In re Claim of Duarte, 123020 COWC, 5-083-979

Case DateDecember 30, 2020
CourtColorado
IN THE MATTER OF THE CLAIM OF: NIEVEZ J DUARTE, Claimant,
v.
WORLD FUEL SERVICES, Employer,
and
ACE AMERICAN INSURANCE COMPANY, Insurer, Respondents.
W.C. No. 5-083-979
Colorado Workers Compensation
Industrial Claim Appeals Office
December 30, 2020
          MCDIVITT LAW FIRM, Attn: AARON S KENNEDY ESQ, (For Claimant)           POLLART MILLER LLC, Attn: THOMAS P CROWLEY ESQ, C/O: BRAD J MILLER ESQ, (For Respondents)          FINAL ORDER          The respondents seek review of an order of Administrative Law Judge Spencer (ALJ) issued September 4, 2020, that ordered respondents liable for lumbar epidural steroid injections. The ALJ further determined that claimant sustained a compensable left shoulder injury as a consequence of his July 28, 2018, admitted low back injury and ordered respondents liable for associated medical care involving the shoulder. We affirm.          The ALJ conducted an evidentiary hearing on July 16, 2020, and thereafter established findings of fact, which are summarized below.          Claimant worked as a fuel truck driver. He sustained an admitted low back injury on July 28, 2018, while draining a 50-pound fuel hose. He draped the hose over his shoulder to facilitate draining the fuel. The hose slipped from his shoulder and while quickly turning to catch it, he twisted awkwardly and jerked his low back. He experienced immediate low back pain after the accident, which intensified through the remainder of his shift.          On July 30, claimant initially treated with Dr. Olson at CCOM who was designated the primary authorized treating physician (ATP). Claimant reported pain in his low back and buttocks radiating into his thighs. Examination revealed muscle spasms in the right lower lumbar area. Claimant had difficulty with standing in a neutral position. Dr. Olson diagnosed a lumbar sprain, recommended physical therapy (PT), and took claimant off work. After a short course of PT, claimant noted improvement, but unsuccessfully attempted to return to work because the back pain flared significantly. Dr. Olson again took claimant off work. The doctor ordered an MRI.          The lumbar MRI took place on August 22. The MRI showed a bulging disc at L2-3 which, combined with congenitally short pedicles, produced moderately severe spinal stenosis. The MRI also identified a bulging disc at L3-4 causing moderate stenosis, with less severe findings at L4-5.          On August 29, Dr. Olson noted that claimant was having pain in his low back and hips with diffuse numbness down his legs. Prior to a surgical referral, the doctor first wanted to try a short course of chiropractic treatment. However, this treatment aggravated claimant’s pain and was discontinued. Dr. Olson noted that claimant favored his right leg while standing and described his gait as “unstable.” Dr. Olson referred claimant to Dr. Leggett or Dr. Sparr for further evaluation.          Claimant saw Dr. Leggett on October 10. Claimant described ongoing low back pain, aggravated by activities including prolonged sitting. He reported numbness, tingling, and a cold sensation in his right foot, and numbness radiating into his right thigh. Claimant used a cane because “he feels that sometimes his legs want to give out when he takes steps.” On examination, Dr. Leggett observed multiple postural abnormalities related to back pain, significant myofascial tightness and tenderness around the lumbar and gluteal musculature, and significant pain with facet loading at L3-4, L4-5, and L5-S1. Despite the earlier findings of spinal stenosis, Dr. Leggett thought claimant’s symptoms were probably related to myofascial/soft tissue dysfunction and facet arthropathy rather than a frank radiculopathy. He recommended bilateral L4-5 and L5-S1 facet joint injections.          Claimant had the facet joint injections on October 30. They produced temporary relief, which Dr. Leggett considered a sufficient diagnostic response to warrant medial branch blocks. Claimant continued to exhibit objective clinical signs consistent with myofascial and soft tissue pain, including muscle spasm and multiple trigger points throughout the lumbosacral and upper gluteal musculature. Dr. Leggett recommended massage therapy and trigger point injections.          The medial branch blocks were performed on December 4 and produced temporary benefit, during which claimant noted “significant improvement in walking, lying down tolerance, sleep, and mood.” Based on this positive diagnostic response, Dr. Leggett recommended radiofrequency ablation (rhizotomy).          On December 27, claimant was walking at home when his right leg “locked up” and gave way, causing him to fall. He landed on his outstretched left arm. He had immediate and significant left shoulder pain. Claimant attempted to reach CCOM the next morning but could only leave a message. He called again the following morning (December 29) and again reached the clinic’s voicemail. The message directed patients to the emergency room if they desired immediate assistance.          Claimant went to the St. Mary Corwin Hospital emergency room on December 29 with a chief complaint of left shoulder pain. He explained he was treating for low back problems “with known deficit of right leg weakness, walking with a cane. He tripped and fell, twisting his right ankle, landing on his chest and left shoulder. Event happened 2 days ago.” The ER provider noted only “mild” tenderness in the anterior shoulder and biceps tendon, with “full” shoulder range of motion. X-rays showed “no fracture or dislocation.” Claimant was diagnosed with “multiple contusions” and a right ankle sprain. The ALJ described the ER findings as “suspect” given the significant findings documented at CCOM a few days later, and significant shoulder pathology later found on MRI testing.          Claimant saw CCOM on January 2, 2019 for the shoulder. Nurse practitioner Madrid noted a mechanism of injury of falling forward, bracing his fall with the left hand and arm, injuring the left shoulder. Claimant described stabbing, aching, and burning pain the left shoulder and down his right leg. Claimant could barely move his left shoulder. NP Madrid diagnosed a rotator strain, and ordered an MRI of the shoulder.          Dr. Olson evaluated claimant on January 10. The doctor noted that claimant reported falling 4 times when his right leg gives out on him. He further noted that an MRI had been ordered but had not been authorized. A rhizotomy was scheduled on January 22.          Claimant underwent the rhizotomy as scheduled and followed up with Dr. Leggett the next day. He was extremely pleased in the outcome and was able to sleep for a full night. He was still having pain in his right leg. Claimant informed Dr. Leggett about his December 27 fall and the resultant right ankle sprain and left shoulder strain. He continued to report high levels of numbness and tingling throughout the right leg, as well as continued weakness. He continued to use a straight...

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