12-0070. JAMES G. MCKENNA Employee Claimant v. ARCO ALASKA INC. Employer and ACE USA formerly Alaska Pacific Assurance Co. Insurer Defendants.

• Court: Alaska

Alaska Workers Compensation Decisions 2012. Workers' Compensation Board 12-0070. JAMES G. MCKENNA Employee Claimant v. ARCO ALASKA INC. Employer and ACE USA formerly Alaska Pacific Assurance Co. Insurer Defendants Alaska Workers' Compensation Appeals Commission P.O. Box 115512 Juneau, Alaska 99811-5512 JAMES G. MCKENNA, Employee, Claimant, v. ARCO ALASKA, INC., Employer, and ACE USA, formerly Alaska Pacific Assurance Co., Insurer, Defendants.AWCB Decision No. 12-0070Filed with AWCB Anchorage, Alaska on April 9, 2012AWCB Case No. 199028636AWCB Case No. 198802683FINAL AND INTERLOCUTORY DECISION AND ORDERSArco Alaska, Inc. and ACE USA's (collectively, Employer, ARCO, insurer, or adjuster) July 14, 2011 petition to dismiss Mr. McKenna's (Employee or Mr. McKenna) non-medical claims; and Employee's October 6, 2011 petition to strike pharmacy logs and prescription receipts from binders prepared for the second independent medical evaluation (SIME), and his October 21, 2011 petition contesting questions proposed by Employer for the SIME physician, were heard on February 29, 2012, in Anchorage, Alaska. Attorney Michael Jensen represented Employee. Employee was present, but did not testify, having testified previously through deposition. Attorney Michelle Meshke represented Employer. James Roberts testified telephonically on behalf of Employer. There were no other witnesses. The record was left open to receive copies of Controversion Notices purportedly filed on April 19, 1999 and July 31, 2003, Employee's Supplemental Affidavit of Attorney Fees, Employer's Objection, if any, and Employee's response. On March 12, 2012, Employee filed a Petition to Strike an additional pharmacy log, Bates stamped pages 846-884, filed by Employer in a Supplemental SIME binder on March 8, 2012. At a March 21, 2012 prehearing conference, the parties agreed their arguments concerning Employee's petition to strike the newly filed pharmacy log were the same as those expressed at the February 29, 2012 hearing addressing previously filed pharmacy records. The parties agreed the board should consider Employee's March 12, 2012 petition to strike the additional pharmacy records with the issues under advisement, with no further briefing or hearing. The record closed on March 21, 2012. The decision and orders hereunder concerning Employer's petition to dismiss Employee's non-medical claims are final orders. The decision and orders pertaining to the SIME binders and questions are interlocutory orders. ISSUES Employer contends Employee knew of his disability, his disablement, and its relation to his employment for ARCO, no later than March 25, 2008. Employer contends Employee thus had two years, or until March 25, 2010, to file any workers' compensation claim (WCC or claim) for nonmedical benefits. Because Employee did not file a claim until August 23, 2010, Employer contends, Employee's non-medical claims should be dismissed under AS 23.30.105(a). Employer further contends its adjuster purged its records from the 1988 injury, and it would be prejudiced were Employee's claims not dismissed. Employee contends his February 16, 1988 work injury is governed by §105(a) in effect prior to amendments effective July 1, 1988. He contends that for injuries occurring prior to July 1, 1988, where, as here, payment of compensation is made by the employer without an award, a claim may be filed within two years from the last date compensation was paid. He contends Employer paid for thoracic magnetic resonance imaging (MRI) on or about March 18, 2009, thus allowing him until on or about March 18, 2011 within which to timely file a claim for his 1988 injury. Since he filed a claim for both injuries on August 23, 2010, Employee contends, the claim or claims were timely under AS 23.30.105(a). Employee further contends he did not know the full effects of his disability, his disablement, and its relation to his employment for ARCO as early as Employer contends, his claims were timely filed and should not be dismissed. 1) Should Employee's claim for disability benefits for his February 16, 1988 work injury be dismissed under AS 23.30.105(a) ? 