denver, CO 80203. You must file your Petition to Review within twenty (20) days after mailing or service of the order, as indicated on the certificate of mailing or service; otherwise, the Judge's order will be final. You may file the Petition to Review by mail, as long as the certificate of mailing attached to your petition shows: (1) That you mailed it within twenty (20) days after mailing or service of the order of the Judge; and (2) That you mailed it to the above address for the Denver Office of Administrative Courts. For statutory reference, see section 8-43-301(2), C.R.S. For further information regarding procedures to follow when filing a Petition to Review, see Rule 26, OACRP. You may access a petition to review form at: http://www.colorado.gov/dpa/oac/forms-WC.htm.

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DATED: February 27, 2017

s/Patrick C.H. Spencer II Patrick C.H. Spencer II Administrative Law Judge Office of Administrative Courts

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OFFICE OF ADMINISTRATIVE COURTS STATE OF COLORADO WORKERS’ COMPENSATION NO. 4-983-624-02

ISSUES

I. Whether Respondents established by clear and convincing evidence that the DIME physician erred in determining that Claimant had not reached maximum medical improvement (MMI) for his left knee injury.

II. If the answer to Issue I is yes, whether Claimant established by a preponderance of the evidence that his left shoulder condition and need for treatment is causally related to his May 15, 2015 trip and fall.

FINDINGS OF FACT

Based upon the evidence presented, including the deposition testimony of Dr. Jenkins and Dr. Raschbacher, the ALJ enters the following findings of fact:

1. Claimant works as a maintenance technician for Respondent-Employer. His work duties require substantial use of the arms, including bilateral overhead use. On May 18, 2015, Claimant was climbing a set of stairs while carrying a box of light bulbs. While ascending the stairs, Claimant tripped and fell forward landing on his left knee. Claimant clutched the box of bulbs tightly with his arms to avoid breakage and as such did not attempt to break his fall by extending his arms.

2. Claimant completed his shift albeit on a painful knee. Later during the evening

his knee began to swell. Due to persistent pain and swelling, Claimant presented to the Emergency Room at Memorial Hospital (ER) on May 20, 2015, where x-rays were taken and revealed a fractured left patella. Claimant was placed in a knee immobilizer, given crutches and advised to follow-up with an orthopedic specialist.

3. Prior to seeing an orthopedist, Claimant was referred to Concentra where he was examined by a Physician’s Assistant, (PA) Kenneth Ginsburg later on May 20, 2015. PA Ginsburg notes a history of Mr. Jones being seen at the Memorial Hospital Emergency Room where an x-ray demonstrated a left patella fracture. PA Ginsburg referred Claimant to Dr. Jinkins for orthopedic consultation and requested an MRI of the left knee.

4. An MRI of the knee performed May 22, 2015, revealed a patellar fracture, chondromalacia patellae, a sprain of the lateral patellar retinaculum and strain of the distal vastus lateralis muscle along with hemarthrosis with extravasation of fluid and a small popliteal cyst.

5. Dr. Jinkins initially examined Mr. Jones on May 26, 2015. He reviewed the

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history provided by Mr. Jones and noted that the Claimant was provided with a brace and crutches at Memorial Hospital. According to Dr. Jenkins, Claimant was given two crutches initially; however, the time of his initial appointment with Dr. Jenkins Claimant was noted to be “using one crutch for lateral support with ambulation.” Dr. Jinkins recommended that Claimant continue to use his knee brace “full time” as well as the one crutch for lateral support.

6. In the follow up exam on June 9, 2015, Dr. Jinkins noted that Claimant was “still using one crutch for lateral support with ambulation on the left.” The ALJ interprets Dr. Jenkins’ June 9, 2015 note to indicate that Claimant was holding the crutch under his left arm to aid with lateral support while walking. According to Dr. Jenkins, Claimant reported that his left shoulder was “killing” him and that he had been having “problems with his left shoulder . . . since using the crutch.” This is the first documentation that Claimant reported left shoulder pain since the May 18, 2015 knee injury. Dr. Jinkins recommended physical therapy for range of motion exercise for the left knee and noted that it was “reasonable for physical therapy to transition [Claimant] to ambulating with a cane” to alleviate pain in his left shoulder.

7. Claimant testified that prior to May 18, 2015 he experienced no symptoms or functional limitations with regard to the left shoulder. He reported that he had not pursued any medical treatment for the left shoulder in the past and no records were submitted into evidence contradicting this testimony.

8. On June 23, 2015, Claimant returned to Concentra where he was reevaluated by PA Ginsberg who documented Claimant’s report of “very gradual” improvement regarding the left knee fracture but persistent “[complaints] of left shoulder pain from prolonged use of crutches.” Claimant had been transitioned from the crutch to a cane. Nevertheless, he continued to have significant pain with “left shoulder movements.” Physical exam of the left shoulder revealed painful range of motion with abduction and forward flexion as well as tenderness over the interior glenohumeral joint. PA Ginsburg assessed Claimant with a left shoulder strain, imposed physical restrictions and referred him for an orthopedic evaluation regarding his left shoulder.

9. Clamant returned to Dr. Jenkins offices on July 7, 20015. Dr. Jinkins noted that Claimant’s knee was improving but he was still having significant problems with his left shoulder “which began following his fall and fracture of his patella with the use of crutches after the fall. Physical examination of the left shoulder, including provocative testing, i.e. Neer sign, Hawkins sign and O’Brien sign were all positive for impingement. Moreover, Claimant’s symptoms were “markedly” reproducible with forced abduction against resistance. Dr. Jinkins raised the possibility that an MRI of the shoulder would be necessary to ascertain whether Claimant had an injury to the rotator cuff. He also administered a steroid injection and recommended return to the clinic in one month.

10. On July 14, 2015, PA Ginsburg noted that the steroid injection administered by

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Dr. Jinkins did not reduce Claimant’s shoulder pain. Physical examination was largely unchanged with complaints of painful range of motion and tenderness over the anterior glenohumeral joint. PA Ginsburg requested an MRI of the left shoulder.

11. An MRI of the left shoulder was performed on July 22, 2015. The diagnostic

report provides that the left shoulder pain started after a knee injury on May 18, 2015 which required the use of crutches. The MRI revealed a complete thickness tear of the distal supraspinatus and infraspinatus tendons with 3.8 centimeters of medial tendon retraction. It also revealed severe glenohumeral arthrosis and thinning of the long biceps tendon.

12. Dr. Jinkins reviewed the left shoulder MRI on July 28, 2015. He reiterated that prior to May 18, 2015, Claimant reported that he was asymptomatic and had no problems with the function of his left shoulder. Dr. Jenkins documented Claimant’s negative response to the steroid injection and opined that given the “significant” arthritis in the left shoulder coupled with the size of the rotator cuff tearing that the only surgical procedure which would predictably afford Claimant relief from his ongoing symptoms was a total shoulder replacement procedure. As Dr. Jenkins did not perform this surgery, he referred Claimant to Dr. David Weinstein for a consultation.

13. Insurer sought an advisory opinion regarding the referral to Dr. Weinstein for orthopedic consultation concerning the recommended total shoulder replacement procedure. On August 4, 2015, Dr. Jeffrey Raschbacher reviewed medical records pertaining to Claimant’s shoulder condition and after review opined that the surgery was contemplated for degenerative changes which pre-existed the claimed injury. He opined that it was not clear that “using a crutch or crutches would likely cause a rotator cuff tear and it certainly did not cause the variety of degenerative changes.” Therefore, Dr. Raschbacher recommended denial of the referral on the grounds that Claimant’s left shoulder condition was not likely work related. Dr. Raschbacher endorsed consideration of an independent medical examination (IME) to consider the issue.

14. The request for authorization for the referral to Dr. Weinstein was denied and on

August 11, 2015, PA Ginsburg referred Claimant to Dr. Albert Hattem, a delayed recovery specialist.

15. On September 11, 2015, Dr. Timothy Hall performed an IME at Claimant’s request. Dr. Hall opined that the cause of Claimant’s shoulder injury was related to his use of a crutch in helping him ambulate. Dr. Hall also opined that Claimant’s knee was at MMI and in no need of further treatment.

16. Claimant was seen by Dr. Hattem on October 27, 2015. In his report following

Claimant’s examination, Dr. Hattem notes that on October 15, 2015, Insurer contacted his front office and informed his staff that they would authorize treatment only for the left knee and not the left shoulder. In turn, Dr. Hattem “informed [Claimant] . . . that treatment directed at the left shoulder was denied and that he was, therefore at

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maximum medical improvement. Dr. Hattem then placed Claimant at maximum medical improvement without permanent impairment for the left knee.

17. Respondents filed a Final Admission of Liability dated October 29, 2015 adopting

the opinion of Dr. Hattem. Claimant timely requested a division independent medical examination (DIME) which was performed by Dr. Jeffrey Jenks on February 23, 2016.

18. Dr. Jenks recounts a history of a trip and hard fall on a landing with a resulting patella fracture. The date of injury is incorrectly stated as May 8, 2015. Dr. Jenks goes on to note that Claimant was given crutches for ambulation and after 10-12 days of use, he began to “notice significant pain in his right shoulder.” (emphasis added). The ALJ finds that reference to the right shoulder constitutes an inadvertent error as the remainder of the DIME report references the left shoulder as the problematic limb. Dr. Jenks opined that Claimant was not at MMI for his left knee. Dr. Jenks indicated that since Claimant’s last x-ray failed to reveal complete union of his patella, an additional x-ray was needed. Likewise, Dr. Jenks opined that Claimant, “severely injured his left shoulder in the fall, adding that Claimant did not have the rotator cuff tear prior to the fall and that it was possible Claimant did not feel the injury to his left shoulder due to the pain in his left knee. It was Dr. Jenks opinion that Claimant needed a reverse total shoulder replacement due to the fall causing Claimant’s rotator cuff injury. Consequently, Dr. Jenks opined that Claimant was not at MMI for his left shoulder.

19. On November 3, 2015, Claimant was evaluated by Dr. James Lindberg at Respondents’ behest. As part of his IME, Dr. Lindberg documented Claimant’s history of never having any “injuries, pain, or loss of function in his left shoulder at all of any kind prior to using crutches for his injury.” Following his records review and examination, Dr. Lindberg opined that Claimant had “end-stage severe osteoarthritis” in the left shoulder, noting that Claimant had “probably the worst shoulder that I have seen recently with arthritis, complete tears, retraction of the supraspinatus and infraspinatus with atrophy and fatty infiltration, which indicates chronicity.” Dr. Lindberg opined that the pathology in Claimant’s left shoulder was pre-existing and not caused by his walking on one crutch. He also opined that the need for total shoulder replacement was due to these pre-existing degenerative changes and not the work related slip and fall. Finally he found Claimant’s report of being asymptomatic and without functional loss prior to the use of the crutch dubious, noting that Claimant had a torn biceps tendon which causes significant pain as well as severe osteoarthritis which would, without question limit Claimant’s range of motion. Dr. Lindberg also questioned why Claimant would hold the crutch under his left shoulder, noting that “traditionally” the crutch or cane is held on the opposite side to the injured extremity. For these reasons, Dr. Lindberg opined that Claimant’s need for a total shoulder replacement was “secondary to his longstanding pre-existing severe damage to his left shoulder.

