IN THE MATTER OF THE CLAIM OF: QUINCY BRYANT, Claimant,
v.
TRANSIT MIX CONCRETE, Employer,
and
TRAVELERS INDEMNITY COMPANY, Insurer, Respondents.
W.C. No. 5-058-044-001
Colorado Workers Compensation
Industrial Claim Appeals Office
June 5, 2019
MCDIVITT LAW FIRM PC, Attn: AARON S KENNEDY ESQ, (For
Claimant)
NATHAN
DUMM & MAYER PC, Attn: TIM R FIENE ESQ, (For Respondents)
ORDER
The
claimant seeks review of an order and supplemental order of
Administrative Law Judge Edie (ALJ) dated November 19, 2018,
and March 4, 2019, respectively, that determined the
respondents overcame the permanent impairment ratings of the
Division-sponsored independent medical examiner (DIME)
physician, and that determined the respondents were not
barred from asserting a safety rule violation under
§8-42-112(1)(a), C.R.S. We affirm in part, set aside in
part, and remand the matter for new findings and a new order
on the issue of whether the respondents have overcome the
DIME physician’s impairment ratings for the cervical
and lumbar spinal regions.
The ALJ
made the following pertinent factual findings. On September
11, 2017, the claimant suffered admitted work-related
injuries when he rolled the cement mixer he was operating for
the employer. The claimant was seen by Steven Byrne, PA-C at
CCOM on the date of the industrial incident. He was diagnosed
with “laceration left eyelid” and
“laceration left hand” Two days later, the
claimant reported to the emergency room (ER) complaining of
neck pain, although his range of motion in the neck was
described as “normal.” Imaging showed no acute
abnormalities and conservative care was recommended. Intake
reports from the ER note that at the time of the rollover,
the claimant was unrestrained.
The
claimant returned to CCOM on September 18, 2017. He reported
he was “feeling much better but still having
considerable amount discomfort through the left cervical
paraspinal and posterior shoulder girdle.”
The
claimant’s initial visit with his authorized treating
physician, Dr. Neubauer, was on September 25, 2017. The
claimant reported lower back and left leg pain. The
claimant’s neck paraspinals were tender to palpation,
with pain in all planes upon range of motion. The paraspinals
were tender in his lower and upper back. Physical therapy
continued to be recommended.
The
claimant underwent a short course of physical therapy. He
reported cervical pain, pain in both shoulders, and lower
back pain. As of his physical therapy visit on October 6,
2017, the claimant still was reporting a high level of pain
with end range cervical motion and difficulty sleeping due to
neck pain. He also reported that he continued to have low
back pain and stiffness.
The
claimant returned to Dr. Neubauer on October 9, 2017,
complaining of ongoing neck and back pain. It was noted the
claimant was having pain with activity and the back was
specifically described as being tight. Physical examination
documented pain in the neck with all planes of motion.
Examination of the back documented tenderness to palpation in
the low back and buttocks and decreased/painful forward
flexion, extension, rotation, and lateral flexion; the
mid-back symptoms were no longer noted. At a subsequent
appointment with Dr. Neubauer, the claimant had ongoing
complaints of back and neck pain that was described as
“aching/stiffness/tightness” and he was having
pain/stiffness with activity and movement of the back and
neck. Dr. Neubauer recommended continued therapy and referred
the claimant to Dr. Abercrombie for chiropractic care.
The
respondents filed a General Admission of Liability (GAL) on
October 18, 2017, admitting for medical benefits but denying
temporary total disability benefits on the basis that the
“claimant was responsible for his own
termination.”
By
October 23, 2017, the claimant was reporting 2-3 out of 10
pain, which he described as mild pain and consisting mostly
of aching/stiffness/tightness.
At his
initial visit with Dr. Abercrombie on October 26, 2017, the
claimant reported overall improvement, but still had
“some lower back, neck and left shoulder pain.”
Moderately reduced range of motion was noted in his lumbar
and cervical regions.
On
November 29, 2017, Dr. Neubauer documented that the claimant
still was reporting 3 out of 10 neck and low back pain, and
that he continued “to have stiffness with motion of the
neck and low back. . . .”
On
January 4, 2018, Dr. Neubauer noted that the claimant was
reporting low back pain and tightness. His closing comments
indicated that the claimant still had neck and low back
tightness, but he nevertheless placed the claimant at maximum
medical improvement (MMI) with no impairment and instructions
to finish chiropractic care. Dr. Neubauer’s final note
from January 24, 2018, indicated the claimant was greatly
improved, but that he continued to have minimal objective
residual problems.
On
January 24, 2018, after his release at MMI, the
claimant’s chiropractor, Dr. Abercrombie, also released
the claimant. Dr. Abercrombie’s final note from January
24, 2018, indicated the claimant was greatly improved but
that he continued to have minimal objective residual problems
as noted in his report:
Overall, he has responded very well to treatment noting very
minimal symptoms at this time. He had some lower back
stiffness this past week of unknown cause however denies
pain, and the stiffness resolved. Otherwise, he denies neck
or mid back symptoms. He is performing at this time all
activities of daily living without difficulty…
Examination on today’s visit reveals normal
spinal/paraspinal symmetry. Range of motion is full and all
cervical, thoracic and lumbar planes and (sic) without
symptoms.
The
respondents submitted a Final Admission of Liability (FAL)
admitting for 0% impairment. The FAL indicated the claimant
received TTD from September 12, 2017, through December 13,
2017, the date he was released to work without restrictions...
