2006-014. Edward Witbeck Appellant vs. Superstructures Inc. and Alaska National Insurance Co. Appellees.

• Case Date: July 13, 2006
• Court: Alaska

Alaska Workers Compensation Decisions 2006. Workers' Compensation Appeals Commission 2006-014. Edward Witbeck Appellant vs. Superstructures Inc. and Alaska National Insurance Co. Appellees Alaska Workers' Compensation Appeals Commission Edward Witbeck, Appellant, vs. Superstructures, Inc., and Alaska National Insurance Co., Appellees.Decision No. 014 July 13, 2006AWCAC Appeal No. 06-001 AWCB No. 200119123Final Decision and Order Final Decision on Appeal of Alaska Workers' Compensation Board Order No. 05-0348, Anchorage Panel, by Rosemary Foster, Chairman, Andrew Piekarski, Board Member for Labor, and Linda Hutchings, Board Member for Management. Appearances: Edward Witbeck, appellant, pro se, Richard Wagg, Russell, Tesche, Wagg, Cooper and Gabbert, for appellees, Superstructures, Inc., and Alaska National Insurance Co.Commissioners: John Giuchici, Marc Stemp,and Kristin Knudsen. By Kristin Knudsen, Chair: Edward Witbeck appeals the board's denial of his second claim for a recalculation of his compensation rate, the board's decision affirming the reemployment benefits administrator's determination that he was not cooperative and terminating his vocational reemployment benefits, and, the board's denial of his claim for medical treatment expenses and related transportation to Seattle. We affirm the board's decision denying his claim for a compensation rate adjustment, as a subsequent claim barred by res judicata or, as the board considered it, a late request for reconsideration or rehearing for modification of a 2003 decision on his compensation rate. We affirm the board's decision upholding the administrator's decision that Witbeck was not cooperative and terminating reemployment benefits. We vacate the board's decision that the consultation with Dr. Bransford was not reasonable and necessary medical care for lack of substantial evidence in light of the whole record to support the board's findings and we remand the claim to the board for further proceedings. Factual background and proceedings before the board. When reciting the factual background of this case, the commission is mindful that it does not engage in fact-finding when reviewing a case on appeal. Instead, the commission reviews the board's findings of fact. The board's findings of fact "shall be upheld by the commission if supported by substantial evidence in light of the whole record."(fn1) The board's determination of credibility, including the weight to be accorded medical testimony, is conclusive,(fn2) and the board's findings regarding the credibility of a witness before the board are binding on the commission.(fn3) The board's decision of December 28, 2005, reviews the facts of this case in detail over 26 pages of a 39-page decision.(fn4) Further details of Witbeck's work history are related in the board's July 2003 decision(fn5) and the decision of the reemployment benefits administrator.(fn6) We summarize the facts here for the purpose of placing Witbeck's appeal in context. Witbeck had worked sporadically(fn7) in the years before he was hired on September 24, 2001, by Superstructures, Inc., as a "seasonal" iron worker at $16.00/hour.(fn8) He reported he was injured on September 28, 2001, at 5:00 p.m., when an "iron roof rafter" "slipped off Curties hand, fell on my right foot, left hand."(fn9) He went to the Central Peninsula Hospital emergency room the following day, where his foot was X-rayed, and no fractures found.(fn10) The diagnosis was an acute contusion on the dorsum of his right foot, minor contusion of the left hand.(fn11) On October 1, 2002, Witbeck told Lavern Davidhizer, D.O., that he developed back pain when he bent over to lift the joist off his foot.(fn12) Dr. Davidhizar diagnosed a "lumbar disc syndrome" and sprained ankle.(fn13) Witbeck has since received a variety of non-surgical treatment for his low back pain.(fn14) Reemployment benefits administrator Doug Salzman determined Witbeck was eligible for reemployment benefits on August 28, 2002,(fn15) based on a report by specialist John Micks.(fn16) Witbeck was not medically stable, so he continued to receive temporary total disability compensation during the eligibility determination phase of the reemployment process.(fn17) Superstructures first paid Witbeck temporary total disability compensation at a rate based on his gross weekly wage at the time of injury. If he had completed a week of work, he would have earned $640.00/week. ($16.00/hour x 40 hours/week).(fn18) The compensation based on this wage is $405.49/week.(fn19) From September 29, 2001, when Superstructures began payment, to February 13, 2003, Witbeck was paid $29,137.37.