12-0044. ROBIN A. FREELONG Employee v. CHUGACH ALASKA SERVICES INC. Employer and ZURICH AMERICAN INSURANCE/ NOVAPRO RISK SOLUTIONS Insurer/Adjuster Defendants.

• Court: Alaska

Alaska Workers Compensation Decisions 2012. Workers' Compensation Board 12-0044. ROBIN A. FREELONG Employee v. CHUGACH ALASKA SERVICES INC. Employer and ZURICH AMERICAN INSURANCE/ NOVAPRO RISK SOLUTIONS Insurer/Adjuster Defendants ALASKA WORKERS' COMPENSATION BOARD ROBIN A. FREELONG, Employee, Applicant, v. CHUGACH ALASKA SERVICES, INC., Employer, and ZURICH AMERICAN INSURANCE/ NOVAPRO RISK SOLUTIONS, Insurer/Adjuster, Defendants.AWCB Decision No. 12-0044Filed with AWCB Fairbanks, Alaska on March 6, 2012AWCB Case No. 200919643INTERLOCUTORY DECISION AND ORDER Chugach Alaska Services, Inc. and Zurich American Insurance/Novapro Risk Solutions' (Employer) August 24, 2011 petition for reimbursement of expenses for an employer's medical examination (EME) and to compel Employee to attend an EME was heard on February 2, 2012, in Fairbanks, Alaska. Robin Freelong (Employee) appeared in person, testified, and was represented by Pete Stepovich, paralegal for Michael Stepovich. Attorney Robert Bredesen represented Employer. Employer's adjuster Serra Williams testified by telephone. This matter was heard before a two member panel, a quorum under AS 23.30.005(f). The record closed at the hearing's conclusion on February 2, 2012. ISSUES Employer contends Employee unreasonably refused to attend a properly noticed EME scheduled for August 20, 2011. Specifically, Employer contends Employee's choice to "lazily hang out and cook pork ribs" with his son is insufficient reason to justify failing to fulfill his legal obligation to attend an EME. As Employee unreasonably refused to attend the EME, Employer contends suspension of Employee's benefits was appropriate. Employee contends he did not unreasonably refuse to attend the EME. He contends he had a previously scheduled "family celebration" the weekend of the EME and chose to attend this event as his son was soon to be deployed to Bahrain for two years. Employee contends he provided Employer ample notice he would not be available on August 20, 2011, but agreed to attend an EME scheduled any time after September 1, 2011. As Employee contends suspension of his benefits was inappropriate, he seeks reinstatement of all benefits from August 20, 2011, forward. 1) Did Employee unreasonably refuse to attend a properly noticed EME? 2) If so, when did the refusal end? Employer contends Employee's benefits should be forfeited as his unreasonable refusal to attend the properly noticed EME constituted a "brazen contempt for his responsibilities under the Act." Employee contends the ribs were well worth it, as he was spending invaluable time with his son before his extended deployment. He contends forfeiture is not appropriate as he gave adequate notice of his unavailability. 3) Should Employee's benefits be forfeited for the suspended period? Employer contends Employee's choice to "hang out and cook pork" does not constitute good cause to excuse Employee from attending the August 20, 2011 EME, and his compensation should therefore be reduced to reimburse Employer for the no-show fee. Employee contends good cause existed under 8 AAC 45.090(g) for his failure to attend the August 20, 2011 EME and therefore he should not be responsible for reimbursing Employer for the EME physician's no-show fee. 4) Should Employee's compensation be reduced to reimburse Employer for the EME no-show fee under 8 AAC 45.090(g)? Employee contends he is entitled to temporary total disability (TTD) benefits, medical costs, transportation costs, a finding of unfair or frivolous controversion, penalty, interest and attorney's fees and costs because Employer improperly suspended Employee's benefits when he failed to attend the August 20, 2011 EME. He seeks an award of benefits from August 20, 2011, forward. Employer contends it properly suspended benefits when Employee failed to attend the August 20, 2011 EME. It further contends its December 27, 2011 and January 12, 2012 controversions provide separate bases for denying Employee's indemnity and medical benefits. 5) Is Employee entitled to an award of indemnity and medical benefits? FINDINGS OF FACT A review of the entire administrative record establishes the following facts and factual conclusions by a preponderance of the evidence: 1) On December 13, 2009, Employee injured his left shoulder unloading a truck bed while working for Employer. (Report of Occupational Injury or Illness, December 13, 2009). 2) Employer accepted liability for the injury and began paying TTD and medical benefits. (Compensation report, March 18, 2010). 3) Employee treated conservatively for his shoulder injury, undergoing a course of physical therapy at the recommendation of Mark Wade, M.D. (Dr. Wade reports, Home Town Physical Therapy reports, January 2010 - November 2010). 4) On November 5, 2010, Dr. Wade performed diagnostic arthroscopy of Employee's left shoulder. (Dr. Wade operative report, November 5, 2010). 5) Employee continued physical therapy and conservative treatment following his surgery. (Dr. Wade, Home Town Physical Therapy reports, January 2011 - June 2011). 6) On June 22, 2011, Employee attended a physical capacities evaluation (PCE) on Dr. Wade's referral. At the PCE, physical therapist Martina Adam-Mariutto reported Employee would benefit from a neurological examination due to decreased deep tendon reflexes in the left arm, decreased sensation to light and sharp touch in the left C5, C6 and C7 dermatomes, and decreased strength throughout his left upper arm. This report was the first indication a neurological evaluation may be warranted. (PCE Report of PT Adam-Mariutto, June 22, 2011; record). 7) On August 1, 2011, Makila Herd, assistant to Employer's adjuster Serra Williams, sent Employee a letter informing him an EME had been scheduled for August 20, 2011, with orthopedic surgeon Keith Holley, M.D., and neurologist Eugene Wong, M.D. The letter stated: "It is very important that you attend this appointment. Failure to attend may jeopardize future compensation benefits. Should you have any scheduling problems, contact me no later than 10 days prior to the appointment date to avoid 'no show' fees." (M. Herd letter to Employee, August 1, 2011) (emphasis in original). 8) On August 3, 2011, Objective Medical Assessments Corporation (OMAC) sent Employee a letter informing him of his upcoming appointment. The letter stated: "Please contact the person who scheduled the exam immediately if your client is unable to attend on the date and time noted above. We require 7 days notice of canceling or rescheduling exams." (OMAC letter to Employee, August 3, 2011). 9) On August 4, 2011, Makila Herd sent Employee a second letter correcting OMAC's address. The letter was identical to the August 1, 2011 letter in all other respects. (M. Herd letter to Employee, August 4, 2011). 10) On August 10, 2011, Peter Stepovich sent a letter by email to Employer's attorney:

