IN THE MATTER OF THE CLAIM OF: KEVIN L PAINE, Claimant,
v.
CST BRANDS d/b/a CORNER STORE #1168, Employer,
and
ACE AMERICAN INSURANCE COMPANY, Insurer, Respondents.
W.C. No. 5-046-226-005
Colorado Workers Compensation
Industrial Claim Appeals Office
January 27, 2021
GIELAROWSKI LAW FIRM PC, Attn: K MACHELLE GIELAROWSKI ESQ,
(For Claimant)
RITSEMA & LYON PC, Attn: DAVID R BENNET ESQ, (For
Respondents)
FINAL
ORDER
The
respondents seek review of an order of Administrative Law
Judge Edie (ALJ) dated July 23, 2020, that determined the
claimant overcame the Division Independent Medical
Examination (DIME) physician's maximum medical
improvement (MMI) date, reopened the claim for worsening of
condition and ordered the respondents to pay for the
recommended surgery. We affirm the ALJ's order.
This
matter went to hearing on the issues of overcoming the DIME
physician's MMI date and, if overcome, whether the
claimant was entitled to temporary disability benefits. The
matter also went to hearing on reopening the claim for the
claimant's worsening left shoulder condition and whether
the rotator cuff surgery recommended by Dr. Pak is
reasonable, necessary and related to the claimant's work
injury. After hearing, the ALJ entered factual findings that
for purposes of review can be summarized as follows.
The
claimant worked for this employer as a convenience store
manager. The claimant sustained an admitted work injury on
January 10, 2017, when he developed left shoulder pain while
stocking and lifting milk overhead. Dr. Centi was the primary
authorized treating physician, who then referred the claimant
to Dr. Pak for orthopedic consultation. On May 10, 2017, Dr.
Pak performed rotator cuff surgery on the claimant's left
shoulder. The claimant subsequently developed right shoulder
pain because of overusing the opposing shoulder. Dr. Pak
performed surgery on the right shoulder on November 1,2017.
The
claimant saw Dr. Larsen on November 6, 2017, for his left
elbow pain. Dr. Larsen diagnosed cubital tunnel syndrome
causally related to the work injury and recommended ulnar
nerve decompression surgery with possible nerve transposition
as soon as possible to try to limit the harm to his ulnar
nerve. Although the respondents initially denied the surgery
as unrelated to the work injury, the respondents eventually
agreed that it was related to the left shoulder surgery of
May 1, 2017, and accepted liability for the condition. The
claimant, however, was still recovering from surgery on both
shoulders and was not ready to proceed with the elbow
surgery. Medical records indicate that the claimant declined
the recommended elbow surgery various times from March 22,
2018 through July 10, 2018.
On
August 28, 2018, the claimant returned to Dr. Centi, who
noted that although Dr. Larsen recommended the elbow surgery,
the claimant decided to forego any further surgical
intervention at that time. Dr. Centi assigned an eight
percent extremity rating for the left elbow, a 13 percent
extremity rating for the left shoulder, and a 15 percent
extremity rating for the right shoulder and recommended
maintenance care. The respondents filed a final admission of
liability on September 26, 2018, consistent with Dr.
Centi's opinions.
On
September 12, 2018, the claimant reported to Dr. Larsen that
he now wanted the elbow surgery. Dr. Larsen performed a left
ulnar neurolysis at the elbow on October 9, 2018. The
operative report stated that the surgery fully decompressed
the ulnar nerve. Dr. Larsen released the claimant from care
on December 7, 2018, and stated that the claimant did very
well and had some residual mild soreness at the elbow. At
hearing, the claimant testified that he felt that the surgery
performed by Dr. Larsen was successful, since his symptoms
had improved considerably.
The
claimant timely objected to the final admission and requested
a DIME performed by Dr. Polanco. The DIME physician
determined that the claimant was at MMI as of August 28,
2018, despite the October 9, 2018, elbow surgery. The
respondents filed a new final admission of liability on March
11, 2019, consistent with the DIME physician's opinions.
The claimant objected and filed an application for hearing to
overcome the DIME physician's MMI opinion and to reopen
the claim for worsening of his shoulder condition and
authorization of surgery.
I.
Overcoming the DIME
The ALJ
concluded that the claimant overcame the DIME physician's
MMI determination. In reaching this conclusion, the ALJ
credited the claimant's testimony concerning his symptoms
and independent medical...
