12-0057. VANCE RICHARDSON Employee v. INTERIOR ALASKA ROOFING Employer and ALASKA NATIONAL INSURANCE CO. Insurer Defendants.

• Court: Alaska

Alaska Workers Compensation Decisions 2012. Workers' Compensation Board 12-0057. VANCE RICHARDSON Employee v. INTERIOR ALASKA ROOFING Employer and ALASKA NATIONAL INSURANCE CO. Insurer Defendants ALASKA WORKERS' COMPENSATION BOARD VANCE RICHARDSON, Employee, Applicant, v. INTERIOR ALASKA ROOFING, Employer, and ALASKA NATIONAL INSURANCE CO., Insurer, Defendants.INTERLOCUTORY DECISION AND ORDERAWCB Decision No. 12-0057Filed with AWCB Fairbanks, Alaskaon March 19, 2012AWCB Case No. 201010244Vance Richardson's (Employee) October 6, 2011 Petition to strike records from the Second Independent Medical Examination (SIME) binders, and October 19, 2011 Petition concerning questions for the SIME physician were heard on January 5, 2012 in Fairbanks, Alaska. Attorney Michael Jensen represents Employee. Attorney Erin Egan represents Interior Alaska Roofing and Alaska National Insurance Company (Employer). There were no witnesses. The record closed at the hearing's conclusion on January 5, 2012. Richardson v. Interior Alaska Roofing, AWCB Decision No. 12-0023 issued on February 7, 2012 (Richardson I), and reopened the record to allow the parties to submit additional briefing on the propriety of both parties' proposed questions to the SIME physician. The parties submitted additional proposed SIME questions, which the panel reviewed. The record closed on March 15, 2012, when the panel next met and deliberated. ISSUES Employee contends Employer's proposed questions #2A-B, 6, 7, and 8 should not be forwarded to the SIME physician as they fall outside the scope of the disputes listed on the SIME form and agreed upon by the parties. Specifically, he contends the SIME physician should comment on the disputed issues, not on the causative factors related to them. Employer contends issues of causation as listed in its proposed questions are relevant to the issues in dispute and appropriate to be forwarded to the SIME physician, because causation is always an issue unless parties stipulate otherwise.

1) Shall Employer's February 28, 2012 revised proposed questions #2A-B, 6, 7, and 8 be included in the list of questions to be forwarded to the SIME physician?

Employee contends Employer's proposed question #5 fails to incorporate the expanded definition of "medical stability" as interpreted by the Alaska Supreme Court and should thus be stricken. Specifically, Employee contends question #5 is incomplete as it omits the legal explanation the need for further medical treatment is clear and convincing evidence a medical condition has not reached medical stability, as held in Alyeska Pipeline Service Co. v. DeShong, 77 P.3d 1227, 1232 (Alaska 2003) and other similar cases. Employer contends its proposed question #5 cites the definition of "medical stability" as defined by statute and is thus appropriate to forward to the SIME physician.

2) Shall Employer's February 28, 2012 revised proposed question #5 be included in the list of questions to be forwarded to the SIME physician?

FINDINGS OF FACT A review of the available record establishes the following facts and factual conclusions by a preponderance of the evidence: 1) On July 29, 2010, while working for Employer, Employee injured his back "lifting a roll of rubber roofing." (Report of Occupational Injury or Illness, August 2, 2010). 2) On April 15, 2011, Lance Brigham, M.D., conducted an Employer's Medical Evaluation (EME). Dr. Brigham opined Employee was medically stable, had suffered no permanent impairment as a result of his work injury, and was able to return to work as a finish carpenter as of April 15, 2011. He further opined Employee would be able to return to work as a roofer by July 15, 2011. (Dr. Brigham EME report, April 15, 2011). 3) On May 5, 2011 and August 8, 2011, Employer filed controversion notices, denying temporary total disability (TTD) benefits, permanent partial impairment (PPI) benefits, reemployment benefits, medical benefits, transportation costs, and attorney's fees and costs, based on Dr. Brigham's report. (Controversion Notices, May 4, 2011, July 25, 2011). 4) On June 6, 2011, Employee filed a worker's compensation claim (WCC), seeking a finding of frivolous or unfair controversion. (Employee's WCC, June 2, 2011). 5) On June 28, 2011, Daniel Kim, M.D., opined Employee was not medically stable and recommended Employee undergo radiofrequency ablation at levels L3-S1. (Dr. Kim report, June 28, 2011). 6) On June 28, 2011, Physician's Assistant Graciela Sanabria opined Employee should "refrain from heavy lifting greater than 10-15 pounds. He should not climb ladders, no stooping, no bending, and no kneeling as this may aggravate his symptoms. . . . Once we are able to control his pain he will be able to return to some of his regular work activities, as long as they do not place strain on his back." (P.A. Sanabria report, June 28, 2011). 7) On July 6, 2011, Employer filed an Answer to Employee's WCC, denying all benefits in reliance on Dr. Brigham's April 15, 2011 EME report (Employer's Answer, June 29, 2011). 8) On July 6, 2011 the parties attended a prehearing conference (PHC). Employee orally amended his WCC to include claims for TTD, PPI, medical costs, transportation costs, reemployment benefits, interest, attorney's fees and costs, and an SIME, and clarified he was no longer seeking a finding of frivolous or unfair controversion. The parties agreed to conduct an SIME. (PHC Summary, July 6, 2011). 9) On October 6, 2011, Employer filed a completed SIME form with the board, listing the disputed issues as medical treatment, functional capacity, medical stability and PPI. As the parties' representatives signed the form, the parties stipulated the relevant disputes for the SIME physician's opinion in this case are reasonable and necessary treatment, functional capacity, and medical stability. The parties listed PPI as an issue pursuant to AS 23.30.110(g). (SIME form, October 4, 2011). 10) On October 17, 2011, Employer submitted the following proposed SIME questions to the board designee, and served them on Employee's counsel:

11. Please provide your diagnoses.

2. When determining whether or not the disability or need for medical treatment arose out of and in the course of the employment, the Board must evaluate the relative contribution of different causes of the disability or need for medical treatment.

A. On a more probable than not basis, please identify all the different causes which led to the conditions you have diagnosed.

B. With respect to the different causes you have identified, please indicate which, if any, is the substantial cause of the condition. For purposes of this question, please assume that 'the substantial cause' means the cause that plays the greatest role in bringing about the condition or conditions you have diagnosed.

3. For each condition diagnosed, whether or not it is work-related, has the medical treatment rendered through the present been:

(a) medically reasonable and necessary for the process

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