20. Regarding the left knee, Dr. Lindberg opined that Claimant had reached MMI with 5% scheduled permanent impairment.

21. On July 15, 2016, Dr. Raschbacher, who had completed the physician advisor

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opinion regarding causality approximately 11 months earlier was asked to perform an IME. Dr. Raschbacher, took a history, completed a records review and performed a physical examination. Following his IME, Dr. Raschbacher prepared a written report outlining his opinions. In his report, Dr. Raschbacher notes that Claimant had presented to the ER where he was put on crutches. According to Claimant’s report, he was instructed on how to use the crutches in the ER. As noted in paragraph 6 above, Claimant reported to Dr. Jenkins on June 9, 2015 that he was using a crutch on the left to aid with lateral support and ambulation. Later in Dr. Raschbacher IME report Claimant reported he was using a cane in his right hand. Based upon the evidence presented, the ALJ finds that Claimant was likely using the crutch improperly by holding under his left shoulder until he was transitioned to a cane by physical therapy per the request from Dr. Jenkins.

22. Following his IME, Dr. Raschbacher opined that Claimant’s rotator cuff tear and remaining left shoulder conditions were not causally related to the May 18, 2015 work related injury. According to Dr. Raschbacher opined that rotator cuff tears are typically associated with falls where the arm is flexed or abducted at the shoulder or with strenuous repetitive overhead use. Using crutches is not likely to cause a rotator cuff tear according to Dr. Raschbacher because the shoulder is maintained in an adducted position without great amounts of forward flexion.

23. Dr. Raschbacher would go on to opine that Claimant was at MMI with regard to

his left knee. He adopted Dr. Hattem’s method of assessing impairment associated with the patella fracture opining that Claimant had no permanent impairment.

24. On July 18, 2016, Dr. Jinkins prepared a narrative report responding to a letter directed to him by Claimant’s counsel on July 13, 2016. In this report, Dr. Jenkins reiterated that while the arthritis in Claimant’s left shoulder was pre-existing and not caused by his fall “ambulating with crutches did place significant stress on the shoulder and caused the previously silent arthritic condition to become symptomatic.” Consequently, Dr. Jenkins characterized the situation surrounding Claimant’s left shoulder symptoms as one “[falling] into the category of aggravation of a pre-existing condition.”

25. As noted, Dr. Jenkins testified by deposition. During his deposition, Dr. Jinkins testified that reviewed the MRI images of the left shoulder. He testified that he has seen patients with degenerative changes similar to those of Claimant, which while significant, are asymptomatic. According to Dr. Jenkins an inciting event causes the underlying condition to become symptomatic. According to Dr. Jenkins, Claimant’s crutch use is the inciting event leading to his symptoms. Dr. Jinkins reasoned that after his fall, Claimant could not ambulate without the use of crutches due to his fractured patella. Because the use of crutches was 100% related to the fall, the left shoulder symptoms caused by aggravation of Claimant’s pre-existing condition renders those symptoms and subsequent need for treatment related to the fall itself.

26. Dr. Jinkins testified that he would not recommend surgery for a patient with the

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same MRI’s as the Claimant who was not experiencing pain. The reason to perform the surgery is to alleviate the pain.

30. Dr. Jenkins testified that Claimant probably had a rotator cuff tear prior to his fall. He explained that if the fall had caused an acute tear, he would have expected Claimant to have been symptomatic sooner rather than later. He disagreed with the opinion of Dr. Jenks that the fall caused Claimant’s left rotator cuff tear as the pain did not begin immediately but started with use of crutches. Nonetheless, Dr. Jenkins testified that the repeated stress on the rotator cuff caused by use of the crutch may have created an “acute on chronic situation” meaning that a pre-existing, i.e. a chronic tear was acutely enlarged by the use of crutches. Regardless, of whether Claimant’s pre-existing tear was enlarged by the use of a crutch, Dr. Jenkins testified that the reason Claimant required a total shoulder replacement was the “precipitation of symptoms and aggravation of the pre-existing condition due to walking with crutches.”

31. Regarding the left knee, Dr. Jinkins testified that Claimant was likely at MMI, however, he could not make a “completely adequate assessment without . . . examining him, and taking a history of how he’s doing” at that time. According to Dr. Jenkins, if Claimant is found to be having persistent symptoms at that time it would not be unreasonable to perform a repeat x-ray or CT scan prior to placing the Claimant at MMI with respect to the left knee.

32. Dr. Raschbacher also testified by deposition. During his deposition, Dr. Raschbacher admitted that it does not take a discrete event for a rotator cuff tear to occur. Rather, Dr. Raschbacher explained that many tears are degenerative in nature and many that do occur do not cause symptoms. Indeed, Dr. Raschbacher cited literature from cadaver studies which demonstrated that roughly 23% of people in our cultural group have rotator cuff tears without symptoms. Consequently, Dr. Raschbacher noted that there was a reasonable likelihood that Claimant’s rotator cuff tear was asymptomatic at the time of his fall assuming that the tear was pre-existing. However, Dr. Raschbacher opined that if the tear was caused traumatically by falling, Claimant would highly probably have experienced immediate symptoms associated with the tear.1 Based upon this evidence, the ALJ finds that Claimant’s rotator cuff tear was more probably than not degenerative in nature and pre-existing at the time of his trip and fall.

33. While Dr. Raschbacher conceded that it was “reasonable” to assume that

Claimant’s rotator cuff tear was asymptomatic at the time of his fall; he testified that he would have been “surprised” if Claimant’s shoulder was completely asymptomatic as suggested given the degree of degenerative change and extensive arthritis revealed on the MRI. Dr. Raschbacher opined that neither the fall nor use of crutches resulted in Claimant’s need for left shoulder surgery. Rather, he opined that Claimant’s need for a total shoulder replacement was necessitated purely because of the degenerative 1The ALJ finds Dr. Raschbacher testimony in this regard to comport with Dr. Jenkins opinion that Claimant probably had a rotator cuff tear prior to his fall and that if the tear had been caused by the fall he would have expected Claimant to have been symptomatic sooner rather than later.

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changes present throughout the shoulder. During cross-examination, Dr. Raschbacher admitted that he had no medical records documenting prior symptomology or treatment with respect to the left shoulder.

34. Dr. Raschbacher disagreed with the assessment of Dr. Jenks that Claimant was

not at MMI for his left patella fracture. According to Dr. Raschbacher, Claimant’s patella fracture is the type of injury that heals with time and you would only anticipate persistent pain with weight bearing if there was non-union. Based upon his records review, physical examination and review of the AMA Guidelines to the Evaluation of permanent impairment, Dr. Raschbacher opined that Claimant had reached MMI with respect to his knee without impairment and there was no need for further diagnostic imaging, i.e. x-ray.

35. Dr. Lindberg testified at hearing as an expert in orthopedics. Regarding the pathology, including the degenerative arthritis and rotator cuff tearing noted on MRI of the left shoulder, Dr. Lindberg testified that the changes revealed were long standing (chronic) and not caused by Claimant’s fall or crutch use. According to Dr. Lindberg, there is no objective evidence of an acute shoulder injury from the fall or crutch use.

36. Dr. Lindberg explained that Claimant’s left shoulder rotator cuff teat could not

have been acute because acute tears cause significant pain which would have precluded Claimant from using a crutch on the left side. The ALJ finds Dr. Lindberg’s testimony to constitute additional evidence that Claimant’s left rotator cuff tear was likely pre-existing and asymptomatic until he started using a crutch on the left side.

37. Regarding the cause of Claimant’s left shoulder symptoms, (assuming Clamant

was using the crutch under his left shoulder), Dr. Lindberg testified specifically that the shoulder became symptomatic because Clamant had pre-existing glenohumeral arthritis and was lacking the stability and structure provided by the rotator cuff to prevent the upward migration of the humeral head which was “banging” on the acromion every time Claimant took a step. The ALJ finds this testimony to constitute evidence that movement of the humeral head into the acromion due to the lack of a rotator cuff while ambulating with a crutch under the left shoulder likely aggravated Claimant’s pre-existing glenohumeral arthritis precipitating Claimant’s left shoulder symptoms.

38. Concerning the left knee, Dr. Lindberg testified that the radiographic evidence relied upon by Dr. Jenks to support his opinion that Claimant was not at MMI predictably failed to show evidence of healing of the fracture as imaging lags behind actual healing. Dr. Lindberg testified that there is a difference between being clinically healed and radiographically healed. In order to determine whether a fracture is healed, Dr. Lindberg testified that a clinical examination is performed which includes applying pressure to the fracture site. The pain response to this pressure drives the clinical conclusion as to whether the fracture has healed. According to Dr. Lindberg, Claimant had minimal tenderness when he conducted this test during his IME leading to his opinion that Claimant was at MMI as of the date of his IME. Consequently, Dr. Lindberg

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opined that since Claimant showed no signs of failed union, there was no medical justification for performing additional x-rays as recommended by Dr. Jenks.

39. Based upon the evidence presented, the ALJ finds that Respondents have proven by clear and convincing evidence that Dr. Jenks erred when he concluded that Claimant was not at MMI for his left knee.

40. Regarding the left shoulder, the evidence presented persuades the ALJ that Claimant was, more probably than not, asymptomatic and without functional limitation prior to May 18, 2015. While Claimant has extensive degenerative arthritis and rotator cuff tearing in the left shoulder, which was convincingly demonstrated to be pre-existing, the record is barren of any indication that Claimant complained of or sought treatment for left shoulder symptoms prior to May 18, 2015. Moreover, the evidence presented supports a finding that a mechanism of injury (crutch use) likely to precipitate symptoms in a severely damaged shoulder exists in this case. Consequently, the ALJ credits the testimony of Claimant regarding the condition of his shoulder prior to May 18, 2015 and rejects the contrary testimony of Dr. Raschbacher and Dr. Lindberg that Claimant would have been symptomatic given his preexisting shoulder condition as speculative.

41. Based upon the evidence presented the ALJ finds that Claimant has proven, by a preponderance of the evidence, that Claimant’s left shoulder condition is causally related to his May 18, 2015 trip and fall, that he requires additional treatment for the same and is not currently at MMI.

CONCLUSIONS OF LAW

Based upon the foregoing findings of fact, the ALJ draws the following conclusions of law:

General Legal Principals

A. In determining credibility, the ALJ should consider the witness’ manner and demeanor on the stand, means of knowledge, strength of memory, opportunity for observation, consistency or inconsistency of testimony and actions, reasonableness or unreasonableness of testimony and actions, the probability or improbability of testimony and actions, the motives of the witness, whether the testimony has been contradicted by other witnesses or evidence, and any bias, prejudice or interest in the outcome of the case. Colorado Jury Instructions, Civil, 3:16. The ALJ, as the fact-finder, is charged with resolving conflicts in expert testimony. Rockwell Int'l v. Turnbull, 802 P.2d 1182, 1183 (Colo. App. 1990) Moreover, the ALJ may accept all, part, or none of the testimony of a medical expert. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968); see also Dow Chemical Co. v. Industrial Claim Appeals Office, 843 P.2d 122 (Colo. App. 1992) (ALJ may credit one medical opinion to the exclusion of a contrary medical opinion). As found here, Claimant’s testimony regarding the condition of his shoulder left shoulder and knee prior to May 18, 2015 is generally supported by the dearth of medical records contradicting Claimant’s assertions. Moreover, the medical record evidence coupled with Claimant’s

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demonstrated functional ability prior to his May 18, 2015, trip and fall supports the conclusion that his left shoulder was asymptomatic before he fell and the necessity of using a crutch to aid in lateral support and ambulation began. Consequently, the ALJ finds Claimant’s testimony credible and persuasive. The contrary testimony of Dr. Raschbacher and Lindberg regarding the symptomatic nature of Claimant’s shoulder prior to his injury is speculative and unconvincing. Because Dr. Jinkins was the only physician who treated Claimant on a continuous basis after the fall through the denial of the recommended surgery and because Dr. Jenkins opinions are based upon Claimant’s credible testimony concerning the lack of shoulder symptoms, the ALJ accords significant weight to the opinions of Dr. Jinkins. The ALJ finds/concludes that the opinions of Dr. Jenkins regarding the cause and relatedness of Claimant’s symptoms and need for left shoulder treatment to his May 18, 2015 trip and fall are more persuasive than the contrary opinions of Dr. Raschbacher and Dr. Lindberg.

