2008-067. Michael Peratrovich Appellant vs. Quality Asphalt Paving and Liberty Mutual Insurance Co./Liberty Northwest Insurance Corp. Appellees.

• Case Date: January 24, 2008
• Court: Alaska

Alaska Workers Compensation Decisions 2008. Workers' Compensation Appeals Commission 2008-067. Michael Peratrovich Appellant vs. Quality Asphalt Paving and Liberty Mutual Insurance Co./Liberty Northwest Insurance Corp. Appellees Alaska Workers' Compensation Appeals Commission Michael Peratrovich, Appellant, vs. Quality Asphalt Paving and Liberty Mutual Insurance Co./Liberty Northwest Insurance Corp., Appellees.Decision No. 067 January 24, 2008AWCAC Appeal No. 07-004 AWCB Dec. No. 07-0027 AWCB Case No. 200117418Final Decision Appeal from Alaska Workers' Compensation Board Decision No. 07-0027, issued on February 16, 2007, by the southcentral panel at Anchorage, Darryl L. Jacquot, Chair, Robert Weel, Member for Industry, R. Scott Bridges, Member for Labor. Appearances: Chancy Croft, Croft Law Office, for appellant Michael Peratrovich. Jeffrey D. Holloway, Holmes, Weddle and Barcott, P.C., for appellees Quality Asphalt Paving and Liberty Mutual Ins. Co./Liberty Northwest Ins. Corp. This decision has been edited to conform to technical standards for publication.Commissioners: Stephen Hagedorn,John Giuchici,Kristin Knudsen.By: Kristin Knudsen, Chair. Michael Peratrovich appeals a workers' compensation board decision denying his claim for further medical benefits (left shoulder surgery) and compensation for his 2001 injury. Peratrovich argues that the board should have allowed Peratrovich's testimony regarding a statement made by Patrick Radecki, M.D., to prove that Dr. Radecki was unqualified to testify as an expert witness and therefore his report should not be considered an expert medical opinion. We conclude the board chair's ruling was not an abuse of discretion. Peratrovich argues the board did not engage in "reasoned decision making" because the board did not provide an adequate explanation for not accepting the 2004 opinion of the Second Independent Medical Examiner, Thomas Gritzka, M.D. We agree with Peratrovich that the board's decision should have provided a clear statement of its views regarding Dr. Gritzka's report; however, we conclude remand is not required because the board explained the basis for its decision adequately enough to allow the commission to review the decision. Finally, Peratrovich argues that the board's decision lacks substantial evidence to support it because the board based its decision on the opinion of one physician. He also argues that the board failed to follow the proper legal analysis because the board determined that the need for treatment was not work-related, rather than determining if the treatment was reasonable and necessary. Because the board's assessment of the weight to be assigned expert medical opinion is conclusive, there is substantial evidence in light of the whole record to support the board's findings of fact, and the board applied the presumption to the claim for medical treatment, we affirm the board's decision. 1. Factual background. We summarize the factual background of this case, without engaging in fact finding. Michael Peratrovich worked as a laborer for a division of Quality Asphalt Paving (QAP). On August 21, 2001, he was pulling steel cable out, running forward as the cable reeled off the drum, when the cable caught and stopped suddenly, jerking his left arm and shoulder, and spinning him around. He reported the injury on August 27, 2001. He saw Gary Child, D.O., with complaints of neck, shoulder, and upper arm pain. Dr. Child diagnosed a cervical strain and shoulder strain, and requested a Magnetic Resonance Imaging (MRI) scan in Peratrovich's neck. The scan showed multiple levels of osteophyte formation (bone overgrowth), a disc bulge, some desiccation of the discs, and foraminal narrowing. Dr. Child referred Peratrovich to Susan Anderson, M.D., for more treatment. Peratrovich, a seasonal worker, continued to work for QAP until about October 1, 2001. Since October 2003, Peratrovich has worked year-round for Alaska Sand and Gravel. Dr. Anderson diagnosed cervical facet arthropathy and left subacromial bursitis.(fn1) In addition to the treatment directed at the neck, and later thoracic spine, Dr. Anderson made several injections into the subacromial bursa, and prescribed physical therapy. At the request of the employer, Peratrovich was evaluated by William Mayhall, M.D., an orthopedic surgeon, in April 2002 at the request of the employer. His examination of Peratrovich's shoulder showed "tenderness primarily posterior capsular," negative Neer, external rotation, and Hawkins impingement tests, some diffuse tenderness on the posterior aspect of the shoulder, no instability and no crepitus.