2008-086. Hope Community Resources and Liberty Northwest Ins. Co. Appellants vs. Estate of Veronica Rodriguez by Larry Henry personal representative Appellee.

• Case Date: August 08, 2008
• Court: Alaska

Alaska Workers Compensation Decisions 2008. Workers' Compensation Appeals Commission 2008-086. Hope Community Resources and Liberty Northwest Ins. Co. Appellants vs. Estate of Veronica Rodriguez by Larry Henry personal representative Appellee Alaska Workers' Compensation Appeals CommissionHope Community Resources and Liberty Northwest Ins. Co., Appellants, vs. Estate of Veronica Rodriguez, by Larry Henry, personal representative, Appellee.Decision No. 086 August 8, 2008AWCAC Appeal No. 07-009 AWCB Decision No. 07-0054 AWCB Case No. 200405438Final Decision and Order Appeal from Alaska Workers' Compensation Board Decision and Order No. 07-0054 issued at Anchorage on March 15, 2007, by southcentral panel members Rosemary Foster, Chair, Patricia A. Vollendorf, Member for Labor, and Janet Waldron, Member for Industry. Appearances: Jeffrey D. Holloway, Holmes Weddle and Barcott P.C., for appellants Hope Community Resources and Liberty Northwest Ins. Co. Larry Henry, Jr., self-represented, the personal representative of the Estate of Veronica Rodriguez, appellee. Commission proceedings: Motion for extraordinary review and motion for stay filed March 27, 2007, and heard by the commission on April 16, 2007. Alaska Workers' Compensation Appeals Commission Decision No. 041 issued May 16, 2007, determining Board Dec. No. 07-0054 was a final appealable order, permitting appeal to be filed, and staying of order directing Veronica Rodriguez to attend a second independent medical examination. Motion to extend time to file appellee's brief granted by the chair on September 11, 2007. Notice of appellee's default and order to comply with briefing schedule issued November 13, 2007. Oral argument on appeal convened and continued on February 6, 2008. Motion to substitute Estate of Veronica Rodriguez as appellee and accepting Larry Henry, Jr., as personal representative granted on March 17, 2008. Oral argument on appeal presented April 18, 2008. Parties given opportunity to submit written briefing until May 8, 2008. Record closed May 9, 2008.Commissioners: Stephen T. Hagedorn, Jim Robison,and Kristin Knudsen.This decision has been edited to conform to technical standards for publication. By: Kristin Knudsen, Chair. Appellants appeal a board decision denying their petitions for board review and modification of the reemployment benefits administrator's decision finding the employee eligible for reemployment benefits and ordering Veronica Rodriguez to attend, and appellants to pay for, an independent medical examination under AS 23.30.110(g) and AS 23.30.095(k). Appellants did not seek a stay of payment of on-going reemployment benefits. Ms. Rodriguez, the original appellee, died before argument of the appeal. The commission determines there is no present, live controversy or relief that could be granted by the board if appellants were successful; therefore, the commission dismisses the appeal as moot. 1. Factual background and proceedings. Veronica Rodriguez, a "home alliance coordinator," reported an abdominal hernia caused by lifting clients to her employer, Hope Community Resources, on February 25, 2004.(fn1) She returned to her home in Philadelphia, where she was seen March 19, 2004, by Ernest L. Rosato, M.D.(fn2) He diagnosed a recurrent supraumbilical hernia, which he repaired surgically in April 2004.(fn3) After the hernia recurred again,(fn4) Dr. Rosato performed a second surgery in March 2005.(fn5) During the surgery, he found the employee had an enlarged uterus, with uterine fibroid tumors, that occupied 50% of the abdominal cavity.(fn6) Dr. Rosato reported Ms. Rodriguez was fully healed from her hernia on August 12, 2005.(fn7) Hope Community Resources paid compensation and medical benefits without an award.(fn8) Ms. Rodriguez requested a reemployment benefits eligibility evaluation under AS 23.30.041.(fn9) An employer medical examination on December 6, 2005, by Dr. Braun resulted in a report of his opinion that there was no permanent impairment.(fn10) In June 2006, Dr. Rosato predicted that Ms. Rodriguez would have a permanent impairment, but he did not provide an impairment rating.(fn11) Based on Dr. Rosato's prediction, Rodriguez was found eligible for reemployment benefits on July 7, 2006.(fn12) Ms. Rodriguez selected a plan provider and a plan was developed.(fn13) Hope Community Resources filed a petition with the board appealing the Administrator's decision finding Ms. Rodriguez eligible.(fn14) Hope Community Resources also filed a petition for modification of the eligibility determination based on later acquired evidence (an addendum report by Dr. Braun with a rating of zero percent).(fn15) a. The hearing before the board. Hope Community Resources presented no witnesses. It argued that the administrator's decision was arbitrary and capricious for two reasons. First, Dr. Rosato's opinion lacked foundation as he had stated he was not knowledgeable in impairment ratings under the American Medical Association Guides to the Evaluation of Permanent Impairment.(fn16) Second, the administrator coached the evaluator on what an opinion needed to say to support eligibility and delayed the decision for 3-1/2 months, beyond the 60-day time limit, until the evaluator was able to obtain an opinion favorable to Ms. Rodriguez.(fn17) Hope also argued, citing Rydwell v. Anchorage School Dist.,(fn18) that the administrator's decision should be modified because later evidence demonstrated that Ms. Rodriguez did not have a ratable impairment and she could perform two positions she had prior to her injury.(fn19) Ms. Rodriguez did not present evidence that Dr. Rosato was qualified to give an opinion on permanent impairment, but she argued that she should not be penalized because her doctor was unqualified to offer an...