12-0058. BRAD J. HANSON Employee v. MUNICIPALITY OF ANCHORAGE Employer Defendant.

• Court: Alaska

Alaska Workers Compensation Decisions 2012. Workers' Compensation Board 12-0058. BRAD J. HANSON Employee v. MUNICIPALITY OF ANCHORAGE Employer Defendant ALASKA WORKERS' COMPENSATION BOARD BRAD J. HANSON, Employee, Applicant, v. MUNICIPALITY OF ANCHORAGE, Employer, Defendant.FINAL DECISION AND ORDER ON RECONSIDERATIONAWCB Decision No. 12-0058Filed with AWCB Anchorage, Alaskaon March 22, 2012AWCB Case No. 200808717The Municipality of Anchorage's (Employer) February 29, 2012, and Brad Hanson's (Employee) March 5, 2012 petitions for reconsideration, were heard on the written record on March 21, 2012, in Anchorage, Alaska. Attorney Trena Heikes represented Employer. Attorney Michael Jensen represented Employee. The record closed on March 21, 2012. Hansen v. Municipality of Anchorage, AWCB Decision No. 10-0175 (October 29, 2010) (Hanson I) ordered: Employer is liable for Employee's medical treatment at the L4-5 spinal level; Employee's claim to additional permanent partial impairment (PPI) was held in abeyance pending a medical evaluation ordered with James Downey, M.D., and Thomas Gritzka, M.D., pursuant to AS 23.30.110(g) and AS 23.30.155(h); issues for Dr. Downey's examination were causation, compensability and PPI for Employee's retrograde ejaculation, and issues for Dr. Gritzka's evaluation included a PPI rating for Employee's compensable injuries from Hanson I; Employee's claim for transportation expenses to California was denied; Employee and his providers are entitled to interest; Employee is entitled to a penalty; and Employee was awarded reasonable fees of $39,252.50, and costs of $2,389.14. Preliminary and remaining issues from Employee's claim were addressed in Hansen v. Municipality of Anchorage, AWCB Decision No. 12-0031 (February 21, 2012) (Hanson II). Hanson II ordered: The oral decision to accept Employer's late brief and witness list as timely was correct; Dr. Barrington's deposition is admissible for any purpose; Employee is entitled to a 3% PPI award for his sexual dysfunction; Employee is entitled to temporary total disability (TTD) for two days spent attending an EME and SIME appointment; Employee's TTD claim for three other dates was denied; Employee is entitled to interest; and Employee is entitled to an award of $26,911.50 in attorney's fees, $6,220.50 in paralegal expenses, and $2,652.40 in costs. ISSUES Employer's February 29, 2012 Petition for Reconsideration contends HansonII erred by awarding Employee's counsel full reasonable attorney's fees notwithstanding his "poor legal advice and decision making." Employer relies on a pre-hearing settlement offer it reportedly made to Employee, which it contends he rejected, which would have provided significantly more benefits to Employee than awarded by Hanson II. Employer contends Hanson II 's fee and cost award should be reconsidered and Employee should be awarded approximately 10% of his actual fees and costs. Employee has not answered Employer's Petition for Reconsideration. Accordingly, Employee's precise position on the petition is not known, though it is presumed Employee opposes it. 1) Shall Hanson II's decision awarding Employee full reasonable attorney's fees and costs be reconsidered? Employee's March 5, 2012 Petition for Reconsideration contends Hanson II failed to address compensability of Employee's hypogastric nerve plexus, which resulted in permanent sexual dysfunction. Employee further contends Hanson II improperly rated Employee's 1992 back condition at 8% pursuant to the American Medical Association Guides to the Evaluation of Permanent Impairment, 3rd Edition (Guides). Employee contends he had signs of radiculopathy when he was rated and Hanson II should have relied upon PPI ratings from physicians who took radiculopathy into account in their ratings. Alternately, Employee seeks PPI rating clarification. Employer's "partial" answer contends reconsideration of Hanson II's decision concerning Employee's retrograde ejaculation and hypogastric nerve plexus condition is unnecessary because at hearing Employer did not dispute or argue against it as a compensable, work-related condition. Because Employer already paid the 3% PPI rating Hanson II awarded for this condition, it contends no basis exists for reconsideration of Hanson II's decision and it is "moot." Employer has not answered the remainder of Employee's Petition for Reconsideration. Accordingly, Employer's precise position on the remaining issues is not known, though it is presumed Employer is opposed. 2) Shall Hanson IPs decision on Employee's hypogastric nerve plexus injury and resultant retrograde ejaculation, its conclusion Employee had an 8% pre-existing PPI rating, or its conclusion Employee had no signs of radiculopathy at the time of the PPI rating relied upon be reconsidered? Lastly, Employee contends disparate ratings under various Guides editions results in unfair rating adjustments between younger and older workers. He contends Hanson II creates separate classes of workers, which violates due process and equal protection. Employer has not answered this part of Employee's Petition for Reconsideration. Accordingly, Employer's precise position on this issue is not known, though it is presumed Employer opposes it. 3) Shall Hanson II be reconsidered on Constitutional grounds? FINDINGS OF FACT All factual findings and factual conclusions from Hanson I and Hanson II are incorporated by reference. Specific facts and factual conclusions from Hanson I and Hanson II are reiterated as they apply to issues raised in the parties' petitions. A review of the relevant record establishes the following additional facts and factual conclusions by a preponderance of the evidence: 1) Effective March 16, 1990, the Guides 3rd Edition was used to rate PPI for injuries occurring on or after that date, until a newer Guides version was adopted (Bulletin 90-12, November 30, 1990). 2) Employee has a history of a low-back injury to the L5-S1 area in 1991 or 1992, which included surgical correction (Physician's Report, November 6, 2000; Hanson deposition, February 9, 2010, at 8-9). In his deposition, Employee stated:

Q. Okay. And in 1992 when you were in Utah, can you tell me what the nature was of that problem, to the best of your knowledge?

A. The nature of the problem was a herniated disc at L5-S1.

Q. And you had surgery to correct that problem?

A. Yes. . . .

Employee's deposition, February 9, 2010, at 9.

3) The only information and data in the record concerning Employee's 1991 or 1992 low back injury and surgery is Employee's self-report of the injury with resultant surgery, which is first recorded in a medical record eight years later as a laminectomy, presumably in 1992, and evidenced in a 2003 magnetic resonance imaging (MRI) scan report (record, observations, and inferences drawn from the above). 4) As a firefighter with emergency medical training, who is married to a nurse, it is highly probable Employee knows the reason for, type and location of his 1992 low back surgery (experience, judgment, observations and inferences drawn from all of the above). 5) The Guides 3rd Edition states:

2.0 Introduction

A system for managing disability benefits is most effective when there is sufficient medical and nonmedical information to justify a decision and thereby to minimize or eliminate adversary confrontation. . . .

One major objective of the Guides is to define the process of measuring and reporting medical impairment in sufficient detail so that physicians have the capability to collect, analyze, and report information about the medical impairment claimants in accordance with a single set of standards. . . . Moreover, if the clinical findings are completely described in the report, then any knowledgeable observer may compare the findings to the tables to determine the impairment rating. In this sense, 'rating' is not a medical determination and, consequently, need not be done by physician. However, because of its objective quality, no additional special weight or importance can be attached to the result, simply because a physician makes the comparison and reports the impairment rating. . . ..

. . .

2.1Medical Assessment of Impairment

Medical evaluation in accordance with the protocols of the Guides:

The first step in assessment of impairment is a thorough medical evaluation with particular attention to the complete clinical and nonclinical history of the medical condition(s). Then, in accordance with the appropriate protocols of the Guides, clinical evaluation is carried out, supported by appropriate tests and diagnostic procedures. (Each clinical chapter of the Guides has been divided into numbered sections, so that in a report the evaluating physician can refer to the protocols described in appropriate sections. For example, a physician reevaluating impairment of the cervical spine would refer to protocols in sections 3.3a through 3.3c Chapter 3.) When a medically sufficient evaluation is carried out in this way, the current clinical status of the individual will be documented. If the current findings are found to be inconsistent with the results of previous clinical evaluations performed by other observers, then, with complete confidence, they may be compared with the reference tables to determine the percentage rating of the impairment. However, if the findings are not in substantial accordance with the information of record, then, until further clinical

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