By means of this correspondence I would like to recount our phone conversations of the last two days regarding the employer medical exam which is apparently scheduled to take place on August 20, 2011, in Anchorage.

I called you on August 9, 2011, to request that the exam be rescheduled so as to accommodate scheduling conflicts Mr. Freelong has at that time. I mentioned to you that his son, who is in the Navy, is in town and soon to ship out. I also mentioned Mr. Freelong had some medical appointments scheduled around that time and that August was a busy month for him. You told me that you would relay our request to your client.

You then called me this morning August 10th, to inform me that your client wanted to keep the appointment because it would be sometime before another appointment could be made. I then passed the information on to Mr. Freelong, who reiterated to me that August 20th created a conflict with his plans. We next spoke this afternoon, wherein I told you that Mr. Freelong was exercising the option provided him by NovaPro, in the August 4, 2011 letter of notice, i.e., 'should you have any scheduling problems, contact me no later than 10 days prior to the appointment date to avoid 'no show' fees.' I again reminded you that his son was in town and soon to leave, and that Mr. Freelong may not see him for the next two years. . . . You reiterated that your client wanted Mr. Freelong to attend.

Prior to preparing this letter I relayed our last discussion to Mr. Freelong. Mr. Freelong confirmed again that the proposed exam conflicts with his schedule. I asked specific questions of Mr. Freelong about his plans the day of the proposed exam. He told me that a family reunion is taking place that weekend (Friday-Saturday) in honor of his son. He told me his son will be leaving shortly thereafter, and that he may not see him for two

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