12-0085. JAMES R. MACRAE Employee v. FRED MEYER INC Self-Insured Employer.
Court | Alaska |
Alaska Workers Compensation Decisions
2012.
Workers' Compensation Board
12-0085.
JAMES R. MACRAE Employee v. FRED MEYER INC Self-Insured Employer
ALASKA WORKERS' COMPENSATION
BOARDP.O. Box 115512 Juneau, Alaska 99811-5512 JAMES R. MACRAE, Employee, Applicant
v. FRED MEYER INC, Self-Insured EmployerAWCB
Case No. 199923006AWCB
Decision No. 12-0085Filed with AWCB Anchorage,
Alaska on May 10, 2012FINAL
DECISION AND ORDERJames MacRae's (Employee) workers' compensation claim (WCC) was
heard on March 28, 2012, in Anchorage, Alaska. Dianne MacRae, Employee's
spouse, was his non-attorney representative. Attorney Michelle M. Meshke
represented Fred Meyer, Inc. (Employer). The record remained open until April
11, 2012, to allow Employer time to ascertain if it wished to exercise its
right to cross-examine Lavern Davidhizar, D.O. The record closed on April 11,
2012.
ISSUES
Employee contends he is entitled to ongoing medical benefits,
including prescriptions for Oxymorphone Hydrochloride, Opana, Piroxicam,
Zanaflex, lumbar x-rays, lumbar magnetic resonance imaging (MRI), physical
therapy, and epidural steroid injections, as a result of his low back injury in
December 1999. Employee contends the State of Alaska has been paying for his
medical treatment since Employer controverted his benefits in 2005 and the
State should be reimbursed. Employee further asserts the 1999 work injury is
still a substantial factor in his need for medications and ongoing medical
treatment.
Employer contends Employee's work injury resolved by 2000, or
at least in 2004, and any ongoing medical treatment and prescriptions are
related to Employee's pre-existing and progressive degenerative disc disease
and somatoform disorder, which is the result of Employee's pre-existing bipolar
disease. Employer asserts the 1999 work injury is no longer a substantial
factor in the need for either medical treatment or prescriptions. Employer
further contends the medical treatment now sought by Employee is no longer
reasonable and necessary as a result of the 1999 work injury.
Is Employee entitled to medical treatment after 2005 as a
result of the 1999 work injury?
FINDINGS OF FACT
A review of the entire record established the following facts
and factual conclusions by a preponderance of the evidence:
1) Employee sustained an injury to right side of his mid-low
back on December 29, 1999, while working as a cashier for Employer (Report of
Occupational Injury or Illness (ROI), January 4, 2000).
2) Employee was paid temporary total disability and temporary
partial disability benefits through April 2000. On May 25, 2000, Employee was
paid permanent partial disability benefits in a lump sum of $6,750 based on a
5% rating by his treating doctor (Compensation Report, May 22, 2000).
3) On March 1, 1988, Employee saw Thomas Vasileff, M.D., for a
knee cyst. Dr. Vasileff noted Employee's long history of back problems for
which he was taking Percodan and Flexeril (Vasileff report, March 1,
1988).
4) On December 23, 1994, Employee saw Aron S. Wolf, M.D., at
Langdon Clinic, for of depression.
Dr. Wolfs impressions included Employee's history of alcohol
and cocaine dependence, history of depression and panic attacks, and
personality disorder NOS (not otherwise specified). Employee was being treated
with Paxil and Klonopin (Wolf report, December 23, 1994).
5) On December 30, 1999, Employee saw Robert R. Artwohl, M.D.,
for back pain and pain in the right leg. His past medical history was notable
for depression. Dr. Artwohl's impression was lower back strain, with possible
herniated disc. He recommended bed rest, heat, Flexeril, Vicoprofen and
referral to an orthopedic surgeon (Artwohl report, December 30, 1999).
6) On January 10, 2000, Employee saw Declan R. Nolan, M.D., on
referral for low back pain. Dr. Nolan's assessment was acute lumbar disc
syndrome with probably resolving right lumbar radiculopathy. Dr. Nolan
recommended bed rest of five to seven days followed by a physical therapy
program. Employee was to stay off work for two weeks (Nolan report, January 10,
2000).
7) On January 26, 2000, Employee saw Dr. Nolan complaining
about his upper back and neck more than his low back. Employee's leg pain was
less and he had no new weakness or numbness.
Employee's objective examination showed improvement. Dr. Nolan
recommended Employee be off work for two more weeks and then return to work
without restriction (Nolan report, January 26, 2000).
8) On February 9, 2000, Employee reported to Dr. Nolan his back
was worse although he had no radiation, no weakness, and no numbness. Employee
showed markedly restricted motion with guarding and very little flexion. Dr.
Nolan recommended an MRI and gave Employee a prescription for DarvocetN-100
(Nolan report, February 9, 2000).
9) On February 10, 2000, Employee had an MRI without contrast
which showed a mild L2-L3 disc bulge but no evidence of a herniated nucleus
pulposus (FDNP) or neural impingement (MRI report, February 10, 2000).
10) On February 14, 2000, Employee saw Dr. Nolan for the
results of the MRI. Dr. Nolan opined Employee would improve with time and
released Employee to light duty work. Employee had no instability or
radiculopathy. Dr. Nolan referred Employee to Susan Klimow, M.D., for a
rehabilitation consultation (Nolan report, February 14, 2000).
11) On February 21, 2000, Employee saw Dr. Klimow who noted
Employee had been to physical therapy and had a home stretching program. She
noted Employee worked seasonally for Employer and ran a commercial fishing boat
in the summers. She stated Employee was in the care of Greg McCarthy, M.D.,
psychiatrist. Her impression was lumbosacral back pain with L2-L3 degenerative
disc disease and evidence on examination of right SI involvement inconsistent
with symptoms and MRI. She recommended Motrin 800 mg and a release to work 6
hours per day with lifting up to 50 pounds occasionally, and increasing to 8
hours per day over the next three weeks with no prolonged walking. Employee was
to continue with a home exercise program (Klimow report, February 21,
2000).
12) On March 1, 2000, Employee underwent an electrodiagnostic
study with Dr. Klimow. The electrodiagnostic study was normal as was the SI
nerve function of the bilateral lower extremities. She noted he had completed
routine physical therapy and was referred to a work reconditioning program. He
was released to work light duty for four hours a day initially. He was also
referred to biofeedback to help him learn to relax his neck muscles. Her
impression remained lumbosacral back pain with L2-L3 degenerative disc disease
(Klimow report, March 1, 2000).
13) On April 11, 2000, Employee saw Dr. Klimow and reported he
was doing better overall. Employee was to complete the BEAR work hardening
program and then have a physical capacities evaluation. Employee was to
continue with a home exercise program (Klimow report, April 11, 2000).
14) On April 19, 2000, Dr. Klimow found Employee to be
medically stable and rated him for permanent partial impairment (PPI) under the
AMA Guides to Evaluation of Permanent Impairment, 4th Edition,
with a 5% whole person rating. She noted Employee had recurrent lumbosacral
back pain which was intermittent in nature, a negative neurological exam, L2-L3
degenerative disc disease, and bipolar disorder. Employee was released to
medium capacity work for lifting but was limited to standing for 30 minutes at
a time. He was not precluded from commercial fishing but was limited to cashier
work to be performed while sitting. Employee was advised to take Motrin as
needed and was given a prescription for Anexsia for severe pain (Klimow report,
April 19, 2000). 15)On November 2, 2000, Employee again saw Dr. Klimow for
recurrent low back pain. He had returned to work for Employer after working as
a commercial fisherman during the "on"...
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