12-0054. AMOS M. SNODDY Employee v. OLGOONIK DEVELOPMENT LLC Employer and ZURICH AMERICAN INS. CO. Insurer Defendants.

• Court: Alaska

Alaska Workers Compensation Decisions 2012. Workers' Compensation Board 12-0054. AMOS M. SNODDY Employee v. OLGOONIK DEVELOPMENT LLC Employer and ZURICH AMERICAN INS. CO. Insurer Defendants ALASKA WORKERS' COMPENSATION BOARD AMOS M. SNODDY, Employee, Applicant, v. OLGOONIK DEVELOPMENT LLC, Employer, and ZURICH AMERICAN INS. CO., Insurer, Defendants.INTERLOCUTORY DECISION AND ORDERAWCB Decision No. 12-0054Filed with AWCB Anchorage, Alaskaon March 14, 2012AWCB Case No. 201102477Olgoonik Development's (Employer) November 4, 2011 Petition seeking review of the Rehabilitation Benefits Administrator's designee's (RBA designee) finding of eligibility for rehabilitation and reemployment benefits for Amos Snoddy (Employee), and Employee's July 25, 2011 Petition for a second independent medical evaluation (SIME) were heard on February 21, 2012 in Anchorage, Alaska. Attorney Charles Coe appeared and represented Employee. Attorney Jeffrey Holloway appeared and represented Employer and its workers' compensation insurer. Employee appeared and was the only witness. As a preliminary matter, Employee's late-filed hearing brief was accepted as timely filed over Employer's objection and Employer was given an opportunity to submit a written, post-hearing response to Employee's late brief. The record remained open until February 27, 2012, for Employer's response and closed on February 27, 2012. This decision examines the oral order accepting Employee's untimely filed hearing brief over Employer's objection and memorializes it, and decides Employer's petition appealing the RBA designee's decision finding Employee eligible for rehabilitation and reemployment benefits, and Employee's SIME petition on their merits. ISSUES As a preliminary matter, Employer objected to Employee's hearing brief because it was filed late. Because Employee's hearing brief was not filed within the time set forth by regulation, Employer contended the brief should not be considered for any purpose. Employee contended Employer suffered no prejudice as a result of his late-filed brief. As the brief was hand-delivered on February 14, 2012, Employee contended Employer actually received his brief sooner than it would have had Employee mailed it in a timely manner. He sought an order accepting his brief as filed. 1) Was the oral order accepting Employee's late-filed hearing brief correct? Employer contends Employee was not forthcoming in divulging his entire, 10-year work history prior to his injury or his post-injury work to the rehabilitation specialist evaluating his case. Accordingly, Employer contends the RBA designee abused her discretion by not considering all of Employee's relevant pre- and post-work-injury employment history. Accordingly, Employer contends the matter should be remanded to the RBA designee with an order she direct the assigned rehabilitation specialist to perform a more thorough employment history evaluation. Employee contends the assigned rehabilitation specialist only asked him to provide his "primary" jobs for the past 10 years, and he did so. He contends some pre- and post-injury employment included very short-term or part-time jobs, which do not qualify him to work exclusively in those positions. Though Employee admits he did not disclose some of his pre-injury employment, he contends these jobs were insignificant and contends he complied fully with instructions he received from his assigned rehabilitation specialist. Employee contends the RBA designee's decision finding him eligible for reemployment benefits should be affirmed. 2) Is the RBA designee's decision finding Employee eligible for rehabilitation and reemployment benefits supported by substantial evidence, and is it an abuse of discretion? Employee contends there is a medical dispute between his attending physicians and the Employer's medical evaluator (EME). He contends the medical dispute is significant and an SIME would assist in resolving the issues in this claim. Employee contends an SIME should be ordered. Employer contends an SIME is premature as the medical dispute over functional capacity, i.e., Employee's ability to return to his job at the time of injury or to other jobs he has held or received training for in the 10 years before his injury, or has held since his injury for long enough to obtain skills to compete in the labor market according to specific vocational preparation (SVP) codes, may resolve if the RBA designee's decision is remanded. As new job descriptions for lighter-duty jobs may come forth with a more thorough reemployment specialist evaluation of Employee's work history, Employer contends no SIME should be ordered until the reemployment benefits issue is remanded and a new eligibility report is completed. 