IN THE MATTER OF THE CLAIM OF: ADRIAN TYSON, Claimant,
DENVER PUBLIC SCHOOLS, Self-Insured Employer, Respondent.
W.C. No. 5-121-928-005
Colorado Workers Compensation
Industrial Claim Appeals Office
May 27, 2021
OFFICE OF OTOOLE & SBARBARO PC, Attn: NEIL D OTOOLE ESQ,
RITSEMA LAW, Attn: ROBERT V WREN ESQ, (For Respondents)
claimant seeks review of an order of Administrative Law Judge
Cannici (ALJ) dated September 8, 2020, that granted the
respondent’s motion for summary judgment. We set aside
the order and remand for further proceedings.
matter was resolved on summary judgment so no hearing was
held. After reviewing the respondent’s motion for
summary judgment and the claimant’s response, the ALJ
entered findings and conclusions that are summarized below.
claimant worked for the employer as a teacher and football
coach. The claimant alleges he sustained an injury to his
right knee on September 18, 2017, after stepping in a hole
while walking on a school football field. The claimant first
reported specific complaints of knee pain to Dr. Wakeshima on
September 19, 2017, and noted that he had a recent onset of
knee pain. He reported to Dr. Wakeshima that he was not doing
anything out of the ordinary. The claimant also reported that
he believed his ankle orthotics had placed stress on his
knee. He rated his knee pain at a 10/10 level.
Wakeshima is the claimant’s pain management physician
for a 2009 admitted right ankle claim, for which claimant has
undergone at least seven surgeries. The claimant attributed
his knee pain to the ankle injury he sustained in April 2009.
The respondent approved evaluation of the claimant’s
knee pain based on his complaints that the pain was caused by
his ankle condition.
claimant was evaluated by Dr. Ciccone on October 16, 2017,
and Dr. Johnson on November 16, 2018, and made no specific
complaints of falling in a hole, but was diagnosed with a
medial meniscal tear Dr. Johnson evaluated the claimant again
on February 20, 2019, and opined that the claimant’s
knee condition was secondary to a change in gait mechanics
from the ankle injury. Dr. Johnson recommended the claimant
for arthroscopic repair surgery of the meniscus
claimant treated with at least five different providers over
the course of two years and had made no specific report
regarding falling in a hole at work until he underwent a Rule
16 independent medical examination with Dr. O’Brien on
April 3, 2019. Dr. O’Brien opined that it was unlikely
any accident occurred due to the claimant’s unreliable
reporting of the injury and due to the initial reporting that
the knee pain was ancillary to his ankle condition. Dr.
O’Brien also opined that the claimant’s meniscus
injury was degenerative in nature and would not have been
consistent with falling in a hole or caused by a change in
gait due to the ankle injury.
claimant was evaluated by Dr. Wakeshima on July 1, 2019, and
it was noted that the knee injury and ankle injury were being
treated as one claim. However, the claimant opined that the
two claims should be treated separately as he suffered a
distinct injury in September 2017 when he stepped in a hole
9, 2019, the claimant underwent a second opinion evaluation
with Dr. Stull, and reported he had stepped in a hole at work
in September 2017 and twisted his knee. Dr. Stull recommended
that the claimant undergo an arthroscopic procedure to assist
in relieving the effects of the meniscus tear secondary to
interrogatory answers, the claimant contended that he had
provided notice to the respondent employer on the day of the
incident, September 18, 2017, by reporting his injury to
“the office.” However, the claimant provided no
additional specifics regarding reporting of the injury. The
respondent did not receive any report of an injury and has no
record of such report.
claimant has at least four workers’ compensation
injuries dating back to 2001 with the same employer and was
most recently placed off work in 2017 due to his 2009 ankle
injury. More specifically, the claimant was taken off work as
a result of his ankle disability on December 4, 2017, and has
not returned to work since that date. The claimant was not
placed off work at any time due to his knee injury, and the
respondent has not paid any indemnity to the claimant for the
alleged right knee injury.
claimant alleged that this “was a new injury. I stepped
in a hole. I do not think it is an exacerbation of a prior
injury” in his answers to interrogatories. The
claimant’s Worker’s Claim for Compensation was
dated October 28, 2019, and stamped as received by the
Division of Workers’ Compensation (Division) on
November 7, 2019.
claimant filed an Application for Hearing on May 15, 2020,
endorsing the issues of compensability, medical benefits,
authorized provider, and reasonably necessary. Hearing was
set to commence on September 8, 2020.
to hearing, the respondent filed a motion for summary
judgment, arguing that the claimant’s knee claim was
barred by the two-year statute of limitations under §
8-43-103(2), C.R.S., and that his claim for compensation was
filed approximately 40 days late.
claimant filed an objection and supplemental objection,
arguing that because disputed issues of material fact
existed, summary judgment could not be granted. The claimant
contended that the medical records are unclear on whether his
knee injury is a new injury or is covered under his 2009
ankle injury. The claimant asserted that some medical records
indicate his knee injury is part of the ankle injury while
others indicate it is a new injury. The claimant argued that
if his knee injury was a new injury, then he filed his claim
within two years from the date he recognized it was a
separate injury. The claimant reasoned that medical records
from Midtown Occupational Health Center from March 6, 2018,
suggest that his right knee injury is a separate incident and
since he filed his claim on October 28, 2019, it was timely.
claimant also argued that if his knee injury is a new injury,
then it should be covered under the three-year statute of
limitations enunciated in § 8-43-103(2), C.R.S. The
claimant reasoned that he was informed by the
respondent’s adjuster that his right knee claim would
be covered under his 2009 right ankle claim. Thus, the
claimant argued that under § 8-43-103(2), C.R.S., a
reasonable excuse exists for his failure to file such notice
claiming compensation within two years of the date of his
injury, and the employer’s rights have...