IN THE MATTER OF THE CLAIM OF: BASHKIM BALAJ, Claimant,
v.
ALLIED UNIVERSAL INC, Employer,
and
XL INSURANCE AMERICA INC., Insurer, Respondents.
W.C. No. 5-068-803-001
Colorado Workers Compensation
Industrial Claim Appeals Office
April 10, 2019
CAIRNS
& ASSOCIATES PC, Attn: GREGORY B CAIRNS ESQ, 3900 E
MEXICO AVE SUITE 300, DENVER, CO, 80210 (For Claimant)
LEE
& BROWN LLC, Attn: M FRANCES MCCRACKEN ESQ, 3801 EAST
FLORIDA AVENUE SUITE 210, DENVER, CO, 80210 (For Respondents)
FINAL ORDER
The
respondents seek review of an order of Administrative Law
Judge Cannici (ALJ) dated October 29, 2018, that determined
that the claimant sustained a compensable left shoulder and
left knee injury. The ALJ ordered that the claimant is
entitled to continuing medical treatment, including
evaluation by an orthopedic specialist. We affirm.
Hearing
was held on August 2, 2018, on the issues of compensability
and medical benefits. In his order, the ALJ established
findings of fact that are summarized below.
Claimant
worked as a security officer at a bank. On August 2, 2017, he
tripped on a table and fell to the ground. He struck his left
knee and left shoulder, as well as twisting his left ankle.
He was able to complete his job duties that day. The injuries
were reported to his employer on August 7, 2017. From a list
of designated physicians, the claimant selected AFC Urgent
Care as his authorized treating physician (ATP) for medical
treatment.
The
claimant suffered a number of previous work-related injuries
to his left ankle, left shoulder, and left knee. The injuries
occurred in 2011 to 2013, while in other employment. In
addition, on December 23, 2014, claimant slipped on ice and
fractured his left patella in a non-work related injury. This
injury required open reduction and internal fixation of the
patella on January 2, 2015. The last treatment for the knee
took place on April 1, 2015. Claimant denied any left
shoulder symptoms immediately prior to the August 2, 2017,
work accident.
On
August 22, 2017, claimant presented to the ATP for the
initial evaluation. Claimant reported that he had fallen at
work approximately two weeks earlier and had injured his left
knee and left shoulder. He informed the ATP of his patella
fracture in 2015. Left knee and left shoulder x-rays were
negative for fractures. Claimant was diagnosed with left
shoulder sprain and left knee contusion. Claimant was
referred to and apparently given a phone number of an
orthopedic specialist to further evaluate the left shoulder
and “to make sure his knee is OK.” (Findings of
Fact, ¶¶4, 7.)
Because
he had been unable to obtain an appointment with an
orthopedic specialist, Claimant sought treatment from his
personal physician (PCP) on September 13, 2017. His PCP
prescribed pain medications.
On
January 15, 2018, claimant returned to the ATP for an
evaluation of the left shoulder and left knee. However the
appointment was refused by the provider because
claimant’s claim had been closed because of
non-compliance. Claimant explained that he had attempted to
schedule an appointment with the orthopedic specialist
recommended by the ATP, but never received a return call from
the specialist’s office. He reasoned that because he
could not make an appointment with an orthopedic specialist,
it had been fruitless to return to the ATP.
Claimant
filed his worker’s claim for compensation on February
7, 2018. He noted that he was injured in a trip and fall
incident at work on August 2, 2017. He specifically injured
his left shoulder and left ankle.
Respondents
referred the claimant to an independent medical examination
(IME) with Dr. O’Brien on June 22, 2018. Dr.
O’Brien, an orthopedic surgeon, described a history
involving multiple prior events wherein the claimant suffered
neck and shoulder pain. For a September 29, 2012, job-related
motor vehicle accident, Dr. O’Brien noted that claimant
had been assigned a 4% whole person impairment rating for the
cervical spine.
In
recounting the treatment for the August 2, 2017, work
incident, Dr. O’Brien commented that diagnostic
radiographs revealed a normal cervical spine, left knee, and
left shoulder. His physical examination of the left shoulder,
left knee, and left ankle were normal. Dr. O’Brien
opined that the claimant sustained a minor left knee
strain/sprain and a minor left shoulder strain/sprain as a
result of the work-related incident. He explained that
approximately 98% of minor injuries similar to that of the
claimant healed within days. He reasoned that the
claimant’s injuries had resolved prior to his first
visit with the ATP on August 22, 2017. Thus, Dr.
O’Brien concluded that the claimant did not require any
additional medical treatment and could resume his normal work
activities.
The ALJ
concluded that the claimant established that he sustained
left shoulder and left knee injuries during the course and
scope of his employment on August 2, 2017. The fact of the
injury was acknowledged by the ATP on August 22, 2017, and a
referral was made to an orthopedic specialist. Dr.
O’Brien also acknowledged the claimant initially
sustained a strain/sprain to both the left shoulder and left
knee. The ALJ determined that the bulk of the persuasive...
