Claimant Not Entitled to Temporary Disability Based on Alleged Worsening From Fentanyl Use

Under C.R.S. § 8-43-303, a claim may be reopened on the grounds of error, mistake, or change in condition. A claimant bears the burden of proof to reopen a claim for any alleged worsening of condition and whether this burden has been met is a question for an Administrative Law Judge (ALJ) to determine.

In Romey, claimant suffered a back injury and was diagnosed with lumbosacral radiculopathy. He received epidural steroid injections and underwent spinal nerve block procedures. However, he continued to complain of vacillating pain in his back and into his legs, which widely varied from one day to the next. Eventually, his authorized treating physician (ATP) placed him at maximum medical improvement (MMI), issued an impairment rating, and permanent work restrictions. Respondents submitted a final admission of liability (FAL) consistent with this report. Subsequently, the claimant moved to California and began treating with a new physician for maintenance care. This physician prescribed high doses of Fentanyl, due to claimant’s continued pain complaints. As a result, claimant eventually filed an application for hearing (AFH) in an attempt to re-open his claim and seek additional indemnity benefits, due to an alleged worsening of his condition.

The ALJ considered testimony from claimant’s original ATP, who testified that claimant’s work injury had not changed since the date of  MMI. Rather, it was his opinion that the high dosages of opioid medication were leading to a deterioration of his overall health, and causing him to complain of the onset of additional pain in other areas of his body. The ALJ agreed, and found that claimant’s condition had not worsened. In support, the ALJ found that the claimant had actually reported widely vacillating pain even before his MMI date. Accordingly, the claimant was not entitled to additional temporary benefits.

On review, the Industrial Claims Appeals Office (Panel) affirmed. Claimant asserted that the testimony of his original ATP had demonstrated that he needed continued treatment to wean himself off of the Fentanyl, and therefore, his condition had worsened post-MMI. However, the Panel cited claimant’s own testimony during the hearing, in which he indicated that he was unwilling to cease Fentanyl use. The Panel further concluded that under Colorado law, an ALJ has the authority to reduce or suspend compensation where a claimant persists in any injurious practice which imperils or retards his recovery. Thus, the Panel reasoned that the claimant was essentially attempting to be provided with compensation for engaging in the very practice that had caused or contributed to his worsening condition in the first instance.

Moreover, the Panel cited the ALJ’s finding that even from before his MMI date, the claimant had reported vacillating pain levels. Therefore, the clamant had not carried his burden that his condition had actually worsened post-MMI. Consequently, the ALJ’s ruling was upheld, and it was held that the claimant had not proven a worsening of condition.

Michael Romey v. Golden Corral Littleton Englewood Inc. and Republican Indemnity Company, W.C. 4-962-098-001 (ICAO Feb. 20, 2019).
Would you like to know more?

Would you like to know more?  Contact Emma Jamerson at or 877-259-5693.


From the March 2019 Newsletter