12-0022. DEBRA K. TATE Employee Claimant v. KEY BANK NATIONAL ASSOCIATION Employer and FEDERAL INS CO Insurer, Defendant(s).
Alaska Workers Compensation Decisions 2012. Workers' Compensation Board 12-0022. DEBRA K. TATE Employee Claimant v. KEY BANK NATIONAL ASSOCIATION Employer and FEDERAL INS CO Insurer, Defendant(s) Alaska Workers' Compensation Appeals Commission DEBRA K. TATE, Employee, Claimant v. KEY BANK NATIONAL ASSOCIATION, Employer, and FEDERAL INS CO, Insurer, Defendant(s).AWCB Decision No. 12-0022Filed with AWCB Fairbanks, Alaska on February 3, 2012AWCB Case No(s). 200010732INTERLOCUTORY DECISION AND ORDER Key Bank National Association's (Employer) August 22, 2011 Petition for a second independent medical evaluation (SIME) or other medical evaluation was heard on November 3, 2011, in Fairbanks, Alaska. Paralegal Pete Stepovich appeared and represented Employee. Attorney Robert Griffin appeared and represented Employer and its insurer. The record closed at the hearing's conclusion on November 3, 2011. ISSUE Employer contends significant medical disputes exist between Employee's attending physician Lawrence Stinson, M.D., and Employer's medical evaluator (EME) Stephen Marble, M.D., and contends an SIME will assist the fact-finders in resolving this case. Though it concedes its SIME request was untimely, Employer contends a discretionary SIME may nonetheless be ordered. Alternately, Employer contends by regulation the time for requesting an SIME can and should be extended. It seeks an order for an SIME, or a medical evaluation under a different statute. Employee contends an SIME was already done in this case. She contends the current medical disputes between the physicians are not significant because the conditions and treatment have not changed significantly for years. Employee contends Employer knew of the medical disputes for months, did nothing about them and only seeks an SIME "at the 11th hour" to delay the case, which she contends is otherwise ready for hearing. She contends another SIME would defeat the law's purpose, which is to provide a quick, efficient, predictable delivery of medical benefits to her at a reasonable cost to Employer. She seeks an order denying the SIME request. Shall a follow-up SIME be ordered? FINDINGS OF FACT A review of the record establishes the following relevant facts and factual conclusions by a preponderance of the evidence: 1) On May 17, 2000, Employee injured her right wrist lifting a bag of quarters while working as a bank teller for Employer in North Pole, Alaska (June 12, 2000). 1) On September 28, 2000, hand specialist Thomas Trumble, M.D., surgically repaired a triangular fibrocartilage complex tear in her wrist (operative report, September 28, 2000). 2) On May 17, 2001, and August 3, 2001, Dr. Trumble performed follow-up surgeries (Dr. Trumble medical reports, May 17, 2001, and August 3, 2001). 3) Thereafter, Employee's pains continued and spread up her arm, across her shoulders, down her back, and bilaterally into her legs. According to her current treating physician, Lawrence Stinson, M.D., she continued to experience "midthoracic bilateral upper extremity and headache pain (Dr. Stinson medical report, January 31, 2005). 4) On April 25, 2005, Anchorage physician Larry Levine, M.D., performed an SIME (Dr. Levine's report, April 25, 2005). 5) A sensation silhouette Employee completed as part of her 2005 SIME shows she experienced various symptoms essentially over her entire body (sensation drawing, April 19, 2005). 6) On February 28, 2006, the board approved a Compromise and Release (CandR) that settled Employee's rights to benefits, but for continuing medical benefits for the right upper extremity and medical benefits related to the spinal cord stimulator (CandR, February 28, 2006). 7) On March 28, 2006, Employee's spinal cord stimulator was replaced in a surgical procedure performed by Larry Stinson, M.D., her treating physician, and Neurosurgeon John C. Godersky, M.D. (operative report, March 28, 2006). 8) Employer continued to pay for medical care pursuant to the CandR (record; statements of the parties at hearing). 9) On December 9, 2010, Employer controverted all medical benefits associated with Employee's treatment for "shingles, low back, and neck pain" (Controversion Notice, December 9, 2010). 10) On March 1, 2011, Employee filed a workers' compensation claim requesting medical and related transportation costs, a 25% penalty, interest, a finding of an unfair or frivolous controversion, attorney's fees and costs (Workers' Compensation Claim, March 1, 2011). 11) On April 29, 2011, Stephen Marble, M.D., performed an EME on Employee and stated:
Ms. Tate's spinal cord stimulator and IPG unit and the treatment related to their maintenance and care are not a substantial factor in causing occipital neuralgia, shingles, lumbosacral or sacroiliac complaints, trigeminal neuralgia, or cervicalgia/cervical dystonia. . . .
. . .
There is no medical basis to link the spinal cord stimulator/IPG unit and shingles, trigeminal neuralgia, occipital neuralgia, or cervical dystonia. . . .
Dr. Marble's report, April 29, 2011.12) On April 29, 2011, Dr. Marble stated Employee did not require as reasonable and necessary medical treatment for her work-related injury, any further injections, nerve blocks, trigger point, Botox, and occipital nerve blocks, or braces and prescription medications for Employee's right upper extremity. Dr. Marble opined these treatment forms were not required to address Employee's spinal cord stimulator maintenance and related care. In Dr. Marble's opinion, Employee does not require Lidoderm patches, Fosamax, Endocet, Percocet, Keflex, Flexeril, Ibuprofen 800 mg, Zovirax ointment, Vicoprofen, Ultram/Tramadol, Lyrica, Topamax, or Cymbalta as reasonable and necessary medical treatment the process of recovery for her right upper extremity condition or for her spinal cord stimulator maintenance and care (id.). 13) On May 11, 2011, Employer controverted Employee's occipital neuralgia condition; herpes zoster/shingles condition; lumbosacral/sacroiliac condition; trigeminal neuralgia condition; cervicalgia/cervical dystonia condition, and related treatments for these conditions; injections including trigger point, nerve blocks and Botox; braces; and prescription medications (Controversion Notice, May 11, 2011). 14) On May 17, 2011, Dr. Stinson wrote in respect to a recent controversion notice:
The contraversion [sic] is quite troubling as it states things that are obviously untrue. He singles out occipital neuralgia, which is significantly exacerbated by the patient's surgery and subsequent healing, her...
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