12-0052. BOYD G. MUZZANA Employee Petitioner v. KLINGER CONSTRUCTION and MR. PRIME BEEF Employers and STATE FARM INSURANCE COMPANY and LIBERTY NORTHWEST INSURANCE Insurers Respondents.

Court:Alaska
 
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Alaska Workers Compensation Decisions 2012. Workers' Compensation Board 12-0052. BOYD G. MUZZANA Employee Petitioner v. KLINGER CONSTRUCTION and MR. PRIME BEEF Employers and STATE FARM INSURANCE COMPANY and LIBERTY NORTHWEST INSURANCE Insurers Respondents ALASKA WORKERS' COMPENSATION BOARDBOYD G. MUZZANA, Employee, Petitioner v. KLINGER CONSTRUCTION, and MR. PRIME BEEF, Employers, and STATE FARM INSURANCE COMPANY, and LIBERTY NORTHWEST INSURANCE, Insurers, Respondents.INTERLOCUTORY DECISION AND ORDERAWCB Decision No. 12-0052Filed with AWCB Anchorage, Alaskaon March 13, 2012AWCB Case Nos. 200915704 and 199821591Boyd Muzzana's claim for a second independent medical evaluation (SIME) was heard on February 7, 2012. Attorney Joseph Kalamarides represented Mr. Muzzana. Attorney Nora Barlow represented Mr. Prime Beef and its insurer Liberty Northwest Insurance (collectively Mr. Prime Beef). Attorney Joseph Cooper represented Klinger Construction and its insurer State Farm Insurance Company (collectively Klinger). Mr. Muzzana attended the hearing but did not testify. Robert von Birgelen, an adjuster for State Farm Insurance, also attended but did not testify. The record closed on February 7, 2012. ISSUES Mr. Muzzana contends the board should order an SIME under AS23.30.095, AS23.30.110(g), or AS23.30.135(a), because a medical dispute exists between doctors or there are gaps in the medical record. Klinger contends that even if a medical dispute exists, no doctor has pointed to the injury with Klinger as a factor in Mr. Muzzana's current need for treatment, so no SIME is appropriate in its case. Mr. Prime Beef contends an SIME is not warranted because the Act requires a dispute between an employee's physician and an employer's independent medical evaluator (EIME), and the only dispute here is between its EIME and Klinger's EIME. 1. Shall an SIME be ordered? 2. If an SIME is ordered, which parties shall participate? FINDINGS OF FACT The following facts are based on the evidence in the record as of February 7, 2012, and are limited to those necessary to resolve the limited issue presented. The following facts and factual conclusions are established by a preponderance of the evidence: 1) On October 19, 1998 while working for Klinger, Mr. Muzzana fell 19 feet from a roof and suffered a spinal fracture and bilateral heel fractures. (Report of Occupational Injury or Illness, October 19, 1998). 2) Earlier medical records variously indicate that Mr. Muzzana's 1998 spinal fracture was at either the T-12 or the L-1 level. (John P. Bursell, MD Permanent Partial Impairment Rating, February 23, 2001). The parties and the current physicians all state the fracture was at the T-12 level. (Initial Office Visit Note, October 20, 2009; Lavorgna Report, February 25, 2010; Swanson Report, June 9, 2010). 3) Following the 1998 injury, Mr. Muzzana returned to work on July 7, 2002. (Compensation report, July 16, 2002). 4) Mr. Muzzana reported that while working for Mr. Prime Beef on October 1, 2009, he injured his lower back, possibly by twisting while servicing machines. (Report of Occupational Injury or Illness, 10/17/2009). 5) On October 20, 2009, Mr. Muzzana was seen by Davis Peterson, M.D. Mr. Muzzana explained to Dr. Peterson that about three weeks earlier he stood up and twisted at work resulting in severe left-sided low back and buttock pain that radiated into his left calf, ankle and foot. Dr. Peterson noted an October 9, 2009 MRI showed advanced degeneration at L4-L5, significant facet arthopathy, and neural foraminal stenosis at the L4-L5 level, with the left side being quite severe. Dr. Peterson concluded "the left foraminal stenosis at the L4-L5 level is the cause of his symptom complex." (Initial Office Visit Note, October 20, 2009). 6) Dr. Peterson saw Mr. Muzzana again on November 17, 2009, and a number of x-rays were taken. In addition to his earlier determinations, Dr. Peterson noted "what appears to be a small central herniated nucleus pulposus. He discussed surgery with Mr. Muzzana. (Chart Note, November 17, 2009). 7) Herniated discs can be the result of either traumatic injury or degenerative conditions. (Experience and observations). 8) Also on November 17, 2009, Dr. Peterson responded to a November 4, 2009 letter from Valorie Moore, an adjuster for Mr. Prime Beef. Dr. Peterson stated:
1. Mr. Muzzana had substantial pre-existing stenosis and degeneration at the L4-5 level. His mechanism of injury would not normally be expected to result in an L4 radiculopathy or radiculitis in the absence of this severe degeneration. Therefore, I would conclude that his twisting injury is not the substantial cause of his back and leg pain but his stenosis is the primary factor, which is pre-existing in this case. (Letter from Dr. Peterson to Valorie Moore, November 17, 2009.
9) Ms. Moore's November 4, 2009 letter to Dr. Peterson is not in the board's file. (Record). 10) On February 25, 2010, Dr. John Lavorgna performed an EIME for Klinger. Dr. Lavorgna diagnosed "[l]umbar radiculopathy on the left side secondary to injury of October 1, 2009." He opined Mr. Muzzana's "employment with Klinger...

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