In re Claim of Baker, 042021 COWC, 4-993-326-004

Docket NºW.C. 4-993-326-004
Case DateApril 20, 2021
CourtColorado
IN THE MATTER OF THE CLAIM OF: DAVID BAKER, Claimant,
v.
WELD COUNTY SCHOOL DISTRICT 6, Employer,
and
PINNACOL ASSURANCE, Insurer, Respondents.
W.C. No. 4-993-326-004
Colorado Workers Compensation
Industrial Claim Appeals Office
April 20, 2021
          KAPLAN MORRELL LLC, Attn: BRITTON MORRELL ESQ, (For Claimant)           RUEGSEGGER SIMONS & STERN LLC, Attn: KATHERINE HR MACKEY ESQ, (For Respondents)          FINAL ORDER          The claimant seeks review of the orders of Administrative Law Judge Nemechek (ALJ) dated February 4, 2019 and July 20, 2020, that denied the respondents’ petition to reopen; ordered the respondents to resume paying permanent partial disability (PPD) benefits; denied the claimant interest on PPD benefits as a penalty for a violation of Workers’ Compensation Rule of Procedure (WCRP) 11; denied the claimant’s request for specific medical benefits, including the cost of surgery and authorization of Benchmark; and denied the request for maintenance medical benefits and disfigurement benefits. We reverse the ALJ’s denial of interest on PPD benefits as a penalty for the claimant’s alleged violation of WCRP 11. We set aside the ALJ’s denial of Benchmark as an authorized provider and remand for further proceedings and entry of a new order on this issue. We otherwise affirm the ALJ’s orders.          The hearing in this case was bifurcated. The first hearing took place on August 18, 2017. In an order dated February 4, 2019, the ALJ ruled on the remaining issues that were ripe for determination and on which evidence would be received for the second hearing. The ALJ also denied the respondents’ motion to strike the Division Independent Medical Examination (DIME) report concluding that the issue was closed pursuant to § 8-42-107.2 (4)(c), C.R.S. and ruled that the parties could present evidence on the respondents’ petition to reopen and/or withdrawal of the final admission of liability at the second hearing.          The matter went to hearing again on February 22, 2019, on the issues of:
1. The claimant’s entitlement to medical benefits, including an emergency room visit of January 8, 2016;
2. Whether the claimant’s February 24, 2016, surgery performed by Dr. Kumar was authorized, reasonable, necessary and related to the claimant’s August 20, 2015, work injury;
3. The respondents’ liability for outstanding bills from Benchmark;
4. Disfigurement;
5. The claimant’s request for maintenance medical benefits;
6. The respondents’ petition to reopen PPD benefits based upon mistake;
7. Whether the claimant violated WCRP 11 and sanctions/remedy for WCRP 11 violation, pursuant to Rule 11-10, if a violation is found;
8. Interest on PPD benefits from March 27, 2016 to September 12, 2016; resumption of PPD benefit payments, which were suspended pursuant to April 11, 2017, prehearing order.
         After hearing, the ALJ entered factual findings that for purposes of review can be summarized as follows. The claimant had pre-existing low back problems from a 2012 motor vehicle accident for which he underwent an L5-S1 fusion surgery and a 2014 physical altercation in which he strained his back.          The claimant worked for the respondent employer as an assistant principal. He sustained an admitted injury on August 20, 2015, when he was directing traffic in the school parking lot and a parent in a pick-up truck hit the claimant. The claimant received treatment for this injury, including emergency treatment from North Colorado Medical Center.          Although the respondents admitted liability for the claim, they denied liability for the claimant’s low back condition as not related to the work injury. The claimant underwent an independent medical examination (IME) with Dr. Kumar on December 4, 2015. Dr. Kumar recommended surgery for the claimant’s low back but did not express an opinion on the relation to the August 20, 2015, work injury. When the respondents denied liability for the surgery, the claimant proceeded with the recommended surgery through his private health insurance. On February 24, 2016, Dr. Kumar performed L5-S1 posterior spine fusion canal and extrapendicular decompression L5-S1, bone marrow aspirate and laminectomy L5. Dr. Kumar did not request prior authorization for the surgery. The respondent insurer denied liability for the surgery, but paid the bills by mistake and subsequently requested a refund.          Dr. Keefe placed the claimant at maximum medical improvement (MMI) on March 17, 2016. The respondents requested a DIME, which was performed by Dr. Lindenbaum. The DIME physician agreed with the MMI date of March 17, 2016, and assigned an 18 percent impairment rating that included a rating for the claimant’s low back.          The respondents initially filed an application for hearing to challenge the DIME physician’s opinion but withdrew it. The respondents then filed a final admission of liability on September 12, 2016, admitting for the 18 percent impairment rating consistent with the DIME report. The claimant filed an objection and an application for hearing. A hearing was set for May 12, 2017.          In an order dated April 11, 2017, a pre-hearing ALJ (PALJ) granted the claimant’s request for an extension, vacated the May 12 hearing and allowed the respondents, at their discretion, to suspend payment of PPD benefits, pending the new hearing. The PALJ Order also provided that if benefits remained owing after the hearing, the respondents were required to pay statutory interest on any amounts not paid during the duration of the suspension.          The matter then proceeded to the bifurcated hearing. In the orders currently under review the ALJ:
1. denied and dismissed the claimant’s request that the bill from UC Health from January 9, 2016, be paid by respondents;
2. denied and dismissed the claimant’s request that the cost of surgery and the referrals by Dr. Kumar be paid by the respondents;
3. denied and dismissed the claimant’s request for the respondents to pay unpaid bills from Benchmark;
4. denied and dismissed the claimant’s request for disfigurement benefits;
5. denied and dismissed the claimant’s request for maintenance medical benefits;
6. ordered the respondents to resume paying PPD benefits, pursuant to the September 12, 2016, final admission of liability;
7. ordered that no interest shall be paid.
         The claimant appeals the ALJ’s imposition of a penalty for the violation of WCRP 11 in the form of denying interest on PPD owed to the claimant; the ALJ’s denial of the January 8, 2016, emergency visit; the ALJ’s denial of the February 2016 surgical procedure as unrelated and the ALJ’s determination that Benchmark is unauthorized. We reverse the ALJ’s denial of interest owed on PPD benefits, set aside the ALJ’s denial of Benchmark as authorized and remand for further proceedings and entry of a new order. We otherwise affirm the order.          I. Penalties for WCRP 11 Violation          The ALJ found that the claimant brought in Dr. Haas’ range of motion worksheets to the DIME appointment. Dr. Haas treated the claimant prior to this work-related injury. The worksheets showed the range of motion of the lumbar spine before and after the August 2015, work related injury...

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