2008-068. Voorhees Concrete Cutting and Alaska National Insurance Co. Appellants vs. Kenneth Monzulla Appellee.

Case DateFebruary 04, 2008
CourtAlaska
Alaska Workers Compensation Decisions 2008. Workers' Compensation Appeals Commission 2008-068. Voorhees Concrete Cutting and Alaska National Insurance Co. Appellants vs. Kenneth Monzulla Appellee Alaska Workers' Compensation Appeals Commission Voorhees Concrete Cutting, and Alaska National Insurance Co., Appellants, vs. Kenneth Monzulla, Appellee.Decision No. 068 February 4, 2008AWCAC Appeal No. 07-012AWCB Decision Nos. 07-0060, 07-0018AWCB Case No. 199922832Final Decision and Order Appeal from Alaska Workers' Compensation Board Decision No. 07-0060, issued on March 21, 2007, by the northern panel at Fairbanks, Alaska, William Walters, Designated Chairman, Tom V. Zimmerman, Member for Industry, Jeffrey P. Pruss, Member for Labor, and Interlocutory Decision No. 07-0018, issued on January 31, 2007, by the northern panel at Fairbanks, Alaska, William Walters, Designated Chairman, Jeffrey P. Pruss, Member for Labor, Debra G. Norum, Member for Industry. Appearances: Richard Wagg, Russell Wagg Gabbert and Budzinski, for appellants Voorhees Concrete Cutting and Alaska National Insurance Co. Kenneth Monzulla, pro se, appellee.Commissioners: Jim Robison, Philip Ulmer,Kristin Knudsen.This decision has been edited to conform to technical standards for publication.(fn1) By: Kristin Knudsen, Chair. This appeal by Voorhees Concrete Cutting arises from a board decision awarding Kenneth Monzulla use of a hot tub as medical therapy, a log splitter as a medical device, transportation costs to attend a 2005 board hearing in Fairbanks, additional transportation costs to attend a 2006 hearing in Fairbanks, and denying the employer's request for a change of venue to Anchorage. The commission finds there was substantial evidence in light of the whole record to support the board's decision approving use of a hot tub; therefore, it must affirm the board's decision. The commission finds the board did not make adequate findings to support the award of penalty on the log splitter, and remands for further findings. The commission concludes that the employee is not entitled to transportation costs to the 2005 hearing, at which he did not prevail, and that transportation costs awarded for the 2006 hearing, at which he prevailed, must be necessary and objectively reasonable. Finally, the commission concludes that the board's denial of the motion for change of venue was within its discretion. We AFFIRM the board in part, REVERSE in part, and REMAND to the board for further proceedings.(fn2) 1. Factual background and board proceedings. This is a long, bitter workers' compensation case. The record on appeal contains many more records of medical treatment or opinion than we describe here. There were more proceedings, conferences, and correspondence than we describe even briefly. In view of the volume of records, we do not set out all the facts in detail. We summarize only those facts that are necessary to provide some context for this decision on appeal. Kenneth Monzulla worked as a concrete cutter for Voorhees Concrete Cutting in Fairbanks. He injured his back picking up a bucket of scrap rebar on November 9, 1999. A Magnetic Resonance Imaging (MRI) scan on January 25, 2000, showed a minor leftsided disc bulge at the L5-S1 level of the spine, but no herniation, and early lumbar spondylosis.(fn3) Although released for part-time work March 31, 2000, he was not able to continue, and on May 11, 2000, his attending physician removed him from work. The employer paid temporary total disability compensation, temporary partial disability compensation and medical benefits. He was assigned to a reemployment benefits provider for evaluation in June 2000.(fn4) A dispute arose as to whether Monzulla would be able to return to a former occupation as a heavy equipment operator and, later, the amount of permanent partial impairment he had as a result of the 1999 injury. In November 2000, and in January 2001, the employee filed workers' compensation claims for additional temporary total disability compensation, medical benefits, attorney fees and costs, and a Second Independent Medical Evaluation (SIME). The employer filed an answer and controversion of the claim based on its medical evaluator's report. The board ordered the second independent medical evaluation, and the evaluation, by Marvin Bloom, M.D., took place in May 2001. Monzulla developed a plan to begin a fishing charter business, which was tentatively approved by one of his physicians. Monzulla and Voorhees entered into a settlement agreement that compromised and released all benefits Monzulla might claim, except future medical benefits for Monzulla's thoracic and lumbar spine, in exchange for $61,800.(fn5) The settlement provided that