B. In accordance with Section 8-43-215, C.R.S., this decision contains Specific Findings of Fact, Conclusions of Law and an Order. In rendering this decision the ALJ has made credibility determinations, drawn plausible inferences from the record, and resolved essential conflicts in the evidence. See Davison v. Industrial Claim Appeals Office, 84 P.3d 1023 (Colo. 2004). This decision does not address every item contained in the record; instead, incredible or implausible testimony or unpersuasive arguable inferences have been implicitly rejected. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo. App. 2000).

Overcoming the DIME Opinion of Dr. Jenks Regarding MMI Generally

C. A DIME physician's findings of causation, MMI and impairment are binding on the parties unless overcome by “clear and convincing evidence.” Section 8-42-107(8)(b)(III), C.R.S.; Qual-Med v. Industrial Claim Appears Office, 961 P.2d 590 (Colo. App. 1998); Peregoy v. Industrial Claim Appeals Office, 87 P.3d 261, 263 (Colo. App. 2004). “Clear and convincing evidence” is evidence that demonstrates that it is “highly probable” the DIME physician's opinion concerning MMI is incorrect. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo. App. 1995) In other words, to overcome a DIME physician's opinion regarding MMI, permanency or the cause of a particular component of a claimant’s medical condition, the party challenging the DIME must demonstrate that the physicians determinations in these regards are highly probably incorrect and this evidence must be “unmistakable and free from serious or substantial doubt.” Leming v. Industrial Claim Appeals Office, 62 P.3d 1015, 1019 (Colo. App. 2002). Adams v. Sealy, Inc., W.C. No. 4-476-254 (ICAO, Oct. 4, 2001). The enhanced burden of proof reflects an underlying assumption that the physician selected by an independent and unbiased tribunal will provide a more reliable medical opinion. Qual-Med v. Industrial Claim Appears Office, supra.

D. “Maximum medical improvement” is defined in Section 8-40-201(11.5), C.R.S. as:

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A point in time when any medically determinable physical or mental impairment as a result of injury has become stable and when no further treatment is reasonably expected to improve the condition. The requirement for future medical maintenance which will not significantly improve the condition or the possibility of improvement or deterioration resulting from the passage of time shall not affect a finding of maximum medical improvement. The possibility of improvement or deterioration resulting from the passage of time alone shall not affect a finding of maximum medical improvement.

E. In his DIME report, Dr. Jenks provided two opinions, one pertaining to the

left shoulder and one pertaining to the left knee. The ALJ concludes from Dr. Jenks’ DIME report that he did not believe Claimant to have reached MMI for all conditions causally related to his May 18, 2015 industrial injury. Because Respondents contest both opinions, the ALJ addresses them separately.

I. The MMI Determination of the Left Knee

As noted, Dr. Jenks expressed an opinion that Claimant was not at MMI for his

left knee injury. In order to effectively challenge Dr. Jenks’ MMI determination, there must be evidence that it is highly probably incorrect and as noted, this evidence must be “unmistakable and free from serious or substantial doubt. In resolving the question of whether the DIME physician’s opinions have been overcome, the ALJ may consider a variety of factors including whether the DIME physician properly applied the AMA Guides. See Metro Moving and Storage Co. v Gussert, 914 P.2d 411 (Colo. App. 1995); Wackenhut Corp. v. Indus. Claim Appeals Office, 17 P.3d 2002 (Colo. App. 2000); Aldabbas v. Ultramar Diamond Shamrock, W.C. No. 4-574-397 (ICAO August 18, 2004). Based upon the evidence presented, the ALJ finds and concludes Dr. Jenks opinion addressing MMI of the left knee is highly probably incorrect. Here, the evidence presented supports a conclusion that Dr. Hattem, Dr. Jinkins, Dr. Hall, Dr. Lindberg and Dr. Raschbacher all opined Claimant to be at MMI without the need for further maintenance care or impairment. The weight of the persuasive evidence convinces the ALJ that Claimant suffered from the type of fracture that heals with time and almost 20 months has passed since Claimant’s fall without evidence of complication, set-back, or non-union regarding the knee. Moreover, the evidence presented persuades the ALJ that Dr. Jenks relied on an outdated x-ray that lagged behind true clinical healing when he opined that Claimant had not yet reached MMI. As Dr. Lindberg credibly testified, radiographic evidence trails behind and is sometimes not as reliable as clinical findings employed during examination to verify that a fracture has healed.

Here, every clinical finding and examination of Claimant’s left knee revealed that the fracture had likely healed and that the potential for non-union was remote. Thus, the ALJ concludes that no further imaging is required to confirm what is already known, namely that Claimant had reached a point in time when any medically determinable physical or mental impairment as a result of knee injury had become stable and when no further treatment is reasonably expected to improve the condition. Accordingly,

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Claimant had reached MMI for his left knee injury without impairment and without the need for ongoing medical treatment.

Consequently, the ALJ concludes that Dr. Jenks opinion that Claimant had not

reached MMI and was in need of an additional x-ray to confirm union of his fracture was clearly erroneous. Claimant does not contest this conclusion. Rather, in his position statement, Claimant concedes that Respondents established by clear and convincing evidence that no further treatment for the left knee was required and that the opinion of the aforementioned physicians constitutes “clear and convincing” evidence that Claimant is at maximum medical improvement with respect to his knee. On the evidence presented, the ALJ concludes that Respondents have overcome the DIME opinions concerning MMI and need for additional treatment/diagnostic testing for the left knee.

II. The Causality and MMI Determination of the Left Shoulder

As with the situation where the ALJ determines a DIME physician’s permanent impairment rating has been overcome, any question of the claimant’s correct MMI date becomes one of fact for the ALJ when the DIME physician’s opinion concerning MMI has been overcome. See Nixon v. City and County of Denver, W.C. No. 4-770-139 (Oct. 24, 2011)(after finding DIME physician’s opinion of no MMI had been overcome, ALJ determined claimant attained MMI as of July 23, 2010); see also Solis v. Sunshine Building Maintenance, W.C. No. 4-726-043 (June 12, 2009)(after finding DIME physician’s determination of no MMI had been overcome, ALJ determined claimant attained MMI on September 5, 2007). Because the DIME physician opined that Claimant was not at MMI for all conditions related to his industrial injury and because the DIME opinion regarding MMI in this case has been overcome, the ALJ concludes that the query regarding causality and MMI surrounding Claimant’s left shoulder condition became a question of fact for the ALJ to resolve and the evidentiary burden regarding the same rested with Claimant by a preponderance of the evidence

Based upon the evidence presented, the ALJ agrees that Claimant’s left shoulder condition is causally related to his trip and fall, that Claimant requires treatment for the shoulder and is not at MMI as a consequence. As found, the evidence presented, including the convincing testimony of Dr. Jinkins supports a conclusion that Claimant’s left shoulder symptoms are causally related to the trip and fall based upon the need to use a crutch under the left shoulder to aid in lateral support and ambulation. Such crutch use likely aggravated Claimant’s pre-existing quiescent arthritis and asymptomatic rotator cuff tear to produce symptoms, functional decline and in turn, the need for treatment. A pre-existing condition “does not disqualify a claimant from receiving workers compensation benefits.” Duncan v. Indus. Claims Appeals Office, 107 P.3d 999, 1001 (Colo. App. 2004). To the contrary, a claimant may be compensated if his or her employment “aggravates, accelerates, or “combines with” a pre-existing infirmity or disease “to produce the disability and/or need for treatment for which workers’

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compensation is sought”. H & H Warehouse v. Vicory, 805 P.2d 1167, 1169 (Colo. App. 1990). Pain is a typical symptom from the aggravation of a pre-existing condition. Thus, a claimant is entitled to medical benefits for treatment of pain, so long as the pain is proximately caused by the employment–related activities and not the underlying pre-existing condition. See Merriman v. Industrial Commission, 120 Colo. 400, 210 P.2d 488 (1940). Here, the persuasive evidence demonstrates that Claimant sought treatment for his left shoulder after using a crutch under the left arm after fracturing his patella which impaired his ability to walk unaided. Moreover, while Claimant has significant pre-existing degenerative changes in the left shoulder, the ALJ finds a lack of persuasive evidence to establish that Claimant’s pre-existing condition was symptomatic or disabling prior to his May 18, 2015 trip and fall. Accordingly, Claimant’s shoulder condition and need for treatment can be said to have arisen from his fall.

III. Claimant’s entitlement to Medical Benefits

F. Once a claimant has established a compensable work injury, he/she is entitled to a general award of medical benefits and respondents are liable to provide all reasonable and necessary medical care to cure and relieve the effects of the work injury. Section 8-42-101, C.R.S.; Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988); Sims v. Industrial Claim Appeals Office, 797 P.2d 777 (Colo. App. 1990). Regardless, a claimant is only entitled to such benefits as long as the industrial injury is the proximate cause of his/her need for medical treatment. Merriman v. Indus. Comm’n, 210 P.2d 448 (Colo. 1949). Recommendations for future treatment have been discussed by the courts in the context of whether a Claimant is at MMI. “A recommendation for therapies which present a reasonable prospect for improving physical function may be viewed as evidence that the claimant’s condition is not stable. Therefore, such treatment recommendations are inconsistent with MMI….” Gebert v. Nordstrom, Inc., W.C. No. 4-428-645 (ICAO, June 20, 2003). In this case, Dr. Jinkins testified credibly that Claimant requires an orthopedic consultation for his shoulder and that surgery, specifically a total shoulder replacement procedure as the only treatment reasonably likely to improve his condition. The ALJ credits the opinions of Dr. Jinkins to conclude that Claimant’s need for left shoulder treatment, is related to Claimant’s admitted May 18, 2015 trip and fall. As found above, the conclusions of Dr. Jinkins persuade the ALJ that while Claimant’s left shoulder arthritis/rotator cuff tear pre-existed the trip and fall, those conditions were likely asymptomatic and aggravated by Claimant’s crutch use giving rise to his symptoms and need for treatment. Consequently, the ALJ concludes that Claimant has established a causal connection between his admitted work injury and his need for treatment for the aforementioned conditions. Thus, Claimant is not at MMI and Respondents are liable to provide payment for treatment associated with his left shoulder to bring Claimant to a point of medical stability when no further treatment is reasonably expected to improve the condition. Only then will Claimant be at MMI for all conditions causally related to his May 18, 2015 industrial injury.

