12-0087. MIGUEL N.MARIN Employee v. KLAWOCK CITY SCHOOL DISTRICT Employer and ALASKA PUBLIC ENTITY INSURANCE Insurer Defendants.

• Court: Alaska

Alaska Workers Compensation Decisions 2012. Workers' Compensation Board 12-0087. MIGUEL N.MARIN Employee v. KLAWOCK CITY SCHOOL DISTRICT Employer and ALASKA PUBLIC ENTITY INSURANCE Insurer Defendants ALASKA WORKERS' COMPENSATION BOARDP.O. Box 115512 Juneau, Alaska 99811-5512 MIGUEL N.MARIN, Employee, Applicant, v. KLAWOCK CITY SCHOOL DISTRICT, Employer, and ALASKA PUBLIC ENTITY INSURANCE, Insurer, Defendants.AWCB Case No. 200806131AWCB Decision No. 12-0087Filed with AWCB Juneau, Alaska On May 14, 2012FINAL DECISION AND ORDERMiguel Marin's (Employee) November 10, 2009, workers' compensation claim (WCC) was heard before a two-member panel on May 8, 2012, in Juneau, Alaska. Employee appeared tele-phonically and testified. Non-attorney representative Rene Rew appeared telephonically, represented Employee, and testified. Attorney Colby Smith appeared and represented Klawock City School District (Employer). The record closed at the hearing's conclusion on May 8, 2012. ISSUES Employee contends he is entitled to past and ongoing medical treatment for his back and lower extremity conditions and symptoms, which he contends results from a work-related aggravation of a pre-existing disc herniation. Employee contends since his work injury, his pain has never resolved and he is permanently and totally disabled because of the work-related aggravation. He seeks permanent total disability (PTD), permanent partial impairment benefits (PPI), and past and ongoing medical treatment. Employer contends Employee had a well-established pre-existing herniated nucleus pulposus with severe focal stenosis and cord compression prior to his employment with Employer. Employer contends Employee's pre-existing conditions were aggravated by a June 7, 2008, non-work related event of stepping on a scale at home, which created myelopathic symptoms and necessitated Employee's need for surgical decompression. Because Employee's past and current symptoms are not work-related and no further medical treatment is needed attributable to the work injury, it contends Employee is not entitled to medical treatment, PTD, and PPI benefits. 1)Is Employee entitled to past and continuing medical treatment for his back and lower extremity conditions and symptoms? 2)Is Employee entitled to PTD benefits? 3)Is Employee entitled to PPI benefits? FINDINGS OF FACT A review of the entire record establishes the following facts and factual conclusions by a preponderance of the evidence: 1)On November 7, 2005, Employee was treated at Craig Clinic for chronic right hip pain after lifting something heavy. The pain started in his sciatic notch, right buttock and radiated down his leg to his calf. The assessment was acute/chronic low back sprain and contracture of low back muscles. (Chart Note, Craig Clinic, November 7, 2005). 2)On November 2, 2006, Employee reported a work injury occurred on November 2, 2006, when he coughed and his back and hip "went out" while he was working for a different employer, Carter and Carter Enterprises, Inc. Employee filed a claim relating to this injury, which was denied in Marin v. Carter and Carter Enterprises, Inc., Alaska Workers' Comp. Bd. Dec. No. 11-0016 (February 17, 2011) (Marin I) based on Employee's failure to timely prosecute his claims. 3)On November 2, 2006, Jacquelyn Barnes, PA-C, treated Employee at Alicia Roberts Medical Center (ARMC) and diagnosed: 1) low back pain with radiculopathy, and 2) hand pain. Ms. Barnes referred Employee to Mt. Edgecumbe Hospital's radiology department for a lumbar spine series examination. (Chart Note, Barnes, November 2, 2006; Lumbar Spine Series Examination Report, Dr. Michael Walker, M.D., November 7, 2006). 4)On November 2, 2006, the lumbar spine series showed normal alignment with preservation of the disk spaces. No acute subluxations or fractures were present, the sacroiliac joints were normal, and no suspicious abdominal or pelvic calcifications were seen. (Radiologist Report, Michael Walker, M.D., November 2, 2006). 5)On March 21, 2007, Matt Dinon, D.O, treated Employee for back pain and diagnosed lumbar radiculopathy. Dr. Dinon referred Employee for lumbar spine magnetic resonance imaging (MRI). (Chart Note, Dr. Dinon, March 21, 2007). 6)On April 12, 2007, the lumbar spine MRI showed prominent disk extrusions with severe spinal canal stenosis at T12-L1 and L4-5 and degenerative disk disease with minimal disk protrusion at L5-S1. (Radiologist Report, David Vanderburgh, M.D., April 12, 2007). 7)On April 20, 2007, Dr. Dinon treated Employee in follow up to the lumbar spine MRI and opined, "This is not going to fly as a work injury. I think [the patient] understands it is not all acute." He stated Employee would pursue a neurosurgical consultation. (Chart Note, Dr. Dinon, April 20, 2007). 