(fn20) The compensation rate reduction. On February 14, 2003, Superstructures recalculated Witbeck's compensation rate after it began paying him permanent partial impairment compensation.(fn21) The new rate was the minimum allowable compensation rate of $169/week.(fn22) On April 15, 2003, Witbeck filed a claim for a compensation rate adjustment, asking that his $405.49/week compensation rate be reinstated.(fn23) The claim was controverted,(fn24) and on July 15, 2003, a hearing was held to determine the employee's correct gross weekly wage and compensation rate.(fn25) Witbeck appeared by telephone.(fn26) Two witnesses who testified for the employer were found credible by the board.(fn27) The board issued its decision July 24, 2003.(fn28) Witbeck asked for reconsideration.(fn29) Despite some question whether his request was timely under AS 44.62.540(a), the petition was considered by the board, and the request for reconsideration was denied.(fn30) On June 3, 2005, Witbeck filed a second claim, asking for $800/week permanent partial disability compensation, because "405. week at time of injury not right, I should get 800 a week."(fn31) Later, he noted on his request for cross examination that "I want my cash 405.00 a week from 03 to 05."(fn32) The board considered Witbeck's claim as a "request for reconsideration or modification of AWCB Decision No. 03-0173."(fn33) The board found that Witbeck's petition was filed more than one year after the last payment of compensation. Therefore, the board denied his petition as being too late to be treated as a petition for modification or reconsideration.(fn34) The termination of reemployment benefits. Following administrator Salzman's determination of eligibility for reemployment benefits, the administrator assigned a reemployment benefits specialist to work with Witbeck.(fn35) After a series of events detailed by the board,(fn36) and reemployment benefits administrator,(fn37) Superstructures petitioned to terminate Witbeck's reemployment benefits on July 25, 2005.(fn38) A formal reemployment benefits conference was held September 21, 2005.(fn39) The administrator found the employee was uncooperative in the reemployment process "for demonstrating unreasonable failure to keep appointments, maintain contact with rehabilitation specialist and cooperate with rehabilitation specialist in developing a reemployment plan."(fn40) On review, the board found substantial evidence supported the administrator's decision and concluded that the administrator had not abused his discretion "in arriving at the determination that the employee was uncooperative."(fn41) The employee's right to receive reemployment benefits was terminated.(fn42) Thie dental of coverage of Dr. Bransford's consultation and medical transportation benefits to Seattle in November 2005. Witbeck's attending physician was Lavern Davidhizar, D.O., from the beginning of his back pain treatment.(fn43) After several months of conservative treatment, the employer sent Witbeck to Clifford Baker, M.D., for an examination.(fn44) Dr. Baker thought that Witbeck had an "acute protruded left" intervertebral disc at L-5, S-1 that could, if confirmed on MRI, possibly benefit from surgery.(fn45) Dr. Davidhizar disagreed with Dr. Baker's impression of Witbeck's condition.(fn46) An April 10, 2002 MRI(fn47) revealed "very mild" to "mild to moderate" findings, that Dr. Davidhizar characterized as a "mild (6 mm) disc protrusion at L3-4." (fn48) A millimeter is one thousandth of a meter, or 0.0394 inch; therefore, 6 mm is slightly less than 1/4th of an inch. Dr. Davidhizar referred Witbeck to J. Paul Dittrich, M.D., for an orthopedic consultation on April 19, 2002.(fn49) Dr. Dittrich agreed that Witbeck was not a surgical candidate and recommended physical therapy.(fn50) Dr. Dittrich refused to see Witbeck further due to Witbeck's "outbursts."(fn51) Witbeck attended physical therapy in Soldotna, but his attendance was characterized by refusals to perform exercises or to "only do exercises he felt were right."(fn52) He was, the therapist noted, "very adamant about what he will allow us to do. Does not take directives well."(fn53) Dr. Davidhizar referred Witbeck to Davis Peterson, M.D., for another opinion about the possibility of surgery on June 7, 2002.(fn54) Dr. Peterson also did not consider Witbeck a suitable candidate for surgery.(fn55) The employer sent Witbeck to a second medical examiner, Dr. Shawn Johnston.(fn56) The board noted that Dr. Johnston agreed the employee's need for treatment was work-related, but "was doubtful about the need for surgical treatment."(fn57) Dr. Johnston recommended EMG(fn58) testing and a possible epidural injection.(fn59) After returning to Dr. Davidhizar, Witbeck sought and received a referral for a "second opinion." (fn60) Witbeck saw Dr. Edward Voke on...