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ORDER

It is therefore ordered that:

1. The DIME physicians opinion regarding MMI has been overcome by clear and convincing evidence.

2. Claimant has proven by a preponderance of the evidence that his left shoulder condition is causally related to his May 18, 2015 trip and fall, that he is in need of treatment for a compensable aggravation of a pre-existing condition and is not at MMI for the same.

3. Respondents shall pay for all reasonable, necessary, and related treatment for Claimant’s left shoulder condition(s) necessary to bring Claimant to MMI.

4. All matters not determined herein, and not closed by operation of law, are reserved for future determination.

If you are dissatisfied with the Judge's order, you may file a Petition to Review the order with the Denver Office of Administrative Courts, 1525 Sherman St., 4th Floor, Denver, CO 80203. You must file your Petition to Review within twenty (20) days after mailing or service of the order, as indicated on certificate of mailing or service; otherwise, the Judge's order will be final. You may file the Petition to Review by mail, as long as the certificate of mailing attached to your petition shows: (1) That you mailed it within twenty (20) days after mailing or service of the order of the Judge; and (2) That you mailed it to the above address for the Denver Office of Administrative Courts. For statutory reference, see section 8-43-301(2), C.R.S. For further information regarding procedures to follow when filing a Petition to Review, see Rule 26, OACRP. You may access a petition to review form at: http://www.colorado.gov/dpa/oac/forms-WC.htm.

DATED: February 27, 2017

/s/ Richard M. Lamphere_______________ Richard M. Lamphere Administrative Law Judge Office of Administrative Courts 2864 S. Circle Drive, Suite 810 Colorado Springs, CO 80906

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OFFICE OF ADMINISTRATIVE COURTS STATE OF COLORADO W.C. No. 4-999-438-02 FULL FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER DENYING SUMMARY JUDGMENT IN FAVOR OF THE RESPONDENT ON THE PENALTY ISSUE AND DENYING SUMMARY JUDGMENT IN FAVOR OF THE CLAIMANT IN THE MATTER OF THE WORKERS' COMPENSATION CLAIM OF:

Claimant, v.

Employer,

and SELF-INSURED,

Self-Insured Respondent. A hearing on the merits in the above-referenced matter is scheduled for March 9, 2017, in Denver, Colorado, on several issues, including penalties versus the Respondent, for an alleged violation of Workers’ Compensation Rules of Procedure (WCRP) Rule 16-9 and Rule 16-10, 7 CCR 1101-3, which were in effect on November 9, 2015. In reality, the Respondent seeks a partial summary judgment on the issue involving the alleged violation of WCRP Rule 16-9. The Claimant filed a Cross-Motion for Summary Judgment and Opposition to Respondent’s Motion for Summary Judgment on February 14, 2017, alleging that the facts concerning the penalty allegations are undisputed and requesting summary judgment in favor of the Claimant, i.e., summary judgment that there was a violation of WCRP, Rules 16-9 and 16-10, by virtue of the allegation that Respondent’s denial of prior authorization letter was invalid because its certificate of mailing contained a typographical error. There is no credible allegation that the denial letter was not received by or on behalf of the Claimant. Therefore, the Claimant requests that penalties against the Respondent should be imposed. On February 23, 2017, the Respondent filed an “Objection to Claimant’s Cross-Motion for Summary Judgment, alleging substantial compliance with the denial of prior authorization procedures.

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The matter was assigned to Edwin L. Felter, Jr., Administrative Law Judge (ALJ) for decision on the Respondent’s Motion for Summary Judgment and the Claimant’s Cross-Motion for Summary Judgment. Both Motions were deemed submitted for decision on February 24, 2017.

ISSUES FOR SUMMARY JUDGMENT

The issues to be determined by this decision concern whether there are genuine issues of disputed material fact concerning the Claimant’s claim for penalties for Respondent’s alleged violations of WCRP, Rule 16-9 (c) and Rule 16-10, which was in effect on November 9, 2015, by virtue of an allegedly improper denial of the Claimant’s request for prior authorization, considering the Respondent’s contention that it “substantially complied” with the Rule despite errors in its denial; and Respondent’s contention that the request for prior authorization was “incomplete” insofar as the MRI (magnetic resonance imaging) report ,attached to the authorized treating physician’s (ATP’s) request for prior authorization rendered the request incomplete to which the Respondent was not obliged to respond.

The Respondent bears the burden of proof, by a preponderance of the evidence of establishing that there is no genuine issue of disputed material fact concerning the Claimant’s penalty claim and that Claimant is not entitled to penalties. The Claimant bears the burden on her contention that there is no genuine issue of disputed material fact, on her Motion for Cross-Summary Judgment.

FINDINGS OF FACT

Based on the undisputed evidence contained in the file, pleadings and exhibits, the ALJ makes the following Findings of Fact: 1. The Claimant contends that the Respondent violated the versions of W.C.R.P. 16-9 and 16-10, which were in effect on November 9, 2015, by failing to properly deny a prior authorization request of the same date in a timely manner. The Claimant contends that even if the denial letter was timely, it was defective because of a typographical error in the certificate of mailing, insofar as the wrong date was on the certificate of mailing. The correct date was on the denial letter itself and there is no contention that the Claimant did not receive it in a timely manner. Whether the “request for prior authorization” was “incomplete” creates a genuine issue of disputed material fact. 2. Garrett Chaffey is the claims examiner for Sedgwick, who was assigned to the Claimant’s claim. Chaffee received a surgical request for the Claimant on November 9, 2015 from the office of Brian J. White, M.D. (Exhibit A at p. 1, attached to

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Claimant’s response and Cross-Motion). The surgical request, attached as Exhibit A, contains:

a. A request for authorization of the proposed surgery consisting of “Scope

labral repair—, Reconstruction—, Femoral Acetabular Osteoplasty” (page 1);

b. A report from Dr. White delineating the medical necessity of the surgery, including his review of an MRI (“which does show a labral tear”) and his physical findings (pages 5-7); and

c. The first two pages of Claimant’s MRI (dated September 16, 2015), find and describe a “chondrolabral separation of the superior to posterosuperior labral margins” (page 2-3). The MRI’s third page, which consisted of two sentences unrelated to the need for surgery, was partially cutoff (page 4 & Respondent’s Ex. D at 3), which forms the basis of Respondent’s allegation that the request for prior authorization was incomplete.

3. The prior authorization request was allegedly incomplete because the copy of the MRI (magnetic resonance imaging) report which was enclosed therewith was missing information, specifically, the last page was cut off as alleged herein above. When compared to the complete version of the same report, the subject MRI report was missing the name and signature of the provider who rendered the report, and allegedly it was also missing medical language which the same provider had included in the actual report. As found herein above, the alleged “incompleteness,” in the broader sense, creates a genuine issue of disputed material fact to be determined in an evidentiary hearing. 4. Respondent has a reasonably debatable argument that it did not violate WCRP, Rule 9, because the request for prior authorization was allegedly” incomplete,” because of missing information, to wit, the last page was cut off as alleged herein above. When compared to the complete version of the same report, the subject MRI report was missing the name and signature of the provider who rendered the report, and allegedly it was also missing medical language which the same provider had included in the actual report. Indeed, the allegation of ‘incompleteness” creates a genuine issue of disputed material fact as to what exactly is “incomplete,” or does the doctrine of ‘substantial compliance’ apply to the request for prior authorization, as well as to the denial thereof. Indeed, whether there was “substantial compliance” in the request for prior authorization and in the denial thereof creates genuine issues of disputed material fact. 5. Adjuster Chaffey denied Dr. White’s surgical request on November 20, 2015 (Exhibit B, attached to Claimant’s Cross-Motion). The certificate of mailing was dated January 20, 2015, but the denial letter was dated November 20, 2015. Chaffey also indicated that he denied the request for non-medical reasons concerning

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compensability, and not because the request was incomplete. There is no allegation that the Claimant did not receive the denial on a timely basis. The clerical error and Chaffee’s alleged reasons for denying the request created genuine issues of disputed material fact to be resolved at an evidentiary hearing. 6. The Claimant asserts that the typographical error herein above rendered the denial letter invalid because the denial letter certificate of mailing violated the strict wording of WCRP Rule 9. The Claimant does not assert that the denial letter was not received in a timely manner. This fact is not disputed. The Respondent asserts substantial compliance with the 7-Day requirement for a denial letter. Therefore, the ALJ determines that whether or not there was “substantial compliance” in the denial letter process creates a genuine issue of disputed material fact. 7. There are genuine issues of disputed material fact concerning the Claimant’s claimed penalties for alleged violation of the prior authorization rule, WCRP, Rule 16-9 (c)., as well as the Respondent’s denial of the request.

CONCLUSIONS OF LAW

Based upon the foregoing Findings of Fact, the ALJ makes the following Conclusions of Law:

Summary Judgment

a. Pursuant to Office of Administrative Courts Rules of Procedure (OACP) Rule 17, 1 CCR 1101-3, “any party may file a motion for summary judgment seeking resolution of any endorsed issue for hearing.” Summary judgment may be sought in a workers’ compensation proceeding. See Fera v. Indus. Claim Appeals Office, 169 P.3d 231, 232 (Colo. App. 2007). The OAC Rule allows a party to support its Motion with affidavits, transcripts of testimony, medical reports, or employer records. A motion for summary judgment may be supported by pleadings, depositions, answers to interrogatories, and admissions on file. C.R.C.P. 56; See also Nova v. Indus. Claim Appeals Office, 754 P.2d 800 (Colo. App. 1988) [C.R.C.P. and C.R.E. apply insofar as they are not inconsistent with the procedural or statutory provisions of the Act]. As found, Exhibits A through H were attached to the Respondent’s Motion, consisting of pleadings and the request for prior authorization. The Claimant’s Cross-Motion for Summary Judgment contained attachments of official documents.

b. Pursuant to Office of Administrative Courts (OACRP), Rule 17, 1 CCR

104-1, summary judgment is appropriate when there are no disputed issues of material fact and the moving party is entitled to judgment as a matter of law. As found, there are genuine issues of disputed material fact concerning the claimed penalties for violation of the “prior authorization” rule, WCRP, Rule 9 (C), and concerning the Claimant’s timely receipt of the denial letter (of prior authorization).

