12-0032. ROSE M. JIMENEZ Employee v. ALASKA NATIVE TRIBAL HEALTH CONSORTIUM Employer and ALASKA NATIONAL INSURANCE COMPANY Insurer Defendants.

• Court: Alaska

Alaska Workers Compensation Decisions 2012. Workers' Compensation Board 12-0032. ROSE M. JIMENEZ Employee v. ALASKA NATIVE TRIBAL HEALTH CONSORTIUM Employer and ALASKA NATIONAL INSURANCE COMPANY Insurer Defendants ROSE M. JIMENEZ, Employee, Applicant v. ALASKA NATIVE TRIBAL HEALTH CONSORTIUM, Employer, and ALASKA NATIONAL INSURANCE COMPANY, Insurer, Defendants. AWCB Decision No. 12-0032 Filed with AWCB Anchorage, Alaska on February 23, 2012 AWCB Case No. 200904058 FINAL DECISION AND ORDERRose Jimenez's claim for benefits was heard on September 8, 2011 in Anchorage Alaska. Alaska. Attorney Keenan Powell represented Ms. Jimenez. Attorney Theresa Henemann represented Alaska Native Tribal Health Consortium (ANTHC) and its insurer, Alaska National Insurance Co. Ms. Jimenez appeared and testified. Tammy Jo Bohanon, a claims adjuster with Alaska National Insurance Company, also appeared and testified. The record was left open to allow Ms. Jimenez to file a supplemental affidavit of attorney fees and costs and to allow ANTHC to respond. The record closed September 12, 2011 when ANTHC filed its response. As preliminary matters, Ms. Jimenez requested ANTHC's hearing brief be stricken and the report and deposition testimony of Dr. Brigham, ANTHC's independent medical evaluator, be excluded. The oral rulings made at hearing on both matters are examined and memorialized below. ISSUES At the beginning of the hearing, Ms. Jimenez raised two preliminary issues. She argued ANTHC's hearing brief should be stricken because it was not timely filed. She also argued that the report of Dr. Brigham and the transcript of his deposition be excluded as she was not given adequate notice of the deposition and was unable to cross-examine the doctor. ANTHC concedes its hearing brief was not timely filed, but asks the Board to waive the procedural requirement. ANTHC contends that Dr. Brigham's deposition transcript should not be excluded as it was not aware Ms. Jimenez was seeking benefits for her neck as well as her shoulder until an August 8, 2011 hearing in this case. ANTHC believed it needed an employer's independent medical evaluation (EIME) to address Ms. Jimenez's neck claim, and the dates for deposing Dr. Brigham before the hearing were very limited.

1. Should ANTHC's late-filed hearing brief be stricken?

2. Should Dr. Brigham's report and deposition testimony be excluded?

Ms. Jimenez contends her employment at ANTHC is the substantial cause of her shoulder injury and neck condition and she is consequently entitled to medical treatment related to the injury, medical related transportation costs, future disability benefits, permanent partial impairment (PPI) benefits, penalties and interest on unpaid benefits, attorney fees and costs, as well as a penalty for an unfair or frivolous controversion. ANTHC contends Mr. Jimenez's neck condition and current shoulder condition are not due to her employment, and, consequently, it is not liable for related benefits.

