12-0073. ROBERT W. THOMPSON Employee v. STATE OF ALASKA DEPARTMENT OF TRANSPORTATION AND PUBLIC FACILITIES (Self-Insured) Employer Defendant.
Alaska Workers Compensation Decisions 2012. Workers' Compensation Board 12-0073. ROBERT W. THOMPSON Employee v. STATE OF ALASKA DEPARTMENT OF TRANSPORTATION AND PUBLIC FACILITIES (Self-Insured) Employer Defendant ALASKA WORKERS' COMPENSATION BOARDP.O. Box 115512 Juneau, Alaska 99811-5512 ROBERT W. THOMPSON, Employee, Applicant v. STATE OF ALASKA, DEPARTMENT OF TRANSPORTATION AND PUBLIC FACILITIES (Self-Insured) Employer DefendantAWCB Decision No. 12-0073Filed with AWCB Anchorage, Alaskaon April 13, 2012AWCB Case No. 200518802, 200906207, 200916196(M)INTERLOCUTORY DECISION AND ORDERState of Alaska's (Employer) petition for an SIME and Robert Thompson's (Employee) petition to consolidate his three (3) workers' compensation claims were heard on February 15, 2012, in Anchorage, Alaska. Attorney Joseph A. Kalamarides represented Employee and Attorney Patricia Huna represented Employer. The record closed at the conclusion of the hearing on February 15, 2012. ISSUES Employee contends he has three claims with Employer for injuries to the same body part and, therefore, it is sensible to consolidate the claims instead of handling them separately with the possibility of inconsistent results. At issue, ultimately, is which injury is the cause of the need for medical treatment for Employee's low back and left knee. Employee contends Employer may potentially assert a last injurious exposure defense and, therefore, consolidation of all three injuries is necessary. Employee further contends Employer's request for a new second independent medical evaluation (SIME) with a new physician should be denied as unnecessary because an SIME with Thomas L. Gritzka, M.D., has already occurred. Dr. Gritzka, at the time of the SIME, was aware of Employee's medical history including his three work injuries. Employee does not object to new questions being submitted to Dr. Gritzka. Employer contends the three injuries should not be consolidated because only the September 2009 injury is ripe for adjudication and to consolidate the three injuries would delay a final resolution on the September 2009 injury. Moreover, Employer contends the only issue in need of resolution is whether Employee's last injury is the substantial cause in the need for surgery for Employee's low back and knee replacement. Further, Employer contends, if the injuries are consolidated, a new SIME with a different doctor is needed, because Dr. Gritzka did not properly consider the three injuries and did not have all the medical evidence. Dr. Gritzka did not address whether the 2005 injury is a substantial factor in the need for knee surgery or whether some or all of Employee's complaints are the result of degenerative disease rather than Employee's work with Employer. 1) Should Employee's three injuries be consolidated at this time? 2) Should a new SIME be ordered with a new SIME physician? FINDINGS OF FACT A review of the entire record establishes the following facts and factual conclusions by a preponderance of the evidence:
1) On September 22, 2005, Employee sustained an injury to his knee while pushing and pulling a lawn mower on uneven ground (September 23, 2005, Report of Occupational Injury or Illness (ROI)).
2) Employer paid time loss and medical benefits for this injury (February 10, 2012, Employer's Hearing Brief).
3) On March 31, 2009, Employee reported an injury to his lower back from shoveling snow and urea (March 31, 2009 ROI).
4) Employer paid temporary total disability (TTD) and medical benefits for this injury (February 10, 2012, Employer's Hearing Brie).
5) On September 17, 2009, Employee was injured while working for Employer cutting and loading wood. Employee reported injury to his low back and left leg (September 17, 2009, ROI).
6) Employer paid benefits including TTD and medical related to this injury (February 10, 2012, Employer's Hearing Brief).
7) On September 29, 2009, Employee saw Thomas P. Vasileff M.D., for problems with Employee's left knee. Dr. Vasileff noted Employee had had two arthroscopies and multiple injuries related to his work. Dr. Vasileff also noted Employee had a recent back injury and had been off work as a result. New x-rays showed advanced osteoarthritis of the medial compartment with bone-on-bone. He opined Employee would need a knee replacement and sedentary work. He provided Employee with a Synvisc injection and arranged for follow-up with Declan R. Nolan, M.D. (September 29, 2009, Vasileff chart note).
8) On October 6, 2009, Employee saw Dr. Nolan for a Synvisc injection for his left knee. Dr. Nolan also referred Employee to Dr. Vasileff for a surgical evaluation (October 6, 2009, Nolan chart note).
9) On October 13, 2009, Dr. Nolan provided Employee with another Synvisc injection into his left knee for osteoarthritis of the left knee (October 13, 2009, Nolan chart note).
10) On November 10, 2009, Employee saw Dr. Vasileff who noted diffuse pain medially and reviewed Employee's x-rays which showed bone-on-bone over the medical compartment. Dr. Vasileff advised Employee he might not be able to return to work as a laborer. Dr. Vasileff recommended a total knee arthroplasty and opined the need for surgery was work related (November 10, 2009, Vasileff chart note).
11) On January 23, 2010, Employee saw John Ballard, M.D., for an employer's medical evaluation (EME) relating to the September 17, 2009 work injury. Dr. Ballard opined a 1993 work injury to the left knee was a substantial factor in causing arthritic changes to the knee, and that the 2005 work injury to the left knee was one factor in aggravating the current left knee condition. He further opined the 2005 injury was a temporary aggravation and the September 17, 2009 work injury was not a substantial factor in...
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