3. Shall an SIME be ordered? FINDINGS OF FACT A review of the available record establishes the following relevant facts and factual conclusions by a preponderance of the evidence: 1) In the 10 years prior to his injury subject of this claim, Employee worked as a "fluid engineer" otherwise known as a "mud man" for Halliburton, a jewelry sales associate for Zales, a bush order processor for Costco, a security monitor for NANA, an inventory control and warehouseman for Colville, as a material specialist for CH2M, on various inventory and construction projects for Opti Staffing Group, as a material specialist and project manager for Delta Development, a security person and bouncer for Players House of Rock, a shoe sales associate at Nordstrom's, and as project manager for Employer (Snoddy deposition at 15-30). 2) On March 8, 2008, Employee began employment with Delta development group as an Administrative Assistant (Delta Development Group acknowledgment, March 8, 2008). 3) On February 25, 2011, Employee injured his left elbow and back when he slipped and fell at work (Report of Occupational Injury or Illness, February 28, 2011). 4) Whether Employee also "injured" his neck at the time of his fall is a factual and legal issue currently in dispute (observations, record). 5) On or about May 27, 2011, Employer submitted notice to the RBA advising Employee had been disabled for 90 consecutive days as a result of his injury (Employer's Notice of 90 Consecutive Days of Time Loss for Injuries Occurring on or After November 7, 2005, May 27, 2011). 6) There is no evidence Employee ever requested a reemployment benefits eligibility evaluation (record). 7) On May 31, 2011, as a result of Employee having missed 90 consecutive days from work as a result of his work-related injury, Deborah Reed, Workers' Compensation Technician, sent Employee a letter assigning Norman Silta as his rehabilitation specialist to complete an eligibility evaluation (letter, May 31, 2011). 8) On June 14, 2011, Mr. Silta sought opinions from Lawrence Stinson, Jr., M.D., one of Employee's attending physicians. Dr. Stinson diagnosed work-related cervical disc displacement, with radiculitis. Dr. Stinson also predicted Employee would incur a ratable permanent impairment (PPI) greater than 0% arising from his work-related injury, in accordance with the American Medical Association Guides the Evaluation of Permanent Impairment, 6th Edition (Guides) (letter, June 14, 2011, response signed by Dr. Stinson, June 20, 2011). 9) Mr. Silta also submitted job descriptions for Construction Project Manager, and Mud-Plant Operator, and asked Dr. Stinson to predict whether Employee would have permanent physical capacities to perform the described jobs. To both inquiries, Dr. Stinson responded the answer was "undetermined, may have surgery" (id. at 5-8). 10) On June 7, 2011, neurosurgeon Thomas Rosenbaum, M.D., saw Employee as part of an EME panel. Dr. Rosenbaum diagnosed cervical spondylosis and an "inconsequential" cervical strain by history secondary to the February 25, 2011 industrial injury (Rosenbaum EME report, June 7, 2011). 11) In response to the adjuster's specific questions, Dr. Rosenbaum stated the February 25, 2011 injury was not "the substantial cause" of Employee symptoms, noting he had significant, pre-existing cervical spondylosis. In Dr. Rosenbaum's view, the work injury did not aggravate, accelerate, or combine with a pre-existing condition to produce the necessity for medical treatment or any disability. In his opinion, Employee was undergoing active treatment before this injury and continued active treatment following the work event. Dr. Rosenbaum believed Employee was not treated for an "alternate pathology" following the work-related injury. Dr. Rosenbaum opined the reason Employee was referred for "surgical intervention" was not the work injury, but rather an "underlying pathology," which progressed over time. Though Dr. Rosenbaum felt surgery was reasonable, it was not related to the February 25, 2011 injury. Dr. Rosenbaum noted Employee was released to regular duty work in relationship to the February 25, 2011 work injury, which he stated did not play "a significant role" in regard to Employee's symptomatology. In Dr. Rosenbaum's opinion, Employee was medically stable with respect to his February 25, 2011 injury as there "was no significant injurious event." Lastly, Dr. Rosenbaum stated Employee had no ratable impairment referable to the February 25, 2011 industrial injury. Any impairment is related to Employee's pre-existing spondylosis, but, because that condition is not medically stable he cannot be rated according to Dr. Rosenbaum. Nevertheless, any rating for cervical spondylosis would be a...