IN THE MATTER OF THE CLAIM OF: JAVIER PENA ALVAREZ, Claimant,
v.
RIFLE TEQUILAS INC, Employer,
and
TRUCK INSURANCE EXCHANGE, Insurer, Respondents.
W.C. No. 5-050-687
Colorado Workers Compensation
Industrial Claim Appeals Office
July 6, 2018
FINAL ORDER
The
respondents seek review of an order of Administrative Law
Judge Mottram (ALJ) dated November 3, 2017, that awarded the
claimant temporary total disability (TTD) benefits beginning
on July 26, 2017, and medical benefits for his neck and face
work injuries. We affirm.
The ALJ
found that the claimant worked for the respondent employer as
a dishwasher. Jose Arellano worked for the respondent
employer as a waiter. Pedro Gomez is the manager of the
respondent employer’s restaurant.
After
closing the restaurant, Mr. Gomez would provide one beer to
the employees. On April 29, 2017, after his shift had ended,
Mr. Arellano placed his beer and dinner on a table. He then
noticed a customer was leaving, so he walked the customer to
the door. When he went back to his table, his beer was
missing. Mr. Arellano confronted the claimant about his
missing beer, but the claimant would not give his beer back
to him. Mr. Arellano then assaulted the claimant.
The
claimant explained that Mr. Arellano approached him from
behind while he was facing the dishwasher, turned him around,
and choked him for a couple of minutes before he threw him to
the ground. Mr. Arellano then picked the claimant up and
struck him on the left cheek. The claimant stated he lost
consciousness, and when he regained consciousness, he went
outside.
The
claimant reported the assault to the police the next day. Mr.
Arellano ultimately was charged with assault and battery, and
he pled guilty to the charges prior to the workers’
compensation hearing at issue here.
Prior
to the assault, Mr. Gomez was aware of the conflict between
the claimant and Mr. Arellano. He had told both of them to
behave. However, Mr. Gomez had not taken any disciplinary
action against either the claimant or Mr. Arellano
previously, and Mr. Arellano did not face any disciplinary
action from the employer after the assault.
After
the assault, the claimant sought medical treatment and was
seen by Dr. Coleman. The claimant reported that he had been
punched in the face with a closed fist by another employee at
work, and the other employee was drunk. Physical examination
revealed multiple reports of pain on palpation and an
abrasion to the left cheek with mild swelling. The claimant
was diagnosed with facial trauma, provided with medications,
and referred for a facial computerized tomography (CT) scan.
The
claimant returned to Grand River Health on May 15, 2017. Dr.
Coleman noted that the claimant was reporting pain when
swallowing or eating in his neck where he was choked. The
claimant also complained of lower back pain. Dr. Coleman
diagnosed the claimant with facial trauma, lower back pain,
and neck strain. He recommended over the counter medications
and x-rays of the claimant’s neck. Dr. Coleman again
recommended the claimant undergo a facial CT scan. The
claimant was released to return to work full duty as of this
date.
The
claimant continued to receive monthly treatment at Grand
River Health, and on July 26, 2017, he was evaluated by
Cynthia Bjerstedt, a physician’s assistant. The
claimant was diagnosed with a facial contusion, thoracolumbar
contusion, and anxiety and depression secondary to assault.
Ms. Bjerstedt provided the claimant with work restrictions of
no lifting over 10 pounds. A CT scan was again ordered to
rule out a facial fracture.
The
claimant again was evaluated by Ms. Bjerstedt on October 12,
2017. The claimant complained of significant low back pain
and some intermittent loss of vision which he stated had been
present since the injury. Ms. Bjerstedt diagnosed the
claimant with a strangulation injury with a contusion to the
left side of the face, a lumbar strain, a cervical strain,
and a new diagnosis of possible amaurosis fugax or temporary
blindness. She kept the claimant off work.
The ALJ
ultimately determined that the claimant’s injury was
compensable. He found that the claimant and...
