IN THE MATTER OF THE CLAIM OF: TODD WILSON, Claimant,
v.
MAXX AUTO RECOVERY INC d/b/a MAXX FLEET SERVICE, Employer,
and
PINNACOL ASSURANCE, Insurer, Respondents.
W.C. No. 4-993-734
Colorado Workers Compensation
Industrial Claim Appeals Office
January 27, 2021
IRWIN
FRALEY PLLC, Attn: ROGER FRALEY JR ESQ, (For Claimant)
RUEGSEGGER SIMONS & STERN LLC, Attn: LISA SIMONS ESQ,
(For Respondents)
FINAL
ORDER
The
claimant seeks review of an order of Administrative Law Judge
Turnbow (ALJ) issued January 22, 2020, that determined
claimant failed to overcome the Division Independent Medical
Examination (DIME) physician's opinions regarding maximum
medical improvement (MMI) with 15% whole person medical
impairment rating.1 We affirm.
After
the ALJ conducted an evidentiary hearing on August 27, 2019,
the ALJ established findings of fact, which are summarized
below.
Claimant
sustained admitted occupational injuries on August 26, 2015,
to his bilateral upper extremities. Claimant's initial
primary ATP was Dr. Hattem. Ultimately, Dr. Schakaraschwili
diagnosed claimant with chronic regional pain syndrome (CRPS)
following thermography and a quantitative sudomotor axon
reflex test (QSART). In early May 2017, Dr. Schakaraschwili
recommended bilateral stellate ganglion blocks, which
claimant declined. On May 15, 2017, claimant again expressed
reluctance to undergo the recommended blocks.
Prior
to the CRPS diagnosis, Dr. Hattem referred claimant for six
psychological counseling sessions with Dr. Carbaugh. On April
28, 2017, Dr. Carbaugh reported that claimant presented in an
emotional state for his first appointment. He noted that
claimant had been diagnosed with ADHD as a child, was
currently taking Ritalin, and had a tendency to catastrophize
his injury. The doctor diagnosed adjustment disorder and
recommended biofeedback cognitive behavioral therapy. After
an initial biofeedback therapy appointment on May 8, 2017,
claimant did not follow up further with Dr. Carbaugh. Dr.
Hattem later noted that claimant had missed appointments with
Dr. Carbaugh and showed no interest in psychological
follow-up.
On May
24, 2017, Dr. Sacha evaluated the claimant and opined that if
claimant was not interested in the stellate ganglion blocks,
then he was at MMI for his physical injuries. Because
claimant had declined the stellate ganglion blocks and had
not pursued psychological follow-up, Dr. Hattem placed
claimant at MMI on July 13, 2017, and assigned a 15% whole
person permanent medical impairment with medical maintenance
benefits for six months for weaning from Gabapentin.
Respondents
filed a Final Admission of Liability (FAL) consistent with
Dr. Hattem's opinions on August 21, 2017. Claimant
objected to the FAL and requested a DIME. Dr. Yamamoto
conducted the DIME on January 17, 2018. Dr. Yamamoto
concluded that claimant was not at MMI because he needed to
be evaluated by a specialist in spinal cord stimulation; a
psychiatric evaluation to help with medication management; a
second opinion from a psychologist to address depression and
anxiety; and a functional capacity evaluation.
Respondents
sought to overcome the DIME opinion and ALJ Spencer held a
hearing on that issue. ALJ Spencer issued an order on July
20, 2018, that determined respondents overcame the DIME
opinion in part; concluding that respondents proved by clear
and convincing evidence that claimant was at MMI on July 13,
2017, regarding his physical injuries. However, the ALJ
sustained the DIME'S opinion that claimant was not at MMI
regarding his psychological condition. As a result,
respondents filed a General Admission of Liability and
reinstated temporary disability benefits.
Dr.
Hattem referred claimant to psychiatrist Dr. Moe and
psychologist Dr. Cohen. Both doctors prescribed Cymbalta.
Claimant failed to return to follow-up sessions with Dr.
Cohen. On December 18, 2018, Dr. Moe reported that claimant
was "minimally interested in psychiatric treatment apart
from maintenance treatment with Cymbalta." Dr. Moe
placed claimant at MMI for his psychological condition with a
recommendation for continued psychiatric treatment on a
maintenance basis.
Respondents
scheduled a follow-up DIME appointment with Dr. Yamamoto to
determine MMI. Unrelated to the DIME examination, respondents
set up an evaluation with Dr. Barolet, a spinal cord
stimulation expert. Dr. Barolet suggested Ketamine infusions
and probably a spinal cord stimulator, but he did not request
prior authorization for any medical treatment.
Dr.
Yamamoto conducted the follow-up DIME on March 4, 2019. The
doctor opined that claimant reached MMI for all aspects of
his injury. He again assigned a 15% whole person impairment.
Dr. Yamamoto did not recommend the treatment suggested by Dr.
Barolet. Due to claimant's complaints that his symptoms
were migrating, Dr. Yamamoto suggested claimant revisit with
Dr. Schakaraschwili to evaluate his lower extremities.
Respondents
filed a FAL on April 3, 2019, consistent with Dr.
Yamamoto's final report.
Dr.
Schakaraschwili evaluated claimant on June 17, 2019, and
opined that diagnostic testing "could" be useful to
see if claimant still had CRPS, but that claimant had
nonetheless reached MMI whether or not any repeat testing was
positive or not. He further opined that if testing confirmed
CRPS, claimant's condition would justify only maintenance
treatment.
During
the course of Dr. Hattem's treatment of the claimant, the
doctor became unable to treat the claimant because he moved
to a different medical practice. Dr. Hattem referred claimant
to either Dr. Sacha, Dr. McCranie, or Dr. Allison Fall, for a
transfer of care. Claimant was given the option to select any
one of these doctors and chose Dr. Sacha. Dr. Sacha accepted
the transfer of care in January 2019.
Dr.
Sacha first evaluated claimant on February 6, 2019. The
doctor reported that claimant became hostile in the office
with him, the nursing staff, and the office administrator.
The doctor asked claimant to leave the office and told
claimant he would not be allowed back into the clinic.
Respondents
treated this circumstance as a refusal on Dr. Sacha's
part to treat for non-medical reasons. Claimant inquired of
the respondents whether they would authorize Dr.
Schakaraschwili as the new ATP. Respondents denied the
request and established Dr. Fall as the ATP. On May 2, 2019,
claimant notified the insurer that claimant did not accept
Dr. Fall as a treating physician. Claimant insisted that Dr.
Barolet become his ATP and wanted to receive the care
suggested by him. Respondents denied this request. The
insurer also notified claimant that it would seek penalties
against him for dictating medical care. On May 15, 2019,
claimant notified the insurer that he would attend the
appointment with Dr. Fall but would treat the visit
"like a one-time non-division IME." Prior to the
visit, however, Dr. Fall conveyed that she did not feel
comfortable accepting the transfer of care after reviewing
Dr. Sacha's record that he had discharged claimant for
his aggressive behavior. Again, respondents treated this
circumstance as a refusal on Dr. Fall's part to treat for
non-medical reasons. Accordingly, respondents notified
claimant that they were designating Dr. McCranie as the new
ATP. However, Dr. McCranie's office notified respondents...
