2007-041. Hope Community Resources and Liberty Northwest Movants vs. Veronica Rodriguez Respondent.

• Case Date: May 16, 2007
• Court: Alaska

Alaska Workers Compensation Decisions 2007. Workers' Compensation Appeals Commission 2007-041. Hope Community Resources and Liberty Northwest Movants vs. Veronica Rodriguez Respondent Alaska Workers' Compensation Appeals Commission Hope Community Resources and Liberty Northwest, Movants, vs. Veronica Rodriguez, Respondent.Decision No. 041 May 16, 2007AWCAC Appeal No. 07-009 AWCB Decision No. 07-0054 AWCB Case No. 200405438Memorandum Decision and Order Memorandum Decision on Motion for Extraordinary Review and Motion to Stay Alaska Workers' Compensation Board Interlocutory Decision and Order No. 07-0054 issued March 15, 2007 by the southcentral panel at Anchorage, Rosemary Foster, Chair, Patricia A. Vollendorf, Member for Labor, and Janet Waldron, Member for Industry. Appearances: Jeffrey D. Holloway, Holmes Weddle and Barcott, P.C., for movants Hope Community Resources and Liberty Northwest. Veronica Rodriguez, self-represented, respondent.Commissioners: Stephen T. Hagedorn, Jim Robison, and Kristin Knudsen.This decision has been edited to conform to technical standards for publication. By: Kristin Knudsen, Chair. The movants ask the commission to allow an appeal of the board's decision denying their petition for board review and modification of the reemployment benefits administrator's decision finding the employee eligible for reemployment benefits. Movants argue the board's decision finally resolves all questions on the employer's petition, so that the movants may appeal as from a final decision. The movants also argue that the board exercised powers it does not have in directing the employee to attend, and employer to pay for, a medical examination under AS 23.30.110(g) and AS 23.30.095 when there is no claim before the board. We agree that the board's order denying and dismissing the petition for review and modification is a final board decision and order, and may be appealed under AS 23.30.127. We agree that the order directing Rodriguez to undergo, and Hope Community Resources to pay for, a medical examination is also a final appealable order. We stay the board's order for such examination under AS 23.30.125(c). The movant does not request, and we do not grant, a stay of on-going reemployment benefits. Factual background and proceedings. The facts recited here are drawn from the board's decision and the parties' pleadings before the commission; (fn1) they are provided for the purpose of placing the motion in context and they do not constitute findings of fact. Veronica Rodriguez was employed by Hope Community Resources as a "home alliance coordinator." She reported an abdominal hernia caused by lifting clients at work on February 25, 2004. She returned to her home in Philadelphia, where the hernia was repaired surgically by Dr. Rosato in April 2004. She required a second surgery when the hernia recurred. This surgery, again by Dr. Rosato, took place in March 2005. During the surgery, he found the employee had an enlarged uterus, with uterine fibroid tumors, that occupied 50% of the abdominal cavity. Dr. Rosato reported Rodriguez was fully healed on August 12, 2005. Hope Community Resources paid compensation and medical benefits without an award. Rodriguez requested a reemployment benefits eligibility evaluation under AS 23.30.041. An employer medical examination on December 6, 2005, by Dr. Braun resulted in an opinion that there was no permanent impairment based on the AMA Guides. Dr. Rosato provided an opinion that Rodriguez would have a permanent impairment in June 2006. Based on Dr. Rosato's prediction of permanent impairment, Rodriguez was found eligible for reemployment benefits on July 7, 2006. Rodriguez selected a plan provider and a plan was developed. Hope Community Resources filed a petition appealing the administrator's decision finding Rodriguez eligible.(fn2) Hope Community Resources also filed a petition for modification of the eligibility determination based on later acquired evidence (an addendum from Dr. Braun with a rating of zero percent). The board's decision. The board determined it would consider Hope Community Resources' petition for modification "in light of the whole record, including the new evidence concerning the employee's condition."(fn3) On reviewing the administrator's decision,(fn4) the board would apply the "abuse of discretion" standard. The board determined that Dr. Rosato's prediction of a permanent impairment was substantial evidence on which the administrator could rely to determine that Rodriguez was eligible for benefits.(fn5) However, based on a finding that Dr. Braun had made a racist remark to Rodriguez in the course of his examination, the board found that "the obvious evidence of racial bias by Dr. Braun means that the Board will give no weight to Dr. Braun's reports."(fn6) Based on the preponderance of the evidence in the record, the board found Rodriguez remained eligible for reemployment benefits.(fn7) The board ordered that:

The employer's petition for modification of the RBA Designee's determination is denied and dismissed. The employer's petition to set aside the eligibility determination is denied and dismissed.(fn8)

However, having denied and dismissed both petitions, the board found "there is a significant medical dispute between the employee's physician, Dr. Rosato, and the employer's physician, Dr. Braun."(fn9) The board found the dispute ranged over the areas of causation, compensability, treatment, medical stability, and the employee's degree of impairment. The board found that these disputes were significant and that an SIME was required "to address the issues in this case, including review of any causal connection between hernias and fibroids, as well as expertise in performing impairment ratings."(fn10) Therefore, the board...