HomeMy WebLinkAbout972129.tiff RUTH C. MALMAN, PC. 3773 Cherry Creek Drive North
Suite 575
Attorney at Law _ Denver,Colorado 80209
Telephone:303-466-8442
Fax:303-466-9228
419 Canyon,Suite 300
CL_r"
Fort Collins,Colorado 80521
Telephone:970-2214078
I.
August 27, 1997
Administrative Law Judge Gandy
Division of Administrative Hearings
1120 Lincoln
Denver, Colorado
Re: WC 4-164-380
Jack Darnall v. Weld County
Dear Judge Gandy:
Enclosed please find proposed Specific Findings of Fact, Conclusions of Law
and Order pursuant to your order and Ms. Clisham's request for same.
Respectfully submitted,
Ruth C. Malman
cc: Jack E. Darnall
Weld County
Subsequent injury Fund
Patricia J. Clisham
Jill M. Gallet
/,�" ge d/QJ PE 972129
7
STATE OF COLORADO
EXECUTIVE DEPARTMENT
W.C. No. 4-164-380
SPECIFIC FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
IN THE MATTER OF THE CLAIM OF:
JACK E. DARNALL,
Claimant,
vs. 1 ,
WELD COUNTY,
and
SELF-INSURED c/o OHMS, CD
Insurer,
Respondents.
Carrier No. 92-314714-00154
Hearing was held in the above referenced matter on August 8,
1997 by Administrative Law Judge H. Conway Gandy at Fort Collins,
Colorado. Claimant appeared in person and by counsel, Ruth C.
Hainan. Respondents appeared by counsel, Patricia J. Clisham. The
Subsequent Injury Fund appeared by Assistant Attorney General Jill
M. Gallet. The issues heard were permanent total disability,
medical benefits (Grover) , Subsequent Injury Fund and
apportionment. The parties stipulated that if Claimant is
determined to be permanent total the Subsequent Injury Fund is
liable to two thirds of his net permanent total disability
benefits, after credit for Social Security Disability benefits, and
respondent employer is liable for one third of such permanent total
disability benefits.
Based upon a complete review of all the evidence, medical
reports, vocational reports and other documents submitted at the
hearing, the following are the Findings of Fact:
FINDINGS OF FACT
Based upon the evidence presented at the hearing and contained
in the record, the Administrative Law Judge enters the following
Findings of Fact:
1. The Claimant is 53 years old and did not complete the 8th
grade. The Claimant ' s spelling and writing is at the 4th grade
level and the Claimant has learning difficulties. The Claimant has
physical restrictions which included being able to sit for up to
1/2 hour, stand 10 minutes, walk for 1/2 hour at a time, lift ten
pounds, drive for 1/2 hour to 45 minutes at a time.
2 . The Claimant has to lay down several times a day as the only
way to get pain relief. The Administrative Law Judge finds this
testimony credible.
3 . The Claimant used to work, do lawn work, paint, fish and hunt
among other activities he no longer can do. The Claimant attempted
to return to work as a dishwasher and lasted one hour. The more
active he is the more pain he has.
4 . The Claimant began working when he was 15 years old. He did
mostly physical work. The Claimant worked for the Road & Bridge
Department at Weld County since July of 1975 .
5 . Since the Claimant began working for Weld County he sustained
injury to his left knee, right shoulder, both wrists, two hernias,
surgery on his foot and surgery on his back. The Claimant has
continued to get worse since the surgery on his back. Recently the
Claimant' s leg gave out and he has continuing back pain from his
low back into his buttocks down into his feet.
6. The Claimant attempted to get his GED but could not sit at the
computer to achieve this.
7 . Theresa Boynton, occupational therapist, WorkCare, in
accordance with her Functional Capacity Evaluation of May 21, 1996,
testified that the Claimant was in the light/sedentary category,
even though she did not do repetitive testing as she testified this
is only done when looking at specific jobs.
8 . Ruth Hannigan, Health & Occupational Consultants, Inc. ,
testifying for the Respondents, stated that in preparing her
vocational rehabilitation report, she relied on a year old
Functional Capacity Evaluation as foundation for what the Claimant
was capable of doing in the field of employment.
9 . Ruth Hannigan first testified that she felt the Claimant could
be employed in such jobs as security guard, ticket taker or
research surveyor.
10 . Ruth Hannigan testified that in her opinion, the Claimant
could only work at those jobs part time in sedentary employment.
Ruth Hannigan further testified that if the Claimant had to lie
down several times during the work day, there were no jobs the
Claimant could do.
11. The Claimant had Dr. Bruce Lockwood available for testimony as
to Grover medicals.
