2008-081. Municipality of Anchorage Appellant vs. Mark Monfore Appellee.

Case Date:June 18, 2008
Alaska Workers Compensation Decisions 2008. Workers' Compensation Appeals Commission 2008-081. Municipality of Anchorage Appellant vs. Mark Monfore Appellee Alaska Workers' Compensation Appeals Commission Municipality of Anchorage, Appellant, vs. Mark Monfore, Appellee.Decision No. 081 June 18, 2008AWCAC Appeal No. 07-013 AWCB Decision No. 07-0073 AWCB Case No. 200513917Final Decision Appeal from Alaska Workers' Compensation Board Decision No. 07-0073, issued on April 4, 2007, by southcentral panel members Rosemary Foster, Chair, and Robert S. Morigeau, Member for Labor; David Kester, Member for Industry, dissenting. Appearances: Patricia Zobel, DeLisio, Moran, Geraghty and Zobel, for appellant Municipality of Anchorage. Charles W. Coe, Esq., for appellee Mark Monfore. Commission proceedings: Hearing on motion for stay pending appeal May 22, 2007; stay granted by order issued June 7, 2007; oral argument presented March 18, 2008.Commissioners: Jim Robison,Philip Ulmer,Kristin Knudsen.This decision has been edited to conform to technical standards for publication. By: Kristin Knudsen, Chair. 1. Introduction. This appeal and cross-appeal arise from a board decision awarding an increase of three percent in permanent partial impairment, a penalty against an employer for late payment of medical bills, and a penalty against the employer for controversion of an impairment rating without sufficient evidence. The appellant asserts that the board erred by finding that Dr. Dietrich's letter was not substantial evidence overcoming a presumption that a claim based on Dr. Mulholland's rating was compensable and in relying on Dr. Mulholland's rating in the absence of a complete report. The appellant asserts that the board erred in penalizing the employer for failing to secure bills and statements from a provider. The appellant asserts the board failed to consider, before awarding a penalty, that the provider's claim was not "valid and enforceable" under AS 23.30.095(c) until the board excused the failure to give notice of treatment. The appellee opposes these assertions, and cross-appeals, asserting that the penalty on medical benefits should be paid to the employee, as the provider was paid as a direct result of his contacts with the employer's adjuster. The assertions regarding the award of permanent partial impairment compensation require the commission to decide if the board had substantial evidence in its record to find that Mark Monfore's permanent partial impairment rating was 32 percent. The commission must also decide if the board correctly applied the rule in Harp v. ARCO Alaska, Inc.(fn1) in awarding a penalty against the employer for a frivolous controversion. The parties' assertions regarding the penalty on medical benefits require the commission to construe the relationship between AS 23.30.095(c), AS 23.30.097(d) and AS 23.30.155(e), in order to determine when a medical bill is "due." The commission must also decide if a penalty on a medical bill is owed to the medical provider or the employee. The commission determines that the board's findings regarding the rating and penalty are not fully supported by substantial evidence in the record. The board's decision contains internal inconsistencies that make it difficult for the commission to review the board's decision. Accordingly, the commission remands the case with instructions to the board for further findings. The commission construes the word "claim" in the first sentence of AS 23.30.095(c) as meaning "right." Failure to provide notice acts as a claim-bar; but "notice" means sufficient notice that is adequate to alert the board and the employer of the general scope of treatment. Notice by the employee, if provided to the employer and the board, and adequate to alert the board and the employer of the general scope of treatment, is sufficient to avoid the claim-bar. However, in order to comply with AS 23.30.095(l) (substantially reenacted as AS 23.30.097(d)) and 8 AAC 45.082, a written report from the provider is required to trigger the employer's obligation to pay the provider. The statutes place the burden of reporting on the treatment provider. Therefore, the board's assessment of a penalty based on the employer's failure to "secure" reports and statements was error. The commission remands the claim for penalty to the board for rehearing. The commission determines that penalties on late paid medical expenses are owed to the recipient of the payment of the medical expense, not the recipient of the medical benefit. Because Providence Alaska Medical Center was not a party to the proceeding before the board, and there is no evidence that the employee was authorized to act on its behalf, the board should have required Providence, as the real party in interest, to appear before adjudicating Providence's interests where Providence's conduct is alleged to result in a bar to the employee's claim for payment. 