2) Should Employee's claim for disability benefits for his October 28, 1990 work injury be dismissed under AS 23.30.105(a) ? Employee contends Employer's SIME binders were prepared and submitted in violation of 8 AAC 45.092(h). Specifically, Employee contends the binders contain pharmacy and other non-medical records, and records placed out of chronological order, which may improperly influence the SIME physician's assessment of his claim. Employee contends Bates stamped pages numbered 8-140, 495, 832-834, 839-845 and 846-884 should be stricken from the SIME binders. Employer concedes it placed pharmacy logs and receipts for prescription medicines out of chronological order, at pages 008-140, because its defense counsel stores them in its case file in this manner. Employer contends the Board should create an exception to the rule requiring medical records be organized in chronological order in SIME binders for pharmacy records. It contends requiring chronological placement of pharmacy log entries would be a waste of time, resources, paper and mailing costs. Employer contends the pharmacy logs and receipts, at 008-140, 832-834, 839-845 and 846-884 of the SIME binders, should not be stricken because they provide "a handy summary for the SIME physician" to obtain an overview of Employee's prescription drug use. Employer further contends Bates stamped page 495, a letter to Employee from the human resources (HR) director for Peak Oilfield Services, should remain in the SIME binder because it provides context for page 498, a letter to the HR director from treating physician Michael James, MD. 3) Should the June 29, 2006 letter from James Roberts, HR director for Peak Oilfield Services, Bates stamped page 495, be stricken from the SIME binders? 4) Should pharmacy logs and prescription receipts, Bates stamped pages 008-140, 832-834, 839-845 and 846-884, be stricken from the SIME binders? Employee contends Employer's proposed questions for the SIME physician, numbered 3A, 3B, 3C, 3D and 3E are not questions, and should be excluded from the board's letter to the SIME physician. Additionally, Employee contends the attachments to Employer's paragraph 3D are not medical records, and for that reason should not be included with the questions sent with the SIME binders. Finally, Employee contends Employer's question 4, footnote 1, includes an objectionable legal standard of causation, and should not be submitted. Employee contends Employer will be permitted to ask the SIME physician any questions it chooses, by interrogatory or deposition, after the SIME report has been received. Employer contends there is no legal basis upon which to exclude from the board's SIME letter Employer's proposed question number 3, including all of its subparts and attachments. Employer contends its proposed question 4, footnote 1, recites the correct legal standard and should be included. 5) Should Employer's proposed questions for the SIME physician, numbered 3A, 3B, 3C, 3D and its attachments, question 3E, and footnote 1 to question 4, be excluded from the board's letter to the SIME physician? Should he prevail Employee seeks an award of attorney fees under AS 23.30.145(b) for 19.4 hours of attorney time at $385.00 per hour, 12.4 hours of paralegal time at $165.00 per hour, and costs of $19.35, for a total award of $11,613.95. Employer objects to the affidavit of fees on numerous grounds. Employer contends the paralegal rate is excessive, seeks fees for work too vague to determine whether it is awardable or is clerical in nature, and contains entries previously billed or duplicative of attorney time billed. Employer contends entries for attorney time are for issues unrelated to the subject of this hearing, are for work previously billed and awarded, are duplicative of paralegal entries, or are too vague. Employer finally argues since this was an interlocutory hearing and did not address the merits of Employee's claim, benefits cannot be awarded under AS 23.30.145(a). In response to Employer's objections, Employee concedes some entries were in error, and its request for an award of fees and costs should be revised to $10,469.35. 6) Is Employee entitled to an award of attorney fees and costs? If so, in what amount? FINDINGS OF FACT On November 21, 2011, James G. McKenna v. ARCO Alaska, Inc., AWCB Decision No. 110164 (November 21, 2011) (McKenna I), addressing competing petitions for releases and protective orders, issued. This decision incorporates by reference those findings of fact in McKenna I which pertain to the issues raised in these proceedings, and excerpts those which provide context for the issues raised in this hearing. Review of the record as a whole establishes the following relevant facts and factual conclusions by a preponderance of the evidence: 1) On February 16, 1988, while tightening a flange on a valve at Employer's Swanson River facilities, Employee slipped on cellar boards, fell backwards onto a valve, and injured his back. Both Employee and Employer reported the body part affected as Employee's "back."(Report of Occupational Injury (ROI), February 16, 1988; see also ARCO Injury Investigation Report, February 16, 1988). 2) On February 17, 1988, Employee was evaluated for the work injury in the emergency room (ER) at Central Peninsula General Hospital, in...