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Kent Berends v. Town of Kiowa and Colorado Intergovernmental Risk Sharing Agency
W.C. No. 5-162-468
Compensability, Medical Benefits

The respondents sought review of an order of Administrative Law Judge Tenreiro (ALJ) that determined the claimant sustained a compensable injury and ordered the respondents to pay temporary total disability benefits and specific medical benefits. The issues for hearing were: whether the claimant sustained a compensable injury; medical benefits; whether the claimant had shown who the authorized treating physician (ATP) is; whether the claimant had shown that he is entitled to a change of physician; and temporary disability benefits.

The claimant was the head of public works for the respondent employer. On or about April 30, 2020, claimant was servicing the city street sweeper when he struck his head on the metal bar of the car lift about one foot away from the sweeper. He immediately had a headache, felt goofy, and dizzy. He struggled to finish his work for the day.

The area on the claimant’s head felt bruised for one to two days. Thereafter, the claimant started having cognitive issues. He did not recall reporting the injury to anyone that day but did mention it to his wife. Claimant continued to have memory problems, balance issues, shaking hands, and a foot drop. He was admitted to the ER on May 26, 2020, for a headache that had lasted a week. Dr. Rauzzino performed a right craniotomy for evacuation of a subdural hematoma with microscopic technique. Indications for the surgery were the claimant’s right sided headaches and altered mental status. Claimant was discharged three days later with a diagnosis of acute chronic intracranial subdural hematoma.

The claimant was readmitted to the ER that same day with left arm movement suspicious for seizure. Dr. Rauzzino proceeded with a revision surgery. There were three potential incidents documented in the medical records that involved the claimant’s head. The first was the incident on April 30, 2020 with the street sweeper. The second was one week prior to his hospital admission, where he scraped his forehead on a shed. The third was one day prior to his hospital admission when he was trying to exit a boat and experienced weakness. Claimant testified he has never had shaky hands or cognitive issues prior to
April 30, 2020.

The employer issued a FROI which stated that claimant reported the incident on April 30, 2020. The claimant filed a Worker’s Claim for Compensation on February 4, 2021. It noted that the claimant was being treated at Franktown Family Medicine. The respondent insurer filed a notice of contest denying that claimant’s injuries were work related. Dr. Morgenstern performed a medical records review. Dr. Morgenstern specifically associated use of alcohol as a possible cause of the subdural hematoma in the claimant as alcohol consumption or abuse leads to both atrophy of the brain, and risks of falls due to intoxication. Dr. Rauzzino testified that the claimant’s symptoms were consistent with a subdural hematoma, and the two surgeries were necessary to address the hematoma. Dr. Rauzzino testified that the April 30, 2020 head injury was more than sufficient to cause the hematoma and denied that the other two incidents could have caused the hematoma. The ALJ ruled that the claimant proved that the event at work on April 30, 2020, caused the subdural hematoma and brain injury. The ALJ credited the opinions of Dr. Rauzzino and the claimant’s testimony over the opinions of Dr. Morgenstern. More specifically, she credited Dr. Rauzzino’s opinion that the subdural hematoma, which was isodense
upon admission to the emergency room, was probably caused by the trauma at work which was approximately four weeks prior to admission. She relied on Dr. Rauzzino’s viewing the actual CT scans as well as performing the surgeries on the claimant’s brain. The ALJ found the claimant to be credible, and found that the fact that the employer noted they were notified of the incident on April 30, 2020, was persuasive and the date of injury was found to be April 30, 2020.

The ALJ ordered respondents shall pay for all authorized, reasonably necessary, and related medical benefits. She also ordered that the respondents shall pay TTD benefits beginning on May 27, 2020, until terminated by law. The ALJ further ruled that the claimant failed to show he is entitled to a change of physician.

On appeal, the respondents argued that the ALJ’s order is not supported by substantial evidence and the ALJ erred as a matter of law in finding the claimant’s claim compensable. Whether the claimant met the burden of proof to establish that his injury arose out of and in the course of his employment is one of fact for determination by the ALJ. Here, while an accidental injury must be attributable to a specific date, time, and place, it is not required that the exact date and time be identified. Rather, the ALJ may determine that the claimant’s testimony of a specific incident attributed to a reasonably definite time is sufficient. The
ALJ found the April 30, 2020, date of injury to be correct based on claimant’s testimony and documentation from the employer.

