IN THE MATTER OF THE CLAIM OF: ABIGAIL IBARRA, Claimant,
v.
PUBLIC PARTNERSHIPS COLORADO LLC, Employer,
And
GRANITE STATE INSURANCE COMPANY, Insurer, Respondents.
W.C. No. 5-137-832-001
Colorado Workers Compensation
Industrial Claim Appeals Office
April 2, 2021
THE
FRICKEY LAW FIRM, Attn: ADAM MCCLURE ESQ, (For Claimant)
LEE
& BROWN LLC, Attn: KAREN GAIL TREECE ESQ, C/O: JESSICA C
MELSON ESQ, (For Respondents)
FINAL
ORDER
The
respondents seek review of an order of Administrative Law
Judge Mottram (ALJ) dated October 27, 2020, that determined
that claimant sustained a compensable injury, ordered
respondents to pay temporary total disability (TTD) and
temporary partial disability (TPD) benefits to the claimant,
and further ordered Denver Ophthalmology as the authorized
treating physician. We reverse the ALJ’s order
regarding temporary disability benefits after May 28, 2020,
and affirm regarding the issues of compensability and the
authorized treating physician.
The ALJ
conducted a hearing on October 1, 2020, on the issues of
compensability and the medical and indemnity issues that flow
therefrom, and whether “respondents have proven by a
preponderance of the evidence that claimant’s injury
resulted from a deviation of her employment.” The
ALJ’s findings of fact are summarized below.
Claimant
worked as a full-time caregiver under the Consumer Directed
Attendant Support Services (CDASS) program. This program
allows a client to manage their own health care and allows
the hiring of family members to participate in providing a
client with home health care. The respondent employer serves
as the financial administrator/agent under the CDASS program.
The employer handles the attendant paperwork, provides
background checks and operates payroll.
Claimant’s
job duties included cleaning, cooking, bathing, feeding, and
personal grooming of the client (client or patient). In this
case, the client suffers from Amyotrophic Lateral Sclerosis
(ALS) and is confined to a wheelchair with limited ability to
communicate. The client requires care 24 hours a day, 7 days
a week.
The
client lives in a mobile home next door to her 90-year old
mother, Ms. Fulton. Ms. Fulton is also a caregiver for the
client and provides care for her if another caregiver
doesn’t show up for work.
On May
6, 2020, claimant started her regular shift at approximately
7:50 a.m. Upon arriving, claimant noticed there was a tissue
in a trashcan that did not have a plastic bag liner in it.
Claimant spoke with the caregiver just finishing her shift,
Ms. Burton, and told her she needed to put a plastic liner in
the trashcan. Claimant testified that Ms. Burton told
claimant not to tell her what to do and swore at the
claimant. Claimant testified that she went back to the
bathroom and told Ms. Burton to dispose of the tissue before
she left. Claimant testified that Ms. Burton then grabbed her
by the hair and dragged her into the backyard where Ms.
Burton began beating the claimant.
At some
point, Ms. Fulton (from next door) arrived at the scene, but
Ms. Burton continued to assault the claimant. Claimant
testified that she screamed for Ms. Burton to stop five times
and eventually Ms. Burton ceased the assault. A neighbor
called the police who arrived and called an ambulance for
claimant that took her to North Suburban Emergency Room (ER)
for evaluation. Claimant testified that the police cited her
for disturbing the peace.
Ms.
Burton also testified at the hearing. Ms. Burton testified
that on May 6, 2020, she arrived at work and noticed there
was a napkin on the floor. She testified she picked up the
napkin and threw it into the trash. She testified that when
claimant arrived at work, claimant came out of the bathroom
and began swearing at Ms. Burton, telling her to go clean up
the napkin. Ms. Burton asked if claimant wanted to go
outside. Once outside, Ms. Burton testified that she put her
finger in claimant’s face. Ms. Burton testified that
claimant grabbed her finger and her hair, following which she
picked up the claimant and threw her to the ground. While
they were outside, the client was left alone in the house,
unattended.
Ms.
Burton testified to other conflicts with the claimant
involving work, including a conflict involving cleaning a
suction pump. Ms. Burton testified that she had complained to
Ms. Fulton regarding the bullying that claimant had allegedly
been doing to the other caregivers.
At the
ER, a CT scan showed right periorbital swelling, but no
intracranial hemorrhage and no fracture of the cervical
spine.
Claimant
reported the injury to Ms. Mulreany, the client’s
sister and the person in overall charge of the client’s
care, and requested a referral to a physician. Claimant
testified that Ms. Mulreany told claimant she would not refer
her to a physician. Ms. Mulreany testified that she did not
refer claimant to a physician because she did not believe
claimant’s injury was a compensable workers’
compensation claim. Ms. Mulreany testified that she was
offended that claimant and Ms. Burton had left her sister
(the client) alone, unable to care for herself, in order to
go outside and fight.
Claimant
sought medical treatment at Advanced Urgent Care. Claimant
reported injuries to her right eye, forehead, base of neck,
base of head, right cheek, inner lip, and bilateral upper
extremities. Claimant reported that her jaw felt like it
wasn’t lining up and her vision in the right eye was
blurry. Claimant also reported chest pain, swelling, joint
pain, and headaches. The Urgent Care physician noted claimant
had upper lip swelling, a scratch on her right upper back,
and right elbow pain with an abrasion.
On
instruction from urgent care, claimant returned to North
Suburban ER on May 9, 2020. Claimant reported persistent pain
in her right elbow, chest, and right eye since the incident.
Diagnostic testing did not reveal any acute abnormality.
Claimant was provided with eye drops for her eye complaints.
On May
12, 2020, claimant sought treatment with Denver
Ophthalmology. Claimant presented with complaints of blurring
in her right eye associated with irritation, pain, red eyes,
swelling in her eyelids, and headaches. She was diagnosed
with subconjunctival hemorrhage and orbital contusion.
Claimant returned to Denver Ophthalmology on May 28, 2020,
with complaints of headaches and throbbing behind her right
eye. She was diagnosed with an orbital contusion and
iridocyclitis. The physician recommended topical steroids and
released claimant to return to work without restrictions.
Claimant
testified she brought the work release to her employer, but
was advised that she would only be used as “back
up.” The employer did not put claimant back on the
schedule. Claimant testified that she subsequently went to
work in June 2020 for Merry Maids.
Claimant
testified she continues to experience popping in her jaw and
she cannot see clearly out of her right eye. Claimant
testified she continues to need medical care for her
injuries. Claimant testified that if she returned to work for
the employer, she would have trouble transferring the client
due to the required lifting and the continuing issues with
her injuries.
The ALJ
found that claimant demonstrated that it is more probable
than not that the physical assault arose out of a dispute
related to the employment, namely the disagreement over which
employee would be disposing of the napkin. Both claimant and
Ms. Burton testified as to a history of animosity between
them. The testimony was consistent that the animosity had an
inherent relationship to their work and did not represent a
personal conflict from outside of work. Consequently, the ALJ
determined that the claimant had suffered a compensable work
injury.
The ALJ
considered but rejected the employer’s contention that
claimant’s actions (stepping outside to fight)
constituted an abandonment of the client, thus representing a
deviation from her work duties that took her out of the
course of her employment. The ALJ noted that the assault
occurred during claimant’s work shift and on the
employer’s premises. The nature of the disagreement
originated from the conditions of the employment and a
dispute over job duties. The ALJ further noted that while
claimant was never provided additional work for the employer
after the confrontation, claimant remains employed with the
employer. The ALJ reasoned that the fact claimant abandoned
her job duties during the physical confrontation, does not
make the injuries non-compensable under Colorado law.
Following...
