IN THE MATTER OF THE CLAIM OF: DONNA MCCARTY, Claimant,
v.
TARGET CORPORATION, Self-Insured Employer Respondent.
W.C. No. 5-131-093-001
Colorado Workers Compensation
Industrial Claim Appeals Office
March 11, 2021
WITHERS SEIDMAN RICE MUELLER GOODBODY PC, Attn: SEAN E P
GOODBODY ESQ, (For Claimant)
POLLART MILLER LLC, Attn: ERIC J POLLART ESQ, C/O: MICHELLE L
PRINCE ESQ, (For Respondents)
FINAL
ORDER
The
claimant seeks review of an order of Administrative Law Judge
Sidanycz (ALJ) dated October 27, 2020, that denied the claim
for benefits. We affirm the ALJ’s order.
The
claimant worked for the employer in the style section of its
department store. On February 14, 2020, the claimant entered
a hallway in the store that had just been mopped. She slipped
and fell. The claimant complained of resulting pain in her
right ankle, right knee, her right side, and to her head.
The
claimant had experienced several injuries previously while
working for the employer. On February 20 2015, she injured
her right knee. A January 7, 2016, injury involved her neck,
arms, and low back. While treating for these two accidents,
the claimant reported pain and symptoms in her right hip,
gluteal region, the right side of the face and jaw, the neck,
upper back, mid back, low back buttocks left leg, right leg,
right knee, right arm, left wrist and right ankle. Most
recently, the claimant had treated with her primary care
physician, Dr. Green, on February 19, 2018, and reported pain
in her right hip, knee and ankle. The pain occurred with
sitting, standing, and laying down. The claimant stated she
suffered a work injury on July 26, 2018, when she slipped
from a chair to the floor landing on her right hip and
hitting her head. Following a hearing, the compensability of
the July 26 claim was denied in a January 14, 2020 order. On
January 27, 2020, the claimant complained to Dr. Green in
regard to pain in her right ankle stemming, the doctor said,
from a workers’ compensation injury.
Pertinent
to the February 2020 injury, the claimant began treating with
Dr. Adragna as the authorized treating physician. Neither in
the emergency room on February 14, nor in subsequent visits
with Dr. Adragna were any acute injuries to the
claimant’s head, right hip or leg verified. The doctor
diagnosed the claimant with bursitis of the hip, contusions
on both shoulders and a right ankle sprain. He recommended an
injection into the hip, physical therapy and chiropractor
treatment. The claimant saw Dr. Brannam for chiropractic
treatment. He recorded the claimant’s improvement
through March. The claimant had discarded a leg brace and was
walking and standing equally on both legs. In June, the
claimant saw Physician’s Assistant Klosterman at Peak
Professionals. The claimant complained to Mr. Klosterman of
new symptoms in the right ankle, knee and hip. Mr. Klosterman
remarked on a “sudden spontaneous worsening after vast
improvement.”
The
respondent arranged for an examination of the claimant by Dr.
Lesnak. The doctor had conducted a previous review of the
claimant in November 2019, in connection with her previous
workers’ compensation claim in 2018. Dr. Lesnak’s
report and his later hearing testimony concluded the claimant
had not suffered an injury on February 14, 2020. He
determined the claimant’s symptoms were longstanding
and did not differ from her complaints described in 2019. The
doctor resolved that the course of the February 2020, injury
was non-physiologic, that she had sustained no new injury in
February, 2020, and that her symptoms dated back to 2004 when
she was diagnosed with fibromyalgia.
The
respondent denied the compensability of the February 14, 2020
injury. The claimant sought a hearing regarding
compensability, temporary total and temporary partial
disability benefits and medical benefits. Following a
September 9, 2020, hearing, the ALJ ruled the claimant had
not demonstrated she sustained an injury on February 14 and
denied her claim.
On
appeal the claimant contends the ALJ was in error insofar as
her...