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c. Penalties may only be awarded when a party violates a statute, rule, or

order. Without a violation, there can be no penalty. Taylor v. Backwood Video, W.C. No. 4-501-466 [Indus. Claim Appeals Office (ICAO), May 24, 2002]; Colorado Compensation Insurance Authority v. Indus. Claim Appeals Office, 907 P.2d 676 (Colo. App. 1995).

d. In considering whether penalties should be imposed, an ALJ must look to

the express duties and prohibitions imposed by statute, and may not create implied duties or responsibilities. Villa v. Wayne Gomez Demolition & Excavating, Inc., W.C. No. 4-236-951(ICAO Jan. 7, 1997).

e. The imposition of penalties is governed by an objective standard of negligence. See Pueblo School Dist. No. 70 v. Toth, 924 P. 2d 1094, 1097 (Colo. App. 1996); Miller v. Indus. Claim Appeals Office, 49 P. 3d 334 (Colo. App. 2001); City Market, Inc. v. Indus. Claim Appeals Office, 68 P.3d 601 (Colo. App. 2003); Jimenez v. Indus. Claim Appeals Office, 107 P.3d 965 (Colo. App. 2003). There must be a reasonably colorable argument to support an argument for not properly denying a request for prior authorization. As found, Respondent has a reasonably colorable argument that the Claimant’s request for prior authorization was incomplete. See Miller v. Indus. Claim Appeals Office, 49 P. 3d 334 (Colo. App. 2001). As found, by any objective standard of negligence, Respondent was not negligent. Respondent had a reasonably colorable argument that it did not violate WCRP, Rule 9, because the request for prior authorization was allegedly” incomplete,” missing important information. As found, the last page of the MRI report, attached to the requesting provider’s request, was cut off as alleged herein above. When compared to the complete version of the same report, the subject MRI report was missing the name and signature of the provider who rendered the report, and allegedly it was also missing medical language which the same provider had included in the actual report. Indeed, the allegation of ‘incompleteness” creates a disputed issue of material fact as to what exactly is “incomplete,” or does the doctrine of ‘substantial compliance’ apply to the request for prior authorization, as well as to the denial thereof.

f. To complete a prior authorization request, a provider must concurrently explain the reasonableness; the medical necessity of the services requested; and, provide supporting documentation. WCRP, Rule 16-10(F). As found, there exists a genuine issue of disputed material fact concerning the alleged “incompleteness,” “completeness,” or substantial compliance with “completeness,” which should properly be resolved in an evidentiary hearing.

g. All medical records should be signed by the rendering provider. WCRP,

Rule 16-10(J). Electronic signatures are accepted. Nothing in the Rule provides for signatures on ancillary documents attached to “the rendering provider’s” request. Indeed, this creates a genuine issue of disputed material fact.

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h. Payers are not required to respond to incomplete requests for prior

authorization. See, e.g., Farber v. Washington Inventory Service, W.C. No. 4-615-836 (ICAO June 11, 2009), and Skelly v. Wal-Mart Stores, W.C. No. 4-632-887 (ICAO July 31, 2008). As found, there is a genuine issue of disputed material fact concerning whether or not the request was “incomplete,” or whether there was substantial compliance with the completeness of the request.

i. When a response to a completed prior authorization request is required,

payers must respond within seven business days. WCRP, Rule 16-10(C). There is a genuine issue of disputed material fact concerning whether or not the Respondent responded within seven business days, regardless of the erroneous certificate of mailing date. Whether there was substantial compliance with the seven day response requirement is a genuine issue of disputed material fact to be resolved in an evidentiary hearing. See Juarez v. pillow kingdom, Inc., W.C. No. 4-364-252 (ICAO, January 22, 1999); see also Bookout v. Safeway, Inc., W.C. No. 4-798-629 (ICAO, December 15, 2010) [applying the doctrine of “substantial compliance” to a violation of WCRP Rules, although there was a finding that the employer specifically did not “substantially comply with a rule].

j. Summary judgment is appropriate when the pleadings show that there is

no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. C.R.C.P. 56(c); Churchey v. Adolph Coors Co., 759 P.2d 1336 (Colo. 1988). This rule allows the parties to pierce the formal allegation of the pleadings and save the time and expense connected with trial when, as a matter of law, based on undisputed facts, one party could not prevail. See Drake v. Tyner, 914 P.2d 519 (Colo. Ct. App. 1996). As found, there are genuine issues of disputed material fact concerning the alleged incomplete nature of the Claimant’s request for prior authorization; whether there was substantial compliance with the Rule concerning requests for prior authorization; and, whether the Respondent substantially complied with the Rule requirement providing for a denial of a request for prior authorization to be made within seven business days..

k. Once the moving party shows specific facts probative of a right to

judgment, it becomes necessary for the non-moving party to set forth facts showing that there is a genuine issue for hearing. See Miller v. Van Newkirk, 628 P.2d 143 (Colo. App. 1980). As found, neither the Respondent in its Motion for Summary Judgment, nor the Claimant in her Cross-Motion for Summary Judgment, has demonstrated that there are no genuine issues of disputed material fact. Burden of Proof l. The burden of proof is generally placed on the party asserting the affirmative of a proposition. Cowin & Co. v. Medina, 860 P. 2d 535 (Colo. App. 1992).

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That burden is “preponderance of the evidence.” A “preponderance of the evidence” is that quantum of evidence that makes a fact, or facts, more reasonably probable, or improbable, than not. Page v. Clark, 197 Colo. 306, 592 P. 2d 792 (1979). People v. M.A., 104 P. 3d 273 (Colo. App. 2004); Hoster v. Weld County Bi-Products, Inc., W.C. No. 4-483-341 [Indus. Claim Appeals Office (ICAO), March 20, 2002]. Also see Ortiz v. Principi, 274 F.3d 1361 (D.C. Cir. 2001). As found, neither party satisfied their burden of showing that there are no genuine issues of disputed material fact.

ORDER

IT IS, THEREFORE, ORDERED THAT: A. The Respondent’s Motion for Summary Judgment is hereby denied and dismissed. B The Claimant’s Cross-Motion for Summary Judgment is hereby denied and dismissed. C. The presently set hearing of March 7, 2017 shall proceed. D. Any and all issues not determined herein are reserved for future decision. DATED this______day of February 2017.

____________________________ EDWIN L. FELTER, JR. Administrative Law Judge

If you are dissatisfied with the Judge’s order, you may file a Petition to Review the order with the Denver Office of Administrative Courts,1525 Sherman Street, 4th Floor, Denver, CO 80203. You must file your Petition to Review within twenty (20) days after mailing or service of the order, as indicated on the certificate of mailing or service; otherwise, the Judge’s order will be final. You may file the Petition to Review by mail, as long as the certificate of mailing attached to your petition shows: (1) that you mailed it within twenty (20) days after mailing or service of the order of the Judge; and (2) that you mailed it to the above address for the Denver Office of Administrative Courts. For statutory reference, see § 8-43-301(2), C.R.S. For further information regarding procedures to follow when filing a Petition to Review, see Rule 26, OACRP. You may access a form for a petition to review at http://www.colorado.gov/dpa/oac/forms-WC.htm.

OFFICE OF ADMINISTRATIVE COURTS STATE OF COLORADO WORKERS’ COMPENSATION NO. 5-003-212-01

ISSUES

I. Was Claimant's claim for disfigurement closed by his failure to timely respond to a Final Admission of Liability.

II. Was Claimant's claim for future medical benefits closed by his failure to timely respond to a Final Admission of Liability.

III. Was the Claimant's request for future medical benefits properly endorsed before the ALJ for this hearing.

FINDINGS OF FACT

Based upon the evidence presented at hearing, the ALJ enters the following Findings of Fact:

1. Claimant was injured on December 7, 2015 while traveling for work for Air Methods, Inc. At the time Claimant was in Sterling Heights, Michigan. After eating a take-out fried chicken dinner in his room, Claimant used a moist towelette provided by the Chicken Shack.

2. Claimant rubbed the moist towelette over his face, neck, ears, back of his neck, and left shoulder. He washed his hands shortly thereafter. A few minutes later, he felt burning to the areas where the towelette was applied. When Claimant took off his shirt to get in the shower to wash the areas he had just rubbed with the moist towelette, skin visibly came off on his shirt. However, Claimant continued to feel the burning sensations.

3. Claimant was taken by ambulance to the emergency room and subsequently transferred to the Burn Unit at Beaumont Medical Center in Troy, Michigan. It was noted that Claimant had blanchable, second degree burns to the anterior neck and face to the level of his lower lips. He was also noted to have blanchable second degree burns to the anterior and posterior neck/upper thoracic spine. The burn was noted as circumferential and approximately 5% TBS. “Serious discharge noted.”

4. Claimant did not miss greater than 3 days from work. His employer allowed him to work from home during the healing process, which enabled Claimant to maintain no wage loss.

5. Claimant was living in Castle Rock, Colorado at the time of the injury. However, subsequent to the injury he moved to Texas. Respondents authorized treatment for Claimant with Concentra in Arlington, Texas. Claimant was evaluated by

Dr. Richard Virgilio on April 26, 2016. Of note, the patient in Concentra’s medical records is misidentified as “Jeffrey P Stuart.” The medical record does reflect Claimant’s correct date of birth, and the ALJ finds that the medical records at issue are those of the Claimant.

6. During the office visit of April 26, 2016 Dr. Virgilio placed Claimant at maximum medical improvement ("MMI") with no impairment.

7. Respondents filed a Final Admission of Liability ("FAL") on May 19, 2016. (Claimant’s Exhibit 4, page 42). Respondents denied liability for post MMI medical treatment. It was further noted, “per Dr. Virgilio’s attached 4/26/16 report, MMI is 4/26/16 with 0% whole person impairment. Denying future medical benefits. Denying temporary or permanent indemnity benefits. No lost time exceeding 3 working days.” Under “Benefit History”, type of benefits was noted as: “med only.”

8. Claimant did not file an objection to the Final Admission of Liability. An Entry of Appearance was filed on Claimant's behalf on July 19, 2016. An Application for Hearing on behalf of Claimant was then filed on September 22, 2016.

9. The sole issue endorsed on Claimant's Application was Disfigurement. Respondents' Response the Application endorsed Disfigurement, as well as "Petition to Reopen". In the Case Information Sheets, both parties endorsed both Disfigurement and "Petition to Reopen". At hearing, the Court also heard evidence of Claimant's medical issues surrounding this admitted claim which remain unresolved. There was a verbal request at hearing for additional medical treatment.

10. Early in the hearing, Claimant's Counsel stated that the only issue to be heard was Disfigurement. (Hearing Transcript, pages 6, 7, 8). While certain evidence and statements of Claimant's Counsel were later admitted without objection, at no point did Respondent's Counsel affirmatively, verbally, acquiesce or agree to the endorsement of the issue of future medical benefits.

11. Claimant testified that he continues to feel nerve pain which extends from the soft tissue located in the worst part of his burn area (which was the last area to heal) and down into his left arm. This pain is intermittent, consisting of tingling in the arm, and neck pain. He reports no prior injuries to this area of his body. At the time he was examined by Dr. Virgilio in Texas on April 26, 2016, he was experiencing this intermittent pain, but he did not report it to Dr. Virgilio, thinking at the time it may not have been related. It has gotten worse since then. Claimant now desires additional medical treatment for his injury.

12. Claimant removed his garments which allowed this Administrative Law Judge to evaluate scars as a result of the burns Claimant sustained on December 7, 2015. The scars observed at hearing are consistent in contour and shape to those depicted in the photographs which were admitted into evidence. However, the scars produced in the hearing show less reddening, and some further healing than the photographs depict. There is no evidence in the record that the disfigurement worsened

since the Final Admission of Liability was filed; indeed, if anything, it has improved to some degree.

13. Claimant testified credibly at hearing about the circumstances surrounding the burns, the symptoms he felt at the time, and the symptoms he continues to experience.

14. As a result of this admitted claim, Claimant has suffered the burn scars as described, which are both serious and permanent.

