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Apex Transp., Inc. v. Industrial Claim Appeals Office of State

Court of Appeals of Colorado, Sixth Division

March 13, 2014

Apex Transportation, Inc.; and Pinnacol Assurance, Petitioners,
v.
Industrial Claim Appeals Office of the State of Colorado; and Paul R. Vigil, Respondents

Industrial Claim Appeals Office of the State of Colorado. WC No. 4-850-101.

Harvey D. Flewelling, Denver, Colorado, for Petitioners.

No Appearance for Respondent Industrial Claim Appeals Office.

The Frickey Law Firm, Adam McClure, Lakewood, Colorado, for Respondent Paul R. Vigil.

JUDGE HAWTHORNE. Lichtenstein and Gabriel, JJ., concur.

OPINION

HAWTHORNE, JUDGE.

Page 631

OPINION PREVIOUSLY ANNOUNCED AS "NOT PUBLISHED PURSUANT TO C.A.R. 35(f)" JANUARY 30, 2014, IS NOW DESIGNATED FOR PUBLICATION

[¶1] In this workers' compensation action, employer, Apex Transportation, Inc., and its insurer, Pinnacol Assurance, seek review of a final order of the Industrial Claim Appeals Office (Panel) reversing an administrative law judge's (ALJ) order denying claimant, Paul R. Vigil, temporary total disability (TTD) benefits. We set aside the Panel's final order and remand the case with directions to reinstate the ALJ's original order.

I. Factual and Procedural History

[¶2] Claimant worked as a truck driver for Apex for five and a half years. In February 2011, claimant sustained an injury to his shoulder. He refused medical attention at the time because it was " Apex's busiest season" and he " thought the pain would go away." When the pain did not subside, claimant obtained a " pain pill" from his brother.

[¶3] He did not take the pill immediately. About a week later, though, the pain became " excruciating," and claimant took the pain pill. The next day at work, the pain returned, and claimant decided to formally report the injury to employer. He was sent to employer's workers' compensation health care provider to be examined and treated. The physician's assistant (PA) who examined him imposed no work restrictions and determined that claimant could return to work.

[¶4] Under employer's policies, any employee who sustains a work-related injury must submit to a drug test when initially examined. Claimant therefore underwent a drug screen. The test proved positive for morphine -- the pain pill claimant received from his brother -- although claimant had no prescription for the medication. Because employer has a " no tolerance" policy for drugs, claimant was immediately terminated.

[¶5] Several days after being terminated, claimant returned to the medical clinic and was seen by a physician. Although the physician found claimant had not suffered a permanent impairment, he noted that claimant sustained a " severe spasm of the whole girdle," prescribed pain ...


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