IN THE MATTER OF THE CLAIM OF: LAURA KERR, Claimant,
COSTCO WHOLESALE INC, Self-Insured Employer, Respondent.
W.C. No. 5-076-601-002
Colorado Workers Compensation
Industrial Claim Appeals Office
June 1, 2021
FRICKEY LAW FIRM, Attn: ERIC B MONTGOMERY ESQ, (For Claimant)
& BROWN LLC, Attn: KAREN GAIL TREECE ESQ, C/O: JESSICA C
MELSON ESQ, (For Respondents)
claimant seeks review of an order of Administrative Law Judge
Goldman (ALJ) dated June 3, 2020, that denied the
claimant’s request for two penalties. We affirm the
ALJ’s denial of a penalty regarding an alleged
violation of a prior ALJ’s order and reverse the
ALJ’s denial of a penalty related to the late payment
of permanent partial disability payments.
claimant injured her right shoulder at work on September 18,
2017. The claim was admitted and the claimant underwent
conservative treatment and eventually surgery to repair a
biceps tear and a partial subscapulars tear on May 31, 2018.
The claimant returned to work but worsening shoulder pain led
her to leave work a few weeks later.
claimant had been treating at a Concentra clinic with Dr.
Burns. On December 18, 2018, the claimant, through counsel,
wrote to the claims adjuster expressing her dissatisfaction
with her treatment by the Concentra providers. The claimant
described in her letter how she had not been given a choice
of among four physicians to treat her in the first instance
as required by Workers’ Compensation Rule of Procedure
8-2(A) (and § 8-43-404(5)(a)(I)(A) C.R.S.) Accordingly,
the claimant asserted that the right to select a treating
physician had passed to her as required by Rule 8-2(E). The
claimant informed the respondent she was choosing Dr.
Gellrick to be an authorized treating physician.
respondent, on January 7, 2019, replied to the
claimant’s contention by asserting the claimant had
effectively exercised her right of selection by continuing to
treat with Concentra. The respondent indicated it would not
agree to authorize treatment with Dr. Gellrick. The claimant
filed an application for hearing on February 7, 2019,
endorsing as the issue her selection of Dr. Gellrick as an
authorized physician. Following the May 16, 2019, hearing,
ALJ Margot Jones ruled in a summary order dated May 30, 2019,
that because the claimant had not been sufficiently provided
a choice of physicians in the first instance, she was allowed
to choose a physician and Dr. Gellrick was designated by the
ALJ to have been selected by the claimant as an authorized
treating physician. ALJ Jones issued Full Findings of Fact,
Conclusions of Law and Order on August 21, 2019, consistent
with her summary order.
28, 2019, Dr. Burns at Concentra determined the claimant had
achieved maximum medical improvement (MMI) as of March 4,
2019, with a 6% scheduled permanent impairment rating for
loss of use of the arm at the shoulder. The respondent
submitted a Final Admission of Liability adopting the date of
MMI and impairment rating on June 6, 2019.
claimant saw Dr. Gellrick on July 10, 2019. The doctor
concluded the claimant was not at MMI. Dr. Gelrick found the
claimant’s condition had worsened after her trial at
work. The claimant was referred for an MRI of her shoulder as
well as one for her cervical spine. Dr. Gellrick also
suggested the claimant return to Dr. Faulkner, her previous
surgeon, for a further surgical consult following a more
recent MRI. The respondent declined to authorize the
claimant requested a Division sponsored Independent Medical
Examination (DIME) to challenge the finding of MMI by Dr.
Burns. The DIME review was conducted on September 4, 2019, by
Dr. Tyler. The doctor agreed the claimant was at MMI but
determined the claimant had sustained an 11% scheduled
permanent impairment rating. However, Dr. Tyler also
recommended the claimant undergo another MRI of her shoulder
and that claimant be provided a second surgical consultation
based on that MRI.
respondent filed a petition to review on September 10, 2019,
seeking to overturn the May 30 decision of ALJ Jones
authorizing the claimant’s selection of Dr. Gellrick.
The claimant submitted a motion to strike the Petition to
Review on the basis the ALJ’s d ecision did not grant
or deny a benefit and therefore was not subject to review
pursuant to § 8-43-301(2). On October 4, 2019, ALJ
Turnbow granted the claimant’s motion to strike and
deemed the order of ALJ Jones to be interlocutory and not
presently subject to appellate review.
respondent, through counsel, sent Dr. Gellrick a letter on
October 9, 2019, stating that because ALJ Jones’
decision had been deemed interlocutory the respondent did not
recognize that a final determination had been rendered as to
Dr. Gellrick’s designation as an authorized physician.
The respondent stated her requests for the claimant’s
treatment were being denied for that reason and because the
claimant had been placed at MMI, Dr. Burns had not
recommended any post MMI medical treatment, and the
respondent’s Final Admission had denied liability for
respondent’s claims adjuster, Ms. McIntosh-Nursey,
issued a check on October 3, 2019, to pay the claimant an
additional $3,094.62 in permanent partial disability benefits
as a result of the higher 11% impairment rating calculated by
Dr. Tyler. However, the check was sent to the address of the
Ramos Law office. The claimant’s attorney had
previously worked at that office but had notified the
adjuster of her change of address to the Frickey Law office
on June 10, 2019. A new Final Admission was sent by the
respondent on October 10, admitting for Dr. Tyler’s
impairment rating. The admission was sent to the Ramos Law
address and to the claimant.
Division of Workers’ Compensation rejected the October
10 Final Admission as it incorrectly indicated it had been
mailed in June 2019, and it admitted liability for an
incorrect body part. A corrected admission was sent by the
respondent on October 18, to the Frickey Law office and to
the claimant. The claimant’s counsel sent an email
message on October 31 to respondent’s counsel stating a
check for the additional disability benefits had not yet been
received. The respondent’s attorney replied the
check’s status was unknown as the claims adjuster was
out of the office for the next three days, returning on the
following Tuesday, November 5. Ms. McIntosh-Nursey learned of
the misplaced check on November 5. She reissued the check for
$3,094.62 on November 11. The check was mailed to the
claimant’s attorney on November 14 and she received the
check on November 15.
claimant filed an application for a...