12-0034. DEBORAH A. JOHNSON Employee v. WAL MART STORES INC Employer and ILLINOIS NATIONAL INSURANCE COMPANY Insurer.

• Court: Alaska

Alaska Workers Compensation Decisions 2012. Workers' Compensation Board 12-0034. DEBORAH A. JOHNSON Employee v. WAL MART STORES INC Employer and ILLINOIS NATIONAL INSURANCE COMPANY Insurer DEBORAH A. JOHNSON, Employee, Applicant v. WAL MART STORES INC, Employer, and ILLINOIS NATIONAL INSURANCE COMPANY, Insurer, Defendant(s).AWCB Decision No. 12-0034Filed with AWCB Fairbanks, Alaska on Febraury 23, 2012AWCB Case No(s). 200820111INTERLOCUTORY DECISION AND ORDERDeborah A. Johnson's (Employee) October 14, 2011, Smallwood Objection to David W. Gaw, M.D.'s report was heard on February 2, 2012, in Fairbanks, Alaska. Attorney Jason Wiener represented Employee. Attorney Erin Egan represented Walmart Stores, Inc. (Employer). The record closed at the hearing's conclusion on February 2, 2012. ISSUE Employee characterized Dr. Gaw's second independent medical examination (SIME) report as "bare bones," and contends it is conclusory because it does not answer questions such as "why," or "why not?" She contends his report is inadequate because it is too brief, and the regulations do not address inadequate medical reports. Employee anticipates Employer will rely on Dr. Gaw's report at hearing, and contends forcing Employee to address an inadequate report is a violation of her rights under Smallwood. Therefore, Employee contends, Dr. Gaw's report should not be considered unless Employer produces Dr. Gaw, in person, at hearing for cross-examination. In the alternative, Employee requests an order requiring Dr. Gaw to file a complete report. Employer contends Smallwood does not apply to SIME reports, Dr. Gaw is not it's expert and 8 AAC 45.092(j) provides a mechanism for Employee to both depose Dr. Gaw and produce him at hearing for cross-examination. 1) Should consideration of Dr. Gaw's report be contingent upon Employer producing him, in person, at hearing for cross-examination? 2) Shall Dr. Gaw be required to file a more detailed report? FINDINGS OF FACT 1) On November 11, 2008, Employee reported she injured both her hands lifting flour and sugar for Employer, where she worked as an overnight stocker. (Report of Occupational Injury or Illness, November 12, 2008). 2) On August 11, 2011, Employee filed a workers' compensation claim (WCC) for bi-lateral carpel tunnel syndrome. (WCC, August 8, 2010). 3) Both Employee and Employer stipulated to a second independent medical evaluation (SIME), agreeing there was disputed medical evidence on the issues of causation and compensability. (SIME form, January 21, 2011). 4) David W. Gaw, M.D. was selected from the board's list of SIME physicians to perform the SIME. (letter from Melody Kokrine to David W. Gaw., M.D., October 3, 2011). 5) On September 19, 2011, Dr. Gaw performed the SIME, and submitted his report to the board. Dr. Gaw's report sets forth a diagnosis, recommendations for further treatment, an opinion on causation, and an impairment rating. Dr. Gaw opined Employee's work for Employer "was not the primary factor in the development of bilateral carpel tunnel syndrome or the need for bilateral carpel tunnel release surgery." (Gaw report, October 7, 2011). 6) Dr. Gaw's report is relevant evidence. (experience, judgment, unique or peculiar facts of the case, and inferences drawn from all of the above). 7) On October 14, 2011, Employee filed her "Smallwood Objection" to Dr. Gaw's report. (Employee's Smallwood Objection to SIME Physician Dr. David Gaw's Report and Medical Opinion, October 14, 2011). 8) On October 24, 2011, Employer filed its reponse, opposing Employee's objection. (Employer's Response to SIME Physician Dr. David Gaw's Report and Medical Opinions, October 20, 2011). PRINCIPLES OF LAW 8 AAC 45.052. Medical summary.

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(c) Except as provided in (f) of this section, a party filing an affidavit of readiness for hearing must attach an updated medical summary, on form 07-6103, if any new medical reports have been obtained since the last medical summary was filed.

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(2) If a party served with an affidavit of readiness for hearing wants the opportunity to cross-examine the author of a medical report . . . , a request for

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