In re Claim of Kerr, 060121 COWC, 5-076-601-002

Docket NºW.C. 5-076-601-002
Case DateJune 01, 2021
COSTCO WHOLESALE INC, Self-Insured Employer, Respondent.
W.C. No. 5-076-601-002
Colorado Workers Compensation
Industrial Claim Appeals Office
June 1, 2021
          THE FRICKEY LAW FIRM, Attn: ERIC B MONTGOMERY ESQ, (For Claimant)           LEE & BROWN LLC, Attn: KAREN GAIL TREECE ESQ, C/O: JESSICA C MELSON ESQ, (For Respondents)          FINAL ORDER          The 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.          The 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.          The 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.          The 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.          On May 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.          The 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 prescribed MRIs.          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.          The 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.          The 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 further treatment.          The 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.          The 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.          The claimant filed an application for a...

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