12-0074. GARY R. ZIMMERMAN Employee v. AURORA WELL SERVICE LLC Employer and AMERICAN HOME ASSURANCE CO Insurer Defendants.

• Court: Alaska

Alaska Workers Compensation Decisions 2012. Workers' Compensation Board 12-0074. GARY R. ZIMMERMAN Employee v. AURORA WELL SERVICE LLC Employer and AMERICAN HOME ASSURANCE CO Insurer Defendants ALASKA WORKERS' COMPENSATION BOARDP.O. Box 115512 Juneau Alaska 99811-5512 GARY R. ZIMMERMAN, Employee, Applicant v. AURORA WELL SERVICE, LLC, Employer, and AMERICAN HOME ASSURANCE CO, Insurer, Defendants.AWCB Decision No. 12-0074Filed with AWCB Anchorage, Alaska on April 16, 2012AWCB Case No. 200609840INTERLOCUTORY DECISION AND ORDERGary R. Zimmerman's petition to strike a portion of the Second Independent Medical Evaluation (SIME) binders was heard February 29, 2012. Attorney Chancy Croft appeared and represented Mr. Zimmerman. Attorney Shelby Davison appeared and represented the employer, Aurora Well Service, LLC (Aurora). The record closed after deliberation on March 16, 2012. ISSUE Aurora contends the board designee abused his discretion in striking a report by Dr. Charles Brooks, an expert in an earlier civil case, from the binder of medical records to be sent to the SIME physicians in this case. Mr. Zimmerman contends the board designee correctly applied the law and properly excluded Dr. Brooks's report. Did the board designee abuse his discretion in striking Dr. Brooks's report from the SIME binders? FINDINGS OF FACT The following facts are based on the evidence in the record on March 16, 2012, and are limited to those necessary to resolve the issue presented. The following facts and factual conclusions are established by a preponderance of the evidence:

1) On December 30, 2002, Mr. Zimmerman was arrested and his hands were cuffed behind his back. Mr. Zimmerman testified the manner in which he was cuffed caused injury to his shoulders. (Zimmerman v. State of Alaska, et al., Case No. 3KN-04-253 CI, transcript of October 24, 2006 proceedings, Zimmerman's direct examination).

2) Mr. Zimmerman filed a lawsuit against the State and the arresting trooper. In connection with that lawsuit, Mr. Zimmerman was examined by Dr. Charles N. Brooks, M.D., a medical expert for the State. (Brooks Report, April 29, 2005).

3) Dr. Brooks's report includes a review of Mr. Zimmerman's medical history and opinions as to Mr. Zimmerman's credibility, as well as causation, impairment/disability, and medical stability. (Brooks Report).

4) On June 24, 2006, Mr. Zimmerman was injured in the course of his employment with Aurora when he was hit in the head by a "very heavy" circulating hose while working on the North Slope. (Report of Injury; Providence ER Note, June 24, 2006).

5) On October 4, 2010, Mr. Zimmerman filed a claim for temporary total disability, medical costs, permanent partial impairment, and attorney fees and costs on the basis of his head injury. (Claim).

6) At a prehearing conference on February 1, 2011, Mr. Zimmerman amended his claim to include permanent total disability (PTD). (Prehearing Conference Summary, February 1, 2011).

7) On October 6, 2011, Zimmerman v. Aurora Well Service, AWCB Decision No. 11-0150 (Zimmerman I) was issued. It concluded that medical records relating to Mr. Zimmerman's neck, lower back, and shoulders would be relevant to his PTD claim and ordered him to sign a release for those records. It also concluded an SIME was warranted and ordered that a prehearing be held to establish the deadlines and procedures. (Zimmerman I).

8) At the December 15, 2011 prehearing conference, the board designee set procedures and deadlines for the SIME, including preparation of binders of medical records to be sent to the SIME physicians. (Prehearing Conference Summary, December 15, 2011).

9) On January 19, 2012, Aurora served a binder of medical records on Mr. Zimmerman in accordance with the December 15, 2012 prehearing conference summary. (Affidavit of Service, January 19, 2012). Included in the binders was Dr. Brooks's 2005 report. (SIME binders, pages 0236-0348).

10) On January 20, 2012, Mr. Zimmerman filed a petition to strike Dr. Brooks's report from the SIME binders. (Petition, January 19, 2012).

11) The SIME binders submitted by the parties consist of 1,079 pages, exclusive of Dr. Brooks's report. Of those 1,079 pages, 388 are medical reports dated before the June 24, 2006 injury, many of which concern Mr. Zimmerman's neck, lower back, and shoulders. (SIME binders).

12) At a prehearing held February 1, 2012, the board designee directed the parties to file memoranda in support of their positions regarding Mr. Zimmerman's petition to strike Dr. Brooks's report. (Prehearing Conference Summary, February 1, 2012).

13) In his brief, Mr. Zimmerman pointed out that Dr. Brooks's report was prepared in connection with the civil case regarding his shoulder injuries during the 2002 arrest, and argued that it was not relevant to his current injury. (Zimmerman Brief, February 8, 2012).

14) In its brief, Aurora argued that Dr. Brooks's report was a medical record which by regulation must be included in the SIME binders, that Zimmerman I determined the information was relevant, and that the report includes a detailed medical history that would assist the SIME physicians. (Employer's Brief, February 10, 2012).

15) On February 13, 2012, the board designee issued his decision striking Dr. Brooks's report. (Written Decision, February 13, 2012). In the decision, the designee noted that "Dr. Brooks's report may or may not be relevant at any future hearing," but Aurora "has not shown, as least for purposes of inclusion in the SIME binder, that Dr. Brooks's report is relevant to our claim . . . ." (Id)

16) On February 14 2012, Aurora filed a petition seeking review of the board designee's decision on Dr. Brooks's report. (Petition, February 14, 2012).

PRINCIPLES OF LAW

AS 23.30.001. Intent of the legislature and construction of chapter.

It is the intent of the legislature that

1) this chapter be interpreted so as to ensure the quick, efficient, fair, and predictable delivery of indemnity and medical benefits to injured workers at a reasonable cost to the employers who are subject to the provisions of this chapter;

2) workers' compensation cases shall be decided on their merits except where otherwise provided by statute;

3) this chapter may not be construed by the courts in favor of a party;

4) hearings in workers' compensation cases shall be impartial and fair to all parties and that all parties shall be afforded due process and an opportunity to be heard and for their arguments and evidence to be fairly considered.

AS 23.30.095. Medical treatments, services, and examinations.

(e) The employee shall, after an injury, at reasonable times during the continuance of the disability, if requested by the employer or when ordered by the board, submit to an examination by a physician or surgeon of the employer's choice authorized to practice medicine under the laws of the jurisdiction in which the examination occurs, furnished and paid for by the employer.

(k) In the event of a medical dispute regarding determinations of causation, medical stability, ability to enter a reemployment plan, degree of impairment, functional capacity, the amount and efficacy of the continuance of or necessity of treatment, or compensability between the employee's attending physician and the employer's independent medical evaluation, the board may require that a second independent medical evaluation be conducted by a physician or physicians selected by the board from a list established and maintained by the board. The cost of an examination and medical report shall be paid by the employer. The report of an independent medical examiner shall be furnished to the board and to the parties within 14 days after the examination is concluded. A person may not seek damages from an independent medical examiner

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