Ukoba v. ICAO

• Court: Colorado Court of Appeals
• Decided: April 24, 2025
• Docket: 24CA1676
• Status: Unpublished

Opinion

24CA1676 Ukoba v ICAO 04-24-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1676 Industrial Claim Appeals Office of the State of Colorado WC No. 5212684

Nwaka Sunday Ukoba,

Petitioner,

v.

Industrial Claim Appeals Office of the State of Colorado and Pinnacol Assurance,

Respondents.

ORDER AFFIRMED

Division A Opinion by JUDGE HAWTHORNE* Román, C.J., and Berger*, J., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced April 24, 2025

Nwaka Sunday Ukoba, Pro Se

No Appearance for Respondent Industrial Claim Appeals Office of the State of Colorado

Alenka J. Han, Denver, Colorado for Respondent Pinnacol Assurance

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2024. ¶1 In this worker’s compensation action, Nwaka Ukoba seeks

review of an order denying his requests for certain benefits and to

reopen his claim. We affirm.

I. Background

¶2 Ukoba worked for Liberty Oilfield Services (Liberty) as a frac

equipment operator. On January 25, 2022, he suffered a work

injury when he slipped and fell on Liberty’s property. Ukoba’s

treating physician diagnosed strains/contusions of the neck,

thorax, lower back, and left shoulder. Imaging showed no acute

injuries. The physician cleared Ukoba for regular duty at his job.

¶3 Between January 2022 and May 2022, Ukoba continued

working full duty with no restrictions. According to his physicians,

radiographic images of his spine, left shoulder, and left elbow

showed no acute injury. They did, however, show degenerative

issues, including degenerative disc disease in his spine and

osteoarthritis in his elbow. His prescribed medical treatments

included chiropractic manipulations, physical therapy, trigger point

injections, and massage therapy.

¶4 Ukoba travelled abroad at the end of May 2022, into June

2022. Upon returning, he reported increased pain. Radiographic

1 images of his spine showed degenerative disc disease and disc

bulging. His physician prescribed work restrictions, and Ukoba

worked on modified duty through early October 2022. During this

time, his prescribed medical treatments included massage therapy,

trigger point injections, and epidural steroid injections.

¶5 In October 2022, Ukoba’s then-treating physician, Dr. Tentori,

concluded that no physiological basis supported ongoing

restrictions, and he cleared Ukoba for full work duty. On reviewing

Ukoba’s medical records, as well as surveillance footage from the

previous month purportedly showing Ukoba performing strenuous

activities without apparent pain, Dr. Tentori further determined

that Ukoba had reached maximum medical improvement (MMI) as

of May 24, 2022 — the day before he travelled abroad. Dr. Tentori

specifically noted Ukoba’s pre-existing chronic neck and back pain

and opined that the ongoing symptoms he experienced likely

derived from his pre-existing conditions. Dr. Tentori found no

ratable impairment related to the work accident, and he closed

Ukoba’s worker’s compensation claim.

¶6 About one year later, Ukoba underwent a division-sponsored

independent medical exam (DIME) with Dr. Ranee Shanoi. Dr.

2 Shanoi noted that Ukoba appeared more constricted in his physical

abilities when she physically examined him than when they

discussed his history. Like Dr. Tentori, Dr. Shanoi remarked that

Ukoba’s records revealed pre-existing chronic neck and back pain,

as well as pre-existing cervical, thoracic, and lumbar spondylosis.

She also noted that Ukoba “was not forthcoming” when asked about

his pre-existing conditions.

¶7 Dr. Shanoi concluded that Ukoba’s ongoing complaints

“point[ed] to chronic pain syndrome within a reasonable degree of

medical probability,” not an acute work-related injury. In reaching

her conclusion, Dr. Shanoi noted that none of the treatments

administered, with an eye toward resolving any acute injury,

provided subjective relief. She pointed out that widespread chronic

pain complaints, like Ukoba’s, are not ratable under the American

Medical Association Guides to Permanent Impairment and thus

concluded she could not assign an impairment rating. Dr. Shanoi

agreed with Dr. Tentori that Ukoba reached MMI on May 24, 2022.

¶8 At Ukoba’s request, an administrative law judge (“ALJ”) held a

hearing to review whether (1) Dr. Shanoi erred in placing Ukoba at

MMI effective May 24, 2022; (2) Ukoba was entitled to ongoing

3 medical maintenance care post-MMI; (3) Ukoba was entitled to

temporary disability benefits; and to determine (4) the amount of

Ukoba’s weekly wage. The ALJ found that Ukoba failed to meet his

burden of proving, by clear and convincing evidence, that Dr.

Shanoi erred in her MMI determination, and that Ukoba similarly

failed to meet his burden of demonstrating entitlement to medical

maintenance care or temporary disability benefits. Because Ukoba

failed to demonstrate entitlement to benefits, the ALJ did not

determine his weekly wage amount. The Industrial Claim Appeals

Office (“Panel”) affirmed the ALJ’s order.

II. Discussion

¶9 Ukoba argues that the ALJ erred in finding (and the Panel

erred in affirming) that he failed to overcome Dr. Shanoi’s opinion

regarding MMI and to prove entitlement to ongoing medical

maintenance and temporary disability benefits.

A. Standard of Review

¶ 10 Under section 8-43-308, C.R.S. 2024, we may not disturb

factual findings “supported by substantial evidence” and may only

set aside the Panel’s decision if (1) the factual findings are not

sufficient to permit appellate review; (2) conflicts in the evidence are

4 not resolved in the record; (3) the factual findings do not support

the order; or (4) the award or denial of benefits is not supported by

applicable law.

