12-0007. SANDRA J. LINDEKE Employee v. ANCHORAGE GRACE CHRISTIAN SCHOOL Employer and CHURCH MUTUAL INS. CO. Insurer Defendants.

• Court: Alaska

Alaska Workers Compensation Decisions 2012. Workers' Compensation Board 12-0007. SANDRA J. LINDEKE Employee v. ANCHORAGE GRACE CHRISTIAN SCHOOL Employer and CHURCH MUTUAL INS. CO. Insurer Defendants Alaska Workers' Compensation Appeals Commission SANDRA J. LINDEKE, Employee, Applicant, v. ANCHORAGE GRACE CHRISTIAN SCHOOL, Employer, and CHURCH MUTUAL INS. CO., Insurer, Defendants.AWCB Decision No. 12-0007 Filed with AWCB Anchorage, Alaska on January 10, 2012AWCB Case No. 200500766FINAL DECISION AND ORDER ON RECONSIDERATION and MODIFICATION and ERRATASandra Lindeke's (Employee) January 3, 2012 "Request for Reconsideration" was heard on January 4, 2012, on the written record. Non-attorney representative Barbara Williams represents Employee, though Employee signed the reconsideration request. Attorney Robert Bredesen represents Anchorage Grace Christian School and its workers' compensation insurer (Employer). The record closed on January 4, 2012. Lindeke v. Grace Christian School, AWCB Decision No. 11-0177 (December 15, 2011) (Lindeke III) decided Employer's July 15, 2011 petition to compel Employee to file second independent medical evaluation (SIME) records, and Employee's July 19, 2011 petition requesting: 1) a new SIME physician, 2) an order striking Employer's 183 page "medical summary," 3) an order compelling Employer to produce discovery, and 4) an order compelling Employer's attorney to "stop making disingenuous statements." On January 3, 2012, Employee timely filed a request for reconsideration, which is treated as a petition for reconsideration and modification. It appeared from the pleadings Employee failed to serve Employer with the attachments to this document; so, on January 6, 2012, Workers' Compensation Division staff scanned the attachments and emailed them to Employer's counsel. ISSUES Employee advises her January 3, 2012 petition explains why she filed post-hearing materials, and contends Lindeke III made various errors. Employee contends Lindeke III made "writing errors," legal errors in its discovery rulings, and implies it made factual errors especially in respect to records for the second independent medical evaluation (SIME). Employer has not responded to Employee's January 3, 2012 petition. Accordingly, its position on Employee's contentions is not known. 1) Should Employee's briefs filed post-hearing have been considered in deciding Lindeke III? 2) Should Lindeke III be reconsidered? 3) Should Lindeke III be modified? FINDINGS OF FACT A review of the entire record establishes the following relevant facts and factual conclusions by a preponderance of the evidence: 1) On January 13, 2005, Employee claims she was injured at work when struck by several boys while she was walking the hallway, and when thrown accidentally into a locker, hit her head. Employee complained of a headache and dizziness as well as upper back pain exacerbated by deep breathing (Report of Occupational Injury or Illness, January 18, 2005; see also Providence Health System report, January 13, 2005). 2) On May 4, 2011, Employee wrote a letter containing a list of items she believes she still needs to receive from Employer to complete her initial discovery requests from November 2008. Those relevant to her January 3, 2012 petition include:

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(1) Miscellaneous volunteer work performed for Grace Christian School.

(1) Reply from Dr. Randall Hawkins to Dr. Como's request for an "age based total brain atlas, brain mapping numerical analysis on PET" of 7-29-05.

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(1) Notes from San Francisco nurse (Donna Bura R.N.) in 2005 (CorVel Corp.).

(2) Notes from driver from Med-Trans, Inc. in San Francisco in 2005.

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(1) My complete file from Dr. Richard Cuneo M.D. and his office to include all information and documents pertaining to me (Sandra Lindeke) including but not limited to, handwritten notes, raw test data and complete results, recordings, communications.

