12-0064. EFFERY L. ELLISON Employee Claimant v. FAIRBANKS GOLD MINING CO Employer and LIBERTY MUTUAL FIRE INS CO Insurer Defendants.
Alaska Workers Compensation Decisions 2012. Workers' Compensation Board 12-0064. EFFERY L. ELLISON Employee Claimant v. FAIRBANKS GOLD MINING CO Employer and LIBERTY MUTUAL FIRE INS CO Insurer Defendants ALASKA WORKERS' COMPENSATION BOARD JEFFERY L. ELLISON, Employee, Claimant, v. FAIRBANKS GOLD MINING CO, Employer, and LIBERTY MUTUAL FIRE INS CO, Insurer, Defendants. INTERLOCUTORY DECISION AND ORDERAWCB Decision No. 12-0064Filed with AWCB Fairbanks, Alaska on March 30, 2012AWCB Case No. 200506186Jeffrey Ellison's (Employee) July 11, 2011 petition for a second independent medical evaluation (SIME); and Fairbanks Gold Mining Co.'s (Employer) April 26, 2011 petition for an ordered settlement conference were heard in Fairbanks, Alaska on February 2, 2012. Attorney James Hackett personally appeared and represented Employee. Attorney Rebecca Holdiman Miller appeared and represented Employer. Employee appeared and testified on his own behalf. The record closed at the hearings conclusion on February 2, 2012. Employer's December 29, 2011 petition to exclude Employee's non-attorney representative was heard on the written record upon submission of the parties' briefs on March 1, 2012. For efficiency purposes, all issues are being addresses in this decision and order. ISSUES Employee contends an SIME is warranted because he experienced groin pain soon after the work injury. Employee does not point to a specific medical dispute involving the hernia condition itself, but rather points to early reports of groin pain noted in John W. Joosse, M.D.'s March 16, 2006 medical report, and in his own May 4, 2007 deposition. He contends an SIME is warranted because the medical evidence is not clear why the hernia was not diagnosed earlier than it was. Employee also refers to Timothy W. Teslow, M.D.'s March 18, 2010 medical report, which notes Employee related the onset of groin pain to shortly after the work injury. Employee contends an SIME will help the board with respect to time loss and medical benefits on the hernia condition. In response to Employer's contention his SIME petition was filed late, Employee distinguished Employer's cited authority supporting denial of late-filed petitions; contends he has long sought an SIME while pointing out there have been three SIME petitions in contends his case is appropriate for a board ordered SIME pursuant to AS 23.30.110(g). Employer contends Employee's petition for an SIME was untimely filed, and further contends there is neither disputed medical evidence, nor any gaps in the medical record. Employer seeks an order denying Employee's SIME request. 1) Shall a SIME be ordered? Employer contends a settlement conference will help resolve the issues in this case and protect the rights of both parties. Employer contends a negotiated settlement was previously reached between the parties in 2009, and an agreement was prepared and sent to Employee's former attorney. Employer contends Employee then declined to sign it and, thereafter, his attorney withdrew from representation. Employer contends the parties have since made efforts to resolve the case, but pursuing settlement efforts has delayed the determination of issues. Employer further contends its petition went unopposed by Employee, and Employee's attorney also affirmatively stated at a March 21, 2011 prehearing conference he did not oppose its petition. Employee contends the 2009 settlement was not executed because it did not address his groin problem, which had not been diagnosed or treated. Without acknowledging authority exists to order a settlement conference, Employee contends he will participate if mediation is ordered. 2)Shall a settlement conference be ordered? Employer contends Employee's wife and non-attorney representative did not enter an appearance as a non-attorney representative and yet speaks for Employee at prehearing conferences and the board sends her separate prehearing conference notices as Employee's non-attorney representative. Employer contends Employee is represented by an attorney and participation by Employee's wife as his non-attorney representative has resulted in a duplication of efforts, caused confusion, and delayed resolution of the case. Employer requests a board order excluding Employee's wife from participating as his non-attorney representative in board proceedings. Employer cites Riuz v. Trident Seafoods, AWCB Decision No. 11-0076 (May 26, 2011) (finding that either the attorney or non-attorney representative could file an entry and sign a settlement agreement) and two other administrative regulations relating to unemployment benefits and public assistance benefits, which provide for representation by either an attorney or a non-attorney representative, to support its contention Employee is entitled to only one representative at a given time. Employee contends he is represented by an attorney, who argues his positions and represents his interests. Employee does not see his wife's participation as a problem and contends Employer's petition is improper because it is not based on any dispute between the parties, and should therefore be denied. 