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 |
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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