B. Analysis

1. Dr. Shanoi’s MMI Determination

¶ 11 A DIME physician’s MMI determination is binding unless

overcome by clear and convincing evidence. § 8-42-107(8)(b)(III),

C.R.S. 2024; Meza v. Indus. Claim Appeals Off., 2013 COA 71, ¶ 15.

“In contrast to the preponderance of evidence standard — which

only requires proof that a fact is more probable than not . . . — the

clear and convincing standard requires proof that a fact is highly

probable and free from serious or substantial doubt.” Creekside

Endodontics, LLC v. Sullivan, 2022 COA 145, ¶ 36 (internal citations

omitted). Whether the DIME physician’s MMI determination has

been overcome by clear and convincing evidence is an factual issue

for the ALJ to determine. Wackenhut Corp. v. Indus. Claim Appeals

Off., 17 P.3d 202, 204 (Colo. App. 2000).

¶ 12 First, Ukoba seemingly challenges both Dr. Tentori’s and Dr.

Shanoi’s conclusions that he reached MMI on May 24, 2022,

arguing those determinations are invalid because neither physician

5 evaluated him in person before or on that date.1 Inasmuch as

Ukoba challenges the physicians’ methodology as a matter of law,

we are aware of no legal authority requiring that either the treating

physician (Dr. Tentori) or the DIME physician (Dr. Shanoi) examine

the claimant on or before the date on which they conclude MMI

occurred. Nor does Ukoba direct us to any such authority or

provide any analysis supporting his position. And, to the extent

that Ukoba raises a factual challenge to the physicians’ MMI

conclusions, he points to no evidence showing that either

physician’s MMI determination was incorrect solely for their failure

to examine him on or before May 24, 2022. Perceiving no obvious

basis for Ukoba’s argument and lacking any authority or analysis to

guide our review, we decline to consider it further. See Vallagio at

Inverness Residential Condo. Ass’n, Inc. v. Metro. Homes, Inc., 2017

1 As the DIME physician, Dr. Shanoi’s MMI determination is entitled

to greater deference than Dr. Tentori’s. See Colo. AFL-CIO v. Donlon, 914 P.2d 396, 402 (Colo. App. 1995). But to the extent Ukoba argues that Dr. Shanoi’s opinion is invalid because it is based, in part, on reviewing Dr. Tentori’s MMI conclusion and rationale, we address Ukoba’s challenge to both physicians’ MMI determinations.

6 CO 69, ¶¶ 39-40 (the court will not consider conclusory

propositions devoid of legal citations or analysis).

¶ 13 Ukoba next argues that his radiographic imaging records from

January, March, May, and July 2022, invalidate an MMI date of

May 24, 2022. According to him, those images show his condition

worsening. He also argues that distinctions in the images taken

through May 2022 show his condition worsened before he travelled

abroad. But he fails to explain the basis for his conclusions. As

the ALJ remarked, after considering and summarizing all

radiographic imaging records in Ukoba’s file, Dr. Shanoi specifically

“noted the absence of radiographic evidence of an injury.”

Moreover, because Ukoba failed to designate the hearing transcript

, we presume the evidence supports the ALJ’s conclusion that

Ukoba failed to meet his burden to overcome Dr. Shanoi’s MMI

determination. See § 8-43-301(2)(b), C.R.S. 2024 (requiring the

appellant to order a hearing transcript in connection with an

appeal); Nova v. Indus. Claim Appeals Off., 754 P.2d 800, 801 (Colo.

App. 1988).

¶ 14 Similarly, Ukoba suggests, without explanation, that the

activity restrictions he received after his return from abroad

7 necessarily invalidate an MMI date of May 24, 2022. Both Drs.

Shanoi and Tentori acknowledged that Ukoba received restrictions

in July 2022. Dr. Tentori lifted those restrictions in October 2022,

after determining that any complaints extending beyond May 24,

2022, likely derived from pre-existing chronic conditions. Again,

because Ukoba did not provide the hearing transcript, we cannot

(nor could the Panel) review the evidence he presented regarding

activity restrictions, and we must presume that the evidence

supports the ALJ’s decision. See § 8-43-301(2)(b); Nova, 754 P.2d

at 801.

2. Other Contentions

¶ 15 Temporary disability benefits compensate an injured worker

for wage loss while he recovers from a work-related injury. Pace

Membership Warehouse v. Axelson, 938 P.2d 504, 508 (Colo. 1997).

Ukoba argues he should have received such wage compensation for

work missed after May 24, 2022. However, because Ukoba failed to

overcome Dr. Shanoi’s determination that MMI occurred on May 24,

2022, his argument cannot succeed, as the Colorado Worker’s

Compensation Act only contemplates wage recovery for claimants

through the date of MMI. § 8-42-105(3)(a), C.R.S. 2024.

8 ¶ 16 To the extent Ukoba argues that he is entitled to ongoing

medical maintenance, this argument also fails. Obtaining an award

of medical maintenance benefits requires the claimant to

demonstrate, by a preponderance of the evidence, that medical

treatment is reasonably necessary to relieve work injury symptoms.

Grover v. Indus. Comm’n, 759 P.2d 705, 710 (Colo. 1988). The ALJ

found that Ukoba’s treatment records showed his complaints

persisted despite all treatment modalities administered and that

Ukoba put forth no persuasive evidence demonstrating that

additional treatment would benefit him in regard to his work injury.

¶ 17 Finally, Ukoba points out that the ALJ wrongly described

Ukoba’s trip abroad as lasting a full month, when, in fact, it lasted

only two weeks. Assuming, without deciding, that Ukoba is correct,

we conclude the error was harmless. C.A.R. 35(c) (“The appellate

court may disregard any error or defect not affecting the substantial

rights of the parties.”)

III. Disposition

¶ 18 The Panel’s order is affirmed.

CHIEF JUDGE ROMÁN and JUDGE BERGER concur.