8)On May 3, 2007, Robert Thomas, M.D., treated Employee for back pain, diagnosed 2-level herniated nucleus pulposus, and opined, "I am not certain if the ruptured disc is causing the right hip pain or not. It most likely is causing the pain along the lateral posterior thigh, however he could have a sacroiliitis that is also causing the hip pain." Dr. Thomas also opined, "This did occur while he was at work and there was a prolonged period of time before he could be medically evacuated for care." Dr. Thomas referred Employee to John Bursell, M.D., and Gordon Bozarth, M.D., for further evaluation of Employee's pain. (Chart Note, Dr. Thomas, May 3, 2007). 9)On October 13, 2007, Julie Crites, FNP, treated Employee for lumbar pain and diagnosed lumbosacral strain. (Chart Note, Crites, October 13, 2007). 10) On October 13, 2007, a lumber spine x-ray showed chronic-appearing changes. (Radiologist Report, Jerry Wright, M.D., October 13, 2007). 11)On November 6, 2007, Mel Bingham, PA-C, treated Employee for back and hip pain and stated, "Has had back pain for several months following an apparent work related exacerbation of previous cumulative injury." She stated Employee wanted a referral but also needed funding for his care. (Chart Note, Bingham, November 6, 2007). 12)On May 1, 2008 at approximately 9:30 a.m., Ms. Bingham treated Employee for a re-strain of Employee's lower back, including "bilateral shooting pain, legs, painful lump in arm pit" and diagnosed severe lumbar spinal stenosis, lumbar degenerative disc disease, and lumbar strain. Ms. Bingham noted Employee had been working at school for the last three weeks, with no work before that since the last fall. Employee reported he, "has improved some since working as a logger, then sometimes had trouble moving feet at times" and "long term pain down both legs, some progressing numbness. Gets shooting pain down both legs when coughing or sneezing." Ms. Bingham told Employee he could do mild activity only such as light cleaning at work and informed Employee he could do no lifting at work. Ms. Bingham restricted Employee from working for three days, after which Employee was released to return to work if tolerated, with no vigorous activity or lifting greater than five pounds. (Chart Note, Bingham, May 1, 2008; Return to Work Release, Bingham, May 2, 2008). 13)Employee went to work later that day and on May 1, 2008, Employee reported a work injury occurred on May 1, 2008, at approximately 2:30 p.m., when he pulled a muscle in his back while lifting lunchroom tables. His workday was reported to have begun at 1:30 p.m. (Report of Injury, May 6, 2008). 14)On May 2, 2008, Ms. Bingham treated Employee for back pain. Ms. Bingham stated Employee, "went back to work yesterday [and] had to lift a table. Was told lifting." Employee reported he had to lift tables in order to do his job. Ms. Bingham recommended, "Absolutely lifting, off work if necessary." Employee was again referred to a neurological specialist. (Chart Note, May 2, 2008). 15)On May 5, 2008, Ms. Bingham restricted Employee from working for ten days. (Return to Work Release, Bingham, May 5, 2008). 16)On May 14, 2008, Ms. Bingham evaluated Employee for a release to return to work. She stated Employee, "wants to go back to work. . . . Back feels better but is not 100% yet. Still hurts when coughing, bending down." She opined Employee could return to work, but noted it would likely cause increased discomfort. (Chart Note, Bingham, May 14, 2008). 17)On May 14, 2008, Ms. Bingham released Employee to work with restrictions of no lifting greater than 10 pounds, and Employee returned to work full time for Employer. (Return to Work Release, Bingham, May 14, 2008; Marin Hearing Testimony). 18)On May 14, 2008, Employee had an appointment with a neurological specialist at ARMC but the provider did not make it into the clinic due to weather. (Chart Note, ARMC, May 14, 2008). 19)On June 7, 2008, an ARMC provider treated Employee for back pain and diagnosed lumbar strain. Employee reported he was using poor body mechanics while carrying garbage, stepped up onto a four-inch tall scale to weigh himself and felt pain shooting down his legs, and numbness and tingling in his feet. Employee reported his degree of pain was 10 out of 10. (Chart Note, ARMC, June 7, 2008). 20)On June 7, 2008, Employee returned to ARMC and Ms. Bingham treated Employee for back pain. Employee reported a feeling of numbness in legs, bilaterally and pain in his low back. He reported his legs felt "weird" and different and pain was intolerable, a 10 out of 10. (Chart Note, Bingham, June 7, 2008). 21)On June 8, 2008, a lumbar spine MRI showed: 1) T12-L1 level severe and considerably worsened...