12-0084. RICHARD ACEVEDO Employee v. NORDSTROM INC Employer and AMERICAN ZURICH INS CO. Insurer.

Court:Alaska
 
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Alaska Workers Compensation Decisions 2012. Workers' Compensation Board 12-0084. RICHARD ACEVEDO Employee v. NORDSTROM INC Employer and AMERICAN ZURICH INS CO. Insurer ALASKA WORKERS' COMPENSATION BOARDP.O. Box 115512 Juneau, Alaska 99811-5512 RICHARD ACEVEDO, Employee, Applicant v. NORDSTROM INC, Employer, and AMERICAN ZURICH INS CO., Insurer, Defendant(s).AWCB Decision No. 12-0084Filed with AWCB Anchorage, Alaskaon May 9, 2012AWCB Case No. 200900113FINAL DECISION AND ORDER Richard Acevedo's (Claimant) July 9, 2009 workers' compensation claim for temporary partial (TPD) and temporary total disability (TTD) benefits, medical and related benefits, interest, attorney fees and costs, was heard on January 17, 2012 in Anchorage, Alaska. Attorney Eric Croft represented Claimant. Claimant was present and testified. Attorney Rebecca Holdiman-Miller represented Employer and Insurer (collectively, Employer or Nordstrom). Serra Williams, on behalf of the insurer, attended with Ms. Holdiman-Miller but did not testify. Second independent medical examiner, Carol Frey, MD, testified telephonically at hearing and by previous videotaped deposition. The record was left open to obtain an updated evaluation and report from Dr. Frey, and for post-hearing briefing on issues raised during and after the hearing, namely, whether services performed by Andrew S. Bear, DPM, constituted an excessive change of physician by Claimant, whether Claimant's attorney engaged in impermissible ex parte contact with Dr. Frey, and whether the attorney fees sought by Claimant are excessive. The record closed when the panel met to deliberate on April 13, 2012. Preliminary matters addressed at the start of the hearing included Employer's January 13, 2012 petitions to continue the January 17, 2012 hearing, to order the parties to attend a settlement conference or mediation, and to strike from the record a January 10, 2012 email from Dana Molina, Dr. Frey's office assistant. Claimant objected to all three petitions. The petition to continue was based on Employer's allegation Dr. Frey was unavailable to testify. Claimant contended Employer's allegation was erroneous and Dr. Frey was scheduled to testify telephonically. Employer's petition was rendered moot when Dr. Frey testified at the hearing. The petition to order the parties to attend a settlement conference or mediation was denied as unsupported in law, the case Employer relied on in support for its petition, Lindeke v. Anchorage Grace Christian School, AWCB Decision No. 11-0040 (April 8, 2011), being distinguished. The petition to strike the January 10, 2012 email was addressed in post-hearing briefing. ISSUES Employer contends Claimant's medical treatment with Dr. Bear was an excessive change of physician, and Dr. Bear's medical records and opinions should be stricken from the record. Claimant contends Dr. Bear was not an excessive change of physician and his records and opinions should be considered. 1) Was Dr. Bear an excessive change of physician by Claimant, necessitating Dr. Bear's reports and opinions be stricken from the record? Employer contends Claimant's attorney engaged in unauthorized ex parte contact with Dr. Frey or her office staff, and Dr. Frey's reports and opinions should be stricken from the record. Claimant contends neither he nor his staff engaged in unauthorized ex parte contact with Dr. Frey or her office staff, and Dr. Frey's reports, opinions and testimony should be considered. 2) Did Claimant's attorney or staff engage in unauthorized ex parte contact with SIME physician Dr. Frey, necessitating Dr. Frey's reports, opinions and testimony be stricken from the record? Claimant contends his employment for Nordstrom was the substantial cause of his plantar fasciitis,(fn1) need for medical treatment and disability. Employer contends Claimant's plantar fasciitis was of idiopathic(fn2) origin, and his employment was not the substantial cause of his plantar fasciitis, need for medical treatment or disability. 3) Was Claimant's employment the substantial cause of his plantar fasciitis, need for medical treatment and disability? Claimant contends he is entitled to medical and related benefits, including preauthorization for plantar fascia surgery, TPD and TTD benefits, interest, attorney fees and costs. Employer contends Claimant is entitled to no benefits under the Alaska Workers' Compensation Act (Act) because his employment with Nordstrom was not the substantial cause of his disability or need for medical treatment. It argues Claimant's plantar fasciitis is idiopathic in origin, or alternatively, that it was caused by an intervening event occurring after Claimant left Nordstrom's employ. Should Claimant prevail, however, Employer contends his attorney's bill for fees and costs is excessive and should be reduced. 4) Is Claimant entitled to an award of medical and related benefits, including plantar fasciia surgery, known as a plantar fasciotomy? 5) Is Claimant entitled to an award of TPD and TTD benefits? 6) Is Claimant entitled to an award of interest? 7) Is Claimant entitled to an award of attorney fees and costs, and if so, in what amount? FINDINGS OF FACT Review of the record establishes the following facts and factual conclusions by a preponderance of the evidence:
1) On January 5, 2009, Claimant, employed by Nordstrom in Anchorage since 1996, and its Visual Merchandising Manager since 2000, reportedly injured his right foot when he stepped onto the raised metal edge of a window vignette while carrying a large pallet on his shoulder. (Acevedo deposition and hearing testimony).