The ALJ rejected respondents’ argument that because the employer’s first report of injury stated claimant was wearing a helmet, there was no true hit to the head. The ALJ credited Dr. Rauzzino’s testimony that even if the claimant was wearing a helmet at the time he struck his head, this would not change his opinion with regard to causation. The respondents also argued that the ALJ ignored Dr. Morgenstern’s testimony. However, it is well settled that an ALJ may credit all, part, or none of a witness’ testimony. The respondents also argued that alcoholism was the cause of the claimant’s subdural hematoma. The ALJ rejected their alcoholism contention, with record support. The ALJ was persuaded by Dr. Rauzzino who noted alcohol can cause the brain to shrink and atrophy, but alcohol does not create a subdural hematoma. Also claimant’s brain showed no signs of shrinkage.

Last, the respondents argue that medical benefits were not authorized, the claimant’s ATP was not transferred to the claimant, and the claimant never elected a provider. According to the respondents, the claimant’s 2020 care was unauthorized. The ALJ rejected these arguments and held that the respondents are liable for emergency and authorized medical treatment reasonably necessary to cure and relieve the effects of the industrial injury. The ALJ determined that Respondents had notice of the claim on April 30, 2020, and failed to timely designate a medical provider. Therefore, the right of selection belonged to claimant. AFFIRMED.

Julia Rodriguez Perez v. Boise Operations, LLC and Berkshire Hathaway Homestate
W.C. No. 5-177-769-002
Average Weekly Wage

The claimant sought review of an order of Administrative Law Judge Kabler (ALJ), insofar as the order denied her request to increase her average weekly wage. The claimant’s admitted average weekly wage at the time of injury was $678.60, representing her wages from the employer. The claimant requested that the ALJ increase her average weekly wage by $407.49 per week based on payments she received as a delivery driver from a different employer from June through August 2021. The ALJ denied the claimant’s request determining that there was no persuasive evidence that the claimant was working as a delivery driver “at the time of the injury” under § 8-42-102(2), C.R.S. The claimant sustained an admitted injury to her left knee on May 18, 2021. The claimant worked with restrictions from the date of injury to September 21, 2021, when she underwent surgery. She was off work completely after her surgery until December 2021. At hearing, the claimant testified that at the time of her injury, she was also working a second job for “Spark,” as a driver delivering groceries, although she had made very few deliveries. She was able to continuing working for Spark from her date of injury to her surgery in September. The claimant offered at IRS Form showing she earned $381.40 in May of 2021. She earned around four times that amount in June, July, and August. The exhibit showed she was no longer employer with Spark by November 2021.

The ALJ found that before her date of injury, claimant worked around 140 hours a month for her employer. During June, July and August 2021, the claimant worked an average of 97.6 hours per month for the employer. During this same period, the claimant earned an average of $407.49 per week from Spark. The ALJ concluded that the claimant failed to establish entitlement to an increased average weekly wage. The ALJ found that the evidence presented regarding the claimant’s earnings from Spark was too indefinite and he could not determine how much the claimant was earning from Spark “at the time of the injury” under § 8-42-102(2), C.R.S. The ALJ was not convinced the claimant was engaged in concurrent employment. Rather, the claimant was subject to work restrictions, worked decreased hours for the employer, and received temporary total disability benefits for her decreased wages during the summer of 2021. Moreover, once the claimant returned to work for the employer after surgery, she did not return to Spark, and earned no income from Spark after November 2021.

On appeal, the claimant argues that the ALJ misapplied the law and abused his discretion in his findings of fact. The panel disagreed and explained that section 8-42-102(2)(d), C.R.S, sets forth the method for calculating average weekly wage. The overall purpose of the statutory scheme is to calculate “a fair approximation of the claimant’s wage loss and diminished earning capacity.” In determining an employee’s average weekly wage, the ALJ may choose from two different methods. The first method, referred to as the “default provision,” provides that an injured employee’s average weekly wage “be calculated upon the monthly, weekly, daily, hourly, or other remuneration which the injured or deceased employee was receiving at the time of injury.”

The second method for calculating an employee’s average weekly wage, referred to as the “discretionary exception,” applies when the default provision “will not fairly compute the employee’s average weekly wage.”

The ALJ here found that the claimant’s average weekly wage should be properly based upon her earnings at the time of her injury under the default provision in § 8-42-102(2), C.R.S., and the ALJ was not persuaded by the claimant’s evidence that she was working at Spark at the time of injury. The Panel concluded that the ALJ did not abuse his discretion in denying the claimant’s request to increase the claimant’s average weekly under either § 8-42-102(2), C.R.S. or § 8-42-102(3), C.R.S. AFFIRMED.

David Beck v. Xcel Energy and Old Republic Insurance Company W.C.
No. 5-142-823-003
Apportionment, Repeat DIME Testing, Incomplete DIME Report

The respondents sought review of an order of Administrative Law Judge Spencer (ALJ) that determined the respondents had failed to overcome the permanent disability impairment rating provided by the DIME regarding the lumbar spine, and did not establish the claimant’s shoulder injury was subject to apportionment by virtue of a previous injury.

