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...