2007-050. James E. Smith Appellant vs. Anchorage School District Appellee.

Case DateJuly 25, 2007
CourtAlaska
Alaska Workers Compensation Decisions 2007. Workers' Compensation Appeals Commission 2007-050. James E. Smith Appellant vs. Anchorage School District Appellee Alaska Workers' Compensation Appeals CommissionJames E. Smith, Appellant, vs. Anchorage School District, Appellee.Decision No. 050 July 25, 2007AWCAC Appeal No. 06-027 AWCB Decision No. 06-0255 AWCB Case No. 199009706Final Decision Final decision on appeal from Alaska Workers' Compensation Board Decision No. 060255 issued on September 18, 2006, by the southcentral panel at Anchorage, Janel Wright, Designated Chair, Bardie Scarbrough, Member for Industry, Raymond Scott Bridges, Member for Labor. Appearances: James E. Smith, appellant, pro se. Shelby Nuenke-Davison, Davison and Davison, for appellee, Anchorage School District.Commissioners: John Giuchic,Stephen T. Hagedorn,and Kristin Knudsen.This decision has been edited to conform to technical standards for publication. By: Kristin Knudsen, Chair. In this appeal, the commission is asked to reverse the board's denial of a 2004 claim that treatment of the appellant's hip osteoarthritis is a result of a student's kick to the appellant's groin in 1990. The appellant argues that he was entitled a Second Independent Medical Evaluation (SIME) when he asked for one at the hearing because his physician was unable to provide an opinion. He also argues that the board lacked substantial evidence on which to base a decision. We conclude that, applying the 1990 statute, the board was not required to order an SIME on the relationship between the employment and the hip treatment because no dispute between physicians was established. We find that the board had substantial evidence in light of the whole record to support its decision that the 1990 injury was not a substantial factor in bringing about the appellant's hip osteoarthritis. We therefore affirm the board's decision. Factual background.(fn1) James E. Smith was struck by a drunk driver while posted at Fort Richardson in 1977.(fn2) His left shoulder was injured, and his right leg was severely injured, requiring hospitalization for 13 months.(fn3) In 1983 he took a medical retirement from the U.S. Army,(fn4) and in 1985 he was hired to work as a teacher assistant at the Anchorage School District's Whaley Center.(fn5) On April 11, 1990, Smith was kicked by a student. In his testimony to the board he said:
Now when the student came towards me, he came and hit me on my left side of the leg. It was on the leg. It was - the final end of the blow was at my groin. It did not hit any of my vital areas on the knee, it hit right on the left side and when he came in, he lunged real hard and came to the left of my left leg.(fn6)
He reported the injury to his employer as "deliberately kicked in the groin section."(fn7) As a result of this injury, he was taken to Humana Hospital Alaska the same day, where a physician reported he had been "kicked in perineum by student."(fn8) Describing the injury on a physician report, he wrote "student deliberately kick me in the groin."(fn9) Smith developed a perineal abscess with an anal fistula, which Dr. Chung drained and excised.(fn10) The School District paid for treatment of the injury and compensation to Smith.(fn11) No further records were received by the board after 1990,(fn12) and the adjuster file was closed.(fn13) In November 2004, Smith notified the School District that he would need a bilateral hip replacement as a result of the injury.(fn14) He filed a workers' compensation claim on November 21, 2004.(fn15) Board proceedings. Smith's claim described his injury as "avascular necrosis of both hips, especially my left hip and thigh." He requested temporary total disability compensation, permanent partial impairment compensation and medical treatment. The School District answered(fn16) and controverted(fn17) the claim, asserting, among other defenses, the lack of a causal connection between the 1990 injury and Smith's hip condition. On January 24, 2005, Smith was evaluated by Charles Brooks, M.D., at the request of the School District. Dr. Brooks's report(fn18) was sent to Smith's attorney on March 31, 2005.(fn19) Smith's deposition was taken by the School District on April 12, 2005. Pre-hearing conferences were conducted on January 24, 2005,(fn20) March 1, 2005,(fn21) May 9, 2005,(fn22) June 28, 2005,(fn23) December 5, 2005,(fn24) March 10, 2006,(fn25) and May 15, 2006.(fn26) Smith filed an Affidavit of Readiness for Hearing on August 18, 2005,(fn27) and the parties ultimately agreed to a hearing on August 14, 2006.(fn28) The issue at hearing was refined by the pre-hearing officer to "causation."(fn29) The pre-hearing officer recorded discussion of an SIME in pre-hearing held January 24, 2005, March 1, 2005, May 9, 2005, and June 28, 2005. Smith was advised that the employer opposed an SIME, but "[i]f, by July 12, 2005, the employee provides the employer with new documentary evidence supporting a medical dispute, the employer may reconsider their position on the SIME."(fn30) In the pre-hearing conference May 16, 2006, the pre-hearing officer instructed the parties to file evidence by August 4, 2006, and to file their witness lists and briefs by August 14, 2006.(fn31) The pre-hearing officer noted that "Parties agreed that they are waiting for additional medical evidence from Mr. Smith's treating providers that may make a difference in the outcome and solutions of this matter."(fn32) At the hearing, Smith produced a letter "from the attorney general or one of the officers" stating that [Dr. Laufer] "cannot speak on this behalf."(fn33) He requested "from the Board to an SIME to determine causation my present medical conditions resulting from the injury 4/11/1990" because Dr. Laufer could not "legally give a medical opinion of causation."(fn34) The School District's attorney responded that SIME's had been discussed in pre-hearing conferences, that Smith had been referred to a physician (Dr. Moore) by his VA physician (Dr. Laufer) for the purpose of generating an opinion on causation, that there was no dispute to warrant an SIME, and, that "it was a little late now to be asking for [an SIME] with the doctor here [to testify]."(fn35) The board's designated chair, workers' compensation hearing officer Wright, responded to Smith's request as follows:
Mr. Smith, we do have quite a stack of medical records in your case and when there is not a dispute between your doctor and the employer's physician, typically, a pre-hearing officer won't order a second independent medical evaluation. So here you are at hearing today.
Mr. Smith: Okay.
Hearing Officer Wright: Now, if after the hearing, the Board feels like we need additional information, that we need more questions answered for our benefit in order to make a decision in your case, then perhaps we would order a second independent medical evaluation. However, if, based upon the entire record that we have before us, we can make a decision, then we wouldn't order a second independent medical evaluation. Does that make sense?
Mr. Smith: Yeah.(fn36)
Smith also objected to Todd Hess's testimony regarding Smith's termination from the School District, after Hess had testified.(fn37) Smith refused to question Todd Hess saying "I'm...

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