[T]he employee's entitlement, if any, to future medical benefits under the Alaska Workers' Compensation Act for his lumbar and thoracic spine is not waived by the terms of this agreement, and that the right of the employer to contest liability for future medical benefits is also not waived by the terms of this agreement. It is agreed, however, that employee's right, if any, to future medical benefits for all conditions other than his thoracic and lumbar spine are specifically waived.(fn6)
The settlement was approved by the board on September 14, 2001.(fn7) Monzulla moved from Fairbanks to the Kenai Peninsula, where he lives in the roadside settlement of Clam Gulch, about 25 miles south of Kenai on the Sterling Highway. He began treatment with Lavern Davidhizar, M.D., who prescribed pain medication, including Methadone. He was evaluated by several other physicians, and underwent MRI scans in January 2003 and September 2003. The January scan showed disc bulging and an annular tear at the L5-S1, and disc extrusion at L4-5. The September MRI scan showed a new disc extension at L5-S1. In 2004, Dr. Davidhizar ordered another MRI scan, which showed a ruptured disc at the L5-S1 level and progression of degeneration at L4-5. Although Monzulla wanted to be evaluated for disc replacement surgery in California, neither his Fairbanks physicians nor Dr. Davidhizar recommended it.(fn8) Nonetheless, Monzulla filed a claim for permanent total disability compensation, medical benefits for disc replacement surgery, travel costs, and requesting a penalty for a frivolous controversion of his benefits. In a prehearing conference, Monzulla's claims for surgery,(fn9) transportation costs, and an unfair controversion penalty were set for a hearing in Fairbanks on May 5, 2005. Monzulla drove to the hearing from his home in Kenai and back. He stayed overnight in Anchorage and Fairbanks. He drove 1,100 miles and spent $270.00 for lodging and meals. The board, after reviewing the medical evidence, determined that the evaluation was not reasonable and necessary medical care. Therefore, the board ordered:
The employee's claims for medical benefits for an evaluation with Dr. Delamarter in California for disc replacement surgery, for transportation costs related to that evaluation, and for a finding of frivolous and unfair controversion are denied and dismissed.(fn10)
The employer had argued that Monzulla's lumbar disc extrusions were not the result of the 1999 injury for which it had agreed to provide medical treatment. Monzulla argued that his back condition had been found to be related to his employment in Dr. Bloom's 2001 report, and that if the employer is allowed to argue that his condition is no longer compensable, the settlement should be set aside. Of this argument, the board said:
[T]he consistent medical evidence in the record disposes the employee's specific claim, as discussed above, [so] we decline to consider the employer's argument that the employee should be entitled to no medical care for his L4-5 and L5-S1 conditions. For the same reason, we decline to consider the employee's argument that the employer should be estopped from arguing his L4-5 and L5-S1 conditions are not compensable; and we decline to consider his alternate argument that his CandR should be voided, based on the employer's attempt to challenge the compensability of his injury.(fn11)
Monzulla asked for reconsideration and the board denied reconsideration.(fn12) Monzulla did not appeal the board's decision. Monzulla filed a new workers' compensation claim on December 8, 2005. The issues for hearing were limited in a pre-hearing conference to compensability of the back condition, prescriptions for a hot tub, a queen size bed, a log splitter,(fn13) recliner, and toilet riser, and reimbursement of travel costs to attend the May 5, 2005, hearing. This claim was heard on April 27, 2006. Once again, Monzulla drove to Fairbanks and back for the hearing, a distance of 1,196 miles, and incurred $128 in lodging and meal expenses. In an interlocutory decision, the board decided that the lumbar spine "condition and symptoms are compensable."(fn14) The board ordered a Second Independent Medical Examination (SIME) by Dr. Bloom or another physician to give an opinion on the reasonableness and necessity of disc replacement surgery, the reasonableness and necessity of the hot tub,(fn15) toilet riser, gym equipment, log splitter, and recliner as medical care devices. The board retained jurisdiction to decide the remaining claims, including the legal costs, after the SIME report. The SIME was done by Sanford Lazar, M.D. on August 18, 2006. Dr. Lazar's report stated:
In my opinion, Mr. Monzulla has found a satisfactory nearby location for the use of a hot tub
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