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...