2. Factual background. Mark Monfore is a paramedic who injured his neck July 31, 2005, while catching a patient who fell as she entered the "medic rig."(fn2) He reported the injury August 23, 2005. The injury resulted in surgery to remove two disks and fuse vertebrae in his neck. The surgery, by James Eule, M.D., took place October 12, 2005, at Providence Hospital in Anchorage. Monfore returned to full work in August 2006. a. The impairment ratings. David Mulholland, D.C., performed an impairment rating at Dr. Eule's request. His report, dated August 29, 2006, compared a DRE-based(fn3) rating (28 percent) and the "range of motion" rating (32 percent) and awarded the higher of the two.(fn4) His report states "Ranges of motion were recorded by myself . . . and are included for your review."(fn5) However, the copy of the report filed with the board and sent to the employer's adjuster did not contain the recorded ranges of motion. The adjuster sent Dr. Mulholland's rating to Thomas Dietrich, M.D., a neurosurgeon, for review. Dr. Deitrich reported on September 15, 2006, that
As I understand Dr. Mulholland's rating calculations, he is calculating the range of motion model and adding the neurological impairments. The sensory impairments are doubled on the basis of bilateral involvement. There is no mention of bilateral involvement in any of the post operative notes. . . . I think this impairment would be best described using the DRE method, and he likely would be in the lower range of a Category IV. However, I do not feel comfortable doing a formal rating without actually evaluating Mr. Monfore.(fn6)
Dr. Dietrich evaluated Monfore on October 20, 2006. He reported that notwithstanding the lack of post operative report, Monfore had bilateral sensory impairment.(fn7) Using a DRE method, he would put Monfore's impairment at the upper range of the 25-28 percent category.(fn8) Because his measurements of range of motion totaled 29 percent impairment, which was slightly higher than the DRE based rating, he would award a 29 percent rating.(fn9) Dr. Dietrich noted he did not have Dr. Mulholland's range of motion calculations to compare to his own, "but it is possible that Mr. Monfore's range of motion has improved somewhat since the evaluation in August."(fn10) b. The Providence hospital bill. Providence Alaska Medical Center in Anchorage uses a medical business service, Health Services Northwest, located in Washington state to process its bills.(fn11) Health Services Northwest receives the billing from the hospital after the patient leaves and the account has been "coded."(fn12) It assembles the necessary documentation and sends it to the payer named by the facility for payment.(fn13) Meghan Murdock, team manager for the Health Services Northwest team that processed the bill for Monfore's surgery, testified by telephone to the board regarding the computer record of the account.(fn14) She did not make computer entries herself, so she testified from what she knew based on policies and procedures and her understanding of the computer record.(fn15) She did not testify that she had a paper file before her. Murdock testified that Health Services Northwest prepared a full statement of the Providence hospital charges, with supporting documents, and it was mailed to Ward North on May 22, 2006, about seven months after the surgery.(fn16) The address given by Murdock was a post office box in Anchorage.(fn17) She stated that the address for Ward North would have been different only "if the facility had coded it with that address or we were notified, you know, telephonically or in writing to send it to another address."(fn18) She testified that she had not seen any "address updates," so if a change was made she was not aware of it.(fn19) The only record of an address change in the computer record was a telephonic request on December 14, 2006, for name change from Ward North to NovaPro.(fn20) Murdock testified to a number of contacts with Ward North in June, July, August and September 2006. She testified that in September, a person named Michaela called back, saying that she was unable to locate the billing or claim information and requesting another copy.(fn21) It was mailed on October 12, 2006.(fn22) On October 30, 2006, Health Services Northwest received a denial from Ward Strategic Claims Solutions, stating "they did not have a record for an open industrial claim for this date of injury."(fn23) The letter, admitted as hearing exhibit 1, said:
We have no record of an industrial claim or injury. Please

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