In re Claim of Magnetti, 042121 COWC, 5-133-587-001

Docket NºW.C. 5-133-587-001
Case DateApril 21, 2021
CourtColorado
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...

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