In re Claim of Biechler, 042921 COWC, 5-120-241-001

Case DateApril 29, 2021
CourtColorado
IN THE MATTER OF THE CLAIM OF: TRAVIS BIECHLER, Claimant,
v.
THE KROGER COMPANY, Employer,
and
INDEMNITY INSURANCE COMPANY OF NORTH AMERICA, Insurer, Respondents.
W.C. No. 5-120-241-001
Colorado Workers Compensation
Industrial Claim Appeals Office
April 29, 2021
          FRANKLIN D AZAR & ASSOCIATES PC, Attn: RYAN J HOOVER ESQ, (For Claimant)           LEE & BROWN LLC, Attn: JOSHUA D BROWN ESQ, C/O: MICHAELA S WAISMAN ESQ, (For Respondents)          FINAL ORDER          The claimant seeks review of the order of Administrative Law Judge Cannici (ALJ) issued on October 16, 2020, solely as to the ALJ’s determination claimant was responsible for his termination from employment, thus precluding temporary total disability benefits (TTD) after April 26, 2020. We affirm.          An evidentiary hearing was conducted by the ALJ on September 10, 2020, on the issues of compensability, medical treatment, TTD benefits, average weekly wage, and whether claimant was responsible for his termination from employment After the hearing, the ALJ established findings of fact, which are summarized below.[1]          Claimant worked for this employer in front-end service as well as assisting customers at the fuel center at a Kings Soopers store. Claimant testified that on June 18 2019, he was moving a cooler of Red Bull out of a kiosk to display it at the fuel center. The cooler was top-heavy and while claimant was moving it over a half-inch threshold, it started to tip. In attempting to catch the cooler, claimant twisted and felt a pop in his left knee.          Claimant reported the injury on the following day and the employer provided a referral for a medical evaluation. Concentra Medical Centers diagnosed a left knee sprain due to twisting the knee.          Concentra provided the claimant with work restrictions, but claimant was able to continue to work within those restrictions.          Dr. Failinger, an orthopedist, evaluated the claimant on September 5, 2019. He diagnosed claimant with a left knee medial meniscus tear and medial compartment chondromalacia. The doctor recommended surgical intervention, specifically a meniscectomy and chondroplasty. After reviewing security video of the incident, the doctor opined that the incident was “consistent with an acceleration of pre-existing disease.” Dr. Hall also provided a concurring opinion regarding causation. Despite a countervailing medical opinion from Dr. Burris, the ALJ determined that claimant sustained a compensable injury. The ALJ found that the recommended surgery constituted reasonable, necessary and related medical treatment.          On April 26, 2020, the employer terminated claimant’s employment. Store Manager Romero testified that employer utilized a progressive disciplinary structure for employees with attendance issues. The structure started with a written warning, followed by increasingly lengthened suspensions and culminated in termination after a five-day suspension.          The ALJ found that claimant had an extensive disciplinary history regarding attendance violations with the employer. On March 16, 2016, claimant received a verbal warning pertaining to lunch violations. A Behavior Notice reflected that further violations would result in disciplinary action up to and including termination. For a tardy on March 12, 2017, claimant received a written warning that further infractions would result in additional disciplinary action including suspension and termination. On March 26, 2017, claimant was tardy to work and...

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