In re Claim of Tyson, 052721 COWC, 5-121-928-005

Docket NºW.C. 5-121-928-005
Case DateMay 27, 2021
DENVER PUBLIC SCHOOLS, Self-Insured Employer, Respondent.
W.C. No. 5-121-928-005
Colorado Workers Compensation
Industrial Claim Appeals Office
May 27, 2021
          LAW OFFICE OF OTOOLE & SBARBARO PC, Attn: NEIL D OTOOLE ESQ, (For Claimant)           RITSEMA LAW, Attn: ROBERT V WREN ESQ, (For Respondents)          ORDER OF REMAND          The 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.          This 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.          The 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.          Dr. 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.          The 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          The 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.          The 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 at work.          On July 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 gait mechanics.          In his 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.          The 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.          The 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.          The 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.          Prior 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.          The 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.          The 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...

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