12-0023. VANCE RICHARDSON Employee v. INTERIOR ALASKA ROOFING Employer and ALASKA NATIONAL INSURANCE CO. Insurer Defendants.

• Court: Alaska

Alaska Workers Compensation Decisions 2012. Workers' Compensation Board 12-0023. VANCE RICHARDSON Employee v. INTERIOR ALASKA ROOFING Employer and ALASKA NATIONAL INSURANCE CO. Insurer Defendants Alaska Workers' Compensation Appeals Commission VANCE RICHARDSON, Employee, Applicant, v. INTERIOR ALASKA ROOFING, Employer, and ALASKA NATIONAL INSURANCE CO., Insurer, Defendants.AWCB Decision No. 12-0023Filed with AWCB Fairbanks, Alaskaon February 7, 2012AWCB Case No. 201010244INTERLOCUTORY DECISION AND ORDERVance Richardson's (Employee) October 6, 2011 Petition to strike records from the Second Independent Medical Examination (SIME) binders, and October 19, 2011 Petition concerning questions for the SIME physician were heard on January 5, 2012 in Fairbanks, Alaska. Attorney Michael Jensen represents Employee. Attorney Erin Egan represents Interior Alaska Roofing and Alaska National Insurance Company (Employer). There were no witnesses. The record closed at the hearing's conclusion on January 5, 2012. ISSUES Employee contends SIME records Bates-stamped #00001-00004 should be stricken from the SIME binders as they are not relevant to Employee's claim. Employer contends records #00001-00004 are relevant to Employee's claim and should therefore remain in the binders to be forwarded to the SIME physician for review and comment. 1) Shall Bates-stamped records #00001-00004 be stricken from the SIME binders? Employee contends Employer's proposed questions #2A-B, 6, 7, and 8 should not be forwarded to the SIME physician as they fall outside the scope of the disputes listed on the SIME form and agreed upon by the parties. Specifically, he contends the SIME physician should comment on the disputed issues, not on the causative factors related to them. He further contends Employer's proposed question #5 fails to incorporate the expanded definition of "medical stability" as interpreted by the Alaska Supreme Court and should thus be stricken. Employer contends issues of causation as listed in its proposed questions are relevant to the issues in dispute and appropriate to be forwarded to the SIME physician, because causation is always an issue unless parties stipulate otherwise. It further contends its proposed question #5 cites the definition of "medical stability" as defined by statute and is thus appropriate to forward to the SIME physician. Employer did not file an objection to Employee's proposed questions. However, the panel on its own motion has concerns about both Employer's and Employee's proposed SIME questions. As the questions have been sent to Dr. Diamond for the SIME scheduled for January 7, 2012, the panel raises the issue whether many of the questions set forth the proper legal and factual standards and need to be revised. Employee's petition brought the questions to the panel's attention. But, because the issue of the propriety of Employee's questions was not squarely raised as an issue at hearing, the panel raises the issue whether the parties should be given an opportunity to address Employee's questions before Employee's October 19, 2011 petition is decided. 2) Shall the record be reopened for additional argument on the propriety of all questions sent to the SIME physician? FINDINGS OF FACT A review of the available record establishes the following facts and factual conclusions by a preponderance of the evidence: 1) On October 24, 2009, Employee sought treatment at Fairbanks Urgent Care Center, reporting "left ankle popping" after a "sprain two months ago." X-rays taken that day revealed mild tibiotalar spurring and a small Achilles tendon spur, but no acute bone or joint abnormalities. (Fairbanks Urgent Care records, SIME #00001-00004, October 24, 2009). 2) On July 29, 2010, while working for Employer, Employee injured his back "lifting a roll of rubber roofing." (Report of Occupational Injury or Illness, August 2, 2010). 3) On April 15, 2011, Lance Brigham, M.D., conducted an Employer's Medical Evaluation (EME). Dr. Brigham opined Employee was medically stable, had suffered no permanent impairment as a result of his work injury, and was able to return to work as a finish carpenter as of April 15, 2011. He further opined Employee would be able to return to work as a roofer by July 15, 2011. (Dr. Brigham EME report, April 15, 2011). 4) On May 5, 2011 and August 8, 2011, Employer filed controversion notices, denying temporary total disability (TTD) benefits, permanent partial impairment (PPI) benefits, reemployment benefits, medical benefits, transportation costs, and attorney's fees and costs, based on Dr. Brigham's report. (Controversion Notices, May 4, 2011, July 25, 2011). 5) On June 6, 2011, Employee filed a worker's compensation claim (WCC), seeking a finding of frivolous or unfair controversion. (Employee's WCC, June 2, 2011). 6) On June 28, 2011, Daniel Kim, M.D., opined Employee was not medically stable and recommended Employee undergo radiofrequency ablation at levels L3-S1. (Dr. Kim report, June 28, 2011). 7) On June 28, 2011, Physician's Assistant Graciela Sanabria opined Employee should "refrain from heavy lifting greater than 10-15 pounds. He should not climb ladders, no stooping, no bending, and no kneeling as this may aggravate his symptoms. . . . Once we are able to control his pain he will be able to return to some of his regular work activities, as long as they do not place strain on his back." (P.A. Sanabria report, June 28, 2011). 8) On July 6, 2011, Employer filed an Answer to Employee's WCC, denying all benefits in reliance on Dr. Brigham's April 15, 2011 EME report (Employer's Answer, June 29, 2011). 9) On July 6, 2011 the parties attended a prehearing conference (PHC). Employee orally amended his WCC to include claims for TTD, PPI, medical costs, transportation costs, reemployment benefits, interest, attorney's fees and costs, and an SIME, and clarified he was no longer seeking a finding of frivolous or unfair controversion. The parties agreed to conduct an SIME. (PHC Summary, July 6, 2011). 10) On September 29, 2011, Employer filed a medical summary including records from Employee's October 24, 2009 visit to Fairbanks Urgent Care Center for treatment for his left ankle. (Medical Summary, September 27, 2011). 11) On October 6, 2011, Employer filed a completed SIME form with the board, listing the disputed issues as medical treatment, functional capacity, medical stability and PPI. As the parties' representatives signed the form, the parties stipulated the relevant disputes for the SIME physician's opinion in this case are reasonable and necessary treatment, functional capacity, and medical stability. (SIME form, October 4, 2011). 12) On October 11, 2011, Employee filed a timely petition objecting to the September 29, 2011 medical summary, requesting the records from Employee's October 24, 2009 visit to Fairbanks Urgent Care Center be removed from the board's file, as they were not relevant to his claim. (Employee's Objection to September 29, 2011 Medical Summary, October 6, 2011). 13) On October 17, 2011, Employer submitted the following proposed SIME questions to the board designee, and served them on Employee's counsel:

11. Please provide your diagnoses.

2. When determining whether or not the disability or need for medical treatment arose out of and in the course of the employment, the Board must evaluate the relative contribution of different causes of the disability or need for medical treatment.

A. On a more probable than not basis, please identify all the different causes which led to the conditions you have diagnosed.

B. With respect to the different causes you have identified, please indicate which, if any, is the substantial cause of the condition. For purposes of this question, please assume that 'the substantial cause' means the cause that plays the greatest role in bringing about the

...