IN THE MATTER OF THE CLAIM OF: ELIZABETH NORDMAN, Claimant,
v.
LOCKHEED MARTIN CORPORATION, Employer,
and
ACE AMERICAN INSURANCE CORPORATION, Insurer, Respondents.
W.C. Nos. 4-889-647-005, 4-944-807-002
Colorado Workers Compensation
Industrial Claim Appeals Office
March 29, 2021
KAPLAN
MORREL, Attn: BRITTON J MORREL ESQ, (For Claimant)
POLLART MILLER LLC, Attn: ERIC J POLLART ESQ, C/O: AMANDA J
BRANSON ESQ, (For Respondents)
FINAL
ORDER
The
respondents seek review of an order of Administrative Law
Judge Lamphere (ALJ) dated November 13, 2020, that ordered
permanent partial disability benefits, disfigurement
benefits, determined the average weekly wage (AWW) and found
the respondents liable for emergency and ambulance costs. We
reverse the order insofar as the ALJ found that the claimant
established by clear and convincing evidence that she
suffered a compensable stroke and the award of benefits for
emergency and ambulance costs. We otherwise affirm the order
of the ALJ.
The
claimant worked for the employer as a financial analyst. On
February 23, 2012, the claimant slipped on ice in the
employer’s parking lot, fell and injured both her
shoulders. The next day the claimant attended previously
scheduled appointments with her chiropractor and acupuncture
therapist for treatment pertinent to previous injuries to her
back and neck. She advised them of her shoulder injury the
day before. Three days later, on February 27, the claimant
appeared at the employer’s on-site clinic and
complained of shoulder pain. Nurse Gannon provided the
claimant Tylenol and ibuprofen.
On
March 2, on-site nurse, Ortmeier, emailed to the claimant a
patient satisfaction survey. The claimant responded with a
request to file a work injury claim. The claimant however,
responded to nurse Ortmeier’s request to schedule a
medical evaluation by indicating the claimant would be out of
town on business the following week. On March 12, nurse
Ortmeier spoke with the claimant by phone. During the
conversation the claimant
asked
how to get paid the bills she received from her chiropractor
and acupuncture therapist. Nurse Ortmeier replied that she
should submit the bills but advised the claimant the
workers’ compensation insurance carrier may decline to
pay them because they were from unauthorized medical
providers. The claimant testified this information made her
angry and furious. She was also angry that nurse Gannon had
not previously completed a work injury report. The claimant
then walked to the restroom where she began to feel ill and
dizzy. She suffered a stroke and was transported by ambulance
to Penrose-St. Francis Hospital.
At the
hospital, the claimant was recorded as having extremely high
blood pressure of 286/114. CT scans disclosed a significant
episode of bleeding in her brain and evidence of previous,
much smaller, bleeds. The claimant was noted to display other
risk factors including past readings of high blood pressure,
moderate to severe obesity, high/low density lipids, Factor
II deficiency, high cholesterol, and the death of her mother
through a stroke.
To
treat her stroke, the claimant was hospitalized for two
months. She underwent surgery to repair her left shoulder
injury eight months later and further surgery to repair her
right shoulder the following year. Her authorized treating
physician, Dr. Castrejon, determined she reached maximum
medical improvement (MMI) on January 5, 2015. He determined
the claimant’s stroke was not a work injury and
assigned an impairment rating for her shoulder injuries to
the extent of 11% of the upper extremity for each shoulder.
The
claimant obtained evaluations by Dr. Stieg on September 9,
2014, and by Dr. Goldman on May 13, 2019. Both doctors came
to the conclusion the claimant’s stroke, while
influenced by the constellation of high risk factors,
actually occurred when it did due to the claimant’s
anger and fury over her conversation with nurse Ortmeier on
March 12, 2012. As a result, the doctors deemed the stroke to
be a work related event. The respondents arranged for the
claimant to be evaluated by Dr. Roth on December 4, 2014, and
again on May 20 and June 27, 2019. Dr. Roth determined the
claimant’s stroke was solely related to preexisting
risk factors not related to work and that the
claimant’s stroke was not caused by the
claimant’s exchange with Nurse Ortmeier in March 2012.
