IN THE MATTER OF THE CLAIM OF: ALEX N WALLACE, Claimant,
v.
PHIL LONG FORD MOTOR CITY, Self-Insured Employer, Respondent.
W.C. No. 5-106-788-001
Colorado Workers Compensation
Industrial Claim Appeals Office
January 8, 2021
MCDIVITT LAW FIRM, Attn: AARON S KENNEDY ESQ, (For Claimant)
POLLART MILLER LLC, Attn: AMANDA J BRANSON ESQ, (For
Respondents)
FINAL
ORDER
The
claimant seeks review of an order of Administrative Law Judge
Edie (ALJ) dated September 22, 2020, that ruled the claimant
did not overcome the impairment ratings of the Division
sponsored Independent Medical Examination (DIME). We affirm
the decision of the ALJ.
The
claimant worked for the respondent as an automobile sales
representative. While driving to a customer's location on
March 12, 2019, the truck he was driving was struck in a
head-on collision by another vehicle. The claimant complained
of injuries to both shoulders, neck and upper back. He was
initially treated at the St. Francis Emergency Room in
Colorado Springs. The claimant was then referred to Dr.
Schafer for further treatment.
The
claimant treated with physical therapy, chiropractic and
manual therapy. He also received trigger point and steroid
injections. An MRT revealed a fracture in his left shoulder.
The claimant did not miss any days from work. After several
months he obtained a measure of relief for many of his pain
symptoms. Dr. Schafer indicated the claimant had achieved
maximum medical improvement (MMI) on October 18, 2019.
Dr.
Shafer determined the claimant had a 6% permanent impairment
rating for a cervical spine injury pursuant to Table 53 of
the AMA Guides to the Evaluation of Permanent Impairment, but
provided no rating for range of motion loss. Dr. Schafer
noted the claimant had a previous congenital fusion at
several levels of the cervical spine which prevented motion
in his neck prior to his work related motor vehicle accident.
A cervical spine MRT from December 2014 documented a fusion
of the facet joints at C2-3, C3-4, C4-5 and possible C5-6.
Dr. Schafer stated the claimant had a 2% impairment rating
for the thoracic spine and a 9% rating at that level for
range of motion deficits. The respondent arranged for the
claimant to be evaluated by Dr. Polanco. Dr. Polanco noted
the claimant's cervical and thoracic spine were only
mildly affected by the work accident and did not justify a
permanent impairment rating.
The
respondent requested a DIME review of the impairment rating
provided by Dr. Shafer. The review was conducted by Dr.
Bissell on February 6, 2020. Dr. Bissell also observed the
claimant had sustained a preexisting fusion of his cervical
spine at four levels. Accordingly, the doctor provided a 4%
impairment rating pursuant to Table 53 for injury to the
cervical spine but declined to add a rating for range of
motion deficits. He concluded there were no additional motion
limitations that could be attributed to the 2019 work injury.
Dr. Bissell also noted the claimant presented no complaints
in relation to the thoracic spine. On that basis he deemed it
not appropriate to assign a rating for that area. Dr. Bissell
computed a 12% upper extremity rating for the right shoulder
and a 5% rating for the left. The respondent filed an
admission for these DIME ratings. The claimant sought a
hearing to challenge the ratings involving the cervical and
the thoracic spine.
At the
August 11, 2020, hearing the claimant testified the prior
occurrence of a congenital fusion of his cervical spine did
not prevent the entirety of movement in his neck. He
indicated he sustained increased neck pain and limitations as
a result of the work accident. The claimant also explained
that despite his failure to discuss any injury to his
thoracic spine with Dr. Bissell, he did continue to
experience pain in that area. Dr. Polanco testified he
believed the claimant's injury to his cervical spine was
limited and had resolved within a few months due to medical
treatment. Dr. Polanco observed that due to the extensive
congenital fusion of the spinal facets in the claimant's
neck, it was not possible to conclude there was any
measurable range of motion deficits that could be attributed
to the work injury. The doctor also maintained the mechanism
of injury involved in the motor vehicle accident and the
initial reports of injury did not support a determination the
claimant had injured his thoracic spine.
The AL
J ruled the DIME report of Dr. Bissell had not been overcome
by clear and convincing evidence. The finding by Dr. Bissell
that the claimant's thoracic spine did not sustain an
injury was supported both by Dr. Bissell's examination,
his review of the medical records, the similar opinion of Dr.
Polanco and the absence of any complaints from the claimant
referencing the thoracic spine more than four months
subsequent to the date of MMI. The ALJ also ruled Dr...
