12-0071. CYNTHIA FOSHE Employee v. TOK CLINIC LLC Employer and HELMSMAN MANAGEMENT SERVICE/ LIBERTY NORTHWEST Insurer Defendants.

• Court: Alaska

Alaska Workers Compensation Decisions 2012. Workers' Compensation Board 12-0071. CYNTHIA FOSHE Employee v. TOK CLINIC LLC Employer and HELMSMAN MANAGEMENT SERVICE/ LIBERTY NORTHWEST Insurer Defendants ALASKA WORKERS' COMPENSATION BOARDP.O. Box 115512 Juneau, Alaska 99811-5512 CYNTHIA FOSHE, Employee, v. TOK CLINIC, LLC, Employer, and HELMSMAN MANAGEMENT SERVICE/ LIBERTY NORTHWEST, Insurer, Defendants.AWCB Decision No. 12-0071Filed with AWCB Fairbanks, Alaska on April 9, 2012AWCB Case No. 201017736INTERLOCUTORY DECISION AND ORDERTok Clinic (Employer) and Helmsman Management Service's (Insurer)(fn1) December 28, 2011 Petition to Strike Second Independent Medical Evaluation (SIME) Records #0239-0370 and 0409-0453; Cynthia Foshe's (Employee) February 17, 2012 Petition objecting to the selection of Dr. Lipon as the SIME physician and for modification of Foshe v. Tok Clinic, AWCB Decision No. 11-0158 (Foshe I); and Employee's March 7, 2012 Petition to Strike SIME Records #04580589 were heard on March 15, 2012, in Fairbanks, Alaska. The hearing proceeded with a two-member panel, a quorum under AS 23.30.005(f). Attorney Michael Jensen appeared telephonically and represented Employee. Attorney Nora Barlow appeared telephonically and represented Employer and Insurer. There were no witnesses. The record closed at the conclusion of the hearing, on March 15, 2012. ISSUES Employee contends Foshe I should be modified because an SIME should not have been ordered. Specifically, Employee contends because Lawrence Feltman, M.D., owner of the Tok Clinic, opined Employee's work for Employer is the substantial cause of her need for medical treatment, no medical dispute exists warranting an SIME. Employee contends Employer did not agree to the scheduling of an employer's medical examination (EME) with John Ballard, M.D., and therefore the EME is inadmissible. Excluding the EME, no medical opinion exists in the record stating Employee's need for medical treatment is not work related. Employer and Insurer contend Employee has failed to demonstrate a change of conditions or mistake of fact, and is thus not entitled to modification of Foshe I. Employer and Insurer further contend the board did not grant Employee's November 9, 2011 petition for reconsideration and Employee merely seeks to relitigate her petition for reconsideration in her February 17, 2012 petition for modification. 1)Shall Foshe I be modified? Employee contends the board designee failed to confirm Dr. Lipon is truly independent before assigning him as the SIME physician, as required by 8 AAC 45.092(e)(1)-(6), and therefore Dr. Lipon is inappropriate to perform the SIME. Employer contends Employee's petition objecting to the selection of Dr. Lipon should be denied as there is no evidence Dr. Lipon is not impartial. Employer contends the board designee went "above and beyond" what was required of her to ensure the SIME physician was free of conflicts before scheduling the SIME appointment. 2)Did the board designee follow the requirements of 8 AAC 45.082(e)(1)-(6) in selecting Dr. Lipon as the SIME? Employee contends it is unreasonable to require her to travel from her home in Tok to Bellevue, Washington to attend the SIME appointment with Dr. Lipon, as her treating physician Stephen Wahl, M.D. has provided travel restrictions related to Employee's medical condition. Employee further contends because Dr. Lipon is licensed in Alaska, he should travel to Alaska to evaluate Employee. Employer and Insurer contend Employee should have informed the board she had travel restrictions prior to the assignment of Dr. Lipon as the SIME physician. Employer and Insurer further contend Employee has demonstrated she is able to drive from Tok to Anchorage, as she attended her deposition in Anchorage in January 2012 and Dr. Eule's deposition in Anchorage in February 2012. 3) Shall Employee be required to travel to Bellevue, Washington to attend the SIME appointment with Dr. Lipon? Employee contends Foshe I requires the SIME be conducted by a physician specializing in orthopedic surgery, and because Dr. Lipon is a doctor of osteopathic medicine, he is an inappropriate selection to conduct the SIME. Employer and Insurer contend Employee's objection to Dr. Lipon on the basis of his specialty is a "desperate attempt to exclude [him]," as Dr. Lipon has specialized in orthopedic surgery since his appointment to the SIME panel. 4) Is Dr. Lipon a physician of the appropriate specialty to perform the SIME in this case? Employee contends SIME records #0238-0370 and #0409-0453 should be forwarded to the SIME physician. Employee contends the medical articles attached to letters signed by Employee's treating physicians are referenced in those letters and relied upon by Employee's physicians, and it "wouldn't make sense" to exclude the articles from the letters. Employer and Insurer contend the "check-the-box" physician letters and attached medical articles should be stricken as they are not medical records and would not be helpful to the SIME physician in rendering his opinion in this case. 5) Shall SIME records #0239-0370 and #0409-0453 (physicians' statements and accompanying medical articles) be forwarded to the SIME physician for review? Employee contends the transcript of Employee's January 20, 2012 deposition should not be forwarded to the SIME physician for review in preparation of his report, as a deposition transcript is not a "medical record" under 8 AAC 45.092(h)(1), but rather a litigation tool. Employee further contends Employer and Insurer may present Employee's deposition transcript to the SIME physician at his deposition should they wish to depose him. Employer and Insurer contend Employee's deposition transcript may not be a medical record under the regulation, but it nevertheless would be helpful to the SIME in conducting his evaluation and forming his opinion in this case, and should therefore be forwarded to the SIME physician for review. 6) Shall SIME records #00458-00589 (Employee's January 20, 2012 deposition transcript) be forwarded to the SIME physician for review? FINDINGS OF FACT A review of the available record establishes the following facts and factual conclusions by a preponderance of the evidence:

