12-0174. JUANA CONTRERAS-MENDOZA Employee v. QDOBA MEXICAN GRILL Employer and ARGONAUT INSURANCE CO. Insurer Defendants.

• Court: Alaska

Alaska Workers Compensation Decisions 2012. Workers' Compensation Board 12-0174. JUANA CONTRERAS-MENDOZA Employee v. QDOBA MEXICAN GRILL Employer and ARGONAUT INSURANCE CO. Insurer Defendants ALASKA WORKERS' COMPENSATION BOARDP.O. Box 115512 Juneau, Alaska 99811-5512JUANA CONTRERAS-MENDOZA, Employee, Applicant, v. QDOBA MEXICAN GRILL, Employer, and ARGONAUT INSURANCE CO., Insurer, Defendants.AWCB Case No. 200804514AWCB Decision No. 12-0174Filed with AWCB Anchorage, Alaska on October 2 ,2012FINAL DECISION AND ORDERJuana Contreras-Mendoza's (Employee) December 3, 2009 claim was heard on September 4, 2012, in Anchorage, Alaska. The hearing date was selected on June 7, 2012. Non-attorney representative Vincent Briggs appeared, testified and represented Employee, who also appeared and testified. Attorney Erin Egan appeared and represented Qdoba Mexican Grill (Employer) and its workers' compensation insurer. Joanne Pride and Tracy Davis also appeared and testified. The record closed at the hearing's conclusion on September 4, 2012. As a preliminary matter, Employer objected to admission or consideration of settlement offer letters. Employer argued the settlement offers were not relevant factually and not admissible legally. It asked the letters and any argument related to them be disregarded. Employee argued the letters were relevant because they are "evidence." The chair sustained Employer's objection, subject to change should the letters become relevant later in the hearing. As the settlement letters did not become relevant, Employer's objection remained sustained and the settlement offers and any related arguments were not considered in this decision. However, as the attachments to this letter were medical billing statements, and served on Employer in a timely manner, the attachments were admissible and considered as evidence. Employer also objected to documents Employee handed Employer's counsel at the beginning of the hearing on grounds the material had not been filed and served at least 20 days prior to hearing, pursuant to the regulations. Employee argued the only new document in the packet was a note from Leslie Dean, M.D., stating she could not make it to the hearing but was willing to give a deposition. Employer's counsel, by contrast, argued she had not seen allergy testing performed by Thomas Hunt, M.D. A decision on this objection was reserved pending a determination whether or not all the documents provided to Employer's counsel by Employee at hearing had previously been filed and served. Because Employee served the itemized medical statements on Employer more than 20 days prior to hearing, and the records not otherwise produced in a timely manner to Employer 20 days before the hearing were not necessary for the instant determination, Employer's objection is granted. The records not filed and served at least 20 days prior to hearing will not be considered for this decision. Employer also objected to June 7, 2010 and March 28, 2011 medical records noting it filed a request for cross-examination, also known as a "Smallwood" objection, to these two reports authored by Roy Meals, M.D., and Employee did not provide Dr. Meals for cross-examination. However, Employer recognized some information in at least one of the reports was "helpful" to Employer, and consequently, it did not want the reports to be stricken in their entirety simply because it did not have an opportunity for cross-examination. Employer's main objection to these reports was not hearsay; rather, Employer felt the reports were "incomplete." Subsequently, Employer clarified its Smallwood objection was based upon hearsay and the subject letters were not admissible as business records because they were prepared solely for litigation purposes. To cure this objection, Employer argued any ambiguities in the reports should be "construed" in Employer's favor. Employer averred this would be an appropriate "penalty" for Employee's failure to provide an opportunity to cross-examine the physician. Employee argued all the records were relevant and admissible. She contended the physician was a contrarian who would not voluntarily participate with attorneys, though her prior counsels had tried to approach him for further information. A ruling on this preliminary issue was reserved. Employer provided no authority for its request and referred to at least one of the objectionable medical records in its closing argument. Consequently, Dr. Meals' reports will be considered in their entirety, as discussed more fully in the analysis below. Employer also reserved its right to raise and argue its AS 23.30.110(c) defense. The chair advised the parties