IN THE MATTER OF THE CLAIM OF: JASON ROBINSON, Claimant,
v.
JACK FISHER GROUP, Employer,
and
ADVANTAGE WORKERS COMPENSATION INSURANCE, Insurer, Respondents.
W.C. No. 5-036-231-001
Colorado Workers Compensation
Industrial Claim Appeals Office
February 4, 2021
THE BENDINELLI LAW FIRM PC, Attn: THOMAS P
CROWLEY ESQ, (For Claimant)
RITSEMA & LYON PC, Attn: PAUL D FELD
ESQ, (For Respondents)
FINAL
ORDER
The
claimant seeks review of an order of Administrative Law Judge
Cannici (ALJ) dated July 24, 2020, that granted the
respondents’ request to terminate the claimant’s
maintenance medical benefits and that determined the
respondents may offset $285,185.50 against the
claimant’s future workers’ compensation benefits
without apportionment. We set aside the ALJ’s order
determining that the respondents are allowed to offset
$285,185.50 against the claimant’s future
workers’ compensation benefits without apportionment
and in all other regards, we affirm.
This
matter went to hearing on June 4, 2020, on whether the
respondents proved that the claimant’s maintenance
medical benefits are no longer reasonable, necessary, or
causally related to his condition, and whether the
claimant’s recovery against the third-party defendant
in Case No. 2018CV30955 filed in the Boulder District Court
can be credited against his future workers’
compensation benefits. After the hearing, the ALJ made
findings and conclusions that are summarized below.
The
claimant works for the respondent employer as a construction
manager. He oversees six to ten communities with
superintendents at each of the sites who report directly to
him regarding the construction progress of homes. On November
2, 2015 the claimant suffered admitted industrial injuries
during the course and scope of his employment with the
employer when he was involved in a motor vehicle accident.
The claimant’s vehicle was struck on the driver’s
side by another vehicle. He subsequently was diagnosed with a
lumbar spine fracture and a pars disruption.
As a
result of the motor vehicle accident, the claimant filed a
negligence action against the third-party defendant Jake Olk
in in Case No.2018CV30955 in Boulder District Court. The
respondent insurer intervened in the matter. During the
course of the civil litigation, the claimant disclosed prior
medical treatment to his lower back dating back to 2006 and
continuing until August 6, 2015, or fewer than three months
prior to the motor vehicle collision. The claimant
specifically had undergone a total of approximately 25
chiropractic treatments at Chiropractic of North Denver and
The Joint. Over the years, his symptoms varied from middle to
lower thoracic pain, bilateral lumbar pain, and pain in the
cervical region, pelvis, hips, and ribs. Over the course of
his treatment, the claimant received various adjustments to
remove subluxations, manual therapy, electrical muscle
stimulation, and chiropractic manipulative therapy.
On
December 21, 2015, the claimant visited Dr. Morreale for an
initial evaluation. The claimant reported bilateral lumbar
back pain. He did not provide any history of prior lower back
pain and chiropractic treatment. His range of motion was
decreased due to pain. X-rays of the lumbar spine revealed
“superior/interior fractures of his vertebral bodies in
the non-weightbearing portion as well as a pars
defect.” Dr. Morreale’s impression was lumbar
spine fracture and pars disruption. He ordered CT and MRI
scans of the claimant’s lumbar spine to determine
whether he suffered an “acute pars fracture or an
isthmic defect of his pars.”
The CT
scan revealed a grade 1 spondylolistheses at LS-S1 secondary
to a L5 pars with interarticularis defects. The MRI of his
lumbar spine reflected mild grade-1 spondylolisthesis at
L5-S1, mild multilevel disc disease and facet hypertrophy of
the lumbar spine with a small central/right central disc
protrusion and annular fissure at L4-L5, and multiple
Schmorl’s nodes within the lower thoracic spine and
lumbar spine.
Based
on the CT and MRI scans, Dr. Morreale diagnosed the claimant
with spondylolisthesis, lower back pain, and instability. He
recommended a pars injection at L5-S1. Dr. Morreale
determined that the claimant’s car accident had
aggravated his pars fracture “which he was not having
issues with prior to the accident.”
On
March 28, 2016, the claimant returned to Dr. Morreale after
he underwent a pars injection. Dr. Morreale noted that the
claimant obtained good relief from the procedure that lasted
for approximately two days. He recounted that the claimant
had a defect at the L5-S1 segment that was aggravated by his
November 2, 2015, motor vehicle accident. Dr. Morreale
recommended an anterior lumbar interbody fusion. He directed
the claimant to contact him when ready to proceed with the
procedure.
On
November 10, 2016, Dr. Webb determined that the claimant was
at maximum medical improvement (MMl). He diagnosed the
claimant with spondylolisthesis of the lumbar region, lower
back pain, and spondylolysis of the lumbar region. Dr. Webb
remarked that imaging had revealed a bilateral pars defect at
L5. He noted that the claimant’s work activities had
aggravated his underlying, pre-existing condition. He
returned the claimant to regular duty and did not assign any
permanent work restrictions. Dr. Webb assigned the claimant
with an 8% lumbar impairment pursuant to Table 53 of the AMA
Guides for the Evaluation of Permanent Impairment Third
Edition (Revised). He also assigned a 7% whole person
impairment rating for range of motion deficits. Combining the
ratings yielded a 14% whole person impairment. Dr. Webb
remarked that the claimant had visited two spine surgeons who
had determined he would likely need a future fusion at L5-S1.
He stated that maintenance care should involve access to a
spine surgery consultation if the claimant’s symptoms
worsened or surgery needed to be performed. Dr. Webb
recommended four follow-up visits with Dr. Gerlach over the
next 24 months and remarked that the claimant would require a
future L5-S1 fusion because “this problem is expected
to deteriorate over time.”
On
January 20, 2017, the respondents filed a final admission of
liability (FAL) consistent with Dr. Webb’s MMI and
impairment determinations. The FAL recognized that the
claimant also was entitled to receive reasonable, necessary,
and related maintenance medical benefits. However, the...
