In re Claim of Ganser, 121620 COWC, 5-128-084-001

Case DateDecember 16, 2020
CourtColorado
IN THE MATTER OF THE CLAIM OF: ROBERT GANSER, Claimant,
v.
BLUE MOUNTAIN ENERGY INC, Employer,
and
ROCKWOOD CASUALTY INSURANCE COMPANY, Insurer, Respondents.
W.C. No. 5-128-084-001
Colorado Workers Compensation
Industrial Claim Appeals Office
December 16, 2020
          KILLIAN DAVIS RICHTER & MAYLE PC, Attn: CHRISTOPHER H RICHTER ESQ, (For Claimant)           RITSEMA & LYON PC, Attn: KRISTEN A CARUSO ESQ, (For Respondents)          FINAL ORDER          The claimant seeks review of an order of Administrative Law Judge Sidanycz (ALJ) dated September 11, 2020, that ordered temporary benefits suspended beginning May 26 2020, due to the claimant’s persistence in an injurious practice and the determination that temporary benefits paid between May 26 and August 12, 2020, were an overpayment of benefits. We set aside the determination of an overpayment and otherwise affirm the order of the ALJ.          The claimant sustained an injury to his right shoulder on January 17, 2020, when he slipped on ice and fell while working at the employer’s coal mine. A January 27 magnetic resonance image (MRI) revealed a complete tear in the shoulder of both the supraspinatus tendon and the infraspinatus insertion with retraction of the tendons. The claimant was referred to Dr. Luker for a surgical consultation. On February 25, the claimant saw Dr. Luker’s physician assistant who advised the claimant a surgical repair of the rotator cuff could be considered but that it would be necessary for the claimant to cease smoking for four weeks before the surgery could be undertaken          On March 3, 2020, the claimant was examined by Dr. Luker. The claimant was noted to have undergone three prior surgeries on his right shoulder 15 years previously. Dr. Luker proposed a surgical repair of the rotator cuff noting the difficulty involved in such a significant disruption of the tendons. The doctor reiterated it would be necessary for the claimant to stop smoking four weeks prior to any surgery and for three months following the surgery. The claimant was noted to smoke 1 ½ packs of cigarettes per day. The claimant indicated to Dr. Luker he did not believe he would be able to quit smoking and he would look for a surgeon who would operate without requiring smoking cessation.          On June 30, the claimant consulted with orthopedic doctor Kelly Jensen. The doctor noted the claimant’s smoking habit and recommended a total shoulder replacement surgery. The respondents arranged for the claimant to be examined by Dr. Failinger on May 8. The claimant stated to Dr. Failinger he had not undergone the proposed rotator cuff surgery because he insisted he should not be required to quit smoking. The doctor explained that nicotine accompanying smoking serves to restrict the flow of blood in capillaries and causes a constriction of the microvascular structures that can significantly disrupt the ability to heal after surgery. Dr. Failinger felt the recommendation for rotator cuff repair surgery was reasonable but that it should not be attempted prior to achieving smoking cessation.          On May 26, 2020, the respondents filed a Petition to Modify, Terminate or Suspend Compensation pursuant to Workers Compensation Rule of Procedure 6-4. The Petition requested that temporary benefits be suspended beginning May 26 until the date of surgery. The Petition stated the claimant’s refusal to stop smoking represented an injurious practice justifying the suspension of compensation pursuant to § 8-43-404(3), C.R.S. It was accompanied by the report of Dr. Failinger. The claimant submitted an objection to the Petition on June 15. An expedited hearing occurred on August 12, 2020.          The claimant testified he maintained a 35 year history of smoking. He explained it would be very difficult for him to stop smoking but he did desire to undergo the rotator cuff surgery. He indicated he had obtained a prescription for Chantix, an aid for smoking cessation, a week prior to the hearing and he had cut down his rate of smoking to one pack per day. The ALJ ruled the claimant’s refusal to stop smoking represented an injurious practice that delayed his ability to undergo surgery and ultimately recover from his work injury. The ALJ found the claimant did not undertake to cease smoking and fail in the attempt, but, rather, he just refused to stop smoking. This finding was underscored by the fact the claimant had only started taking Chantix a week preceding the hearing after being advised five months previously it was necessary he give up smoking. The ALJ ruled the respondents may suspend the payment of temporary disability benefits as of the date of their petition on May 26, until the date shoulder surgery is performed. In addition, the ALJ ordered that an overpayment of temporary benefits had occurred between May 26 and the date of the hearing on August 12, 2020.          On appeal the claimant contends the evidence in the record establishes the claimant was acting reasonably and neither the suspension nor the order finding an overpayment is justified. The third sentence of § 8-43-404(3) provides:
If any employee persists in any unsanitary or injurious practice which tends to imperil or retard recovery or refuses to submit to such medical or surgical treatment or vocational evaluation as is reasonably essential to promote recovery, the director shall have the discretion to reduce or suspend the compensation of any such injured employee.[1]
         I.          The claimant...

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