2008-066. Edward Witbeck Appellant vs. Superstructures Inc. and Alaska National Insurance Co. Appellees.

• Case Date: January 23, 2008
• Court: Alaska

Alaska Workers Compensation Decisions 2008. Workers' Compensation Appeals Commission 2008-066. 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. 066January 23, 2008AWCAC Appeal No. 07-005 AWCB Decision No: 07-0038 AWCB Case No. 200119123Final Decision Appeal from Alaska Workers' Compensation Board Decision No. 07-0038, issued on March 1, 2007, by the southcentral panel at Anchorage, Alaska, Rosemary Foster, Designated Chair, Linda F. Hutchings, Member for Industry.(fn1) Appearances: Edward Witbeck, pro se, appellant. Richard L. Wagg, Russell, Wagg, Gabbert and Budzinski, for appellees Superstructures, Inc., and Alaska National Insurance Company. This decision has been edited to conform to technical standards for publication.Commissioners: John Giuchici,Stephen Hagedorn,and Kristin Knudsen.By: Stephen Hagedorn, Appeals Commissioner. This appeal concerns the board's finding that Edward Witbeck is not entitled to reimbursement for, or payment of, medical costs related to an evaluation at the University of Washington orthopedics clinic in Seattle by Dr. Bransford on November 14, 2005. Witbeck argues that the board's decision is not supported by substantial evidence. Witbeck also alleged that Hearing Officer Foster and Board Member Hutchings had a "conflict of interest;" we therefore address the makeup of the board panel that made this decision. Based on the board's record and the arguments developed at hearing of this appeal, we AFFIRM the board's decision to deny reimbursement for, or payment of, medical costs related to the evaluation by Dr. Bransford. Introduction. On March 1, 2007, the board issued a Decision and Order on Remand(fn2) dealing with specific issues identified by the commission in Final Decision and Order No. 014 dated July 13, 2006.(fn3) The record of those proceedings and prior decisions in this matter fully document the history of this claim. The following recitation of facts is limited to those necessary to decide the issues before us. When reciting the factual background of this case, the commission is mindful that it does not engage in fact-finding when reviewing the case on appeal. Instead, the commission reviews the board's findings of fact. Factual background and proceedings before the board prior to remand. The board's March 1, 2007, decision on remand reviews the facts of this case in detail over 26 pages of a 35-page decision. Further details of Witbeck's history are related in the board's July 2003 and December 2005 decisions(fn4) and our decisions of July 13, 2006, and October 5, 2006.(fn5) Our remand was limited to two issues related to Witbeck's claim for payment of medical benefits (including travel to Seattle) for an examination by Dr. Bransford, so this summary is limited to the facts related to those issues. (fn6) Witbeck first sought care for his lower back after his injury from Lavern Davidhizar, D.O., in Soldotna. Through Dr. Davidhizar's referrals, he was also seen by Dr. J. Paul Dittrich, M.D., for an orthopedic consultation on April 19, 2002; Davis Peterson, M.D., for another opinion about the possibility of back surgery on June 7, 2002; and, for a "second opinion"(fn7) by Dr. Edward Voke on September 23, 2002. Neither Dr. Dittrich, Dr. Voke nor Dr. Peterson recommended surgery. Witbeck returned to Dr. Davidhizar for treatment. On February 13, 2003, Dr. Davis Peterson again stated that Witbeck did not have an "extruded nucleus pulposus." When Witbeck saw Dr. Peterson again on May 29, 2003, Dr. Peterson again stated Witbeck was not a good surgical candidate, but recommended another MRI and EMG studies. On June 11, 2003, the second MRI scan was done. Compared to the 2002 MRI scan, on the 2003 MRI scan the appearance and process of degenerative change and disc protrusion appeared more prominent. After the 2003 MRI scan, Witbeck went to J. Michael James, M.D., for an EMG study, but Witbeck refused to proceed with the EMG study. When Dr. Peterson saw Witbeck in August 2003, he told Witbeck that a multilevel fusion, that Witbeck was "very insistent" in demanding, would not improve his level of function or his pain level.(fn8) Dr. Peterson recommended he seek another opinion and provided him a referral to James Eule, M.D., another Anchorage orthopedic surgeon.(fn9) In October 2003, Dr. Peterson advised Witbeck that neither he, nor members of his clinic, would treat Witbeck in the future.(fn10) Witbeck saw Todd Stephen Jarosz, M.D., at the University of Washington in Seattle on April 6, 2004. How he got the appointment was the subject of dispute.(fn11) Dr. Jarosz recommended additional testing: an EMG, a CT scan with myelogram, a MRI, and possibly an MMPI evaluation with Dr. Michael Boldwood at the University of Washington Medical Center Pain Clinic, before any surgical intervention. There is no record of this testing being done. Witbeck returned to Dr. Davidhizar December 1, 2004.(fn12) More than a year after his trip to see Dr. Jarosz, Witbeck returned to Seattle, where he saw Dheera Ananthakrishnan, M.D., at the University of Washington on June 29, 2005.(fn13) Dr. Ananthakrishnan recommended against surgery and recommended that an MMPI evaluation be done to assess Witbeck's chances of success with future surgery.(fn14) At Witbeck's request, she gave him a referral to see one of her partners, Dr. Bransford.(fn15) The cost of his evaluation of Witbeck on November 14, 2005, and travel to Seattle, was the subject of Witbeck's claim, as amended in a pre-hearing conference.(fn16) The board's first decision on the claim for Dr. Bransford's evaluation. The board heard Witbeck's 2005 claim on November 16, 2005. In its first decision on Witbeck's claim, the board found that Dr. Bransford's evaluation was not "reasonable and necessary medical care under AS 23.30.095."(fn17) Therefore, the evaluation and associated transportation expenses were not compensable.(fn18) The board found that Witbeck remained convinced surgery would help his back condition, and that he sought out the referral to Dr. Bransford.(fn19) The board found Witbeck believes he finally found a doctor who supports his request for back surgery.(fn20) Dr. Bransford agreed with the other consultants that Witbeck would not benefit from surgery.(fn21) The board found the employee had exceeded the number of physician changes allowed, and that because the board "disapproved of 'doctor shopping,'" the board denied payment for both the transportation expenses and the evaluation.(fn22) Witbeck appealed to the commission. Our first decision and our remand to the board. In our first decision, we reviewed the record before the board closely. We concluded that there was substantial evidence to support the board's finding that Dr. Davidhizar was Witbeck's attending physician. However, we stated:

There is no record that Witbeck gave written notice of a change of attending physician as required by 8 AAC 45.082, but the board failed to make a finding whether or not Witbeck changed attending physicians from Dr. Davidhizar or even attempted a change, or that the employer consented to a change.(fn23)

We concluded the board had failed to make findings of fact regarding a change of attending physician from Dr. Davidhizar, so it also failed to explain how it reached the conclusion that Witbeck exceeded the allowable changes of attending physician. We also noted the board failed to make an explicit finding of Witbeck's credibility, or lack of credibility, in his testimony to the board regarding obtaining referrals to see Dr. Jarosz, Dr. Ananthakrishnan or Dr. Bransford. We provided the questions to be decided by the board, after the board decided whether Witbeck changed his treating physician. If the board decided that

Witbeck did not change his attending physician, the question is whether the visits to Drs. Jarosze, Ananthakrishnan, and Bransford were referrals to a specialist by the attending physician, Dr. Davidhizar. If they were valid referrals, the board may consider whether the referrals were a "reasonable alternative" among "indicated medical treatment" options.

If, on the other hand, the board decided that Witbeck did change his attending physician, then the board had to decide

whether the employer is required to pay for treatment by subsequent specialist physicians, in the absence of a referral by the new attending physician or, if there was a referral, whether the referral will be authorized by the board as a reasonable alternative among indicated medical treatment options.

We had pointed out that Drs. Peterson, Dittrich and Voke expressed no opinion on whether an evaluation by Dr. Bransford was reasonable and necessary medical treatment for Witbeck's injury, so the board's reliance on their reports to support a finding that an evaluation by Dr. Bransford was not reasonable medical treatment was error. We left it to the...