12-0033. MILDRED WADE Employee v. CHUGACH SUPPORT SERVICES Employer and ZURICH AMERICAN INS CO. Insurer Defendants.

• Court: Alaska

Alaska Workers Compensation Decisions 2012. Workers' Compensation Board 12-0033. MILDRED WADE Employee v. CHUGACH SUPPORT SERVICES Employer and ZURICH AMERICAN INS CO. Insurer Defendants MILDRED WADE, Employee, Applicant, v. CHUGACH SUPPORT SERVICES, Employer, and ZURICH AMERICAN INS CO., Insurer, Defendants.AWCB Decision No. 12-0033Filed with AWCB Anchorage, Alaskaon February 23, 2012AWCB Case No. 200905161INTERLOCUTORY DECISION AND ORDERMildred L. Wade's (Employee) and Chugach Support Services and Zurich American Insurance Company's (collectively Employer) request for a hearing on the denial of the Compromise and Release Agreement (CandR) submitted for approval on January 11, 2012, was heard on February 9, 2012, in Anchorage, Alaska. Employee appeared telephonically and testified on her own behalf. Attorney Robert J. Bredesen appeared on Employer's behalf. This decision memorializes the oral orders at hearing. The record closed on February 9, 2012, at the hearing's conclusion. ISSUES Employer contends the CandR should be approved as submitted because Employee and Employer's adjuster entered voluntarily into the agreement and the parties' wishes should be respected. Employee contends the CandR should be approved because Employer denied her benefits, including medical treatment, and the adjuster told her there was nothing she could do and there were no more benefits available to her. She settled because she has no money to live on and wants to get on with her life. 1) Shall the CandR be approved? Employer contends a Second Independent Medical Evaluation (SIME) should not be ordered because there is no medical dispute. Employer further contends this decision exceeds its authority to order an SIME when there is no medical dispute. Employee contends she is willing to do whatever this decision orders and otherwise has no opinion regarding an SIME. 2) Shall an SIME be ordered? FINDINGS OF FACT A review of the record as a whole established the following facts and factual conclusions by a preponderance of the evidence: 1) Employee sustained a work related injury to her left knee on April 1, 2009, while working as a Mess Tech in King Salmon when she slipped on the ice (April 3, 2009, Report of Occupational Injury or Illness (ROI)). 2) On April 2, 2009, Employee saw K. Sterner, ANP, at Camai Community Health Center, Naknek (Camai), for left knee pain resulting from the fall on ice the day before. The assessment was left knee pain and Employee was restricted from working until follow-up on April 11, 2009. Employee was given Ultram (April 2, 2009, Camai chart note and authorization for absence). 3) On April 8, 2009, Employee saw K. Sterner in follow-up for her left knee pain. Employee was released to work as of April 13, 2009, with no excessive walking (April 8, 2009 Camai chart note and authorization for absence). 4) On April 14, 2009, K. Sterner took Employee off work for 15-21 days and recommended Employee see an orthopedic specialist. Employee was wearing a knee brace and had mild swelling in the medial meniscus area (April 14, 2009, Camai chart note and Physician's Report). 5) On June 25, 2009, Employer controverted all benefits because Employee had not returned releases (June 25, 2009 Controversion). 6) On July 26, 2009, Employer withdrew its controversion (July 26, 2009 withdrawal). 7) On September 1, 2009, Employee saw Timothy V. Sandell, M.D., in Colorado Springs, CO, with complaints of on-going left knee pain since her fall on the ice in April. His assessment was left knee pain but he could not rule out an underlying structural injury. Employee reported some improvement with self-directed exercise. However, Dr. Sandell ordered a magnetic resonance imaging scan (MRI) because he was concerned about underlying structural damage (September 1, 2009, Sandell chart note). 8) On September 23, 2009, Employee had an MRI which showed no evidence of acute internal derangement but possible subacute healing medial collateral ligament (MCL) injury and some superficial medial femoral condyle chondromalacia (September 24, 2009, MRI report). 9) On October 1, 2009, Dr. Sandell restricted Employee to light duty work with a maximum lifting of 10 pounds, no repetitive bending or squatting, no kneeling, and no prolonged standing or walking (October 1, 2009, Return to Work Restrictions). 10) On January 10, 2010, Dr. Sandell opined Employee had a possible MCL injury (January 19, 2010, Sandell chart note). 11) On January 19, 2010, Dr. Sandell continued the work restrictions (January 19, 2010, Return to Work Restrictions). 12) On January 19, 2010, Dr. Sandell referred Employee to physical therapy (January 19, 2010, referral). 13) On February 2, 2010, Employee began physical therapy (February 2, 2010, Physical Therapy Evaluation). 14) On March 2, 2010, Dr. Sandell noted Employee was being helped by pool therapy, although she still had significant pain. He noted once Employee had completed physical therapy, if she still had pain he would have her evaluated by an orthopedic surgeon (March 2, 2010, Sandell chart note). 15) On April 9, 2010, Employee saw Michael R. Schuck, M.D., on referral from Dr. Sandell. Dr. Shuck's impression was (1) history of medial collateral ligament sprain, now healed and (2) pes anserine bursilis. He gave Employee a cortico steroid injection (April 9, 2010, Schuck chart note). 16) On May 19, 2010, Dr. Sandell stated Employee was not medically stable and was likely to have some permanent impairment (May 19, 2010, Sandell response to adjuster's letter). 17) On July 26, 2010, Employee saw Robert L. Messenbaugh, M.D., for an Employer's Medical Evaluation (EME). His diagnosis was bursitis involving the pes anserine bursa along with an injury to her MCL at the time of the April 2009 injury. He opined she was now medically stable, having reached medical stability some two weeks after her evaluation by Dr. Schuck or by April 22, 2010. He further opined she had no permanent partial impairment (PPI) based on the AMA Guides, 3rd Edition (July 26, 2010, EME report). 18) Dr. Messenbaugh's rating is based on the incorrect edition of the AMA Guides since Alaska law requires use of the 6th Edition, and is, thus, invalid (experience, observations, and judgment). 19) On August 25, 2010, at the request of Employer, Paul L. Benefanti, M.D., reviewed Dr. Messenbaugh's report and using...