12 . The Respondents stipulated and agreed that any treatment
recommended up to the date of hearing was authorized and would be
paid for by the Respondents. Further treatment was subject to the
reasonable and necessary standards.
13 . The Claimant testified that he was still taking medications,
that a psychologist for pain management had been recommended and he
still needed to see the doctor for ongoing care. Grover Medicals
are found to be reasonable and necessary.
14 . The Functional Capacity Evaluation is not reliable evidence as
it is 15 months old and not consistent with the Claimant' s
testimony regarding his condition getting worse and the need to
periodically lay down.
15 . Christina Raithke-Bishop of Colorado Physical Therapy Services
opines, in her report dated July 14, 1997 , concerning other
inconsistencies in the Functional Capacity Evaluation.
16 . Dr. Bruce Lockwood opines, in a report dated April 12, 1996,
that the Claimant has sustained a 19% whole person impairment as a
result of this work injury.
17 . Patrick Renfro, vocational rehabilitation expert from National
Care Resources Inc. , opined that Claimant " . . . has suffered such
significant losses of access to the labor market coupled with a
constellation of significant physical and functional limitations,
as to make it impossible for him to earn a wage. "
18 . The parties agree and it is so found that Claimant reached
maximum medical improvement on April 12 , 1996 .
CONCLUSIONS OF LAW
Based upon the above Findings of Fact, the Administrative Law
Judge makes the following Conclusions of Law:
1. The Claimant is disabled due to his injuries on the job with
Weld County.
2 . Taking into consideration the need for Claimant to lie down,
along with all the other physical restrictions together with Ruth
Hannigan's testimony that there would be no jobs available for the
Claimant, it is concluded that as a matter of law and fact that the
Claimant is permanently and totally disabled.
3 . Based on Dr. Lockwood' s reports, Patrick Renfro' s opinion,
Ruth Hannigan' s testimony and the credibility of the Claimant
regarding his age, employment history of manual physical labor,
physical condition with a 19% low back impairment and other injured
body parts, his education and achievement levels, his ability to
handle pain and his perception of pain, it is concluded that
claimant is not capable of earning a wage in the general labor
market and is therefore permanently and totally disabled.
4 . Any conflicts which have arisen in the evidence are resolved
in favor of the Claimant.
ORDER
IT IS THEREFORE ORDERED THAT:
1. The Claimant, Jack Darnall, is permanently and totally
disabled as a result of his work injury.
2 . The Respondent Employer shall pay the Claimant' s
reasonable and necessary medical benefits incurred as a result of
his injuries in the herein matter and that are needed to maintain
his condition, subsequent to maximum medical improvement.
3 . Permanent Total Disability Benefits are to be paid two-
thirds by the Subsequent Injury Fund and one-third by Respondent
Employer, pursuant to the aforesaid stipulation of the parties,
from the date of maximum medical improvement of April 12 , 1996 and
continuing for Claimant's lifetime.
4 . Respondent Employer and the Subsequent Injury Fund may
take the Social Security offset which has been heretofore taken in
the herein matter, pursuant to statute.
5. Respondent Employer and the Subsequent Injury Fund shall
pay Claimant interest of 8% per annum on all compensation due, not
paid when due, pursuant to statute.
rd
DONE this 3 day of 14P iy�
�.". l r , 1997 .
ADMINISTRATIVE LAW JUDGE
//14 /,
H. CONWAY DY
THIS DECISION OF THE ADMINISTRATIVE LAW JUDGE IS FINAL UNLESS
A PETITION TO REVIEW THIS DECISION IS FILED WITHIN TWENTY (20) DAYS
FROM THE DATE THIS DECISION IS MAILED. THE PETITION TO REVIEW
SHOULD BE FILED OR DELIVERED AT THE DIVISION OF WORKERS '
COMPENSATION, P. 0. BOX 8287, FORT COLLINS, COLORADO 80526-8003. itta
CERTIFICATE OF MAILING
I hereby certify that a true copy of the foregoing SPECIFIC
FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER was placed in the
U.S. Mail, postage prepaid on the ,
addressed to the following: 3 1997' /„/i�
Jack E. Darnall ??�'�941 Nantucket St.
Windsor, CO 80550
Weld County
P.O. Box 758
Greeley, CO 80632-0758
Subsequent Injury Fund
P.O. Box 300009
Denver, CO 80203-0009
Ruth C. Neiman, Esq.
3773 Cherry Creek Drive North, Suite 575
Denver, CO 80209
Patricia J. Clisham, Esq.
1200 - 17th St. , #1700
Denver, CO 80202-5817
Jill M. Gallet, A.A.G.
Office of the Attorney General
Civil Litigation Section
1525 Sherman Street
5th Floor
Denver, CO 80203
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