IN THE MATTER OF THE CLAIM OF: RAMIRO PEREZ, Claimant,
v.
EUELL GROUP INC, Employer,
and
PINNACOL ASSURANCE, Insurer, Respondents.
W.C. No. 4-990-930-003
Colorado Workers Compensation
Industrial Claim Appeals Office
January 13, 2021
THE
FRICKEY LAW FIRM, Attn: JANET FRICKEY ESQ, (For Claimant)
RUEGSEGGER SIMONS & STERN LLC, Attn: JEFF PEARSON ESQ,
(For Respondents)
FINAL
ORDER
The
claimant seeks review of an order of Administrative Law Judge
Turnbow (ALJ) dated January 9, 2020, that denied and
dismissed his claims to include his cervical spine as well as
his carpal tunnel syndrome (CTS) and subsequent surgery as
part of his work-injury; denied and dismissed his claim to
increase his right upper extremity impairment rating; and
denied and dismissed his claim to convert his right upper
extremity impairment rating to a whole person impairment
rating. We affirm.
This
matter went to hearing on whether the claimant met his burden
to overcome the Division-sponsored independent medical
examination (DIME) physician’s assessment on causation
and relatedness of his cervical spine; whether the
claimant’s right CTS and subsequent surgery was related
to his work-injury on June 24, 2015; whether the claimant is
entitled to a higher right upper extremity impairment rating;
and whether the claimant has a permanentAfunctional
impairment to a body part not on the list of scheduled
disabilities. After the hearing, the ALJ made pertinent
factual findings and conclusions that are summarized below.
On June
24, 2015, the claimant injured his right shoulder while
working for the respondent employer as a plumbing apprentice.
The claimant attended an initial examination with his
designated authorized treating provider, Dr. Kreutter, at
Cherry Creek Family Practice. The claimant complained of
feeling a locking sensation in his right shoulder while
pulling a bucket of concrete, with soreness in his shoulder
and mid-back which started several hours later. He initially
did not report neck or cervical spine pain and denied having
injured himself previously. X-rays of the claimant’s
thoracic spine (t-spine) and right shoulder were negative for
acute injuries. The claimant's provider took him off
work, and referred him to physical therapy.
The
claimant continued to report right shoulder and t-spine pain
of 6/10, with intermittent numbness into his right hand. He
was diagnosed with a thoracic strain and probable right
rotator cuff injury. Physical examination revealed a normal
spine aside from t-spine pain.
Due to
continued complaints of shoulder pain, the claimant was
referred for an orthopedic shoulder evaluation with Dr.
Reister. The claimant complained of “global pain from
his neck” through his medial parascapular region. Dr.
Reister hypothesized that often times persistent bursitis
tended to “tighten up all the muscles in the posterior
triangle of the neck and aggravate degenerative disk
disease.”
The
claimant subsequently underwent an MRI which revealed a near
complete undersurface supraspinatus tendon tear with possible
posterior superior labral tear. Dr. Reister performed a right
shoulder arthroscopy with extensive labral debridement,
bicipital tendon resection, followed by an open rotator cuff
repair with acromioplasty and bicipital tendon tenodesis.
On
August 18, 2015, the respondents filed a general admission of
liability, admitting to medical benefits and lost wages.
The
claimant subsequently returned to Dr. Kreutter reporting 5/10
shoulder pain with movement and ongoing neck pain which
radiated into his right trapezius. He denied any numbness or
tingling. Then, on December 21, 2015, the claimant reported
to Dr. Kreutter that he was having right hand/forearm jerks
every now and then and that he never had this before. The
claimant complained of right dorsal forearm pain with
radiating pain into his shoulder and hand. He was not working
and denied sustaining any new injury. Dr. Kreutter referred
the claimant for evaluation of his forearm pain.
Thereafter,
the claimant returned to Dr. Kreutter reporting slow progress
with his range of motion and strength. He also complained of
left shoulder pain. Dr. Kreutter told the claimant his left
shoulder pain was not related to his work injury. Dr.
Kreutter recommended the claimant undergo aggressive physical
therapy to avoid possible frozen shoulder.
Dr.
Miller performed a neurological evaluation on the claimant.
The claimant underwent an assessment which indicated
psychosocial limitations could be delaying his recovery and
that further evaluation might be necessary. Dr. Miller opined
that the claimant's right upper extremity
tremor/myoclonic jerk was of unknown etiology. He thought it
unlikely that the claimant’s tremor was from a right
shoulder injury or cervical radiculopathy, but rather
suspected a psychogenic component.
On
March 29, 2016, the claimant underwent a cervical spine
(c-spine) MRI which showed evidence of degenerative change at
C5-6 and C6-7 with disc osteophyte complexes narrowing both
central canal and neural foramen. At the C6-7 level, the
claimant had moderate bilateral foraminal encroachment which
“likely accounts for [the claimant’s] symptoms in
his right hand, as well as the lancinating pain down his
right arm.” Dr. Miller believed the claimant’s
degenerative conditions could have been aggravated by the
industrial injury and recommended claimant undergo C5-6, C6-7
transforaminal ESI injections for cervical radiculopathy.
Dr.
Reister then reevaluated the claimant for his continued
complaints of biceps tic; noting that during his 20 years of
performing shoulder surgeries, he had not seen anything like
it. He recommended that the claimant undergo an MRI
neurogram. Results of the MRI neurogram were normal. Despite
the results, Dr. Reister still recommended that the claimant
undergo a second surgery due to his continued complaints.
Right shoulder tenodesis takedown surgery was performed by
Dr. Reister on October 25, 2016, and surgical notes suggested
that the claimant’s musculotaneous nerve was not
compressed. The claimant also underwent right carpal tunnel
release surgery by Dr. Oswald on the same date. This surgery
was not requested for preauthorization, and it was not
authorized.
On
January 19, 2017, the claimant returned to Dr. Reister for
further examination of his right shoulder and with complaints
of left shoulder pain. Dr. Reister believed the
claimant's jerking issue was as yet impossible to
diagnose. He noted the claimant's complaints of left
shoulder pain and wrote that he was “very, very
uninterested in reoperating on [the claimant] for...
