12-0011. NANNETTE GIROUX Employee v. FRED MEYER STORES INC Employer and FRED MEYER STORES INC. Insurer Defendant(s).

• Court: Alaska

Alaska Workers Compensation Decisions 2012. Workers' Compensation Board 12-0011. NANNETTE GIROUX Employee v. FRED MEYER STORES INC Employer and FRED MEYER STORES INC. Insurer Defendant(s) Alaska Workers' Compensation Appeals Commission NANNETTE GIROUX, Employee, Applicant v. FRED MEYER STORES INC, Employer, and FRED MEYER STORES, INC., Insurer, Defendant(s).AWCB Decision No. 12-0011Filed with AWCB Anchorage, Alaska on January 12, 2012AWCB Case No. 200905952INTERLOCUTORY DECISION AND ORDERNannette Giroux's (Claimant) appeal of the reemployment benefits administrator (RBA) designee's January 19, 2011 denial of reemployment benefits eligibility was heard on November 16, 2011, in Anchorage, Alaska. Claimant represented herself, appeared and testified. Attorney Michelle Meshke represented Fred Meyer Stores, Inc. (Employer or Fred Meyer). Rehabilitation specialist Carol Jacobsen testified for Employer. The record closed on December 19, 2011, when the panel completed deliberation. As a preliminary matter, Employer's October 25, 2011 petition for hearing officer recusal was addressed. After hearing Employer's arguments for recusal, the hearing officer declined to recuse herself. After privately deliberating, the panel's lay members declined to recuse the hearing officer, and the underlying matter proceeded as scheduled. The hearing officer's refusal to recuse herself and the panel's lay members' oral order declining to recuse the hearing officer are examined and memorialized below. ISSUES Employer contends the board's April 26, 2011 letter denying the parties' proposed Compromise and Release Agreement (C and R) demonstrates either bias, or the appearance of bias on the assigned hearing officer's part, and Claimant's actions after receiving the C and R denial letter support Employer's contention. Employer contends the hearing officer should recuse herself, or be disqualified by the lay panel members, and another hearing officer assigned to this case. Claimant contends her decision to forego a C and R hearing after receiving the denial letter was motivated by her persisting medical issues, including a referral by her treating physician to a neurosurgeon for a surgical evaluation, not by the C and R denial letter. 1. Does the C and R denial letter demonstrate bias or the appearance of bias on the part of the hearing officer, and thereby require her recusal? Claimant contends the RBA designee erred when she determined Claimant was ineligible for reemployment benefits because she does not have the physical abilities to perform the physical demands of jobs within her 10-year work history. Employer contends the RBA designee's decision was supported by substantial evidence, and the designee did not abuse her discretion when she found Claimant ineligible for reemployment benefits. 2. Did the RBA designee apply controlling law and exercise sound legal discretion when she found Claimant ineligible for reemployment benefits? 3. Was the RBA designee's decision denying Claimant's eligibility for reemployment benefits supported by substantial evidence? FINDINGS OF FACT Evaluation of the record as a whole establishes the following facts and factual conclusions by a preponderance of the evidence: 1) On May 2, 2009, Claimant injured her low back while "STACKING FREIGHT IN BAKERY FREEZER." (Employer description of events contained in Report of Injury, May 3, 2009). 2) At the time of the 2009 work injury, Claimant had been employed since July 1, 2000 under several of Employer's job titles. (Reemployment Benefits Eligibility Report, March 26, 2010; Reemployment Benefits Eligibility Report Addendum 4, January 3, 2011). 3) Employer accepted the claim and paid medical, indemnity and permanent partial impairment (PPI) benefits. (Compensation Reports dated May 5, 2009, December 22, 2009). 4) From May 5, 2009, through September 10, 2009, Claimant was treated conservatively, first by family medicine physician J.C. Cates, D.O. Dr. Cates prescribed, and Claimant attended physical therapy (PT) with United Physical Therapy. Dr. Cates referred Claimant to Alaska Spine Institute (ASI) for a pain consultation and work hardening program, and to Maury Oswald, D.O. for follow-up care. (Dr. Cates chart notes; United PT chart notes; Dr. Oswald Progress Note, September 17, 2009; Dr. Gevaert letter to Dr. Cates, July 16, 2009). 5) At ASI, on or about July 16, 2009, Claimant saw physical and rehabilitation medicine physician Michel L. Gevaert, M.D. (Dr. Gevaert letter to Dr. Cates, July 16, 2009; Dr. Cates chart note, September 2, 2009). 