2006-018. James Jones Appellant vs. Frontier Flying Service Inc. Appellee.

• Case Date: September 07, 2006
• Court: Alaska

Alaska Workers Compensation Decisions 2006. Workers' Compensation Appeals Commission 2006-018. James Jones Appellant vs. Frontier Flying Service Inc. Appellee Alaska Workers' Compensation Appeals CommissionJames Jones, Appellant, vs. Frontier Flying Service, Inc., Appellee.Decision No. 018 September 7, 2006AWCAC Appeal No. 05-003AWCB Decision Nos. 05-0240 and 05-0298AWCB Case No. 200021653Final Decision and Order Final Decision and Order on Appeal from Alaska Workers' Compensation Board Decision No. 05-0240, issued September 22, 2005, and Decision on Reconsideration No. 05-0298 issued November 10, 2005, by the Fairbanks Panel, by Fred G. Brown, Chairman; Chris Johansen, Member for Management; and, John Giuchici, Member for Labor. Appearances: James Jones, appellant, pro se; Patricia L. Zobel, DeLisio, Moran, Geraghty and Zobel, for Frontier Flying Service, Inc., appellee.Commissioners: Jim Robison, Marc Stemp,Kristin Knudsen.By: Kristin Knudsen, Chair. James Jones was a pilot for Frontier Flying Service, Inc., who injured his lower back helping to load an outboard motor into the back of an airplane in August 2000. He was paid temporary total disability compensation until compensation was controverted in March 2004. He appeals the board's denial of his claim for further temporary total disability compensation, permanent partial impairment compensation, and surgery to implant an artificial inter-vertebral disc in his spine. Because there is substantial evidence in light of the whole record to support the board's findings, we affirm the board's decision. Factual background. When summarizing the record as we do here, we do not make findings of fact. The facts recited are provided to place the appeal in context. We focus on those events close in time to the cessation of Jones' compensation. In this decision, we provide an unusually lengthy and detailed discussion of the record before the board, so that the self-represented appellant will have a clear understanding of our reasons for concluding that the board had substantial evidence before it to support its decision. Jones had a varied background as a pilot, airport manager,(fn1) business owner (flying school, air charter, aircraft restoration),(fn2) and police officer(fn3) in Texas. After a divorce, loss of his job as a police officer (1999), and the break-up of his air center business, he moved to Bethel in the summer of 1999 to fly for Hageland Aviation.(fn4) In April of 2000, he went to work for Frontier Flying Service in Fairbanks.(fn5) On September 8, 2000, he gave Frontier written notice of an injury to his lower back on August 18, 2000.(fn6) Jones described the injury as occurring while helping two men load an outboard boat motor into the cargo bay of the plane in Bettles.(fn7) He felt a "snap" in his back and could not stand up straight.(fn8) He sat in the plane for a while until he could straighten up. He decided not to fly on to Anaktuvik Pass and left the motor behind, flying straight to Fairbanks.(fn9) He returned to work, but after about 10 days asked to be put on non-cargo flights only.(fn10) He continued to work until an episode when his legs gave out and he fell.(fn11) Jones first sought health care on September 9, 2000 at the Fairbanks Urgent Care Clinic.(fn12) He described that "my back feels all locked up" and a sensation "like an electrical short happens" that caused him to fall down.(fn13) The nurse practitioner at the clinic diagnosed a lumbar strain with radicular symptoms and prescribed anti-inflammatory medicine for him.(fn14) When he returned two weeks later, the nurse practitioner noted he had not taken the medicine.(fn15) Jones was prescribed additional medicine and given a referral to an orthopedist.(fn16) An MRI exam was done September 26, 2000, showing "minimal disc desiccation" at the L5-S1 vertebral disc, but no disc herniation.(fn17) Jones was referred to John Joosse, M.D., who diagnosed a "lumbar disc syndrome."(fn18) Since then, Jones has been referred to a number of consulting specialists,(fn19) has been evaluated, or evaluation has been attempted, by a number of methods,(fn20) and has undergone a variety of forms of treatment without lasting improvement.(fn21) Over the course of time between September 2000 and March 2004 his diagnosis changed as well.(fn22) In 2003, Jones saw a physician for treatment of his back pain five times: on March 25, 2003,(fn23) July 25, 2003,(fn24) July 29, 2003,(fn25) and, on October 30, 2003, he saw Dr. Bartling.(fn26) He saw Dr. Foelsch on a referral from Dr. Bartling on August 18, 2003.(fn27) The care provided by Dr. Bartling was essentially conservative, with trials of new medication. Frontier's insurer filed a notice of controversion of benefits on August 4, 2003.