12-0211. JERRY A. KARR Employee v. 3-WAY ELECTRIC OF ALASKA INC Employer and ZURICH AMERICAN INSURANCE CO. Insurer Defendants.

• Court: Alaska

Alaska Workers Compensation Decisions 2012. Workers' Compensation Board 12-0211. JERRY A. KARR Employee v. 3-WAY ELECTRIC OF ALASKA INC Employer and ZURICH AMERICAN INSURANCE CO. Insurer Defendants ALASKA WORKERS' COMPENSATION BOARDP.O. Box 115512 Juneau, Alaska 99811-5512JERRY A. KARR, Employee, Applicant v. 3-WAY ELECTRIC OF ALASKA INC, Employer, and ZURICH AMERICAN INSURANCE CO., Insurer, Defendants.AWCB Case No. 200222049AWCB Decision No. 12-0211Filed with AWCB Anchorage, Alaska on December 17, 2012FINAL DECISION AND ORDERJerry A. Karr's November 19, 2010, workers' compensation claim for continuing medical care, attorney fees and costs was heard in Anchorage, Alaska on December 6, 2012. The hearing date was selected at a July 16, 2012 prehearing conference. Attorney Joseph Kalamarides represents Jerry Karr (Employee), who appeared and testified telephonically. Attorney Robert Bredesen represents 3-Way Electric of Alaska, Inc., and its insurer, American Zurich Insurance Company (collectively, Employer). Shawn Johnston, M.D. testified by deposition. Loren Jensen, M.D. appeared and testified. The record was held open to receive Employee's supplemental attorney fees affidavit, and any response from Employer. The record closed on December 14, 2012. ISSUES Employee seeks continuing care in the form of prescription medications and a Bowflex® (Bowflex) exercise unit, in order to relieve chronic shoulder pain resulting from his work injury and the multiple shoulder surgeries which followed. Employer contends Employee needs no further medical care, and his symptoms require only over-the-counter medication and a self-directed home exercise program. 1. Is Employee entitled to continuing care for his right shoulder injury in the form of prescription medications and a Bowflex home exercise unit? Employee contends ongoing medical care was controverted, he employed counsel who successfully litigated his claim, and he is entitled to an award of actual attorney fees under AS 23.30.145(a). Employer contends Employee should not prevail, and thus no award of fees should be made. 2. Is Employee entitled to an award of attorney fees and costs? If so, in what amount. FINDINGS OF FACT The following facts and factual conclusions are established by a preponderance of the evidence: 1) On November 6, 2002, Employee reported a repetitive use injury to his right shoulder while employed as an apprentice electrician for Employer. (Report of Occupational Injury, November 6, 2002). 2) Employer accepted the claim and paid benefits. (Record; Compensation Reports). 3) On May 23, 2003, at Employer's request, Employee was seen for an independent medical evaluation (EME) by hand and orthopedic surgeon Loren Jensen, M.D. Dr. Jensen opined, in relevant part, that Employee's work for Employer is "a substantial factor in the production of his current complaints." (EME Report, May 21, 2003, at 7, 9). 4) On October 25, 2004, the parties settled future indemnity benefits in a Compromise and Release Agreement. Medical benefits remained open. (Compromise and Release Agreement). 5) Five shoulder surgeries conducted on January 15, 2003, February 24, 2004, January 15, 2008, June 19, 2008 and November 20, 2008, have failed to relieve Employee's chronic shoulder pain. (Procedure reports, Bret Mason, M.D., Robert Gieringer, M.D., Paul E. Schwartz, M.D.; Medical records, Dr. Gieringer, Dr. Schwartz, Shawn Johnston, M.D.; Karr hearing testimony). 6) On March 19, 2008, at Employer's request, Employee was again seen by Dr. Jensen. Dr. Jensen opined that Employee's work injury was "the substantial cause" of his then current need for treatment for his right shoulder, the work injury permanently aggravated a preexisting shoulder condition, the treatment received, including the most recent surgery, were within the realm of medically acceptable options, and Employee's continuing care should include goal-directed physical therapy and subsequent self-directed exercise. (EME Report, March 19, 2008, at 8). 7) On November 20, 2008, a fifth and final shoulder surgery, consisting of a right shoulder open biceps tenodesis, and arthroscopy with limited debridement, was performed by orthopedic surgeon Paul E. Schwartz, M.D., while Employee was living in California. Post-operatively, Dr. Schwartz prescribed formal physical therapy, which Employee attended through at least March 30, 2009. Dr. Schwartz also prescribed a "Bowflex Revolution-Original" exercise unit for Employee's continuing home exercise program. Dr. Schwartz prescribed Percocet or Norco, narcotic pain medications, and Celebrex, an anti-inflammatory, pre- and post-operatively. (Daily progress notes, Shasta Ortho PT, various dates; Bowflex prescription, January 26, 2009; Dr. Schwartz chart notes, November 17, 2008, December 29, 2008, February 23, 2009). 