IN THE MATTER OF THE CLAIM OF: EDWARD OCONNELL, Claimant,
v.
CITY AND COUNTY OF DENVER, Self-Insured Employer, Respondent.
W.C. No. 5-091-169-002
Colorado Workers Compensation
Industrial Claim Appeals Office
April 30, 2021
WORSTELL & ASSOCIATES, Attn: DAVID WORSTELL ESQ, (For
Claimant)
OFFICE
OF THE CITY ATTORNEY, Attn: STEPHEN J ABBOT ESQ, (For
Respondents)
FINAL
ORDER
The
claimant seeks review of an order of Administrative Law Judge
Cannici (ALJ) dated July 2, 2020, that determined he failed
to overcome the opinion of the Division-sponsored independent
medical examination (DIME) physician on permanent psychiatric
impairment relating to post traumatic stress disorder (PTSD)
and maximum medical improvement (MMI) on May 17, 2019. The
claimant also seeks review of the ALJ’s orders dated
October 8, 2020, and November 5, 2020, that denied his motion
to supplement the record and for a supplemental order. We
affirm.
This
matter went to hearing on overcoming the opinion of the DIME
physician, Dr. Hughes, that the claimant did not warrant a
permanent psychological impairment rating for PTSD and that
he had reached MMI on May 17, 2019 as a result of his October
28, 2018, industrial injury. After the hearing, the ALJ made
findings and conclusions that are summarized below.
The
claimant worked as a Patrol Officer for the respondent
employer. On October 28, 2018, the claimant and other
officers were attempting to secure the perimeter around a
house where there had been a reported shooting. While the
claimant was moving to secure the rear of the house, the
suspect began shooting at him. One of the bullets struck the
claimant in the lower left leg.
The
claimant detailed that on October 28, 2018, he was ambushed
by a suspect who was shooting at him from a house. He
testified that “I thought I was dead” and
“could feel three bullets go by my head.” The
claimant remarked that he “was on the ground and dirt
was coming into his face as the bullets hit the ground around
his head.” Before he could move he was shot in the left
leg. The claimant recounted that he saw blood gushing from
his leg. He got up while there was still gunfire
“thinking that he would rather get shot getting out of
there than die on the front lawn of the house where he was
shot.” After the claimant was able to get out of the
yard he “saw blood gushing from his leg and he
couldn’t find his tourniquet.” Another officer
was able to apply a tourniquet and stop the bleeding.
The
claimant was transported to Denver Health and received
treatment in the emergency department. X-rays revealed a
comminuted fracture of the left upper fibular shaft with
multiple displaced bony fragments seen to be most prominent
along the posterior aspect along with multiple bullet
fragments embedded in soft tissues in the left upper calf.
The
claimant selected Concentra Medical Centers as his authorized
treating physician (ATP). He treated with Dr. Cava and
Jonathan Joslyn, PA-C. The claimant was referred to
orthopedic surgeon, Dr. Myers, for treatment. Dr. Myers
diagnosed the claimant with a proximal fibular fracture and
resulting peroneal nerve palsy.
In
December 2018, the claimant was assigned to a desk job on
limited duty. Although he wanted to get back to patrol
working on the streets he had concerns about whether he could
perform his job duties.
In the
spring of 2019, the claimant sought psychological counseling
provided by the respondent. At his April 5, 2019, visit with
Dr. Cole, the claimant reported that he was not experiencing
anxiety or flashbacks. The claimant commented he had returned
to the shooting range and had no problems with shooting.
Nevertheless, the claimant later noted he was startled during
one of his visits to the range when a person near him began
firing a .357 magnum.
On May
17, 2019, Dr. Cava placed the claimant at MMI with no
permanent work restrictions. She assigned the claimant a 17%
lower extremity impairment rating, consisting of 13% for
range of motion deficits, and 5% for a peroneal nerve injury.
The
respondent filed a Final Admission of Liability (FAL)
consistent with Dr. Cava’s MMI and permanent impairment
determinations. The claimant challenged the FAL and requested
a DIME.
On July
1, 2019, the respondent sent a letter to Dr. Cava requesting
clarification as to why she did not assign the claimant a
rating for psychological impairment and other body parts. Dr.
Cava responded, in part, that the claimant “adjusted
very well after his injury. He did not appear to have any
difficulty reassimilating to his position at work. He
appeared excited to return to his prior duty. He did not
express psychological concerns. He does not have a
psychological diagnosis.”
The
claimant’s counsel contacted Elizabeth Sather, Psy.D.
to evaluate the claimant for PTSD. Dr. Sather issued a
Diagnostic Assessment report on September 20, 2019, wherein
she concluded that the claimant suffered from PTSD. Dr.
Sather concluded that, based on the criteria in the
Diagnostic and Statistic Manual of Mental Disorders, the
claimant suffers from PTSD as a result of the work related
incident on October 28, 2018. Citing specific incidents
described by the claimant, Dr. Sather determined that he
satisfied the criteria for a PTSD diagnosis. She concluded
that the claimant was not at MMI. She recommended additional
treatment modalities including office visits twice per month,
week-long residential programs, and Eye Movement...