2) Claimant felt immediate onset of pain in his right heel and reported it immediately to management. He was visibly limping. On the Alaska Workers' Compensation Board Report of Occupational Injury Form 07-6101, Employer, answering the question how the injury occurred, wrote, "Wearing improper footwear for activity being performed." Employer left blank box 46, intended for completion where an employer doubts the validity of a reported injury. (Acevedo; Report of Occupational Injury, January 12, 2009; experience).
3) On January 9, 2009, Claimant was seen by C.J. Little, MD, at U.S. Healthworks Medical Group, LLC (formerly known as Primary Care Associates), reporting right heel pain with onset five days previously, after "doing a lot of lifting, pushing, straining, etc. packing up all the Christmas decorations, sending them back to Seattle . . ." "he can feel a twinge . . . if he is walking on it then it is painful and seems to radiate up to the lateral malleolus of the right heel . . . No specific trauma, just repeated pushing, pulling, and a lot of pressure on it." Dr. Little diagnosed probable plantar fasciitis, and recommended heat, rest, elevation, Relafen 750 mg once or twice per day, and hydrocodone/APAP(fn3) one or two, four to six hours apart as needed for pain. A work slip for five days light duty was completed. Claimant was instructed to return to Derek Hagen, DO, of the same office, who Claimant had seen before for an unrelated matter. (Chart note, Dr. Little, January 9, 2009; record). Claimant testified credibly that Dr. Little's characterization "no specific trauma," while perhaps Dr. Little's impression, was an incorrect characterization of how Claimant sustained the injury on January 5, 2009, that he did not tell Dr. Little there was no specific trauma, and was focused at the time on obtaining relief for his right heel pain. (Acevedo).
4) On January 17, 2009, Claimant was seen for urgent care at U.S. Healthwork's Huffman office by PA-C Margaret King, stating he believed he aggravated his right heel by climbing on ladders at work. Ms. King noted Dr. Little's diagnosis of possible plantar fasciitis, diagnosed work-related right foot strain, prescribed Motrin 800 mg for 10 days, and provided work restrictions consisting of "a sit down job," and "must wear a splint with limited standing or walking for the next week." (Chart note, Margaret King PA-C, January 17, 2009).
5) On January 20, 2009, Claimant was seen by Dr. Hagen for follow-up of his right heel pain. Dr. Hagen acknowledged Claimant's earlier visit to U.S. Healthworks' urgent care clinic. He noted Claimant's report he tried returning to work, but after seven hours he could no longer tolerate being on his feet and had to go home. He reported Claimant rests, ices his foot, elevates it, and when he does he sees improvement the next day. He noted Claimant used hydrocodone occasionally, and Relafen twice a day, and had not had any new trauma or injury. Dr. Hagen imposed work restrictions for another seven days: no climbing, work no more than six hours per day, wear the prescribed splint, and add a thick wool sock to protect ankle bones. (Chart note, Derek Hagen, DO, January 20, 2009).
6) On February 2, 2009, Claimant saw Dr. Hagen again. He reported the pain was continuing, was worse at times, and the work restrictions helped. The work restrictions were continued, including using the supportive splints, and follow up in two to four weeks as needed. Dr. Hagen completed an employer-required form delineating the precise work restrictions imposed. (Chart note, Dr. Hagen, February 2, 2009).
7) On February 11, 2009, Dr. Hagen provided Claimant with written verification of injury to be excused from work on January 1, 6, 8, 9, 13, 14, 20-23 and January 29, 2009. (Note, Dr. Hagen to Whom it May Concern, February 11, 2009).
8) On March 6,
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