12-0083. GIOVANNI DRAGO Employee v. SCAN HOME INC Employer and LIBERTY NORTHWEST INSURANCE CO. Insurer Defendants.

• Court: Alaska

Alaska Workers Compensation Decisions 2012. Workers' Compensation Board 12-0083. GIOVANNI DRAGO Employee v. SCAN HOME INC Employer and LIBERTY NORTHWEST INSURANCE CO. Insurer Defendants ALASKA WORKERS' COMPENSATION BOARDP.O. Box 115512 Juneau, Alaska 99811-5512GIOVANNI DRAGO, Employee, Applicant v. SCAN HOME, INC, Employer, and LIBERTY NORTHWEST INSURANCE CO., Insurer, Defendants.AWCB Decision No. 12-0083Filed with AWCB Anchorage, Alaskaon May 7, 2012AWCB Case No. 200916445INTERLOCUTORY DECISION AND ORDER Scan Home, Inc.'s petition for a second independent medical evaluation (SIME) was heard April 17, 2012 in Anchorage, Alaska. Attorney Robert Rehbock represented Mr. Drago. Attorney Darryl Jacquot represented Scan Home and its insurer (collectively Scan Home). The record closed at the conclusion of the hearing on April 17, 2012. ISSUE Scan Home contends there is a clear dispute between its medical examiners and Mr. Drago's physicians regarding treatment with a spinal cord stimulator, and an SIME is warranted. Mr. Drago contends an SIME is unnecessary because he sought the treatment within two years of his injury and his treating doctors have stated the treatment is reasonable and necessary treatment. Mr. Drago also argued that Scan Home's petition was untimely, but at the hearing, he stated the petition should not be denied on that basis if an SIME would assist the board. Shall an SIME be ordered? FINDINGS OF FACT The following facts are based on the evidence in the record as of April 17, 2012, and are limited to those necessary to resolve the limited issue presented. The following facts and factual conclusions are established by a preponderance of the evidence:

1) On November 6, 2009, Mr. Drago injured his lower back picking up a heavy box while working for Scan Home. (Report of Occupational Injury or Illness, November 11, 2009).

2) Mr. Drago and Scan Home entered into a partial settlement agreement on March 14, 2011, resolving all issues except medical benefits. (Partial Settlement Agreement).

3) Mr. Drago initially pursued conservative treatment consisting of chiropractic care and nerve root block injections. (Record).

4) On March 2, 2010, Larry Kropp, M.D. performed and endoscopic discectomy and a blunt laminectomy at the L4-5 level. (Alaska Regional Hospital operative report, March 2, 2010).

5) Electrodiagnostic testing done on May 3, 2010, showed "no clear evidence of a left lumbrosacral radiculopathy at this time." (Alaska Rehabilitation Medicine report, May 3, 2010).

6) On July 6, 2010, Dr. Kropp referred Mr. Drago to Dr. Timothy Cohen. (Timothy Cohen, M.D. outpatient consultation, July 6, 2010).

7) On October 21, 2010, Dr. Cohen performed a posterior lumbar fusion at the L4-5 level. (Alaska Regional Hospital operative report, October 21, 2010).

8) Dr. Cohen examined Mr. Drago on January 17, 2011. Mr. Drago stated he "continued to experience pain in his lower back radiating into his lower left extremity." Dr. Cohen "advised him this appears to be a normal recovery process." (Follow-up Examination notes, January 17, 2011).

9) On March 3, 2011, Dr. Cohen prescribed physical therapy, which Mr. Drago pursued. (Follow-up Examination note, March 3, 2011, record.). Mr. Drago also continued to treat with Dr. Kropp and Dr. Cohen. (Record).

10) On July 15, 2011, Mr. Drago again met with Dr. Kropp who noted, "we discussed other some options for him. I think with this hardware he would do very well with the stimulator." (Consultation Note, July 15, 2011).

11) Mr. Drago returned to Dr. Kropp on July 20, 2011. Dr. Kropp noted that "[t]oday we met with the equipment representative and discussed a stimulator trial." (Consultation Note, July 20, 2011).

12) At Scan Home's request, Dr. Eugene Wong, a neurologist, examined Mr. Drago for an employer's medical evaluation (EME) on August 20, 2011. Dr. Wong concluded that the November 6, 2009, work incident was the substantial cause of Mr. Drago's condition and his need for medical treatment, and he opined that the treatment provided had been reasonable and medically necessary. In response to a question regarding a spinal cord stimulator, Dr. Wong stated Mr. Drago did not have neuropathic radicular pain and opined there was no medical indication for consideration of a spinal cord stimulator trial. (Dr. Wong EME report, August 20, 2011).

13) Dr. Dennis Chong, a specialist in physical medicine and rehabilitation, also examined Mr. Drago at Scan Home's request. Dr. Chong also concluded that the November 6, 2009,work incident was the substantial cause of Mr. Drago's condition and his need for medical treatment. Dr. Chong stated, "Mr. Drago's current condition does not meet the most common indications for spinal cord stimulator placement," and a "spinal cord stimulator trial is not recommended." (Dr. Chong EME report, August 31, 2011).

14) Based on the EME reports, Scan Home

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