3. Is Ms. Jimenez entitled to medical treatment?

4. Is Ms. Jimenez entitled to medical related transportation costs?

5. Is Ms. Jimenez entitled to disability benefits?

6. Is Ms. Jimenez entitled to PPI benefits?

7. Was ANTHC's controversion unfair or frivolous and should a penalty be imposed?

8. Is Ms. Jimenez entitled to penalties or interest on unpaid benefits?

9. Is Ms. Jimenez entitled to attorney fees?

FINDINGS OF FACT The following findings of fact and factual conclusions are established by a preponderance of the evidence: 1) While working for ANTHC on March 23, 2009, Ms. Jimenez was moving a patient and felt pain in her right shoulder. (Report of Injury, March 25, 2009). 2) On March 30, 2009, Ms. Jimenez went to Dr. Michael McNamara's office where she was seen by Robert Thomas, PAC. After reviewing x-rays, PAC Thomas diagnosed "Right shoulder AC joint pain primarily due to arthritis and the trauma from moving the patient in bed." PAC Thomas discussed steroid injections with Ms. Jimenez, but because Ms. Jimenez was leaving town for about three months, she deferred treatment until her return. (Chart Note, March 30, 2009). 3) Ms. Jimenez again saw PAC Thomas on July 14, 2009. Mr. Thomas's assessment was that Ms. Jimenez was suffering from "Right shoulder AC joint osteoarthritis." Ms. Jimenez was given a steroid injection, and she was instructed to follow up on an as needed basis. (Chart Note, July 14, 2009). 4) In August 2009, Ms. Jimenez was working on a short-term job at the state prison in Seward and was exposed to a glycol leak. As a result of the exposure, she saw Dr. C.J. Little on August 21, 2009. Ms. Jimenez reported pain in her neck when she turned her head and stated that "[s]he never had any prior neck problem." Dr. Little diagnosed a respiratory inflammation reaction and noted that Ms. Jimenez was doing well. Ms. Jimenez had returned to work by the time she saw Dr. Little. (Chart Note, August 21, 2009). 5) On November 20, 2009, Ms. Jimenez returned to PAC Thomas to discuss surgical options. Mr. Thomas diagnosed "[r]ight shoulder AC joint arthritis, now showing some mild rotator cuff weakness." Mr. Thomas referred Ms. Jimenez for an MRI. (Chart Note, November 20, 2009). 6) Ms. Jimenez returned to PAC Thomas on December 1, 2009. Mr. Thomas noted the MRI did not show any rotator cuff tears or labral tears. He diagnosed "[r]ight shoulder joint osteoarthritis causing impingement." Ms. Jimenez elected to pursue surgery. (Chart Note, December 1, 2009). 7) On December 15, 2009, Ms. Jimenez met with Dr. McNamara for a preoperative exam. Dr. McNamara determined that Ms. Jimenez was not a surgical candidate at that time and recommended physical therapy. (Chart Note, December 15, 2009). 8) On December 29, 2009, Ms. Jimenez was seen at Alaska Hand Rehabilitation, Inc. for the initial evaluation for physical therapy. At that time, Ms. Jimenez reported "some neck pain and headaches since [the] onset of symptoms." (Initial Assessment, December 29, 2009). 9) Ms. Jimenez returned to Dr. McNamara on April 20, 2010. Ms. Jimenez was pleased with how well she was doing and reported no pain. Dr. McNamara's assessment was that she was doing exceptionally well. Ms. Jimenez was discharged from care, and was to return on an as-needed basis. (Chart Note, 4/20/2010). 10) Ms. Jimenez returned to PAC Thomas on October 19, 2010. The reason for the visit was: "Pt had new Pn in R shoulder. Pn started in 7/10 when she started a new job with lots of pushing/pulling/lifting." PAC Thomas noted that Ms. Jimenez "comes in today due to her reoccurring right shoulder AC joint pain . . . since July the pain has returned. She states at times it radiates into her neck." Mr. Thomas's assessment was "[r]ight should joint AC impingement, which is more chronic in nature at this time." (Chart Note, October 19, 2010). 11) On November 2, 1010, Ms. Jimenez consulted Dr. McNamara to find out if her current pain was related to the initial injury. Dr. McNamara stated that the March 2009 injury was "probably flared with her new job at Providence." (Chart Note, November 2, 2010). 12) On November 4, 2010, ANTHC controverted all benefits. The reason for the controversion was:

The current need for medical treatment did not arise out of or occur within the course and scope of employment with Alaska Native Tribal Health Consortium. The medical report of 10/19/2010 states, date of onset as 7/20/2010 patient had new pain in right shoulder. The employee has a new employer. (Controversion Notice, November 4, 2010).

13) Ms. Banahan, who signed the controversion, explained at hearing that she interpreted the reference to a new pain that started in July to mean Ms. Jimenez had suffered a new injury or aggravation while working for the new employer. She also explained that she understood the reference to the reoccurring pain to mean the pain had reoccurred between July 2010 and the October 19th examination. (Banahan). 14) On November 17, 2010, Ms. Jimenez filed a workers' compensation claim seeking a penalty for an unfair or frivolous controversion. On December 15, 2010, she filed an amended workers' compensation claim seeking future indemnity benefits, future medical and transportation benefits, penalty, interest, and attorney fees and costs in addition to the penalty for an unfair or frivolous controversion. (Workers' Compensation Claims, November 17, 2010 and December 15, 2010). 15) On December 21, 2010, ANTHC filed its answer to Ms. Jimenez's amended claim denying all benefits sought. (Answer, December 21, 2010). 16) On February 1, 2011, Dr. McNamara met with both Ms. Powell and Ms. Hennemann. Dr. McNamara explained that symptoms of AC joint injuries typically get better and flare up. He also stated that it was common to see neck pain in people with shoulder injuries, either because the neck was also injured or because the person may be sleeping differently because of the shoulder injury. When asked about the significance of both the ANTHC and Providence injuries, Dr. McNamara explained that the ANTHC injury was more significant; there was a high risk Ms. Jimenez's shoulder would flare up again, and it could have happened at any time. (McNamara Deposition). 17) In his February 22, 2011 response to a February 8, 2011 letter from Ms. Powell, Dr. McNamara stated that the March 29, 2011 injury at ANTHC was the substantial cause of Ms. Jimenez's need for shoulder surgery. (Letter, Keenan Powell to Michael McNamara, MD, February 8, 2011...