Sanchez Marcial v. Atlas Staffing, Inc., et. al., No. WC16-5914 (WCCA Sept. 7, 2016)
Both parties appealed the compensation judge’s decision in this matter. The employee was an inspector and would examine aluminum parts. On June 11, 2014 when lifting a part weighing approximately 40 pounds he experienced sharp low back pain. He reported the injury to his supervisor and office manager. The employee sought care at Rivera Chiropractic on June 12, 2014 and was diagnosed with muscle spasm and a sprain/strain in the lumbar, sacroiliac, and thoracic areas. The employer and insurer denied primary liability for the claimed work injury.
On July 10, 2014 the employee sought care at Regions Hospital Medical Spine Clinic from Dr. Goertz, who recommended physical therapy and allowed the employee to return to work. However, the employee did not return to work until November 18, 2014. On December 14, 2014 Dr. Carlson evaluated the employee as requested by the employer and insurer. He diagnosed a lumbosacral spin musculoligamentous strain, and opined the injury resolved 6-8 weeks after the injury so there was no further need for work restrictions or medical treatment.
The employee began seeing Dr. Mikhail and the spine clinic in February 2015. He diagnosed lumbar radiculopathy and deconditioning syndrome and provided epidural steroid injections. The employee reported significant improvement with the injections. On June 22, 2015 the employee reported 100% improvement of symptoms and Dr. Mikhail stated the employee reached MMI with a 12% PPD rating.
The employee discontinued working for the employee June 22, 2015 and began working for another employer in June 29, 2015 for $15.00/hour. However, the employee left his new job on July 27, 2015.
The employee filed a claim petition, which was heard by a compensation judge on August 21 and September 17, 2015. The compensation judge issued her Findings and Order on December 18. 2015, from which both parties appealed. The employee appealed the compensation judge’s denial of penalties and the finding that his injury resolved. The employer and insurer appealed the order for payment of medical expenses.
The WCCA notes the standard of review on appeal is whether the compensation judge’s determination is supported by substantial evidence; findings of fact are to be upheld unless clearly erroneous. The WCCA affirmed the compensation judge’s denial of penalties. Substantial evidence supported the determination that the employer and insurer had a colorable defense to the employee’s claims. Although in Zwieg, failure to pay after receiving an IME gives rise to penalties, in this case Dr. Carlson only assumed the employee’s history to be correct, as it was still under dispute.
The WCCA remands the questions of PPD and whether the employee’s injury resolved to the compensation judge. The compensation judge appears to have used the term “resolve” in a context meaning the employee was released to work with no restrictions, rather than that the injury resolved since despite finding the injury resolved since she also reserved the issue of PPD.
The WCCA affirmed the compensation judge’s ordered payment of medical expenses through June 22, 2015. It appeared the compensation judge accepted the opinions of Dr. Mikhail. Preference of one expert opinion over another is “generally upheld so long as there is adequate foundation.”