15. Claimant provided no evidence of error or mistake in support of a Petition to Reopen his claim.

CONCLUSIONS OF LAW

Based upon the foregoing findings of fact, the Judge draws the following Conclusions of Law:

Generally

A. The purpose of the Workers’ Compensation Act of Colorado (Act) Section 8-40-101, et seq. C.R.S. (2004), is to assure the quick and efficient delivery of disability and medical benefits to injured workers at a reasonable cost to employers, without the necessity of litigation. Section 8-40-102(1), supra. Claimant shoulders the burden of proving by a preponderance of the evidence that his injury arose out of the course and scope of his employment. Section 8-41-301(1), C.R.S. (2004); See City of Boulder v. Streeb, 706 P.2d 786 (Colo. 1985). A preponderance of the evidence is that which leads the trier of fact, after considering all of the evidence, to find that a fact is more probably true than not. Page v. Clark, 197 Colo. 306, 592 P.2d 792 (1979). The facts in a workers’ compensation case must be interpreted neutrally, neither in favor of the rights of Claimant nor in favor of the rights of Respondents. B. When determining credibility, the fact finder should consider, among other things, the consistency or inconsistency of the witnesses’ testimony and actions; the reasonableness or unreasonableness (probability or improbability) of the testimony and actions; the motives of the witness; whether the testimony has been contradicted; and bias, prejudice or interests. See Prudential Insurance Co. v. Cline, 98 Colo. 275, 57 P.2d 1205 (1936). A workers’ compensation case is decided on its merits. Section 8-43-201, supra. The ALJs factual findings concern only evidence that is dispositive of the issues involved. The ALJ has not addressed every piece of evidence that might lead to a conflicting conclusion and has rejected evidence contrary to the above findings as unpersuasive. Magnetic Engineering, Inc. v. ICAO, 5 P.3d 385 (Colo. App. 2000).

Causation

C. Proof of causation is a threshold requirement that an injured employee must establish by a preponderance of the evidence before any benefits are awarded. Section 8-41-301(1)(c), C.R.S.; Faulkner v. Indus. Claim Appeals Office, 12 P.3d 844, 846 (Colo. App. 2000). The question of whether the Claimant met the burden of proof to establish the requisite causal connection is one of fact for determination by the ALJ. City of Boulder v. Streeb, 706 P.2d 786 (Colo. 1985); Faulkner v. Indus. Claim Appeals Office, supra.

D. The evidence must establish the causal connection with reasonable probability, not medical certainty. Ringsby Truck Lines, Inc. v. Industrial Commission, 491 P.2d 106 (Colo. App. 1971). Reasonable probability exists if the proposition is supported by substantial evidence which would warrant a reasonable belief in the existence of facts supporting a particular finding. F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo. App. 1985). An award of benefits may not be based upon or denied upon speculation or conjecture. Deines Bros. v. Indus. Comm’n, 125 Colo. 258, 242 P.2d 600 (1952); Indus. Comm’n v. Havens, 136 Colo. 111, 134 P.2d 698 (1957).

E. In this case, causation is not a matter for determination, as agreed by the

parties at hearing. Causation was also shown by Claimant's testimony. This is an admitted claim for medical benefits. Issues surrounding the cause of the burns Claimant suffered, unusual as they are, will not be relitigated herein. There is no need to examine further the reports of Dr. Cebrian, or to examine possible inconsistencies in Claimant's version of events. That ship has sailed.

Disfigurement

F. In determining whether Claimant’s claim for benefits and disfigurement are

closed subject to reopening by his failure to timely object to Respondents’ filing of a Final Admission of Liability, the Administrative Law Judge finds that a Final Admission of Liability was filed on May 19, 2016. It did not pay any temporary benefits, permanent benefits or disfigurement benefits, and it included the applicable language that any and all benefits and penalties not specifically admitted, are denied. This includes claims for Disfigurement. Claimant did not timely file an Objection to the Final Admission of Liability, or apply for hearing until September 22, 2016. Claimant contends that under Thibault v. Ronnie’s Automotive Services, W.C. No. 4-970-099-01 (August 8, 2016), his claim was not automatically closed by the failure to timely object to the Final Admission of Liability pursuant to statute. Respondents contend that Thibault was wrongly decided and as an unpublished Industrial Claim Appeals Panel opinion, it does not control. The ALJ does not entirely concur with the stated legal positions of either of the parties.

G. Here a Final Admission of Liability was filed and included the appropriate notification under the statute and no Objection was timely filed. C.R.S. § 8-43-203(2)(b)(II) provides that a case will “automatically close as to the issues admitted in the Final Admission of Liability if the Claimant does not, within 30 days after the date of

the Final Admission of Liability, contest the Final Admission of Liability in writing and request a hearing on any disputed issues that are ripe for hearing.”

H. The mechanism of automatic closure is part of a statutory scheme designed

to promote, encourage and insure prompt payment of compensation to an injured worker without the necessity of a formal administrative determination in cases not presenting a legitimate controversy. Duyrkopp v. ICAO, 30 P.3d 821 (Colo. App. 2001).

I. Applying time limits to a Claimant’s right to contest closure is rational and

advances that purpose. Peregoy v. ICAO, 87 P.3d 261 (Colo. App. 2004). Once a case has automatically closed by operation of the statute, the issues resolved by the Final Admission of Liability are not subject to further litigation unless they are reopened pursuant to C.R.S. § 8-43-303 (2007). Colorado has long recognized that failure to timely contest a Final Admission of Liability results in closure of all claims that are admitted or denied in the Final Admission of Liability. Leewaye v. ICAO, 178 P.3d 1254 (Colo. App. 2007); Olivas-Soto v. ICAO, 143 P.3d 1178 (Colo. App. 2006); Berg v. ICAO, 128 P.3d 270 (Colo. App. 2005); Duyrkopp v. ICAO, 30 P.3d 821 (Colo. App. 2001). Nothing in the Loofbourrow opinion moved away from this well-established precedent or reconstrued C.R.S. § 8-43-203(2)(b)(II) otherwise. Loofbourrow does not affect the holding in Thibault, in relation to this case. The Administrative Law Judge concludes that accordingly, under the plain language of the statute and the binding precedent from the Colorado Court of Appeals, Claimant’s claim for disfigurement was automatically closed when he did not timely challenge the Final Admission of Liability.

J. Respondent contends that Thibault was wrongly decided, and should not be followed. Thibault will be followed; the facts themselves are distinguishable. Despite his failure to timely object to the FAL, Thibault was likely excused from doing so, insofar as he sought additional medical benefits. The rationale is obvious: The claimant in Thibault was not aware of the full extent of his injuries, and his need for further treatment at the time he acquiesced to the FAL. His medical condition then worsened, despite his having already been placed at MMI. To rule otherwise would prevent injured workers from being medically treated for work injuries which might manifest themselves after all parties in good faith believed MMI had been reached.

K. Nothing in Thibault addressed disfigurement, and nothing suggests it be

extended that far. Claimant herein knew full well the full extent of his disfigurement at the time of the FAL; if anything, it abated slightly in the months following. The rationale in Thibault (protecting workers in the event of later worsening of condition, despite an MMI finding) is inapplicable here. One might imagine a scenario where a worker in Claimant's legal position experiences a worsening of his disfigurement after a FAL. That issue can be sorted out in another case, on another day, should it occur.

Future Medical Benefits

L. As Thibault makes clear, Claimant need not prove the elements needed for a successful Petition to Reopen his case; in other words, a worker in a similar

circumstance as Claimant (A FAL premised on a finding of MMI, and for which no indemnity benefit is payable) need not show that his condition has changed, or that there was an error or mistake which would justify reopening. All Claimant must show is that such additional medical benefits are reasonable, necessary, and related to the work injury. M. However, taken as a whole, the record in this case does not reflect that Respondents agreed, or sufficiently acquiesced, to endorse the issue of future medical benefits for this hearing. As such, Respondents were not in proper position to prepare and defend this aspect of the Claim. The endorsed "Petition to Reopen" issue only addressed reopening disfigurement, and not future medical benefits. Therefore, the issue of future medical benefits, diagnostic or otherwise, will not be addressed in this Order.

ORDER

It is therefore ordered that:

1. Claimant's claim for disfigurement was closed by his failure to respond to the Final Admission of Liability. His request for disfigurement benefits is denied and dismissed.

2. All matters not determined herein are reserved for future determination.

The insurer shall pay interest to claimant at the rate of 8% per annum on all amounts of compensation not paid when due.

If you are dissatisfied with the Judge's order, you may file a Petition to Review the order with the Denver Office of Administrative Courts, 1525 Sherman St., 4th Floor, Denver, CO 80203. You must file your Petition to Review within twenty (20) days after mailing or service of the order, as indicated on certificate of mailing or service; otherwise, the Judge's order will be final. You may file the Petition to Review by mail, as long as the certificate of mailing attached to your petition shows: (1) That you mailed it within twenty (20) days after mailing or service of the order of the Judge; and (2) That you mailed it to the above address for the Denver Office of Administrative Courts. For statutory reference, see section 8-43-301(2), C.R.S. For further information regarding procedures to follow when filing a Petition to Review, see Rule 26, OACRP. You may access a petition to review form at: http://www.colorado.gov/dpa/oac/forms-WC.htm.

DATED: February 28, 2017

/s/ William G. Edie William G. Edie Administrative Law Judge Office of Administrative Courts 2864 South Circle Drive, Suite 810 Colorado Springs, Colorado 80906

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OFFICE OF ADMINISTRATIVE COURTS STATE OF COLORADO WORKERS’ COMPENSATION NO. 5-006-714-01

ISSUES

The primary issue presented is whether Claimant sustained a compensable injury on to his low back on January 6, 2016 and if so, whether he proved by a preponderance of the evidence the surgery as recommended by Dr. Wirt is reasonable, necessary and related to that injury.

FINDINGS OF FACT

Based upon the evidence presented, including the deposition testimony of Dr. Writ and Dr. Janssen, the ALJ enters the following findings of fact:

1. On January 6, 2016, Claimant was working as an executive chef for Employer. Claimant testified that while lifting a heavy box of meat, he twisted to the left and felt immediate pain in his low back with radicular symptoms down the right leg.

2. Claimant reported the injury to Employer on January 8, 2015.

3. On January 8, 2015 Claimant was evaluated by physician assistant (PA) Steven

Quackenbush at Centura Centers for Occupational Medicine (CCOM). Claimant gave a history of lifting a heavy case of meat, twisting to the left, and immediately having low back pain with pain and numbness down the right leg. Claimant told PA Quackenbush that he had a history of three lumbar back surgeries including a discectomy in January, 2015. Claimant went on to tell PA Quackenbush that after the 2015 discectomy he had been basically pain free after being released by his doctor until the lifting incident on January 6, 2016. Upon physical examination, PA Quackenbush noted straight leg raising was positive for radicular pain down the right posterior leg. PA Quackenbush diagnosed muscle strain of the lower back and intervertebral disc disorder with radiculopathy. Claimant was released back to work with restrictions, referred to Seth Oquist, D.C., and prescribed medication. PA Quackenbush opined that Claimant’s acute lower back symptoms were consistent with Claimant’s history and the described mechanism of injury.

4. Claimant was reevaluated by PA Quackenbush on January 11, 2016 at which time, it was noted that Claimant’s primary problem was pain in the right leg. PA Quackenbush noted that Claimant ambulated with an antalgic gait and there was persistent tenderness of the lumbar spine along with positive straight leg raising on the right and diminished reflexes bilaterally.