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(1) All documents from each and every professional person and institution ER has sent me to, communicated with, or who is or has been in any way involved with me or my claim of 1-13-05.

Employee's Letter, May 4, 2011. 3) On July 19, 2011, Employee filed a petition seeking: 1) a new SIME doctor with "concussion and brain injury" experience; 2) an order striking a 183 page "medical summary" Employer created and striking any document generated from it or using it; 3) an order requiring Employer to produce all previously requested discovery; and 4) an order stopping Employer's attorney from making "disingenuous statements" about the records (Petition, July 19, 2011). 4) At hearing on October 26, 2011, Employer provided new, up-to-date copies of Employee's SIME records, which were accepted as filed at hearing (id.). 5) At hearing on October 26, 2011, Employer through counsel provided responses to Employee's remaining, May 4, 2011 discovery requests. Those relevant to her January 3, 2012 petition include:

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(5) Employer objected to responding because the request is actually an interrogatory, the answer to which can be derived from the records in Employee's possession.

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(13) Employer believed it had nothing responsive to this request.

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(15) Employer inquired of Donna Bura, R.N., and has no records responsive to this request.

(16) Employer inquired of Med-Trans, Inc., and has no records responsive to this request.

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(22) Employer already provided all the requested information, inquired of Richard Imes, [sic] M.D. and has no additional records responsive to this request.

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(24) Employer previously responded to this request, and supplemented its response with additional correspondence between Employer and its physicians.

Employer's discovery responses. 6) During the October 26, 2011 hearing, Employer's counsel stated Ms. Williams' medical records were not in the new SIME binders provided at hearing (hearing statement). 7) There is no evidence Employer's hearing statements concerning Ms. Williams' medical records not being in the new SIME binders were disingenuous (record). 8) At hearing on October 26, 2011, Employee testified she saw Dr. Cuneo fill "at least" 15 pages of handwritten notes when she saw him in 2005, but she has no handwritten notes from that visit; Employee has approximately six pages of handwritten notes from Dr. Cuneo in 2009 (Lindeke). 9) At hearing on October 26, 2011, Employee testified Dr. Cuneo in 2009 requested Employee and her husband provide a list of what they thought might assist Employee in recovery. They provided the list but Employee has not received a copy of that list as part of Dr. Cuneo's file (id.). 10) On November 4, 2011, Employee filed a four page document, apparently thinking she was required to file this document (Response to Board's Direction From 10-26-11 Hearing, November 4, 2011). 11) On November 7, 2011, Employee filed another four page written argument and a binder with 75 pages of exhibits, which she believed the board requested from her at the October 26, 2011 hearing (Response to Board's Direction From 10-26-11 Hearing, undated). 12) The board did not direct Employee to file post-hearing materials (record). 13) On November16, 2011, the hearing record closed, was not reopened, and no direction was given for either party to file post-hearing briefs (id.). 14) Employer has not responded to Employee's post-hearing filings (record). 15) On January 3, 2012, Employee timely filed a request for reconsideration, explaining why she filed post-hearing materials, and alleging errors in Lindeke III (Request, January 3, 2012). 16) Specifically, Employee 1) explains she filed additional material post-hearing because she did not make her position clear enough at hearing; 2) contends Lindeke III made a factual error by not ordering discovery from "Dr. Valla," and reiterates her hearing contention of not having any discovery from "Dr. Crusiger"; 3) contends Lindeke III erred by citing "Dr. Imes" rather than "Dr. Cuneo" on page 11; 4) contends evidence of her volunteer work with Employer is relevant and discoverable because it could refute Employer's allegation she "just sits there" when at work, and contends "brain-mapping" evidence is being withheld from the SIME; 5) reiterates her hearing contention she has no notes from Nurse Bura and contends Employer engaged in a "clear pattern of deception" regarding discovery; 6) contends Lindeke III erred on page 27 by referring to...