(fn2) On the right side, Peratrovich also had no impingement signs, no instability, and no evidence of rotator cuff pathology.(fn3) In addition to other diagnoses, Dr. Mayhall diagnosed a left "shoulder sprain with resulting impingement syndrome."(fn4) He opined that Peratrovich "had a shoulder sprain and a cervical sprain. He had exacerbation of symptomatology and degenerative changes in the cervical spine, as well as a musculoligamentous sprain in the cervical spine and parascapular area."(fn5) Nevertheless, Peratrovich was medically stationary, and could return to work, so long as he was cautious and used proper lifting techniques.(fn6) Regarding Peratrovich's shoulder, he reported, "I find no objectifiable impairment per the AMA Guidelines in regard to the shoulder or parascapular region, although he does have some symptomatology. I see no evidence of impairment of the left shoulder. Based on the AMA Guidelines, there is no objectifiable impairment in regard to the parascapular sprain/strain."(fn7) Peratrovich returned to work for a different employer and continued treatment with Dr. Anderson, although there were no more shoulder injections.(fn8) He continued with physical therapy as well. Dr. Mayhall and Thomas Dietrich, M.D., a neurosurgeon, examined Peratrovich again in August 2002. Dr. Mayhall reported again that his examination resulted in no impingement signs, no instability and no crepitus.(fn9) He reported the left shoulder sprain and impingement syndrome were resolved.(fn10) Dr. Dietrich's examination was limited to the spinal area. On February 13, 2003, Dr. Anderson reported that Peratrovich's left subacromial bursitis was resolved.(fn11) However, Peratrovich continued to receive treatment for his cervical and thoracic spine. In September 2003, Peratrovich was scheduled to see Stephen Marble, M.D., for an evaluation at the request of the employer, but he was not examined owing to being late for the appointment. In October 2003, Peratrovich was rescheduled at the same facility with Stephen Radecki, M.D., a physician who specializes in rehabilitation medicine. He also reported that the left shoulder sprain with impingement syndrome was resolved, and that the left subacromial bursitis was resolved.(fn12) Peratrovich was examined by Dr. Gritzka(fn13) in 2004, and a magnetic resonance arthrogram (MRA) was performed at Dr. Gritzka's recommendation. John Fischer, M.D., the radiologist, reported that there was no evidence of a rotator cuff tear, and no pathology except mild arthritic changes in the AC joint without impingement.(fn14) He reported that the bicipital tendon and labrum appeared normal; the undersurface of the rotator cuff was smooth; the ligamentous structures surrounding the shoulder and soft tissues were normal; there was no free fluid in the subacromial bursa; and, there was no evidence of tear of the rotator cuff, either partial thickness or full thickness.(fn15) There was a slightly down sloping acromion(fn16) without impingement and mild arthritic changes of the AC joint without impingement. Dr. Fischer did note one "very small punctuate area of bright signal" at the anterior margin of the insertion of the supraspinatus tendon on the greater tuberosity that "could be a very small partial thickness tear."(fn17) After Dr. Anderson left the Advanced Pain Centers of Alaska, Peratrovich began seeing Gregory Polston, M.D., an anesthesiologist. Dr. Polston provided a number of injections and treatments for the cervical spine. In October 2005, however, Dr. Polston reported that Peratrovich had complained of pain in the left shoulder. He had pain with movement of his arm overhead, and tenderness around the joint. Dr. Polston diagnosed "left shoulder arthropathy" and referred him to an orthopedist.(fn18) Peratrovich saw Jeffrey Moore, M.D., an orthopedic surgeon, in November 2005. Dr. Moore noted Peratrovich had

tenderness . . . over the greater tuberosity and slight tenderness over the anterior aspect of the shoulder . . . minimal tenderness over AC [acromioclavicular] joint. . . . lack[s] 10 degrees of full forward flexion . . . full passive external rotation and internal rotation. . . . Lift-off test is negative. O'Brien's test is equivocal, with tenderness in both pronation and supination. Positive impingement signs are noted, both Neer and Hawkins. There is a negative apprehension sign and negative relocation tests. Slight decrease in strength with abduction and external rotation of the arm is noted, more specifically in testing the supraspinatus as opposed to the infraspinatus. There is no significant atrophy noted in the scapular region. Palpation of the vertebral board of the scapula causes discomfort somewhat diffusely.(fn19)

Dr. Moore believed Peratrovich had "recurrent impingement, possible small rotator cuff tear, supraspinatus."(fn20) He ordered an MRI...