12-0043. NICHOLAS LONG Employee v. SOFT TOUCH EXPRESS LLC Employer and COMMERCE AND INDUSTRY INS. CO. Insurer.

• Court: Alaska

Alaska Workers Compensation Decisions 2012. Workers' Compensation Board 12-0043. NICHOLAS LONG Employee v. SOFT TOUCH EXPRESS LLC Employer and COMMERCE AND INDUSTRY INS. CO. Insurer ALASKA WORKERS' COMPENSATION BOARD NICHOLAS LONG, Employee, Applicant, v. SOFT TOUCH EXPRESS, LLC, Employer, and COMMERCE AND INDUSTRY INS. CO., Insurer, Defendants.AWCB Case No. 200906620Filed with AWCB Anchorage, Alaskaon March 6, 2012AWCB Decision No. 12-0043FINAL DECISION AND ORDERNicholas Long's (Employee) and Soft Touch Express' (Employer), joint request for approval of their Compromise and Release (CandR) was heard on February 8, 2012, in Anchorage, Alaska. Employee appeared by telephone, represented himself and testified. Attorney Krista Schwarting appeared and represented Employer and its workers' compensation insurer. The record closed on February 8, 2012. This decision examines the oral order denying the proposed CandR as not being in Employee's best interest and memorializes the oral order in the event a party wants to appeal. ISSUES Employee contends his settlement agreement should be approved, because he could use an extra $5,000.00. He further contends he will refuse to attend any more employer medical evaluation (EME) appointments because the doctors treat him poorly and take away his self-respect. Consequently, as he expects he will be cut off from benefits once he refuses to attend any future EME, he contends it is better he gets something now than nothing later. He contends the adjuster is not a nice person and he would rather not have to deal with any of these people in the future. Employer contends it paid all benefits to which Employee is entitled. Therefore, it contends the only remaining benefit is medical care and, because Employee has refused to undergo recommended surgery, there really is no other medical care to which he could be entitled. Therefore, it too seeks approval of the parties' CandR. Was the oral order denying the parties' CandR correct? FINDINGS OF FACT Evaluation of the hearing record as a whole establishes the following relevant facts and factual conclusions by a preponderance of the evidence: 1) On May 2, 2009, Employee at age 26 fell at work when he tripped over a grate, twisted, landed on his left side and injured his low back (Emergency Room Report, May 2, 2009). 2) On June 11, 2009, Employee saw Eric Kohler, M.D., on referral from his attending physician. Dr. Kohler noted Employee suffered a herniated disc at L5-S1 and had significant, nerve root irritation in several dermatomal distributions. Among other things, Dr. Kohler suggested microdiscectomy at L5-S1 and possible lateral recess decompression at L4-5 on the left, if Employee's symptoms did not improve with conservative care (chart note, June 11, 2009). 3) On June 27, 2009, Thomas Dietrich, M.D., performed an EME on Employee. After reviewing the records and performing a physical examination, Dr. Dietrich opined Employee had a lumbar disc protrusion at L5-S1, central and to the left, because of his May 2, 2009 work-related injury, which he stated was "the substantial cause" of the lumbar disc protrusion. Dr. Dietrich concurred with Dr. Kohler's treatment recommendations and noted the situation may end up in surgery but opined most people will get over this type of injury without an operation. If, after four to six weeks of conservative management there was no improvement, he opined surgery may be a reasonable consideration. In Dr. Dietrich's opinion, the work-related injury remains "the substantial cause" of Employee's need for surgery (EME report, June 27, 2009). 4) By July 2, 2009, Employee still complained of constant, aching, stabbing pain in his low back and down into his buttocks, with "pins and needles" feelings in his left foot depending upon his positioning, and some left leg weakness (chart note, July 2, 2009). 5) Employee had extensive physical therapy for his work-related injury, with little improvement (see e.g., Advanced Physical Therapy chart note, July 29, 2009). 6) On August 7, 2009, Lawrence Stinson, M.D., performed an epidural steroid injection on Employee, with minimal improvement (Surgical Procedure Note, August 7, 2009; see also Progress Note, September 3, 2009). 7) On September 11, 2009, Dr. Stinson performed another steroid injection, again with little improvement (Surgical Procedure Note, September 11, 2009). 8) On October 24, 2009, Employee saw Dr. Dietrich again for another EME. Reiterating his prior diagnoses, Dr. Dietrich recommended referral to a surgeon for consideration of an operation, as Employee had been significantly disabled for over five months without improvement (EME report, October 24, 2009). 9) October 27, 2009, Employee reported to a physician his prior doctor opined it was likely he would need surgery. Employee was reluctant to consider surgery because he was young and afraid something bad might happen and wanted another opinion from a back surgeon (chart note, October 27, 2009). 10) On November 17, 2009, Dr. Stinson withdrew as Employee's physician because Employee violated his pain agreement and increased pain medication without his doctor's approval (letter, November 17, 2009). 11) On January 19, 2010, Employee's attending physician predicted Employee will not be able to return to any of the jobs he held at the time of his injury, or in the 10 years prior to his work-related injury subject of this claim (Occupational Description Forms, January 18, 2010). 12) On January 23, 2010, James Robinson, M.D., performed another EME on Employee, opining he had a 12% whole person permanent impairment as a result of his injury, and suggested a comprehensive pain rehabilitation program. Dr. Robinson noted Employee adamantly refused to undergo surgery (EME report, January 23, 2010). 13) On February 9, 2010, Michael Gevaert, M.D., recommended Employee seriously consider surgery as Employee was developing increased weakness in his left lower extremity and some atrophy versus his right lower extremity. Dr. Gevaert referred Employee to an orthopedic surgeon for a surgical consultation, and Employee agreed with this plan (chart note, February 9, 2010). 14) On February 17, 2010, Employee was found eligible for reemployment benefits (Reemployment Benefits Administrator Designee's letter, February 17, 2010). 15) Effective February 23, 2010, Employee waived reemployment benefits and instead received a job dislocation benefit (Election to Either Receive Reemployment Benefits or Waive Reemployment Benefits and Receive a Job Dislocation Benefit Instead, February 22, 2011). 16) On April 19, 2010, Employee reported to his physician he was "financially strapped" (chart note, April 19, 2010). 17) On April 26, 2010, Employer paid Employee $26,240.00 in permanent partial impairment and job dislocation benefits (Compensation Report, April 26, 2010). 18) On November 13, 2010, Employee saw Drs. Dietrich and Robinson for another EME (EME report, November 13, 2010). 19) Both EME physicians agreed the May 2, 2009 work-related injury is "the substantial cause" of Employee's then-current "condition" and complies with "the substantial cause" definition. The injury remains the substantial cause of Employee's condition. There was no evidence of pre-existing symptoms affecting Employee's pre-existing degenerative changes at L4-L5 and L5-S1. They recommended no further medical care or treatment. Specifically, the EME physicians suggested surgery is unlikely to be effective as Employee at that time had only back pain and it had been 18 months since his accident. However, they opined the May 2, 2009 work-related injury was the substantial cause of his need for withdrawal from opioid medications. Noting Employee had refused recommendations for surgery on numerous occasions, the EME physicians felt surgery refusal was reasonable. They placed Employee on work restrictions including no lifting greater than 35 pounds occasionally and 25 pounds frequently, for "a year or two." Lastly, the EME doctors concluded the most reasonable explanation for Employee's back and leg symptoms is the May 2, 2009 work-related injury (id.). 20) On November 15, 2010, Thomas Grissom, M.D., recommended epidural steroid injections and possibly diagnostic medial branch blocks prior to recommending surgery to address Employee's continued lumbar complaints (Progress...