pursuant to Contreras-Mendoza v. Qdoba, AWCB Decision No. 12-0150 (August 31, 2012) (Contreras-Mendoza I), which the parties had not yet received because of the intervening Labor Day holiday, Employer's right to assert this defense was preserved and available. Furthermore, as Employer clearly raised the defense at the June 7, 2012 prehearing conference, it was appropriate to assert at hearing. Employee did not object to this defense being raised and argued. Employer raised it and this decision addresses the §110(c) defense. Lastly, Employer averred Employee may have made an excessive change of physician. Employer argued it was not specifically seeking an order striking any particular medical records. Employer wanted the "record to reflect" any medical reports from a physician other than Miriam Nolte, M.D., after Employee's visit with Dr. Dean on May 14, 2008, forward, were the product of an unauthorized change of physician. In response, Employee argued Dr. Dean treated her thumb for a brief period and stopped treating solely because Employer controverted the case. Employee maintained Dr. Dean was Employee's physician for her thumb only, but Employee had other work-related issues Dr. Dean was not treating. Employee also argued her Palmer, Alaska clinic had referred her to Dr. Dean, a hand specialist. As the details for this defense required considerable testimony and record review, a ruling on Employer's defense was reserved. Because Employer's objection was vague and did not specifically request any record be stricken, and there does not appear to be an unlawful change of physician, the defense was noted but no medical records are excluded from consideration except those not timely filed before hearing. ISSUES Employer contends Employee's claim should be dismissed under AS 23.30.110(c) because the Affidavit of Readiness for Hearing, which Employee's previous attorney filed, was "withdrawn" at the February 9, 2012 prehearing conference and, once withdrawn, was ineffective to toll the two-year statute in §110(c) from expiring. As Employee has not subsequently filed an affidavit requesting a hearing or made any other hearing request, and it has been more than two years since Employer controverted her claim, Employer contends her claim should be denied as a matter of law. Employee contends she never withdrew her affidavit of readiness for hearing. She contends she always wanted to have a hearing but simply needed more time to find an attorney before a hearing was scheduled. Employee contends §110(c) should not operate to deny her claim. 1) Should Employee's claim be denied because she withdrew a previously filed affidavit of readiness for hearing and the two year deadline for requesting a hearing passed without Employee making a further hearing request? Employee contends she was disabled as a result of her work-related injury and her two hand surgeries. She requests an order awarding her temporary total disability (TTD) benefits from May 20, 2008, until the date she was no longer disabled or was medically stable. Employer contends Employee's physician released her to full duty. It contends Employer paid her all TTD benefits due and owing. Accordingly, it seeks an order denying Employee's TTD claim. 2) Is employee entitled to TTD benefits? Employee contends her first and second hand surgeries are both compensable because the February 22, 2008 injury is the substantial cause of the need for the surgeries. She seeks an order requiring Employer to pay for both surgeries. Employer contends neither hand surgery is work-related. It contends the February 22, 2008 work injury is not the substantial cause of the need for the surgeries. Accordingly, it seeks an order denying Employee's claim. 3) Is Employee entitled to an order directing Employer to pay her outstanding work-related medical bills and reimburse her out-of-pocket expenses? Employee contends she is entitled to an order requiring Employer to pay for another visit with her surgeon. She contends this is a follow-up visit at the surgeon's request. Employer contends because Employee's symptoms are not work-related, she is not entitled to any medical benefits. Consequently, it contends Employee's request for an additional visit with her surgeon should be denied. 4) Is Employee entitled to an order requiring Employer to pay for future medical care? Employee contends her hand injury resulted in permanent partial impairment (PPI). She seeks an order awarding her 2% PPI. Employer contends Employee suffered no PPI as result of the work related injury. It seeks an order denying her PPI claim. 5) Is Employee entitled to PPI benefits? Employee contends she is entitled to an order reviewing the decision of the reemployment benefits administrator. She contends she should be retrained because she can no...