IN THE MATTER OF THE CLAIM OF: KREY MAGNETTI, Claimant,
v.
SAFEWAY INC, Self-Insured Employer, Respondent.
W.C. No. 5-133-587-001
Colorado Workers Compensation
Industrial Claim Appeals Office
April 21, 2021
HOGGATT LAW OFFICE PC, Attn: CAMERON LUCKE, ESQ, (For
Claimant)
POLLART MILLER LLC, Attn: GAIL L BENSON ESQ, (For
Respondents)
REMAND
ORDER
The
claimant seeks review of an order of Administrative Law Judge
Turnbow (ALJ) dated September 25, 2020, that denied his
request for temporary disability and medical benefits. We set
aside the order of the ALJ and remand the matter for
additional evidentiary proceedings and entry of a new order.
The
claimant worked for the employer in its supermarket as a
produce stocker. On February 26, 2020, the claimant
complained of an injury to his low back while lifting a 50
pound box of bananas. He reported the injury to his
supervisor but continued to work the balance of his shift.
The next day he visited a hospital emergency room due to
continued pain in his low back. He was diagnosed with a back
strain and spasms with no neurological implications and was
advised to stay off work until further evaluation. The
claimant then reported to a Workwell clinic where he treated
with Dr. Cazden and with Dr. Drapeau. The doctors also
diagnosed a back sprain with spasms. The claimant was
prescribed antiinflammatory medication, physical therapy,
message therapy and dry needling. Restrictions that the
claimant not return to work were continued Following therapy
and several return visits to the Workwell clinic the claimant
reported improvement in his pain symptoms. Physician
Assistant Ford advised the claimant on March 31 he could
return to work and the claimant did so.
The
respondent denied compensability for the claim. The claimant
pursued an application for hearing on the issues of temporary
disability benefits between February 27 and March 31, 2020,
average weekly wage (AWW), and medical benefits.
The
respondent arranged for a second opinion evaluation with Dr.
Lesnak. The doctor determined the claimant did not suffer an
injury. Because the injury featured only subjective
descriptions of back pain, without objective medical
corroboration, Dr. Lesnak reasoned the claimant did not
require medical treatment and work restrictions were not
justified. Dr. Lesnak did not address the observation of back
spasms by examining physicians and their inclusion in the
claimant’s diagnosis. The doctor was asked to view
security video from the employer’s store taken during
the claimant’s shift on February 26. The doctor
testified in a deposition that the video showed the claimant
place his hand on his back intermittently but then returned
to his work duties and displayed no further “signs of
discomfort or any functional disability whatsoever.” He
then described how the next day in the emergency room the
claimant was not observed to have limited range of motion in
his back such that any further complaints by the claimant
“doesn’t coincide with any type of physiologic
response to any type of injury.” Deposition at 11-12.
At the
September 3, 2020, telephonic hearing claimant testified his
back pain was present throughout the remainder of his shift
on February 26. He stated that after his injury that evening
he called his roommate, Shelley Rowe, about his injury. Tr.
at 20. Following the claimant’s testimony, his counsel
sought to call Ms. Rowe to testify. He indicated Ms. Rowe was
present with the attorney and the claimant. The attorney for
the respondent objected to allowing Ms. Rowe to testify
because she had been situated in the same room as the
claimant while he testified. The respondent maintained that
because the hearing was conducted telephonically, they were
not aware Ms. Rowe would be in a position to hear that prior
testimony. It was asserted that if that circumstance had been
known earlier, the respondent would have requested a
sequestration order to prevent Ms. Rowe from listening. The
ALJ ruled that had it been revealed that Ms. Rowe was present
to hear the prior testimony, the respondent would have moved
for a sequestration order and the ALJ would have granted the
motion. The ALJ therefore, prohibited Ms. Rowe from
testifying. Tr. at 39-41.
Following
the hearing, the ALJ determined the claimant had failed to
sustain his burden of proof. The ALJ found the testimony of
Dr. Lesnak persuasive. It was found the claimant encountered...
