IN THE MATTER OF THE CLAIM OF: MARTIN FITZSIMMONS, Claimant,
v.
LINCOLN SURGERY CENTER, Employer,
and
ACE AMERICAN INSURANCE CO, Insurer, Respondents.
W.C. No. 4-995-913-001
Colorado Workers Compensation
Industrial Claim Appeals Office
December 16, 2020
IRWIN
FRAYLE PLLC, Attn: ROGER FRALEY JR ESQ, (For Claimant)
POLLART MILLER LLC, Attn: CHRISTIN BECHMANN ESQ, C/O: THOMAS
CROWLEY ESQ, (For Respondents)
FINAL
ORDER
The
claimant seeks review of an order of Administrative Law Judge
Goldman (ALJ) dated May 25, 2020, that determined the
following: (1) the respondents did not violate
§8-42-105, C.R.S. or Workers’ Compensation Rule of
Procedure 6-1(A)(5), 7 CCR 1101-3, when terminating temporary
total disability (TTD) benefits after the claimant failed to
attend a rescheduled appointment set by the respondents with
the authorized treating physician (ATP) and ordered by a
prehearing ALJ (PALJ), and the claimant’s request for
penalties is denied; (2) the claimant’s request for TTD
benefits for November 22, 2019, through December 18, 2019, is
denied; (3) the respondents did not violate
§8-43-503(3), C.R.S by setting demand appointments for
the claimant to obtain an impairment rating with his ATP, and
the claimant’s request for penalties is denied; and,
(4) the issue of whether the respondents are entitled to
penalties against the claimant for his failure to attend an
appointment ordered by a PALJ is reserved for future
determination. We affirm.
This
matter went to hearing on the following issues: (1) whether
the claimant is entitled to TTD benefits from November 22,
2019 to December 18, 2019, and whether penalties should be
imposed against the respondents for failing to pay the
claimant TTD benefits from November 22 2019, through December
18 2019; (2) whether the respondents violated
§8-43-503(3), C.R.S. by setting demand appointments for
the claimant with his ATP, and whether penalties should be
imposed against the respondents if such violation occurred;
and, (3) whether the respondents are entitled to
reimbursement for fees charged by the ATP for appointments
missed by the claimant. After the hearing, the ALJ made
factual findings and legal conclusions that are summarized
below.
The
claimant worked as a nurse for the employer. He suffered a
compensable injury to his right shoulder on October 5, 2015.
The
claimant has had two shoulder surgeries under this claim. The
first surgery, which was performed by Dr. Noonan, failed to
improve the claimant’s shoulder condition. Later, the
claimant came under the care of Dr. Hatzidakis, who performed
a right reverse shoulder arthroplasty on March 19, 2018. Dr.
Hatzidakis placed the claimant at maximum medical improvement
(MMI) for his shoulder injury on July 11, 2019. Although Dr.
Hatzidakis was an ATP who placed the claimant at MMI and
noted the claimant was stable for a rating, he did not
perform an impairment rating examination, or provide any
impairment rating for the claimant’s right shoulder.
The
respondents requested the claimant attend demand appointments
with Dr. Hatzidakis on August 15, 2019, September 5, 2019,
October 29, 2019, and November 21, 2019, to be evaluated for
an impairment rating, if any.
Notice
of the August 15, 2019, appointment was sent to the
claimant’s attorney with a copy sent by certified mail
to the claimant at 1830 Pinto Trail, Elizabeth, Colorado. The
notice stated that the claimant’s benefits could be
suspended for failure to attend, as required under Rule
6-1(A)(5). However, the claimant did not attend the August
15, 2019, appointment.
The
respondents reset the appointment with Dr. Hatzidakis for
September 5, 2019. Again, notice of the September 5, 2019,
appointment was sent to the claimant’s attorney with a
copy sent by certified mail to the claimant at 1830 Pinto
Trail, Elizabeth, Colorado. The notice stated that the
claimant’s benefits could be suspended for failure to
attend, as required under Rule 6-1(A)(5). The claimant
attended the September 5, 2019, appointment. However, the
claimant was not seen by Dr. Hatzidakis, and no impairment
rating examination was conducted.
Once
again, the respondents reset the appointment with Dr.
Hatzidakis for October 29, 2019. Notice of the October 29,
2019, appointment was sent to the claimant’s attorney
with a copy sent by certified mail to the claimant at 1830
Pinto Trail, Elizabeth, Colorado. The notice stated that the
claimant’s benefits could be suspended for failure to
attend, as required under Rule 6-1(A)(5). The claimant did
not attend the October 29, 2019, appointment.
The
respondents again reset the appointment with Dr. Hatzidakis
for November 21, 2019. Notice of the November 21, 2019,
appointment was sent to the claimant’s attorney with a
copy sent by certified mail to the claimant at 1830 Pinto
Trail, Elizabeth, Colorado. The notice stated that the
claimant’s benefits could be suspended for failure to
attend, as required under Rule 6-1(A)(5). The respondents
also filed a motion to compel the claimant’s attendance
at the November 21, 2019, appointment. This motion was
granted by a PALJ on November 18, 2019. However, the claimant
did not attend the November 21, 2019, appointment.
Thereafter,
the respondents filed an amended General Admission
terminating TTD benefits as of November 22, 2019, pursuant to
Rule 6-1(A)(5).
On
December 3, 2019, the claimant filed an application for
hearing, requesting penalties against the respondents under
§8-43-304, C.R.S. for dictating medical care in
violation of §8-43-503(3), C.R.S, and for penalties
against the respondents for not paying TTD benefits in
violation of §8-42-105, C.R.S.
The
respondents set another demand appointment for the claimant
with Dr. Hatzidakis on December 19, 2019. The claimant
attended this appointment, and Dr. Hatzidakis provided the
claimant with an impairment rating. The respondents filed an
admission on January 23, 2020, reinstating compensation
benefits to the claimant as of December 19, 2019, and
ongoing.
During
the subsequent hearing, the claimant testified that he did
not receive notice of the August 15, 2019, or October 29,
2019, appointments. However, he testified that he did receive
notice of the September 5, 2019, appointment, but could not
recall how he received the notice and believed the notice
came by regular United States mail. The claimant, however,
did not dispute receipt of the notice for the November 21,
2019, or December 18...
