IN THE MATTER OF THE CLAIM OF: JAMES SULLIVAN, Claimant,
v.
CPC LOGISTICS, Employer,
and
ACE AMERICAN INSURANCE, Insurer, Respondents.
W.C. No. 5-072-843-003
Colorado Workers Compensation
Industrial Claim Appeals Office
November 20, 2020
MARK A
SIMON ATTORNEY AT LAW, Attn: MARK A SIMON ESQ, (For Claimant)
POLLART MILLER LLC, Attn: BRAD J MILLER ESQ, (For
Respondents)
FINAL
ORDER
The
claimant seeks review of the order entered by Administrative
Law Judge (ALJ) Cannici, dated April 3, 2020, that denied the
claimant’s requests for temporary total disability
benefits and penalties against the respondents. We affirm the
ALJ’s order.
This
matter went to hearing on the issues of the claimant’s
entitlement to temporary total disability from October 3,
2019 through October 23, 2019 and penalties against the
respondents for failing to pay temporary disability benefits
for this time period. After hearing the ALJ entered factual
findings that for purposes of review can be summarized as
follows. The claimant worked as a delivery truck driver for
this employer. The claimant has significant pre-existing
cervical and lumbar spine conditions that require narcotic
medications and continuing treatment. He underwent a cervical
fusion in December 2013 and had a prior workers’
compensation injury to his lower back in 2014. A January 2015
MRI revealed multi-level bilateral neuroforaminal stenosis at
L5-S1. As recently as October 2017, the claimant was still
reporting lower back pain and obtaining medical refills to
treat his symptoms.
On
March 18, 2018, the claimant sustained an admitted
work-related injury while fueling his work truck. The
claimant slipped on diesel fuel and fell backwards onto a
concrete barrier. The claimant sustained left-sided fractures
to the 9th, 10th and 11th ribs as a result of this accident.
The
claimant began treatment with Dr. Wentzel. In addition to the
rib fractures, the claimant reported right-sided trapezial
pain and left leg pain and denied any other symptoms.
The
claimant began treating with Dr. Brunworth for pain
management. Dr. Brunworth noted that the claimant was
reporting pain and symptoms affecting both his upper and
lower extremities. The claimant specifically reported having
lower back pain and leg pain on May 29, 2018.
In July
2018, the claimant was referred to Dr. Anderson-Oeser for
pain management. Dr. Anderson-Oeser released the claimant to
full duty employment on August 27, 2018. The respondents
filed a general admission of liability on August 28, 2018,
terminating temporary total disability benefits consistent
with Dr. Anderson-Oeser’s opinion.
On
September 18, 2018, the claimant underwent an independent
medical examination (IME) with Dr. Fall. Dr. Fall determined
that the work accident caused the claimant’s rib
fractures and a temporary aggravation of cervical myofascial
pain that resolved with the passage of time. Dr. Fall also
noted the claimant’s pre-existing back and leg pain and
the fact that the claimant had been on opioid medications for
these conditions. Dr. Fall concluded that the claimant
reached MMI on May 29, 2018, with no permanent impairment or
work-restrictions. Dr. Brunworth performed a medical records
review and agreed with Dr. Fall’s conclusions. Dr.
Brunworth also stated that she agreed that there was no
evidence that the claimant sustained a low back injury from
the work accident and concluded that the claimant reached MMI
on May 29, 2018, with no permanent impairment or work
restrictions. The respondents filed a final admission of
liability on March 14, 2019 consistent with Dr.
Brunworth’s report acknowledging that the claimant was
at MMI as of May 29, 2018 and had zero permanent impairment.
The
claimant returned to Dr. Anderson-Oeser in April 2019,
complaining of lower back, lower extremity, posterior
cervical and right upper extremity pain. Dr. Anderson-Oeser
noted that the claimant had not received authorization for
L-4 and L-5 injections. Dr. Anderson-Oeser released the
claimant to...
