Loofburrow & Compensability When Injury Did Not Result In Lost Time Or Impairment
ICAP rejects the argument that an injured worker does not suffer a compensable work injury if the injury does not result in initial lost time or permanent impairment.
Bradley Fincham worked as a truck driver for Home Depot. On April 14, 2014, the Fincham was unloading a “double door” refrigerator from the truck with a co-worker. As he was lowering the refrigerator, both the refrigerator and the dolly pulled, causing Fincham to land on top of the refrigerator.
Four months later Fincham requested medical treatment for his right shoulder and was sent to Concentra. Dr. Bird, diagnosed him with shoulder impingement, provided physical therapy, but did not provide any work restrictions. She later placed Fincham at maximum medical improvement with no permanent impairment and opined that the claimant did not need any maintenance medical care or permanent work restrictions.
Fincham continued to work full duty without documented pain complaints during the next year-and-a-half until May 5, 2016, when he returned to Dr. Bird complaining of two out of ten right shoulder pain.
Eventually Fincham filed a claim for workers’ compensation. Home Depot and the carrier denied the claim and the parties proceeded to hearing. The ALJ determined that Fincham had suffered a compensable work related injury to his right shoulder.
On appeal, the respondents argued that the ALJ erred in “implicitly” concluding that the claimant proved a compensable injury. Relying on the holding in Harman Bergstedt, Inc. v. Loofbourrow, 320 P.3d 327 (Colo. 2014), the respondents argued that the claimant’s injury did not result in sufficient disability to constitute a compensable injury.
The ICAO denied the appeal without prejudice because the ALJ did not award any benefits due to the April 2014 injury. However the ICAO rejected Respondent’s Loofburrow argument in a footnote, “The Respondents attribute consequences to the word ‘compensable’ which are not intended by the Workers’ Compensation Act (Act) or by various judicial uses of the term. As the Loofbourrow opinion explains, the Court in that decision is using the word to refer a claim for which indemnity benefits are payable. However, in different contexts the Act applies the word ‘compensable’ to simply mean an injury that arises out of the and in the course of the employment, even if the injury requires no more than the payment of medical benefits. See § 8-42-101(6)(a) and (b) or § 8-43-404(9), C.R.S.”
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BRADLEY FINCHAM v. HOME DEPOT, W.C. NO. 5-020-103-01 (11/9/2017)