12-0031. BRAD J. HANSON Employee v. MUNICIPALITY OF ANCHORAGE Employer Defendant.

• Court: Alaska

Alaska Workers Compensation Decisions 2012. Workers' Compensation Board 12-0031. BRAD J. HANSON Employee v. MUNICIPALITY OF ANCHORAGE Employer Defendant BRAD J. HANSON, Employee, Applicant, v. MUNICIPALITY OF ANCHORAGE, Employer, Defendant.AWCB Decision No. 12-0031Filed with AWCB Anchorage, Alaskaon February 21, 2012AWCB Case No. 200808717FINAL DECISION AND ORDERRemaining issues from Brad Hanson's (Employee) July 23, 2009 Workers' Compensation Claim, and as a necessary preliminary matter Employer's November 14, 2011 petition to quash a medical deposition, were heard on December 20, 2011, in Anchorage, Alaska. Attorney Michael Jensen represented Employee, who appeared and testified. Debra Hanson also testified for Employee. Attorney Trena Heikes represented the self-insured Municipality of Anchorage (Employer). Marilyn Yodlowski, M.D., testified telephonically for Employer. Law Henderson also testified for Employer. Other issues from Employee's claim were resolved in Hansen v. Municipality of Anchorage, AWCB Decision No. 10-0175 (October 29, 2010) (Hanson I). The record remained open for briefing and for Employee's supplemental fee and cost affidavit, objections, and responses. The record closed on January 5, 2012, after the parties filed additional briefing, Employee filed his supplemental affidavit of attorney's fees and costs, and the parties filed various objections and responses. This decision examines an oral order on a preliminary matter, memorializes that order, and decides the merits of the case. The December 20, 2011 hearing addressed two preliminary issues. First, Employer's late filed hearing brief and witness list were admitted as timely filed over Employee's objection. Second, the panel ordered additional briefing on whether a medical expert's deposition was admissible as evidence over Employer's objection. ISSUES As a preliminary matter, Employee contends Employer's hearing brief and witness list were untimely filed. Accordingly, Employee contends neither the brief nor the witness list should be considered, and Employer should not be allowed to call witnesses at hearing. Employer contends its representative miscounted days, which resulted in its hearing brief and witness list being filed one day late. It contends the late filing was unintentional, and had it been noticed by Employer's representative, she would have simply called Employee's representative who she is certain would have agreed to waive any objection. Employer contended Employee was not harmed by the late filing, while Employer would be significantly prejudiced were it not able to make its arguments as set forth in its brief, or call any witnesses. 1) Was the decision to accept Employer's late brief and witness list as timely correct? As another preliminary matter, in its November 14, 2011 petition, Employer contends the deposition of Edward Barrington, D.C., should be a "quashed" or in the alternative stricken as "an unlawful change of physician" and his opinions and testimony not considered for any purpose. Similarly, Employer contends since Dr. Barrington was an unlawful change in physician, his deposition charges should not be assessed against Employer. Employer contends once Employee was referred to a physician, and received treatment from that physician, he designated the referred physician as an attending physician, and this constituted a change in attending physician. Employer contends a controversion does not change its rights under AS 23.30.095, so Employee had no right to change attending physicians more than once without Employer's consent. In any event, it contends Employee's argument he "changed" to Dr. Barrington is contrived to cover the weakness of his other arguments on this issue. Employer further contends evidence rules related to expert medical witnesses do not apply to administrative claims. Thus, it contends Employee is limited to medical opinions derived from the AS 23.30.095 process and its related regulations. Lastly, Employer contends Employee's Affidavit of Readiness for Hearing stated he was ready to go hearing. Yet, Employer contends Employee noticed Dr. Barrington's deposition two weeks after his last Affidavit of Readiness for Hearing, and it was inappropriate to call a previously undisclosed witness. Employee, on the other hand, contends three, alternate bases exist for admitting Dr. Barrington's deposition. First, he contends there was never an unlawful change of physician, as all physicians Employee had seen before Dr. Barrington were on referral from a prior physician, leaving Employee free to choose Dr. Barrington as his one "change," which he did. Second, Employee contends since his claim was controverted, the change-of-physician statute, AS 23.30.095(a) does not apply. Third, Employee contends AS 23.30.095 only applies to employees' attending physicians and employers' medical evaluators, and no statute or regulation precludes him from hiring a medical expert. Thus, Employee reasons if Dr. Barrington is not an attending physician, the statute does not apply to him and nothing prohibits Employee from hiring Dr. Barrington as an expert. Accordingly, he contends Dr. Barrington's deposition should be admitted and considered as evidence, and expenses related to Dr. Barrington's opinions and deposition may be assessed against Employer. 