In re Claim of Delgado, 052421 COWC, 5-093-140-003

Docket NºW.C. 5-093-140-003
Case DateMay 24, 2021
CourtColorado
IN THE MATTER OF THE CLAIM OF: RAFAEL HERNANDEZ DELGADO, Claimant,
v.
120 85 LLC d/b/a HENDERSON PIT, Employer,
and
PINNACOL ASSURANCE, Insurer, Respondents.
W.C. No. 5-093-140-003
Colorado Workers Compensation
Industrial Claim Appeals Office
May 24, 2021
          BOESEN LAW LLC, Attn: M SCOTT ASH ESQ, (For Claimant)           RUEGSEGGER SIMONS & STERN LLC, Attn: KATHERINE HR MACKEY ESQ, (For Respondents)          FINAL ORDER          The 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.          This 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.          The 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 two-level fusion.          The 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 recommended surgery.          Dr. 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.          At the 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.          The 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.          After 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...

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