The
claimant requested a Division sponsored Independent Medical
Exam (DIME) that was performed by Dr. Mitchell on September
4, 2018. Dr. Mitchell agreed with the date of MMI on January
5, 2015. She resolved the claimant’s stroke did not
constitute a work injury. Dr. Mitchell assigned a 7%
scheduled rating for loss of range of motion in the
claimant’s left shoulder but noted it was not possible
to derive a rating for the right shoulder given the degree to
which the right shoulder was immobilized from the effects of
the claimant’s stroke.
The
claimant submitted an application for hearing to challenge
the respondents’ Final Admission and the DIME findings
of Dr. Mitchell. The application checked off every issue
provided on the application form, save for reopening. At the
August 27, 2020, hearing, the claimant indicated the issues
involved the compensability of the claimant’s stroke,
whether it was caused by NSAIDs (non-steroidal
anti-inflammatory drugs) provided by nurse Gannon or by the
claimant’s response to the March 12, 2012 discussion
with nurse Ortmeier, overcoming the DIME’s causation
finding, the scheduled ratings, conversion to a whole person
rating, medical benefits for the costs of the ambulance and
emergency room, disfigurement benefits, average weekly wage
(AWW) and temporary total benefits for an unspecified period.
The parties stipulated that if the stroke was determined
compensable, the respondents were liable for emergency
medical and ambulance services used to transport the claimant
to the hospital for further care.
Following
the hearing, the ALJ determined the claimant’s stroke
was not caused by the use of NSAIDs. Instead, the ALJ found
the stroke was caused by the claimant’s angry and
agitated response to her conversation with nurse Ortmier. The
determination of Dr. Mitchell’s DIME review that the
stroke was not work related and not subject to permanent
impairment benefits was characterized as being overcome by
clear and convincing evidence. The scheduled impairment
rating was computed by the ALJ to include the rating of Dr.
Castrejon for 8% for each shoulder but excluded the
doctor’s additional 3% per shoulder due to weakness,
for a total scheduled rating of 16% for the loss of the arm
at the shoulder. The ALJ ruled the scheduled injuries should
not be converted to whole person ratings for the reason that
disability located on the claimant’s torso was due to
the stroke and not the result of her shoulder injuries. The
AWW was found to entitle the claimant to the maximum weekly
temporary total rate. The claimant was awarded $2,300 for
disfigurement represented by her surgical scars. The
claimant’s stroke was found to be an injury within the
quasi-course of employment and therefore compensable. The
stroke was deemed to be neither a mental stress claim nor a
claim of litigation stress. Accordingly, per the
parties’ stipulation, the respondents were ordered to
pay the medical expenses for the ambulance and emergency room
treatment on March 12, 2012.
On
appeal the respondents contend the ALJ was in error to not
evaluate the compensability of the claim pursuant to the
requirements for a mental stress injury set forth in §
8-41-301(2) C.R.S. The respondents also assert the
claimant’s stroke is not an injury within the
quasi-course of employment as it falls into the category of
litigation stress which does not arise out of the course of
employment.
We
agree with the respondents that the ALJ erred in requiring
the claimant to overcome the DIME’s determination of
causation as it relates to the compensability of the stroke.
The ALJ misapplied the law in finding that the claimant
overcame the DIME physician’s compensability
determination of the claimant’s stroke. Although it is
true that a DIME physician’s findings concerning
causation and impairment are binding on the parties unless
overcome by “clear and convincing evidence,”
Section 8-42-107(8) (b), C.R.S.; Qual-Med v. Industrial
Claim Appears Office, 961 P.2d 590 (Colo.App. 1998), a
DIME physician’s opinion is not entitled to special
weight on the issue of compensability. Faulkner v. Indus.
Claim Appeals Office, 12 P.3d 844, 846 (Colo.App. 2000).
To
receive workers’ compensation benefits, an injured
worker bears the threshold burden of establishing, by a...