(fn28) Jones filed a claim for temporary disability compensation, medical benefits, and penalties for an unfair controversion on August 11, 2003.(fn29) In his claim he STATEd that he had "2 discs ruptured, 1 protruded, Lumbar region. 1 disc Fixed itself, one healed by IDET, Remaining disc was to be replaced with an artificial one."(fn30) He described the nature of his injury as a "fully ruptured/destroyed L5-S1 disc."(fn31) He stated that the insurer had denied his benefits claiming he had missed an employer medical examination.(fn32) Jones stated it was untrue that he had missed an employer medical examination and "it is the result of spite on the part of Jana Iwasaki of Wausau."(fn33) In February 2004, Jones was seen by an employer medical evaluator,(fn34) Douglas Bald, M.D. Dr. Bald reported that in his opinion Jones was medically stable from the injury sustained in his employment as early as March 2002; that no additional treatment was required; and, in no case should invasive treatment (surgery) be considered.(fn35) Frontier, which had resumed payment of temporary disability compensation, filed a new controversion of the employee's compensation and certain medical benefits (neurostimulator, disk replacement surgery, or any invasive procedure) on March 28, 2004, based on Dr. Bald's report.(fn36) The employee filed a second claim on July 13, 2004,(fn37) which the employer promptly controverted on August 2, 2004.(fn38) The parties stipulated that there were grounds to order a second independent medical examination by a board physician.(fn39) Dr. Bartling, Dr. Stinson and Dr. Peterson wrote letters responding to Dr. Bald's opinion.(fn40) The board appointed John McDermott, M.D., to perform an independent examination.(fn41) The board specifically requested an impairment rating be done to determine the extent of permanent impairment resulting from the employee's back injury.(fn42) Dr. McDermott was also requested to give an opinion on whether Jones was medically stable, and the form of treatment that he should receive. (fn43) Dr. McDermott examined Jones on December 16, 2004.(fn44) He reported that Jones had a "chronic pain syndrome," but that he was not disabled by any musculoskeletal injury.(fn45) Instead, his "diaphoretic pain focused and pain magnification issues as well as his acknowledged depression and other findings from medical records would overwhelmingly suggest issues beyond musculoskeletal system."(fn46) Dr. McDermott believed "there is no indication for surgical decompression to the spine" because there are no positive neurological findings.(fn47) In his view, surgery would not cause any improvement in his condition, his symptoms, or his ability to work.(fn48) He reported that Jones had been medically stable since about December 2002.(fn49) As to a permanent impairment rating, Dr. McDermott believed Jones' pain magnification behavior made it impossible to give an objective rating in the manner required by the AMA Guidelines.(fn50) He believed the MRI findings have been relatively unchanged, and on the basis of the MRI scans, he also believed the objective findings [of degeneration] to pre-exist the injury.(fn51) Jones had no ratable permanent impairment regarding the lumbar spine.(fn52) Frontier also obtained a psychiatric examination by Irvin Rothrock, M.D., who examined Jones on March 15, 2005.(fn53) Dr. Rothrock believed Jones was malingering, and that he probably had a personality disorder.(fn54) He doubted that Jones would benefit from psychiatric treatment as he "does not consider himself psychiatrically ill."(fn55) He did not believe that Jones had a compensable [i.e., work-related] psychological problem.(fn56) Jones had, Dr. Rothrock opined, little awareness or willingness to acknowledge that his problems might be related to something other than his August 2000 back injury. (fn57) The arguments presented to the board. Jones argued that he was not medically stable because he had been waiting for the insurer to approve disc surgery. He attacked the opinions of Dr. Bald and Dr. Rothrock, asserting that his behavior in those evaluations could be explained by medication or other circumstances. He argued the insurer's adjuster failed to act promptly to secure disc replacement surgery he believes will cure his pain, implying that the period of time between his request for the surgery and actually achieving it should be charged against the insurer as the cause of the delay. Jones argued that he should be allowed to attend a pain clinic and then, "if, after that's done, I still need the surgery, I should be evaluated for an artificial disk or fusion, whatever."(fn58) He argued the controversion was not supported by more than a report by a...