In re Claim of Robinson, 020421 COWC, 5-036-231-001

Docket Nº:W.C. 5-036-231-001
Case Date:February 04, 2021
Court:Colorado
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...

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