3) Shall the board exclude Employee's wife from participating as his non-attorney representative in board proceedings? FINDINGS OF FACT 1) Employee worked for Employer as a Security Supervisor. (Report of Injury, May 2, 2005). 2) On May 1, 2005, Employee reported he injured his left lower back and left leg several days earlier while moving office tables in April, 2005. (Report of Injury, May 2, 2005). 3) On May 1, 2005, at the Fairbanks Memorial Hospital Emergency Room, Employee complained of back pain shooting down his left leg. Caroline Timmerman, M.D., diagnosed low back pain, prescribed Percocet and Valium, ordered a magnetic resonance imaging scan (MRI), and discharged Employee in stable condition. (Timmerman report, May 1, 2005). 4) The MRI was interpreted by Mark Burton, M.D., to reveal potential disk pathology at the L2 level; disk desiccation at the L3-4 level without canal stenosis; facet degeneration without canal stenosis at the L4-5 level; and loss of intervertebral disk space and mild annular bulging without canal stenosis at the L5-S1 level. Dr. Burton also noted mild changes of degenerative spurring involving the end plates at most lumbar levels. (Burton report, May, 2, 2005). 5) On May 3, 2005, Employee began treating with John Joosse, M.D. Employee reported pain in his back and left leg. Dr. Joosse also noted groin pain. Employee completed a pain diagram that day noting left anterior abdominal pain. Dr. Joosse referred Employee to Peter Jiang of Banner Health System Pain Clinic for a lumbar epidural series. (Joosse report, May 3, 2005). 6) Employee's early treatment focused on the L2-3 level. (Jiang report, May 3, 2005). 7) On May 16, 2005, Dr. Joosse noted Employee's strength was improved and his pain level was decreased. Dr. Joosse diagnosed resolving L2-3 herniated nucleus pulposis and recommended return to work with limitations. (Joosse report, May 16, 2005). 8) On June 2, 2005, Employee saw Dr. Jiang and complained of lower back pain with anterior thigh numbness and medial thigh shooting pain. Dr. Jiang assessed "lumbar degenerative disk disease with a protrusion of L2-3 nucleus pulposis, as well as degenerative disk disease of the L5-S1 level." Dr. Jiang performed an S2 epidural steroid injection. (Jiang report, June 2, 2005). 9) On July 7, 2005, Dr. Jiang noted Employee complained of low back pain radiating down through his bilateral groin area. Dr. Jiang assessed "lumbar degenerative disk disease with multi-level disk herniations. . . . Most of his symptoms with regards to lower back and bilateral groin are most likely from S1 symptomology." Dr. Jiang performed an S1 epidural steroid injection. (Jiang report, July 7, 2005). 10) On August 10, 2005, Dr. Joosse noted Employee denied pain when coughing or sneezing, and had good quad, hip and flexor strength. Employee reported he was sleeping, and working full time. Dr. Joosse continued to diagnose resolving L2-3 herniated nucleus pulposis and discussed a future rating with Employee. (Joosse report, August 10, 2005). 11) On August 31, 2005, with Employee's L2-3 symptoms improving, Dr. Jiang turned his attention to treating Employee's protrusion at L5-S1, and performed an S1 epidural steroid injection on October 3, 2005. (Jiang reports, August 31, 2005; October 3, 2005). 12) On September 21, 2005, Employee saw Dr. Joosse and reported he continued to improve. Dr. Joosse noted Employee had just completed a successful moose hunt and was working full time. Based upon Employee's steady improvement, Dr. Joosse considered closing his case in about six months. (Joosse report, September 21, 2005). 13) On September 28, 2005, Employee sought a second opinion from Hunter Judkins, M.D., complaining of continued low back pain, groin pain and intermittent cramping pain in his left thigh. Employee stated his groin pain was constant. Dr. Judkins was not accepting new patients with chronic conditions, and referred Employee to either David Witham, M.D., or Dr. Joosse. (Judkins report, September 28, 2005). 14) On October 20, 2005, Employee saw Dr. Witham for a third opinion. Employee complained of right thigh pain and cramping, and pain distributed in his low back, buttocks and into his medial thigh and testicular area. Dr. Witham discussed L5-S1 nucleoplasty with Employee because it had been proposed by Dr. Jiang. According to Dr. Witham...
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