2006-009. David J. Berrey Movant vs. Arctec Services and Lumbermens Mutual Casualty Co. Respondents.

• Case Date: April 28, 2006
• Court: Alaska

Alaska Workers Compensation Decisions 2006. Workers' Compensation Appeals Commission 2006-009. David J. Berrey Movant vs. Arctec Services and Lumbermens Mutual Casualty Co. Respondents Alaska Workers' Compensation Appeals Commission David J. Berrey, Movant, vs. Arctec Services and Lumbermens Mutual Casualty Co. Respondents.Decision No. 009 April 28, 2006 WCAC Appeal No. 06-007 AWCB No. 200120509Memorandum Decision Memorandum Decision on Motion for Extraordinary Review of Alaska Workers' Compensation Board Order No. 06-0031, Fairbanks Panel, by William Walters, Chairman, and Chris Johansen, Board Member for Management. Appearances: David J. Berrey, Pro Se; Richard Wagg, Russell, Tesche, Wagg, Cooper and Gabbert, for Appellees, Arctec Services and Lumbermens Mutual Casualty Co.Commissioners: John Giuchici, Philip Ulmer, Kristin Knudsen.By Kristin Knudsen, Chair: Mr. Berrey asks the commission to review an interlocutory order by the board. In its decision, the board voided the Reemployment Benefits Administrator (RBA) designee's determination that Berrey was eligible for reemployment benefits, directed Berrey to attend a second independent medical examination (SIME), and retained jurisdiction to determine whether Berrey had a compensable permanent impairment and whether his condition was medically stable. Berrey argues that the board erroneously voided the RBA designee's decision and division officer's statement to him that "causation was not an issue" barred the board from considering whether the permanent impairment is compensable. He contends the only question before the board was if he had a permanent impairment that would make him eligible for reemployment benefits. Because the board made no decision on the issue of compensable permanent impairment, and the employee agreed to a hearing on the issue of medical stability and eligibility for reemployment benefits, we conclude that the board has not departed from its regulations or the requirements of due process. We also note that the process of extraordinary review, if applied in this case, would only delay ultimate resolution of this litigation and impose substantial costs on the parties. Therefore, we deny the motion for extraordinary review. Factual background. The facts summarized in this decision are drawn from the board's decisions, David Berrey v. Arctec Svcs. I, AWCB Decision No. 06-0031 (February 7, 2006) and David Berrey v. Arctec Svcs. II, AWCB Decision No. 06-0050 (March 2, 2006). We make no independent findings of fact. We note the parties did not challenge the board's recitation of the facts of the case. David J. Berrey was employed by Arctec Services as a laborer at Clear, Alaska when, in the summer of 2000, he developed pain in his right heel. His physician, then Ralph Dixon, DPM, diagnosed planter fascitis, bursitis and calcaneal bone spur, related to Berrey's employment. Arctec paid temporary total disability (TTD) compensation and medical benefits. Berry transferred his care to a PA-C (physician assistant - clinician) in the office of Cary Keller, MD. The PA-C determined he was released, with restrictions, to work in February 2001, and that his condition was medically stable on March 28, 2002. In September 2002, the PA-C noted the employee continued to have problems with his foot at work and recommended to the employer's medical manager that he be evaluated for vocational rehabilitation. In October 2002, the employer inquired about medical stability and the PA-C responded that the employee was medically stable. The employer then controverted further TTD compensation. In July 2003 the PA-C noted that the employee should not walk, stand or climb on concrete floors. In August 2003, Berrey asked for an evaluation(fn1) to determine if he was eligible for reemployment benefits.(fn2) Although she believed that Berrey's condition would not result in a ratable permanent impairment, in January 2004 the PA-C recommended to the RBA that he be found eligible for retraining. If an employee suffers a compensable injury that may permanently preclude an employee's return to the employee's occupation at the time of injury, the employee or employer may request an eligibility evaluation for reemployment benefits. The employee shall request an eligibility evaluation within 90 days after the employee gives the employer notice of injury unless the administrator determines the employee has an unusual and extenuating circumstance that prevents the employee from making a timely request. The administrator shall, on a rotating and geographic basis, select a rehabilitation specialist from the list maintained under (b)(6) of this section to perform the eligibility evaluation. On March 10, 2004, the RBA designee, Mickey Andrew, assigned a specialist to do an evaluation to determine if Berrey was eligible for reemployment benefits.(fn3) By then, Berrey had moved to Arizona and begun care by Carry Zang, DPM. The specialist sent a letter to Dr. Keller's office in Fairbanks on March 31, 2004. Dr. Keller's office responded that Berrey could return to work in three job descriptions (construction worker, firefighter, and utility laborer). In an eligibility evaluation report dated April 15, 2004, the specialist recommended that Berrey be found not eligible for reemployment benefits. RBA designee Andrew rejected the report because the PA-C's responses were not cosigned by a physician; there was no documentation whether or not the employee would have a permanent impairment; and, the job descriptions were approved subject to modifications of standing and walking. She suggested the specialist contact Mr. Berrey's current physician, Dr. Zang. The specialist contacted Dr. Zang and reported on May 18, 2004, that Dr. Zang wanted to perform surgery, but the employee was reluctant, and that Dr. Zang would "discuss giving an impairment rating if the employee would make an appointment to see him." On May 21, 2004, the specialist reported that Dr. Zang had disapproved the three positions of construction worker, firefighter, utility laborer. RBA designee Andrew issued a determination that Berrey was eligible for reemployment benefits on October 25, 2004, stating

Dr. Zang has indicated that your predicted permanent physical capacities are less than those required of your job at time of injury and of jobs you held in the 10 years prior to your injury. Your employer is unable to offer alternative employment per AS 23.30.041(f)(1). You have not received vocational rehabilitation for a previous workers' compensation claim. Finally, you have or are expected to have a permanent partial impairment at the time of medical stability.(fn4)

The employer petitioned for review of the RBA designee's determination. After the designee's determination, the employee was referred by Dr. Zang to Dr. Leonetti for a permanent impairment rating. Dr. Leonetti produced a rating of 10% permanent partial impairment of the right foot on February 14, 2005. The employer controverted the rating. Dr. Leonetti reported a 3% permanent partial impairment of the whole person on March 21, 2005. The employer sent the employee to an employer medical evaluation, performed July 6, 2005. The employer's medical evaluator, Dr. Marble, indicated the employee was medically stable and had no ratable permanent...