6) Dr. Gevaert prescribed Neurontin and Mobic for Claimant's pain, recommended a repeat epidural steroid injection with a left L5-S1 transforaminal approach, and referred her to ASI's PT program for a structured work hardening program and physical capacities evaluation (PCE). (Dr. Gevaert letter to Cates, July 16, 2009; chart notes through December 1, 2009). 7) From September 23, 2009, to November 19, 2009, Claimant participated in a work hardening program and PCE conducted by ASI occupational therapist John DeCarlo, OTR. Mr. DeCarlo reported Claimant exerted maximal effort, exhibiting no symptom magnification. He noted he had received Employer's job description for its job title "Bakery Clerk" from Sedgwick Claims Management Services, Employer's adjusting firm. He opined Claimant was unable to lift and carry up to 50 pounds occasionally, one of the physical demands for Employer's bakery clerks. (Work hardening chart notes September-November 2009; PCE, November 19, 2009). 8) On December 1, 2009, Claimant last treated with Dr. Gevaert, who conducted a PPI evaluation. Dr. Gevaert noted Claimant completed the work hardening program, and could perform in the "light-medium physical demand classification." He recorded Claimant's continuing complaints of moderate low back pain in the lumbosacral junction at L4-L5 radiating into both buttocks, with episodic pain radiating into the left calf and into the right poplitea, with mild tingling sensation in the left foot, symptoms worse with coughing and standing, alleviated with rest in a seated or supine position. His impression was "HNP (herniated nucleus pulposus) L5-S1, and Nonfocal neurologic examination." He rated Claimant with a 5% whole person permanent impairment under the 6th edition of the American Medical Association (AMA) Guides to Evaluation of Permanent Impairment. Dr. Gevaert imposed a permanent lifting restriction of 35 pounds occasionally and 25 pounds frequently. (PPI Evaluation Report, December 1, 2009). 9) On September 17, 2009, Claimant began treating with Dr. Oswald, also on referral from Dr. Cates. Dr. Oswald referred her to Integrative Physical and Spine Treatment Center for VAX-D PT, which she received from December 3, 2009, through at least March 17, 2010. (Chart note, September, 17, 2009; Integrative PT progress notes). 10) On December 29, 2009, Dr. Gevaert responded to an inquiry from Sedgwick. He too was provided with Fred Meyer's job description for its job titled "Bakery Clerk," and asked if Claimant could perform as a "Bakery Clerk" without restriction. Dr. Gevaert responded in the negative, re-iterating she could lift no more than 35 pounds occasionally, and no more than 25 pounds frequently. (Dr. Gevaert response, December 29, 2009, to Sedgwick CMS inquiry of December 1, 2009). 11) On January 14, 2010, Dr. Oswald conducted an electrodiagnostic study, and concluded Claimant suffered left L5 peroneal nerve pathology - moderate, and left L1 upper lumbar nerve irritation. He continued decompression treatments at Integrative PT, but noted if there was no improvement he would refer Claimant for surgical evaluation. (Progress note, January 14, 2010). 12) On January 29, 2010, Employer's claims manager wrote the RBA requesting a vocational eligibility evaluation be conducted. (Letter from Laurie Amidon to Mark Kemberling, RBA, January 29, 2010). 13) On March 5, 2010, rehabilitation specialist (RS) Carol Jacobsen was assigned to conduct an evaluation to assist the office of the RBA in its determination of Claimant's eligibility for reemployment benefits. (Letter from Debra Reed to Jacobsen, March 5, 2010). 14) On March 26, 2010, the RS filed her first report with the RBA designee. She stated she interviewed Claimant on March 19, 2010. The RS reported Claimant's work history as: 9/95-7/1/00 Employer: Safeway-Anchorage, Alaska Job Title: Bakery (5 years) SCODRDOTs:(fn1) Packager, Hand (DOT Code 920.587-018) - 50% and Cake Decorator (DOT Code 524.381-010) - 50% -- Combo 7/1/00-9/27/09 Employer: Fred Meyer-Eagle River, Alaska Job Title: Cake Decorator (3 years) Bakery Manager (4 years) Food Manager Trainee (1 years) SCODRDOTs: Cake Decorator (DOT Code 524.381-010)/Packager, Hand (DOT Code 920.587-018) - Combo; Manager, Bakery, (DOT Code 189.117-046); Management Trainee (DOT Code 189.167-018). (Reemployment Benefits Eligibility Evaluation, March 26, 2010). 15) The rehabilitation specialist reported Claimant worked from September 1995, through July 1, 2000, in the Carrs-Safeway bakery department, and her job title, "Bakery," was comprised of 50% Cake Decorator (SCORDROT 524.381-010), and 50% Packager, Hand (SCODRDOT 920.587-018) duties. There is no evidence the RS obtained any information from Carrs-Safeway documenting Claimant's job titles or duties while employed there. Nor did the RS explain why she was reporting Claimant's work from September 1995, almost fourteen years prior to the work...