In re Claim of Flores, 071421 COWC, 5-139-232-001

Docket NºW.C. 5-139-232-001
Case DateJuly 14, 2021
DILLON COMPANIES INC d/b/a KING SOOPERS, Self-Insured Employer, Respondent.
W.C. No. 5-139-232-001
Colorado Workers Compensation
Industrial Claim Appeals Office
July 14, 2021
          RUESEGGER SIMONS & STERN LLC, Attn: CRAIG R ANDERSON ESQ, (For Respondents)          FINAL ORDER          The claimant appeals an order of Administrative Law Judge Spencer (ALJ) dated March 2, 2021, that denied and dismissed claimant’s claim for compensation. We affirm.          ALJ Spencer conducted a hearing on December 1, 2020,1 on the primary issue of whether claimant suffered a compensable injury to his left shoulder on March 28, 2020. Other derivative issues, which are dependent on a determination of compensability, were also heard. After considering the evidence and the parties’ post-hearing position statements, the ALJ established findings of fact, which are summarized below.          The claimant worked as a grocery clerk. The employer hired him in March 2020 and assigned him to overnight stocking duties. Claimant’s first shift for the employer started at midnight on March 28, 2020. The store received an unusually large delivery of goods for stocking that night (approximately three times the normal amount). The claimant separated cases of product and put the product on grocery shelves. Claimant’s shift ended at 8:30 a.m. on March 28, 2020. He felt no symptoms while working.          After hours of sleep the next day, the claimant testified his back, hands, and left shoulder felt “sore.” He assumed he was simply unaccustomed to the work and figured the soreness would pass. He continued working as a night stocker for several weeks. Claimant testified the soreness in his back and hands improved but the shoulder pain persisted and worsened over the next few weeks.          Claimant testified he reported the left shoulder pain to his immediate supervisor, Mr. Owens, and the grocery manager, Mr. Chavez, on April 13, 2020. Claimant testified he told them “every detail” about the onset of his symptoms. Claimant testified he made it very clear that the injury started on his first night of work and progressively worsened over the next several weeks. He testified the pain became severe on April 20, 2020, so he reported it to senior management. Claimant testified that he reported his accident had occurred while stocking frozen hash browns because superiors told him he needed a specific incident on the accident report.          Mr. Owens corroborated that claimant verbally reported shoulder pain on or about April 13, but testified claimant said he hurt the shoulder “at his day job” in the cannabis industry. Mr. Owens did not recall claimant saying the shoulder pain was related to his work with the employer. After claimant’s report of pain, Mr. Owens assigned claimant to the chips aisle because it was lighter and “kept an eye on him” the rest of the night. Mr. Owens did not observe claimant having any difficulty performing his work.          Mr. Chavez testified the store was very busy in March and April 2020, as the night crew was stocking more product than usual because of COVID-19. On one occasion, Mr. Chavez asked claimant if he could stay longer and claimant said his shoulder was bothering him. Mr. Chavez testified that he told claimant if he had an injury, he needed to speak with someone “higher up than me.” Chavez testified that claimant did not say the shoulder pain was related to his work for the employer. Chavez assumed claimant was simply using the pain as an excuse to avoid having to work...

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