IN THE MATTER OF THE CLAIM OF: DAVID ALAN YORK, Claimant,
v.
MANPOWER INTERNATONAL, INC., Employer,
and
AMERICAN INSURANCE GROUP PLAN, Insurer, Respondents.
W.C. No. 4-837-612-04
Colorado Workers Compensation
Industrial Claim Appeals Office
November 13, 2018
CHRIS
FORSYTH LAW OFFICE LLC, Attn: CHRIS FORSYTH ESQ, (For
Claimant)
POLLART MILLER LLC, Attn: MICHELLE L PRINCE ESQ, (For
Respondents)
FINAL ORDER
The
respondents seek review of a corrected order of
Administrative Law Judge Felter (ALJ) dated June 27, 2018,
that awarded the claimant permanent total disability (PTD)
benefits, disfigurement benefits, and post maximum medical
improvement (MMI) maintenance care from Dr. Yamamoto and Dr.
Brown. We affirm.
This
matter previously was before the ALJ and previously was
before us. The matter originally went to hearing before the
ALJ on overcoming the Division sponsored independent medical
examination (DIME) and on the claimant's request for a
spinal cord stimulator trial. The ALJ entered his previous
order on November 16, 2015, determining the DIME was overcome
and authorizing the spinal cord stimulator trial as
maintenance medical benefits. In our order dated May 4, 2016,
we affirmed the ALJ's order in part, set aside in part,
and remanded for the ALJ to determine permanent medical
impairment as a matter of fact. The claimant appealed our May
4, 2016, order. The Colorado Court of Appeals affirmed our
order, and the claimant then filed a Petition for Writ of
Certiorari to the Colorado Supreme Court. The claimant's
petition was denied.
Thereafter,
the matter was remanded to the ALJ regarding a permanent
impairment rating. The claimant also filed an application for
hearing listing several issues, including PTD benefits,
permanent partial disability benefits, medical benefits,
disfigurement benefits, and penalties. The remand on the
issue of permanent impairment and the issues endorsed in the
claimant's application for hearing were combined into one
hearing.
After
the hearing, the ALJ made the following pertinent findings of
fact. The claimant is 57 years old, college educated, and
worked his entire career in sales and training. He was
working as a branch manager for the respondent employer when
he suffered his admitted low back injury on September 9,
2010. The claimant's job was not sedentary because he was
doing job fairs and trade shows where he would have to carry
equipment to set up.
Since
2015, the claimant has undergone a trial spinal cord
stimulator (TNS unit) and the subsequent implantation of a
permanent spinal cord implant on March 22, 2016. The TNS unit
provided relief to the claimant by reducing his sciatica to
the point where he now can sit down for short periods of
time. However, the claimant continues to have low back pain
and pain in his legs, the right leg more than the left leg.
The claimant also personally pays for acupuncture treatment
twice a week which provides some relief from his symptoms.
The claimant continues to treat with Dr. Yamamoto, and he
also sees clinical licensed psychologist, Dr. Ledezma.
Prior
to implantation of the TNS unit, Dr. Yamamoto placed the
following work restrictions on the claimant: 10 lbs. maximum
lifting restriction; 5 lbs. occasional lifting restriction;
carrying limited to 5-10 lbs.; pushing and pulling limited to
10 lbs.; no repetitive lifting; avoid bending and twisting at
the waist; walking and standing limited to 1-2 hours per day;
sitting up to 6-8 hours but likely will need to lie down for
1-2 hours per 8 hour period; changing positions every 15-20
minutes as needed.
After
implantation of the TNS unit, Dr. Yamamoto stated as follows:
[The claimant] had a recent functional capacity evaluation by
Sherry Young, OTR. . . . [The claimant] performed poorly on
the examination including failing to lift 7 pounds from floor
level to overhead in a safe manner. He was also limited in
sitting and spent much of the time lying down or walking
around. It was noted that sedentary jobs which best suited to
his lifting abilities require substantial sitting which he is
unable to do. It was her conclusion that [the claimant] is
totally disabled from his typical occupation sales as well as
any occupation for which he would be reasonably qualified. I
concur with this opinion.
At the
request of the claimant, occupational therapist, Sherry
Young, performed a three-day functional capacity evaluation
(FCE) of the claimant at Starting Point. Ms. Young stated as
follows:
[The claimant] demonstrated the ability to lift 7 pounds from
knee to shoulder height on an occasional basis. He was unable
to demonstrate a lift with the empty box (7 pounds) from
floor level or to overhead in a safe manner. His maximum safe
carry was also 7 pounds. When more weight was attempted, his
pain increased and he felt (and looked) more unstable. These
findings are very consistent with the physical
therapist's findings of higher risk for falls due to
decreased balance and decreased strength in the core muscles
as well as lower extremities. Bilateral moderate to severe
lymphedema compound this safety issue. There will be times
when he is unable to lift any weight at all.
Ms.
Young testified that what is more problematic for the
claimant is his positional tolerance. She opined the claimant
cannot sit long enough to be employable and that his need to
lie down during the work day excludes him from the
competitive labor market. She opined as follows:
Positional tolerances were greatly restricted during this
3-day evaluation. He was most limited in sitting (causing the
most pain). He sat for a total of 65 minutes over a 7-hour
day. The rest of the time was lying down (100 minutes), or
standing/walking around, trying to control pain levels.
Sedentary jobs (which best suits lifting abilities) all
require substantial sitting. Even if allowed the opportunity
to sit and stand using an adjustable table, he would still
need frequent breaks to walk around (1-3 minutes with every
position change) to try and control pain levels. Frankly, his
positional limitations were his primary barrier to completing
any activity in a competitive, dependable, or reliable
fashion which would be expected in any work environment.
Based
on her three-day FCE, Ms. Young opined that the claimant
could not sustain employment. Further, based on this FCE, Dr.
Yamamoto increased the claimant's lifting restriction
from 5 to 7 pounds but other than this, his restrictions
remained the same as those he previously imposed.
The
claimant also underwent an FCE at O.T. Resources at the
direction of Doris Shriver, OTR. As a result of the FCE, Ms.
Shriver determined the claimant could do a one-time lift of a
maximum of 10 lbs. and should avoid occasional lifting with
the exception of incidental items. As for work posture, the
claimant could sit for a maximum of 39 minutes at one time
and could stand for a maximum of 43...