1) On November 23, 2010, Employee reported "severe aggravation to [her] back due to extended periods of computer work" while working for Employer as a billing specialist. (Report of Occupational Injury or Illness, November 23, 2010).

2) On January 7, 2011, Employee saw James Eule, M.D. for lumbar pain. After reviewing imaging studies, Dr. Eule diagnosed unstable spondylolisthesis at L3-4 and stenosis at L4-5 bilaterally and L5-S1 on the right side. (Dr. Eule report, January 7, 2011).

3) On January 10, 2011, Dr. Eule performed a spinal fusion at L3-L4 and surgical decompression at L4-5 bilaterally and L5-S1 on the right side. (Dr. Eule operative report, January 10, 2011).

4) On January 16, 2011, Dr. Eule opined:

The fact that [Employee] has had no prior injury or problem with her back and the episode occurred at work we would have to conclude that her employment was the substantial factor in her injury and resulting in the need for surgery. (Dr. Eule report, January 16, 2011).

5) On February 23, 2011, John Ballard, M.D., performed an EME. Dr. Ballard diagnosed spondylolisthesis at L3-L4, with left-sided herniated nucleus pulposus, lumbar spinal stenosis L4-L5 bilaterally and right L5-S1, and multilevel lumbar spondylosis. He opined:

The mechanism of injury does not support the diagnoses and need for medical treatment. The majority of the findings on the MRI are of a degenerative nature, particularly the unstable spondylolisthesis and the stenosis. These findings are secondary to longstanding degenerative processes. Likewise, the disc herniation is secondary to weakening of the annulus, which allowed the disc to herniate. The purported mechanism of having to sit for long periods of time is not going to be an acute injury nor is it an accumulative injury and it is not a substantial factor in causing the claimant's low back symptoms. The only possible work-related condition would be the disc herniation, but the type of injury that would cause and be responsible for a disc herniation would be a significant amount of lifting or bending with an acute onset of leg symptoms, which was not the case. The work exposure of November 12, 2010 is not the substantial cause of the claimant's lumbar condition nor is it the substantial cause of her need for treatment. The substantial cause is her longstanding degenerative arthritis at multiple levels of her lumbar spine with resultant spinal stenosis. The disc herniation is a natural progression of the degeneration and weakening of the annulus. (Dr. Ballard's EME Report, February 23, 2011).

6) On March 28, 2011, Lawrence Feltman, M.D., owner of the Tok Clinic, Employer in this case, opined:

In regards to patient, Cindy Foshe; the substantial cause of her symptoms necessitating spinal fusion surgery was the years of sitting due to her job stressing her lower back. The constant sitting position, required of her, created the changes in her lumbar spine. (Dr. Feltman letter, March 28, 2011).

7) On October 26, 2011, Foshe v. Tok Clinic, AWCB Decision No. 11-0158 (Foshe I) issued, granting Employer and Insurer's October 6, 2011 Petition to continue the hearing set for November 17, 2011 and for an SIME. (Foshe I).

8) Foshe I

...