In re Claim of Bryant, 060519 COWC, 5-058-044-001

Docket Nº:W.C. 5-058-044-001
Case Date:June 05, 2019
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...

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