5. On January 18, 2016, Claimant returned back to CCOM with continued complaints of low back pain with persistent numbness of the right foot. On this date PA Quackenbush referred Claimant for an MRI of the lumbar spine.

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6. On January 19, 2016, Claimant was evaluated by Dr. Richard Nanes at CCOM.

Dr. Nanes referred Claimant to Dr. Timothy Wirt for a neurosurgical evaluation.

7. The requested MRI done at St. Thomas More Hospital on January 25, 2016 revealed, in part, an L4-5 moderate central disc protrusion with free or sequestered disc material extending posteriorly along the posterior L5 vertebral body. There was also a mass effect on the transversing right L5 nerve root.

8. On February 11, 2016, Claimant was evaluated by Dr. Timothy Wirt. During this encounter, Claimant reported a history of having had a prior laminectomy and discectomy “probably” at the L5-S1 level. He also reported that in 2002 he developed “terrible” back pain with left leg pain. For which he underwent a laminectomy at the left l405 spinal level. According to Dr. Writ, Claimant may have had cauda equine syndrome at that time which left him with residual foot drop, bowel and bladder incontinence and numbness down the left leg. Claimant then developed right thigh pain in 2015 and underwent a right sided laminectomy and discectomy at L3-4. Dr. Wirt’s note from this appointment date reflects that Claimant did not have any ongoing problems with his right leg until a month and a half ago when he picked something up at work, turned, and had a terrible onset of radicular right leg pain going all the way down to his calf and ankle. On examination, Dr. Wirt noted that Claimant had 4/5 right dorsiflexion strength and 2-3/5 left dorsiflexion strength which was old. Dr. Wirt also noted that his MRI scan showed a lumbar disc herniation at L4-5 with a big fragment in the right exit foramen. Dr. Wirt recommended a laminectomy and discectomy with removal of the fragment at L4-5 on the right.

9. On February 23, 2016, Dr. Michael Janssen did a Division of Workers’ Compensation Rule 16 review regarding Dr. Wirt’s proposed surgery. Dr. Janssen wrote that the January 25, 2016, MRI was highly suggestive of a large mass secondary to a large extruded/sequestered disc at the L4-5 level that was a free fragment which correlated with the clinical findings. Dr. Janssen wrote that if the extruded/sequestered disc at the L4-5 is a new anatomical finding from his longstanding preexisting disease (and the free fragment has not been in existence for an extensive period of time) then the surgical indication will be work related, reasonable, and necessary.

10. Claimant continues to treat with providers at CCOM. According to the CCOM note from November 2, 2016. Claimant continues to experience right sided low back pain with burning and numbness going down the right leg.

11. On July 14, 2016, Dr. Janssen performed a second Rule 16 review regarding Dr. Wirt’s request for surgery. Dr. Janssen reviewed additional medical records prior to the date of the alleged work injury. Dr. Janssen noted that more than six months has passed since the January 25, 2016, MRI and there has been no neurological deterioration. Consequently, Dr. Janssen recommended an updated

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MRI to confirm whether there was a continued mass effect and residual compressive pathology at the right L4-5 spinal level as extruded disc fragments as previously visualized on the prior MRI have a tendency to reabsorb.

12. The repeat MRI report dated August 3, 2016, from St. Thomas More Hospital revealed, in part, a moderate broad-based posterior disc bulge at the L4-5 level combining with some facet joint and ligamentous flavum hypertrophy causing moderate to moderately severe spinal stenosis, mild narrowing of the left neural foramen with the right L4 neural foramen being well preserved.

13. Dr. Wirt authored correspondence on August 10, 2016, addressing the “reluctance” to authorize a laminectomy as he had proposed. In his letter, Dr. Wirt wrote that he had reviewed Claimant’s most recent MRI scan, noting that the study “continues to show a disc herniation at the L4-5 level with foraminal encroachment on the right side consistent with [Claimant’s] syndrome. Dr. Wirt continued to recommend a laminectomy on an outpatient basis.

14. As noted above, Claimant has had a long history of low back problems dating back at least sixteen years. Claimant had a surgery in 2000 at the L5-S1 level followed by a second surgery at the L4-5 level on the left in 2001 and an L3-4. right sided laminectomy and discectomy in 2015. After the 2001 surgery, Claimant continued to have residual problems with left leg numbness, chronic left food drop, and some incontinence which he testified continues presently.

15. Claimant was seen by neurosurgeon Dr. Sana Bhatti on January 8, 2015, with complaints of low back pain and right leg pain which started on October 29, 2014. In this record Dr. Bhatti referenced an MRI from December 8, 2014, which revealed evidence of a previous surgery at L5-S1 and L4-5 with disc degeneration along with L3-4 disc degeneration with a “large right-sided disc herniation resulting in significant stenosis.” The ALJ finds this report convincingly confirms Claimant’s prior low back surgical history.

16. On January 20, 2015, Claimant underwent a L3-4 discectomy. Post surgery, Claimant started having significant pain in his lower back and right leg as noted in Dr. Bhatti’s office note of January 29, 2015. However, Dr. Bhatti’s note of March 5, 2015, indicates Claimant was doing well with resolution of his back and leg pain and was able to return back to work without the need for any pain medication.

17. As noted above, Claimant testified that early on the morning of January 6, 2016, he lifted a heavy box of meat and while twisting to the left felt immediate pain in his low back. The pain radiated down his right leg and has persistent since that time. Claimant explained that he has ongoing pain in his right lower back with pain, numbness, and tingling radiating down his right leg. Claimant testified that the surgery performed by Dr. Bhatti was successful with resolving his previous right thigh symptoms. According to Claimant, from March 5, 2015, up until the

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January 6, 2016 incident, he had no discernible right sided back or right leg pain which caused him problems or which needed medical attention. Claimant’s testimony is corroborated by the medical records.

18. The medical records indicate that prior to the surgery performed by Dr. Bhatti in 2015, Claimant played softball and that by the end of the season he would experience low back pain for which he would take medications for seven to ten days. Claimant testified to this as well. Claimant reported that this low back pain was transient and would resolve without ongoing problems.

19. Dr. Wirt testified by deposition on November 14, 2016. He was qualified as an

expert in neurosurgery. Dr. Wirt opined that the proposed right L4-5 level surgery he is recommending is reasonable, necessary, and related to Claimant’s January 6, 2016 lifting incident. Dr. Wirt recognized that Claimant had significant back problems prior to the lifting incident but the lifting incident precipitated his need for surgery. Importantly, Dr. Wirt reviewed the January 25, 2016, MRI findings and found a ruptured disc at the L4-5 level with a big fragment extruded into the right foramen. Dr. Wirt then went on to testify that he contrasted the January 25, 2016, MRI with the August 4, 2016, MRI and found that the extruded disc fragment at the L4-5 level had not reabsorbed and is still impinging on the right L5 nerve root. Consequently, Dr. Wirt testified that if Claimant is still having radicular right leg pain, the surgery will provide relief from his symptoms.

20. Dr. Janssen testified by deposition on December 6, 2016. He was qualified as

an expert in orthopedic surgery. Dr. Janssen testified that Claimant had significant preexisting degenerative changes in his low back but based upon the medical records and history provided to him and, assuming the findings at the L4-5 level were acute as opposed to chronic, then the herniated disc at the L4-5 level would be work related and the surgery recommended by Dr. Wirt would be reasonable and necessary. Dr. Janssen further testified that he reviewed the August 17, 2016, MRI findings in the day prior to the deposition and noted that there is still some compression at the L4-5 level but the magnitude is smaller as compared to the January, 2016, MRI but it was difficult for him to tell whether or not there is still an extruded disc fragment. Dr. Janssen also testified that there is still some compression at L4-5 disc space and a lot of it is due to arthritis, ligaments, and some residual disc. Ultimately, Dr. Janssen, while acknowledging the chronicity of Claimant’s low back condition was unable to state whether or not Claimant’s pain and numbness coming from the L4-5 level is chronic or acute due to the fact that he never examined Claimant. Dr. Janssen felt that it is “extremely important” to physically examine a patient to corroborate a Claimant’s physical findings with his or her complaints. Regarding the reasonableness and necessity of the proposed surgery Dr. Janssen testified as follows:

Q: . . . Throwing out the issue of causation . . . do you believe the L4-5 surgery that is being recommended is reasonable and necessary?

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A: I don’t know. Perhaps. Again, I can’t answer that because I didn’t really see the patient. Okay? And as a surgeon, to some extent, you have to see the patient. I can clearly state that the findings which, I think, he had had an extruded disk fragment secondary to probably this occupational injury in January has improved, but has it improved enough that still doing surgery will benefit him or not, I don’t think any clinician can make that decision without probably seeing the patient, and as a surgeon making that decision, not a nonsurgeon.

21. Based upon the evidence presented, the ALJ finds Claimant’s testimony supported by the content of the medical records. Accordingly, the ALJ finds and concludes that Claimant’s testimony is credible and persuasive.

22. The ALJ finds that the opinion of Dr. Wirt regarding the cause of Claimant’s L4-5 disc herniation/rupture and the need for the laminectomy, as revealed by his clinical examination and a review of the MRI findings, to be credible and persuasive.

23. Based upon the evidence presented, the ALJ finds that Claimant had preexisting degenerative changes in his lumbar spine which required surgery prior to January 6, 2016. Nonetheless, after careful review of the medical record evidence the ALJ finds a lack of credible or persuasive evidence to suggest that Claimant was having ongoing problems at the L4-5 level between March 5, 2015 and January 6, 2016. Consequently, the evidence, including the testimony of Dr. Wirt, persuades the ALJ that Claimant’s lifting of a heavy box of meat the morning of January 6, 2016, likely caused an L4-5 disc herniation with an extruded fragment and otherwise aggravated his pre-existing multilevel degenerative disc disease precipitating his symptoms and need for treatment. The evidence presented establishes that Claimant has not returned to his baseline level of function. Consequently, Claimant has proven by a preponderance of the evidence that he suffered a compensable injury to his L4-5 disc arising out of and in the course and scope of his employment.

24. The ALJ credits the opinions of Dr. Wirt to a find that the proposed L4-5 laminectomy is reasonable and necessary. Dr. Writ has examined Claimant and concluded and has reviewed the imaging of his low back. His examination and record review has led him to express an opinion that the extruded disc fragment at the L4-5 level has not completely reabsorbed and is still impinging on the right L5 nerve root. Consequently, Dr. Wirt testified that if Claimant is still having radicular right leg pain, the surgery will probably provide relief from his symptoms. Moreover, the ALJ infers from Dr. Wirt’s testimony that the proposed surgery is less invasive than a fusion procedure. As Claimant has convincingly testified that he continues to experience debilitating pain in his right leg and the proposed surgery is a less invasive option to cure and relieve Claimant’s ongoing

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pain, the ALJ is persuaded that the proposed laminectomy is both necessary and reasonable.

CONCLUSIONS OF LAW

Based upon the foregoing findings of fact, the ALJ draws the following conclusions of law:

General Legal Principals

A. The purpose of the Workers’ Compensation Act of Colorado is to assure the quick and efficient delivery of disability and medical benefits to injured workers at a reasonable cost to employers, without the necessity of litigation. Section 8-40-102(1), C.R.S. In this case, Claimant must prove her entitlement to benefits by a preponderance of the evidence. A preponderance of the evidence is that which leads the trier-of-fact, after considering all of the evidence, to find that a fact is more probably true than not. Page v. Clark, 197 Colo. 306, 592 P.2d 792 (1979). The facts in a workers’ compensation case are not interpreted liberally in favor of either claimant or respondents. Section 8-43-201(1), C.R.S. Rather, a workers’ compensation claim is to be decided on its merits. Id.