The claimant worked for the respondent employer as a gas fitter. The claimant had a slip and fall and underwent shoulder surgery to repair a tear in his right rotator cuff. Claimant’s ATP, Dr. Lugliani, provided a 6% upper extremity rating for the shoulder, which converted to a 4% whole person rating. The doctor also documented a 16% whole person rating for the lumbar spine. The spine rating consisted of a 5% diagnosis rating from Table 53 of the AMA Guides to Permanent Impairment and 12% due to range of motion deficits. Dr. Lugliani noted the claimant had a previous work injury to his shoulder that required surgery, but said he did not have adequate records to determine any apportionment. There was also a prior non-work related back surgery which required a fusion surgery at the L5-S1 level.

Respondents requested a DIME and Dr. Beatty was chosen. Dr. Beatty computed a spinal rating comprised of a 21% whole person rating, and a 9% upper extremity rating for the right shoulder. Dr. Beatty referenced records pertinent to the claimant’s previous 13% whole person rating for injuries to both his arm and his hip. Dr. Beatty observed that his range of motion measurements of the claimant’s lower back were markedly more restricted than those obtained by Dr. Lugliani. He felt repeat range of motion measurements testing was necessary. The respondents applied for a hearing challenging the DIME impairment rating. The respondents asserted the lumbar spine impairment rating was not binding until the claimant completed a follow-up range of motion measurement as requested by Dr. Beatty. The respondents also contended both the lumbar rating and the right shoulder rating must be apportioned to acknowledge the effects of the preceding surgeries on the claimant’s shoulder and low back.

Dr. Raschbacher testified for respondents. Dr. Raschbacher agreed with Dr. Beatty that additional range of motion testing was necessary. The ALJ found the testimony of Dr. Raschbacher to be unpersuasive. On the basis that the Division had submitted a notice that the DIME report of Dr. Beatty was “complete,” the respondents were required to show by a preponderance of the evidence that the Division was mistaken. The ALJ determined that respondents did not meet their burden and no repeat testing was necessary. Respondents did not overcome the lumbar spine ratings by clear and convincing evidence. However, the ALJ did rule that the claimant did not establish that the rating for his shoulder should be converted. No apportionment was ordered.

On appeal, the respondents contend the ALJ was in error by failing to require repeat range of motion measurements as requested by Dr. Beatty. Respondents also argued the apportionment statute applies to the spine and shoulder impairment ratings. Respondents pointed out that Dr. Beatty noted the previous 13% whole person rating, and the very nature of the previous lumbar fusion restricts claimant’s range of motion. The ALJ found, and the Panel agreed, that that it was unclear what part of the prior 13% whole person rating was attributable to the shoulder. The prior lumbar spine injury was found to not be “independently disabling” because claimant was working full time with no restrictions on his date of injury.

The Panel did find that the ALJ incorrectly distributed the burdens of proof between the parties. The burden was placed on respondents to overcome the determination that the DIME report was complete by a preponderance of the evidence. In order to allow the claimant to be returned to Dr. Beatty for repeat range of motion measurements, the respondents were required by the ALJ to demonstrate by clear and convincing evidence the report’s impairment ratings were incorrect. The ALJ reasoned that Workers’ Compensation Rule of Procedure 11-5(E) (now 11-5(F) as of March 2, 2023) states that services rendered by the DIME physician conclude upon acceptance by the Division of the DIME report.

However, § 8-42-107.2(4) limits the Division’s role to two tasks: the Division informs the parties when it receives the IME report, and the Division may notify the DIME physician of any “deficiencies” noted in the report. Nothing in the statute or rules of procedure indicate the Division is rendering a decision in regard to whether the report is actually ‘complete.’ The ALJ’s ruling that the Division had discretionary authority when it sent its notice that the division had received the IME’s report, is in error. The division had the discretion solely to delay the start of the period for the respondents to respond to the DIME report by 20 days, and nothing more. The respondents were not required to dispute or overcome the division’s notice of receipt of the DIME report.

The Panel also held that the ALJ erred by requiring the respondents to overcome the determination of the DIME physician by clear and convincing evidence, when the DIME doctor made it clear that repeat testing was needed.

Instead, it was the claimant’s burden to demonstrate by clear and convincing evidence that Dr. Beatty was mistaken in requiring that the claimant return for repeat range of motion measurements to assign a permanent impairment rating for the lumbar spine.

The Panel affirmed the ALJ’s order insofar as the permanent impairment rating for the claimant’s right shoulder is deemed to be 6% of the extremity and no apportionment of the permanent partial impairment is warranted. The order was set aside, and the matter remanded to the ALJ to make further findings as to the permanent impairment of the lumbar spine. AFFIRMED.

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