IN THE MATTER OF THE CLAIM OF: HAROLD FLORES, Claimant,
v.
TIMMERMAN & SONS FEEDING COMPANY, Employer,
and
NATIONWIDE AGRIBUSINESS, Insurer, Respondents.
W.C. No. 5-100-090-003
Colorado Workers Compensation
Industrial Claim Appeals Office
December 16, 2020
HOGGATT LAW OFFICE PC, Attn: CAMERON LUCKE ESQ, (For
Claimant)
HALL
& EVANS LLC, Attn: DOUGLAS J KOTAREK ESQ, C/O: MARK D
TOPPEN ESQ, (For Respondents)
FINAL
ORDER
The
respondents seek review of an order of Administrative Law
Judge Felter (ALJ) dated April 23 2020, that determined the
injuries to the claimant’s head, back, hips, as well as
his blurred vision and headaches, are causally related to the
admitted industrial accident and ordered the respondents to
pay the medical benefits for these injuries, and also
increased the claimant’s average weekly wage (AWW). We
reverse the ALJ’s order regarding the calculation of
the claimant’s AWW, and in all other regards affirm.
This
matter went to hearing on whether the claimant suffered
compensable injuries to his head, hips, and his lumbar spine,
and the claimant’s AWW. After the hearing the ALJ made
factual findings and legal conclusions that are summarized
below.
The
claimant started working for the employer as a pen rider on
January 21, 2019. On February 7, 2019, the claimant was
riding his horse when his horse slipped on a patch of ice
that was covered in a thin layer of snow The horse’s
legs went out to the right and the horse and the claimant
fell down on their left sides. The claimant testified that he
did not remember exactly what happened or what parts of his
body hit anything, but he awoke to his boss rousing him and
calling his name.
The
employer filled out a Nebraska Workers’ Compensation
Court First Report of Alleged Occupational Injury or Illness.
For the part of body affected, the employer wrote “left
shoulder left elbow head.” The report is dated on the
date of the incident or February 7, 2019. However, the
employer testified at hearing that the actual date the report
was filled out was later, or on February 12, 2019.
The
respondents filed a General Admission of Liability on
February 22, 2019, admitting for an AWW of $718.63, and
noting, “Claim is accepted for left shoulder and
neck.”
On
February 8, 2019, the claimant was seen at Banner Health
Family medicine Office (Banner Health) by Eli Avery, N.P.
(Avery). In his report, Avery noted that the claimant was
riding a horse; the horse lost footing on the ice, collapsed,
and fell on the claimant, resulting in the claimant
experiencing pain in the left shoulder from impact with the
ground. The claimant was said to have left shoulder and
lateral neck pain, denied any other pain or injury, and
denied any impact with his head or loss of consciousness.
The
respondents filled out a Colorado Employer’s First
Report of Injury. The claimant had nothing to do with filling
out this form.
Avery
saw the claimant again on February 15, 2019. Avery reported
that in addition to the injuries reported and the delay in
onset of symptoms, his objective findings were consistent
with the work related mechanism of injury, and noted that the
claimant’s work related medical diagnoses included left
shoulder pain, upper back pain, and headache.
On
February 22, 2019, Ramon Perez D.O. at Banner Health saw the
claimant. The claimant reported his horse slipping on ice and
falling over, and recalled being aroused by his boss and
could not recall events for a period after the injury. The
claimant complained of significant left shoulder pain,
continued neck pain, headaches, mild vision problems, and
pelvic pain. He was assessed with neck pain, new onset of
headaches, left shoulder pain, pelvic pain, and concussion
syndrome. Dr. Perez specifically noted that the
claimant’s work related diagnoses were neck sprain,
left shoulder sprain, lumbar spasm, and concussion. Dr. Perez
again saw the claimant on March 6, 2019. He continued to
complain of shoulder pain, continued neck pain, headaches,
mild vision problems, and hip pain. He specifically
complained of lower back and buttock pain centered over the
lateral hips. The claimant was diagnosed with neck pain,
concussion syndrome, sprain of neck, sprain of shoulder, and
trochanteric bursitis of both hips. He was given injections
into his hips.
The
claimant then transferred his care from Banner Health to
Workwell. The reason the claimant did this was because he
claimed Banner Health was not doing anything for him other
than giving medications and having him sit around. The
claimant thought that Banner Health had focused in on his
shoulder to the detriment of his other injuries and that he
was not getting better.
On
March 18, 2019, Greg Reichhardt, M.D. at Rehabilitation
Associates of Colorado saw the claimant. The claimant noted
he was injured on February 7, 2019, when his horse slipped on
ice. The claimant reported he hit his head on a steel pole
fence and was unconscious for a period of time. He
specifically said “[t]he horse fell on my left leg when
hit the ground landed on left hip, shoulder, and hit my head
on steel pipe fence.” He reported the immediate onset
of bilateral hip pain, left shoulder pain, head pain, and
neck pain. He also reported tinnitus, occasional dizziness,
and being told that he forgets things. He reported pain in
his low back without radicular symptoms. Dr.
Reichhardt’s impression included headaches, neck pain,
left shoulder pain, low back pain, bilateral hip pain, and
depression. Dr. Reichhardt noted that he would be putting
treatment of the hips off until much later because of the
claimant’s pending shoulder surgery since the claimant
would need to use crutches while recovering for his hips. Dr.
Jones ultimately referred the claimant to neurology due to
persistent headaches after his injury, and noted the referral
urgency as “ASAP.”
On
March 29, 2019, Don Downs, PA-C (Downs) at Workwell, saw the
claimant. The claimant filled out an injury questionnaire
where he circled his head, and put marks to indicate pain on
his shoulder, neck, back, and both hips. Downs noted the
claimant was having continued neck and headache pain, as well
as pain in his low back along the belt line. His neck was the
most significant complaint along with his head.
On
April 2, 2019, Joshua Snyder, M.D., at the Orthopedic and
Spine Center of the Rockies, saw the claimant. While this was
an evaluation for left shoulder pain, the claimant continued
to mention he hit his head during the incident and complained
of severe headaches and ringing in his ears. Dr. Snyder
recommended an evaluation with a concussion specialist and
recommended Dr. Wicklund at the same practice.
Throughout
April, May, and June 2019, the claimant continued to be
treated at both Banner Health and Workwell. The claimant
noted he continued to have shoulder pain, headaches, and
bilateral hip pain. He asked for anything to help with the
headache pain because he was not getting any sleep at night
and the headaches were significant. While at Banner Health
Neurology Clinic on May 2, 2019, Reena Dhakal, NP (Dhakal)
assessed the claimant with a post-concussion headache. Given
the claimant’s persistent post-concussive symptoms...