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...