B. In deciding whether Claimant has met his burden of proof, the ALJ is empowered: “To resolve conflicts in the evidence, make credibility determinations, determine the weight to be accorded to testimony, and draw plausible inferences from the evidence.” Kroupa v. Industrial Claim Appeals Office, 53 P.3d 1192, 1197 (Colo. App. 2002). When determining credibility, the fact finder should consider, among other things, the consistency or inconsistency of the witness’s testimony and actions; the reasonableness or unreasonableness (probability or improbability) of the testimony and actions; the motives of the witness; whether the testimony has been contradicted; and bias, prejudice, or interest. See Prudential Insurance Co. v. Cline, 98 Colo. 275, 57 P.2d 1205 (1936); Bodensieck v. Industrial Claim Appeals Office, 183 P.3d 684 (Colo. App. 2008); Kroupa v. Industrial Claim Appeals Office, 53 P.3d 1192 (Colo. App. 2002). The weight and credibility to be assigned expert testimony is a matter within the discretion of the ALJ. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo. App. 2002). To the extent expert testimony is subject to conflicting interpretations, the ALJ may resolve the conflict by crediting part or none of the testimony. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968). As found here, Claimant’s testimony regarding the condition of his low back, pre and post injury, is supported by the record evidence of his treating providers. Consequently, the ALJ concludes that the Claimant is a reliable witness and finds his testimony persuasive. Moreover, in this case, the ALJ concludes that the opinions of Dr. Wirt regarding the cause of Claimant’s L4-5 disc herniation with an extruded fragment and the need for surgery are credible and more persuasive than those to the contrary.

C. The Judge's factual findings concern only evidence that is dispositive of the

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issues involved; the Judge need not address every piece of evidence that might lead to a conflicting conclusion and has rejected evidence contrary to the above findings as unpersuasive. See Magnetic Engineering, Inc. v. ICAO, 5 P.3d 385 (Colo. App. 2000).

Compensability

D. A claimant’s right to compensation initially hinges upon a determination that the

claimant suffered a disability that was proximately caused by an injury arising out of and within the course and scope of employment. C.R.S. § 8-41-301. The phrases "arising out of” and "in the course of" are not synonymous and a claimant must meet both requirements for the injury to be compensable. Younger v. City and County of Denver, 810 P.2d 647, 649 (Colo. 1991); In re Question Submitted by U.S. Court of Appeals, 759 P.2d 17, 20 (Colo. 1988). The latter requirement refers to the time, place, and circumstances under which a work-related injury occurs. Popovich v. Irlando, 811 P.2d 379, 381 (Colo. 1991). An injury occurs "in the course of" employment when it takes place within the time and place limits of the employment relationship and during an activity connected with the employee's job-related functions. In re Question Submitted by U.S. Court of Appeals, supra; Deterts v. Times Publ'g Co., 38 Colo. App. 48, 51, 552 P.2d 1033, 1036 (1976). The "arising out of" test is one of causation. It requires that the injury have its origins in an employee's work related functions, and be sufficiently related thereto so as to be considered part of the employee's service to the employer. Horodyskyj v. Karanian, 32 P.3d 470, 475 (Colo. 2001). It is the burden of the claimant to establish causation by a preponderance of the evidence. Faulkner v. Indus. Claim Appeals Office, 12 P.3d 844, 846 (Colo. App. 2000). There is no presumption that an injury which occurs in the course of employment arises out of the employment. Finn v. Industrial Commission, 165 Colo. 106, 437 P.2d 542 (1968). The evidence must establish the causal connection with reasonable probability, but it need not establish it with reasonable medical certainty. Ringsby Truck Lines, Inc. v. Industrial Commission, 30 Colo. App. 224, 491 P.2d 106 (Colo. App. 1971); Industrial Commission v. Royal Indemnity Co., 124 Colo. 210, 236 P.2d 2993. Medical evidence is not required to establish causation and lay testimony alone, if credited, may constitute substantial evidence to support an ALJ’s determination regarding causation. Industrial Commission of Colorado v. Jones, 688 P.2d 1116 (Colo. 1984); Apache Corp. v. Industrial Commission of Colorado, 717 P.2d 1000 (Colo. App. 1986). In this case, there is a question regarding whether Claimant suffered an acute injury to his back and/or a compensable aggravation of a pre-existing condition on January 6, 2016 or if his back pain represents the natural progression of his progressive degenerative disc disease given his surgeries and the results of his imaging studies, including MRI.

E. As found, the ALJ is persuaded that Claimant probably suffered an acute disc herniation giving rise to his symptoms and need for treatment. The ALJ is convinced, based upon the medical records, Claimant’s testimony and the opinions of Dr. Writ that Claimant injured his low back when he twisted with a

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heavy case of meat in his hands. More probably than not, this movement gave rise to Claimant’s symptoms and subsequent need for treatment. Consequently, the ALJ concludes that a logical causal connection exists between Claimant’s work duties and his L4-5 disc herniation with extruded fragment. It is also as probable, given the pre-existing condition of Claimant’s low back that this loaded twisting aggravated his pre-existing degenerative disc disease at that and adjacent spinal levels.

F. A pre-existing condition “does not disqualify a claimant from receiving worker’s compensation benefits.” Duncan v. Indus. Claims Appeals Office, 107 P.3d 999, 1001 (Colo. App. 2004). To the contrary, a claimant may be compensated if his or her employment “aggravates, accelerates, or “combines with” a pre-existing infirmity or disease “to produce the disability and/or the need for treatment for which workers’ compensation is sought”. H & H Warehouse v. Vicory, 805 P.2d 1167, 1169 (Colo. App. 1990). Even temporary aggravations of pre-existing conditions may be compensable. Eisnack v. Industrial Commission, 633 P.2d 502 (Colo. App. 1981). Pain is a typical symptom from the aggravation of a pre-existing condition. Thus, a claimant is entitled to medical benefits for treatment of pain, so long as the pain is proximately caused by the employment–related activities and not the underlying pre-existing condition. See Merriman v. Industrial Commission, 120 Colo. 400, 210 P.2d 488 (1940). Here, the persuasive evidence demonstrates that Claimant sought treatment for low back pain after lifting and twisting with a case of meat in his hands. Although Claimant has pre-existing degenerative changes in the lumbar spine, confirmed by MRI, the ALJ finds no evidence to establish that Claimant’s pre-existing condition was symptomatic or disabling immediately prior to January 6, 2016. Rather, Claimant’s pain and disability came on suddenly after lifting and twisting with a heavy object on January 6, 2016. Consequently, the ALJ concludes that Claimant’s ongoing symptoms are consistent with an acute event rather than the insidious worsening of symptoms representative of the natural progression of a pre-existing degenerative condition as suggested by respondents. Accordingly, Claimant has proven by a preponderance of the evidence that his injury is compensable.

Claimant’s Entitlement to Medical Benefits

G. Once a claimant has established the compensable nature of his/her work injury, he/she is entitled to a general award of medical benefits and respondents are liable to provide all reasonable and necessary and related medical care to cure and relieve the effects of the work injury. Section 8-42-101, C.R.S.; Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988); Sims v. Industrial Claim Appeals Office, 797 P.2d 777 (Colo. App. 1990). However, a claimant is only entitled to such benefits as long as the industrial injury is the proximate cause of his/her need for medical treatment. Merriman v. Indus. Comm’n, 210 P.2d 448 (Colo. 1949); Standard Metals Corp. v. Ball, 172 Colo. 510, 474 P.2d 622 (1970); § 8-41-301(1)(c), C.R.S. Ongoing benefits may be denied if the current and ongoing need for medical treatment or disability is not proximately caused by an

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injury arising out of and in the course of the employment. Snyder v. City of Aurora, 942 P.2d 1337 (Colo. App. 1997). In other words, the mere occurrence of a compensable injury does not require an ALJ to find that all subsequent medical treatment and physical disability was caused by the industrial injury. To the contrary, the range of compensable consequences of an industrial injury is limited to those which flow proximately and naturally from the injury. Standard Metals Corp. v. Ball, supra.

H. Where the relatedness, reasonableness, or necessity of medical treatment is disputed, Claimant has the burden to prove that the disputed treatment is causally related to the injury, and reasonably necessary to cure or relieve the effects of the injury. Ciesiolka v. Allright Colorado, Inc., W.C. No. 4-117-758 (ICAO April 7, 2003). The question of whether a particular medical treatment is reasonably necessary to cure and relieve a claimant from the effects of the injury is a question of fact. City & County of Denver v. Industrial Commission, 682 P.2d 513 (Colo. App. 1984). As found here, Claimant has proven by a preponderance of the evidence that he sustained an acute L4-5 disc herniation in addition to a compensable aggravation of his preexisting degenerative disc disease at that and adjacent levels. The evidence presented convinces the ALJ that these compensable “injuries” are the proximate cause of Claimant’s need for medical treatment including the L4-5 discectomy as proposed by Dr. Wirt. Taken in its entirety, the record evidence contains substantial evidence to support a conclusion that the lifting incident at work is responsible for Claimant’s current right sided low back pain with radicular symptoms down the right leg and subsequent need for surgery. Consequently, the ALJ concludes that Claimant has established that the recommended L4-5 discectomy is related to the January 6, 2016 lifting incident. Moreover, the totality of the evidence presented establishes that conservative care is not a reasonable option in light of Dr. Wirt’s opinions. The evidence presented persuades the ALJ that the recommended L4-5 discectomy is reasonable and necessary to cure and relieve Claimant of the effects of the work injury. Therefore, the ALJ concludes that Respondents are liable for the L4-5 discectomy recommended by Dr. Wirt.

ORDER

It is therefore ordered that:

1. The January 6, 2016, injury to Claimant’s lumbar spine is compensable.

2. Respondents shall pay for all medical expenses, pursuant to the Workers’ Compensation medical benefits fee schedule to cure and relieve Claimant from the effects of his lumbar spine injury including, but not limited to the L4-5 laminectomy proposed by Dr. Wirt.

3. All matters not determined herein are reserved for future determination.

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If you are dissatisfied with the Judge's order, you may file a Petition to Review the order with the Denver Office of Administrative Courts, 1525 Sherman St., 4th Floor, Denver, CO 80203. You must file your Petition to Review within twenty (20) days after mailing or service of the order, as indicated on certificate of mailing or service; otherwise, the Judge's order will be final. You may file the Petition to Review by mail, as long as the certificate of mailing attached to your petition shows: (1) That you mailed it within twenty (20) days after mailing or service of the order of the Judge; and (2) That you mailed it to the above address for the Denver Office of Administrative Courts. For statutory reference, see section 8-43-301(2), C.R.S. For further information regarding procedures to follow when filing a Petition to Review, see Rule 26, OACRP. You may access a petition to review form at: http://www.colorado.gov/dpa/oac/forms-WC.htm.

DATED: February 7, 2017

/s/ Richard M. Lamphere_______________ Richard M. Lamphere Administrative Law Judge Office of Administrative Courts 2864 S. Circle Drive, Suite 810 Colorado Springs, CO 80906