2) Is Dr. Barrington's deposition admissible for any purpose, under any theory? Employee contends he is entitled to permanent partial impairment (PPI) benefits from Employer for his sexual dysfunction, and for his lumbar spine. He contends the second independent medical examiners (SIME) provided various, total, whole-person PPI ratings from 21% to 27%. Alternately, Employee contends, assuming Dr. Barrington's expert opinion is admissible Dr. Barrington provided a 17-18% PPI rating for these work-related conditions. Employee contends Employer's medical evaluators' (EME) reports are not credible as they reduce Employee's current PPI rating because of a 1992 injury and surgery without medical evidence from the 1992 surgery, in contravention of the requirements in the American Medical Association Guides to the Evaluation of Permanent Impairment, 6th Edition (Guides). Employer contends the law requires all PPI ratings must be done strictly in conformity with the Guides. It contends SIME physician Thomas Gritzka, M.D., by his admission did not strictly follow the Guides, and further contends all doctors upon whom Employee relies failed to strictly follow the Guides. Consequently, Employer contends none of those ratings may be relied upon. Employer contends if the Guides are properly used, Employee has no PPI because his sexual dysfunction was rated at 0% by an SIME urologist, and his current lumbar PPI was reduced by his pre-existing PPI from a past surgery, resulting in a net 0% lumbar PPI attributable to this injury. Consequently, it contends Employee is entitled to no PPI. 3) Is Employee entitled to a PPI award? Employee contends he is entitled to temporary total disability (TTD) for the time he took off work to attend EME and SIME examinations. As he attended these evaluations because of his injury, and lost earnings, he contends an award of TTD from Employer is appropriate. Employer contends Employee is not entitled to TTD after the date of medical stability. As four of the five dates for which Employee seeks TTD are after the date he was medically stable, it contends no award of TTD is appropriate for those days. As to the other day, it contends Employer paid Employee for his time off. It seeks an order denying the TTD claim. 4) Is Employee entitled to TTD for days spent attending EME or SIME appointments? Employee contends he is entitled to interest as a matter of law on any awarded PPI and TTD. He seeks interest on any benefits awarded in this decision and order. Employer contends as Employee is not entitled to any additional benefits, he is not entitled to interest. It seeks an order denying the interest claim. 5) Is Employee entitled to an award of interest? Employee contends he is entitled to an award of attorney's fees and costs for successfully prosecuting all or part of his claim for benefits. He seeks an order awarding fees and costs based upon his itemized affidavits. Employer contends as Employee is not entitled to any additional benefits, he is not entitled to an award of fees or costs. It seeks an order denying the attorney fee and cost claim. Alternately, it seeks a reduction in fees contending they are unreasonable and excessive. 6) Is Employee entitled to an award of fees and costs? FINDINGS OF FACT A review of the relevant record establishes the following facts and factual conclusions by a preponderance of the evidence: 1) Effective March 16, 1990, the Guides 3rd Edition was used to rate PPI for injuries occurring on or after that date, unless and until a newer Guides version was adopted (Bulletin 90-12, November 30, 1990). 2) There is no evidence Employee had any low back injury or ratable impairment prior to 1991 (record; observation). 3) Employee has a history of a low-back injury to the L5-S1 area in 1991 or 1992, which included surgical correction (Physician's Report, November 6, 2000; see also Hanson deposition, February 9, 2010, at 8-9). 4) The only information and data in the record concerning Employee's 1991 or 1992 low back injury and surgery is Employee's self-report of the injury with resultant surgery, which is first recorded in a medical record...