12-0014. STACY L. JENNINGS Employee v. SAFELITE AUTO GLASS Employer and AMERICAN ZURICH INS. CO. Insurer Defendant.

• Court: Alaska

Alaska Workers Compensation Decisions 2012. Workers' Compensation Board 12-0014. STACY L. JENNINGS Employee v. SAFELITE AUTO GLASS Employer and AMERICAN ZURICH INS. CO. Insurer Defendant Alaska Workers' Compensation Appeals Commission STACY L. JENNINGS, Employee, Applicant, v. SAFELITE AUTO GLASS, Employer, and AMERICAN ZURICH INS. CO., Insurer, Defendant.AWCB Decision No. 12-0014 Filed with AWCB Anchorage, Alaskaon January 13, 2012AWCB Case No. 201000297INTERLOCUTORY DECISION AND ORDERStacy Jennings' (Employee) March 4, 2011 workers' compensation claim was heard on December 1, 2011, in Anchorage, Alaska. Attorney Robert Rehbock represented Employee. Attorney Robert Griffin represented Safelite Auto Glass and its workers' compensation insurer (Employer). The record closed on December 16, 2011, when the panel members deliberated. ISSUE It is undisputed Employee slipped on the ice and fell while at work, injuring his right shoulder, on January 11, 2010. It is also undisputed Employee slipped on the steps at his home on or about June 20, 2010, reached out to grab the handrail with his right hand, and injured his right shoulder again. In light of these undisputed facts: Employee contends his slip on the stairs at home arose out of and in the course of his January 11, 2010 work-related injury as a matter of law, and contends his work injury remains the substantial cause of medical care for his right shoulder and disability following the June 20, 2010 event. He contends the string of legal and factual causation between the original work-related injury and the slip at home has never been cut. Accordingly, Employee contends he is entitled to a period of temporary total disability (TTD), a determination past TTD was properly paid, medical care, related transportation expenses, and attorney's fees and costs. He seeks an order finding the slip at home on or about June 20, 2010, was a compensable event under the Alaska Workers' Compensation Act (Act). Employer contends the medical evidence proves the slip-on-the-stair event on or about June 20, 2010, did not arise out of or in the course of Employee's employment because the employment was not "the substantial cause" of any disability or need for medical treatment to Employee's right shoulder after that date. It contends the presumption analysis applies to this case. Employer concedes the presumption attaches to the stair incident but contends the presumption was rebutted by the attending physician's and the employer's medical evaluator's (EME) opinions. It further contends Employee cannot prove his case, because the preponderance of medical evidence supports a finding the stair incident was the substantial cause of the need for additional shoulder surgery and resultant disability. Employer seeks an order finding the slip at home on or about June 20, 2010, was not a compensable event, and stating Employee is not entitled to the benefits he currently seeks as a result of that event. The panel on its own motion raises the question whether or not there should be a second independent medical evaluation (SIME) ordered under AS 23.30.095(k), or other medical evaluation ordered under AS 23.30.110(g) or AS 23.30.155(h). As this was not an issue noticed for hearing on December 1, 2011, this decision cannot decide it without first finding unusual and extenuating circumstances exist and giving the parties notice and an opportunity to be heard on the SIME or other medical evaluation issue. Therefore, the preliminary issue becomes: Shall the parties be given notice and an opportunity to be heard on the panel's issue, raised on its own motion: Shall an SIME or other medical evaluation be ordered in this matter before deciding it on its merits? FINDINGS OF FACT A review of the relevant record establishes the following facts and factual conclusions by a preponderance of the evidence: 1) On January 11, 2010, Employee slipped on the ice and fell while entering a van while at work and injured his right shoulder (Report of Occupational Injury or Illness, January 16, 2010). 2) Employer began paying TTD benefits effective January 13, 2010, and continued to pay temporary total or temporary partial disability benefits through April 16, 2011 (Compensation Reports, March 24, 2010; April 26, 2011). 3) On May 7, 2010, William Mills, M.D., performed right shoulder surgery on Employee to address the effects of his work-related injury (Operative Report, May 7, 2010). 4) Following his first surgery for this injury, Employee's right shoulder continued to be sore (Employee). 5) On or about June 19, 2010, Employee had taken his usual pain medication and had gone to bed at home; his right upper extremity was still in a sling following surgery (id.). 6) On or about June 20, 2010, at about 1:00 AM Employee was a little groggy when he got up to go the bathroom, went down some stairs, slipped on a step while descending, grabbed the hand rail with his right hand to avoid falling, and further injured his right shoulder (id.). 7) Though Employee's right shoulder was typically sore following his first surgery, it was "extremely sore" the morning after he slipped on the step at home and got progressively worse (id.). 8) On July 27, 2010, after noting Employee had "tripped and ended up falling down the stairs," Dr. Mills reported Employee was "status post right open rotator cuff repair, possible retear of his rotator cuff" (chart note, July 27, 2010). 9) On October 11, 2010, Dr. Mills reported the "fall down the stairs" may "very well have disrupted his repair" (id., October 11, 2010). However, x-ray reports disclosed his "anchors" appeared unchanged from films done in July (x-ray report, October 11, 2010). 10) On January 7, 2011, Dr. Mills performed his second right shoulder surgery on Employee (Operative Report, January 7, 2011). 11) Employee still had right shoulder symptoms following the second surgery (Employee). 12) On January 20, 2011, adjuster Charles Brady wrote to Dr. Mills and provided the definition of "the substantial cause" and asked him if "the substantial cause of the need for a second surgery [is] the specific work injury of January 11, 2010, or is it the incident at home in June 2010?" (letter, January 20, 2010). 13) On February 2, 2011, Dr. Mills responded by...