IN THE MATTER OF THE CLAIM OF: JASON BOWMAN, Claimant,
v.
I & C DESIGN LLC, Employer,
and
AUTO OWNERS INSURANCE COMPANY, Insurer, Respondents.
W.C. No. 4-968-657-001
Colorado Workers Compensation
Industrial Claim Appeals Office
April 1, 2020
BURG
SIMPSON ELDREDGE HERSH & JARDINE PC, Attn: NICK FOGEL
ESQ, (For Claimant)
MCCOLLUM CROWLEY MOSCHET MILLER & LAAK LTD, Attn: JESSICA
M EIDSMOE ESQ, (For Respondents)
FINAL
ORDER
The
claimant seeks review of an order of Administrative Law Judge
Lamphere (ALJ) dated August 7, 2019, that denied the
claimant’s request to reopen, determined the request
for a below knee amputation was not medically reasonable and
denied the claimant’s request for penalties for
violation of Workers’ Compensation Rule of Procedure
(WCRP) 16. We affirm the ALJ’s order.
The
matter was previously before us. In an order dated January
14, 2020, we remanded the matter for further findings to
determine whether the claimant’s petition to review was
timely received at the correct location. On remand, the
parties entered into stipulated findings of fact concluding
that the petition to review was timely filed as verified by
an email from the Office of Administrative Courts. The ALJ
approved the stipulation in an order dated February 11, 2020,
and transmitted the file to us for review.
This
matter went to hearing on the issue of reopening,
reasonableness and necessity of the claimant’s request
for a below the knee amputation and the claimant’s
request for penalties for the respondents’ alleged
violation of WCRP 16. After hearing, the ALJ entered factual
findings that for purposes of review can be summarized as
follows. The claimant sustained an admitted injury on
December 1, 2014, when he was forced to jump from a height of
six feet when the electrical control box he was standing on
became unstable. Rather than fall with the box, the claimant
elected to jump to the uneven concrete below. The claimant
sustained a dislocation and open fracture of the
right
ankle along with complex tears of the anterior talofibular
and calcaneofibular ligaments. The claimant required an
immediate open reduction and internal fixation and underwent
a second surgical procedure consisting of posterior tibial
neurectomy and instrumentation on December 17, 2014,
performed by Dr. Murken.
After
surgery the claimant began a complicated course of treatment
for residual symptoms and functional decline of the right
ankle. The claimant reported symptoms to Dr. Murken that were
“suggestive of RSD.” Dr. Murken referred to the
claimant to Dr. Primack to assist with early treating of
chronic regional pain syndrome (CRPS). Dr. Primack concluded
that the claimant’s pain was multifactorial. Dr.
Bernton also performed a comprehensive consultation on the
claimant and assessed the claimant with CRPS II.
On
December 17, 2015, the claimant was placed at maximum medical
improvement (MMI) by the authorized treating physician, Dr.
Bloch. Dr. Bloch recommended maintenance medical benefits,
including follow-ups with Dr. Primack for PMR need, possible
injections and spinal stimulation and follow-ups with Dr.
Murken for orthopedic needs.
The
claimant followed up with Dr. Murken in January 2016. Dr.
Murken recommended he return to Dr. Primack for a possible
sympathetic nerve block. At the follow-up with Dr. Primack in
February of 2016, the claimant reported that he was looking
at amputation and did not want other options. Dr. Primack
stated that the claimant was not at MMI and recommended:
a. Multiple lumbar sympathetic blocks with decompression and
debridement with Achilles tendon lengthening
b. Spinal cord stimulation
c. Below the knee amputation (if the aforementioned treatment
options were “unacceptable” or failed).
The
claimant underwent a Division Independent Medical Examination
(DIME) with Dr. Ginsburg. The DIME physician stated that it
was now up to the claimant to decide whether he wanted
further procedures or simply wanted maintenance therapies. If
the claimant did not want to go forward with the recommended
procedures, the claimant was at MMI as of March 31, 2016,
with a 26 percent whole person rating due to the CRPS.
The
respondents filed a final admission of liability consistent
with the DIME report and an email from the claimant’s
counsel indicating that the claimant was willing to stipulate
to MMI in exchange for a final admission of liability that
kept the case open for maintenance care.
The
claimant returned to Dr. Primack in June of 2016 and reported
that he wanted to consider his surgical options despite being
provided with other treatment options.
At the
respondents request the claimant underwent an independent
medical examination (IME) with Dr. Goldman. In Dr.
Goldman’s opinion, an amputation was unlikely to
improve the claimant’s condition and could turn a mild
CRPS type II case into a full blown CRPS type I with
spreading symptoms. Dr. Goldman noted that the claimant
needed a psychological work up and depending on that
evaluation, possible differential blocks before considering
any other invasive interventions, if for no other reason than
to make sure that symptoms could be reasonably well
controlled. Dr. Goldman also recommended clarification of the
claimant’s pain generators.
The
claimant then began treatment with Dr. Brunworth for
maintenance care. Dr. Brunworth referred the claimant for a
psychological evaluation to get clearance to have sympathetic
blocks, noting that the claimant was advised he needed to
pass a psychological test before undergoing the blocks. Dr.
Brunworth also noted that the claimant’s complaints
were consistent with CRPS.
The
claimant was seen by Dr. Boyd for a pre-surgical
psychological interview on February 2, 2017, to determine if
the claimant was “an appropriate candidate for
sympathetic nerve block…and to assist with the
development of an appropriate treatment plan.” Dr. Boyd
concluded that the claimant had an external locus of control
and recommended psychological testing to determine
claimant’s current emotional condition and to evaluate
the possibility that nonorganic factors were are playing a
role in the claimant’s pain and other problems. The
claimant did not receive the follow-up testing recommended by
Dr. Boyd.
The
claimant instead referred himself to Dr. Fitzgerald for a
psychological...