8) On July 29, 2009, after returning to Alaska, and on referral from Louis Packer, M.D., of Lake Lucille Urgent Care, Employee began treating with Shawn Johnston, M.D. at Alaska Spine Institute. (Lake Lucille Urgent Care Chart notes; Dr. Johnston Chart letter to Dr. Packer, and chart notes, July 29, 2009 - February 29, 2012). 9) At the time of his first visit with Dr. Johnston, Employee's then current medicines included the muscle relaxant Flexeril, the anti-inflammatory Celebrex, and the narcotic pain reliever Norco. Dr. Johnston noted he planned to keep Employee on the Norco and Celebrex "in hopes of getting him some pain relief," and planned to order a physical capacities evaluation (PCE).(Letter from Dr. Johnston to Dr. Packer, July 29, 2009). 10) Dr. Johnston is board certified in physical and rehabilitation medicine, electrodiagnostic medicine, and pain medicine. (Dr. Johnston deposition, at 3-4; Dr. Jensen testimony). 11) On August 4, 2009, on orders from Dr. Johnston, occupational therapist (OT) John DeCarlo conducted a PCE. Mr. DeCarlo noted Employee demonstrated maximal effort, scored 100% on his validity profile, his pain reports were not grossly out of proportion to his movement pattern, symptom exaggeration was not present, and the PCE placed Employee in the light medium physical demand classification, with above shoulder activities provoking the most pain. (PCE Report, August 4, 2009). 12) On November 11, 2009, at Employer's request, Employee was seen for the third time by Dr. Jensen. In his November 11, 2009 report, Dr. Jensen concluded the October 15, 2002 work injury was a substantial factor in Employee's need for treatment, but that no further treatment other than self-directed exercise and over-the-counter analgesics as needed was appropriate. He recommended Employee be weaned from the prescription pain reliever he was taking to non-narcotic pain medicine. Dr. Jensen acknowledged, however, that as an orthopedic surgeon and not a pain specialist, he was not qualified to assess Dr. Johnston's plan to institute a long term chronic pain program instead of weaning Employee off of narcotics. (EME Report, November 11, 2009, at 9-11). 13) On September 22, 2010, Dr. Jensen examined Employee for the fourth and final time. In his report, Dr. Jensen reiterated his opinion the October 15, 2002 work injury was the substantial cause of Employee's disability and need for treatment. (EME report, September 22, 2010, at 5). He again opined that no further medical treatment was indicated, and a self-directed exercise program with over-the-counter analgesics was the only appropriate treatment remaining. (Id. at 6). 14) Dr. Jensen concurred with OT DeCarlo's PCE validity findings, noting Employee did not show substantial "non-organic overlay." (Id. at 7-8). Dr. Jensen reiterated this opinion in his hearing testimony, adamantly responding "Hell no" when asked if he believed Employee was a malingerer. (Dr. Jensen). 15) In an October 4, 2010 addendum to his report, Dr. Jensen opined "purchasing a Bowflex" was not "reasonable and medically necessary" to treat Employee's October 15, 2002 work injury. (Id. at 8). 16) On November 10, 2010, concurring with Dr. Schwartz' prescription for a Bowflex home exercise unit, Dr. Johnston wrote: "To Whom it May Concern: Mr. Karr would benefit from having a bowflex at home. This will lessen his need for more costly treatment and provide improved strength to hopefully lessen risk of reinjury." (Note, November 10, 2010). 17) On December 10, 2010, based on Dr. Jensen's September 22, 2010 report, Employer controverted all further medical and transportation benefits. (Controversion Notice, December 10, 2010). 18) On December 13, 2011, a second independent medical evaluation (SIME) was conducted by general orthopedic surgeon Lowell M. Anderson, M.D. Dr. Anderson opined, in relevant part, that Employee required no further medical treatment, and narcotic medication was not indicated. He did not address Dr. Jensen's and Dr. Johnston's recommendations Employee continue a home exercise program, or whether a Bowflex home exercise unit is indicated for Employee's self-directed exercise regimen. (Dr. Anderson SIME information update, October 4, 2011; SIME report, Dr. Anderson, December 13, 2011). 19) On Employee's February 29, 2012 office visit, Dr. Johnston noted Employee's shoulder symptoms had not undergone substantial change, and while Employee was trying to wean himself from the narcotics, they did allow him to be more functional. Dr. Johnston also opined Employee needed to be doing home exercises with ongoing strengthening to help reduce his symptoms. (Chart note, Dr. Johnston...