IN THE MATTER OF THE CLAIM OF: RAFAEL HERNANDEZ DELGADO, Claimant,
120 85 LLC d/b/a HENDERSON PIT, Employer,
PINNACOL ASSURANCE, Insurer, Respondents.
W.C. No. 5-093-140-003
Colorado Workers Compensation
Industrial Claim Appeals Office
May 24, 2021
LAW LLC, Attn: M SCOTT ASH ESQ, (For Claimant)
RUEGSEGGER SIMONS & STERN LLC, Attn: KATHERINE HR MACKEY
ESQ, (For Respondents)
claimant seeks review of an order of Administrative Law Judge
Turnbow (ALJ) dated October 13, 2020, that denied the
claimant's request for permanent total disability
benefits and his request for additional permanent partial
disability benefits due to alleged mental impairment. We
affirm the ALJ's order.
matter went to hearing on the issues of permanent total
disability and whether the claimant overcame the Division
Independent Medical Examination (DIME) physician's
permanent impairment rating. After hearing, the ALJ issued
factual findings that for purposes of review can be
summarized as follows. The claimant worked as a laborer for
this employer. On September 5, 2018, the claimant sustained
an admitted work related injury to his back when he was
changing a screen in a machine and felt an immediate painful
"pop" and then a tingling sensation down his legs
and into his feet.
claimant has a history of four prior workers'
compensation claims in the State of California under the name
of Rafael Espinoza, with a different social security number
and date of birth from that which the claimant provided to
the employer and under this Colorado claim. This includes a
prior February 19, 2003, back claim that resulted in a
claimant's authorized treating physician for the current
claim is Dr. Olsen. The claimant received conservative
treatment that included physical therapy, medications,
chiropractic treatment and injections. An MRI revealed a
well-fused fusion L4 through S1 with instrumentation in
place, and degenerative changes in the lumbar spine. An EMG
was normal. Dr. Olsen referred the claimant for two surgical
consults, Dr. Castro and Dr. Loutzenhiser. Neither
Olsen found no objective evidence to indicate an alteration
of the claimant's pathology occurring September 5, 2018,
to explain the claimant's ongoing complaints and placed
the claimant at maximum medical improvement (MMI) on January
16, 2019. Dr. Olsen also provided an impairment rating of 17
percent that he apportioned to zero for the prior injuries.
The claimant continued to complain of pain. Although Dr.
Olsen noted a mild increase in a disc protrusion at L3-4 in a
September 20, 2018, MRI as compared to an August 15, 2019,
MRI, the ALJ found that there was no persuasive evidence to
indicate that the September 5, 2018, injury caused the
change. Rather, the change was likely associated with the
high risk of the natural degeneration of the discs following
the claimant's prior fusion. Dr. Olsen had no new
suggestions to address the claimant's pain complaints.
Neither Dr. Castro nor Dr. Loutzenhiser believed that the
L3-4 level was the source of the claimant's pain.
time of MMI, January 2019, Dr. Olsen imposed a 10-pound
lifting restriction on the claimant. After a year and a half
of post-MMI exposure to the claimant, Dr. Olsen testified
that his prior restrictions represented the claimant's
minimum capabilities and that a restriction of 35 pounds
lifting was more representative of his abilities.
claimant underwent a DIME with Dr. Bearty on May 23, 2019.
The DIME physician agreed with the MMI date and gave the
claimant a 15 percent whole person impairment rating for the
low back. Responding to the questions asked by the claimant
in the DIME application, the DIME physician recommended an
additional EMG and MRI and agreed to an appointment with a
psychiatrist to determine if a psychological evaluation was
appropriate. The DIME physician testified in his deposition
that he would not have made these recommendations if the
claimant had not asked in the DIME application.
the DIME, the claimant retained Dr. Gutterman to perform a
psychological IME. Dr. Gutterman agreed with MMI and provided
a five percent mental impairment rating noting only mild...