2008-094. Linda Schouten Appellant vs. Alaska Industrial Hardware and AIG Claims Services Appellees.

Case DateDecember 05, 2008
CourtAlaska
Alaska Workers Compensation Decisions 2008. Workers' Compensation Appeals Commission 2008-094. Linda Schouten Appellant vs. Alaska Industrial Hardware and AIG Claims Services Appellees Alaska Workers' Compensation Appeals CommissionLinda Schouten, Appellant, vs. Alaska Industrial Hardware and AIG Claims Services, Appellees.Decision No. 094December 5, 2008AWCAC Appeal No. 07-036AWCB Decision No. 07-0248AWCB Case No. 200515544Final Decision Appeal from Alaska Workers' Compensation Board Decision No. 07-0248, issued at Anchorage, Alaska on August 17, 2007, by the southcentral panel members Fred Brown,(fn1) Chair, Linda Hutchings, Member for Industry, and David Robinson, Member for Labor. Appearances: Charles Coe, for appellant Linda Schouten. Colby Smith, Griffin and Smith for appellees, Alaska Industrial Hardware and AIG Claims Services. Commission proceedings: Appeal filed September 17, 2007. Appellant's request for extension of time to file opening brief granted by the chair November 29, 2007. Appellant's second request for extension of time to file opening brief granted by the commission panel January 2, 2008. Order granting final extension of time to file appellant's opening brief issued January 25, 2008. Order denying request for fourth extension of time issued by the commission panel February 14, 2008; late-filed brief accepted March 5, 2008. Notice of change in commissioner assignment given March 6, 2008. Appellees' request for extension of time to file brief granted by the chair March 24, 2008. Oral argument on appeal presented September 9, 2008.Commissioners: David Richards,(fn2) Stephen Hagedorn,Kristin Knudsen.This decision has been edited to conform to technical standards for publication. By: Stephen Hagedorn, Appeals Commissioner. 1. Introduction. Linda Schouten appeals the board's decision to suspend her claim for temporary total disability payments because she was not attending her physical therapy appointments. The board concluded that Schouten had unreasonably failed to mitigate her disability pursuant to AS 23.30.095(d); therefore, the board suspended temporary total disability compensation from the time the employer controverted her claim until she successfully completed physical therapy. Schouten contends the board has no authority to retroactively deny her benefits under Metcalf v. Felec Services(fn3) or to make its award contingent on completion of physical therapy, especially when the employer did not petition to suspend benefits because of a failure to comply with medical treatment. The appellees argue that the board implicitly found that Schouten was medically stable on July 5, 2006, because of her refusal to undergo physical therapy, and that as a result, she was not entitled to temporary total disability (TTD) benefits after that date. The appellees contend substantial evidence supports the board's findings that Schouten unreasonably refused physical therapy and failed to mitigate her disability. The parties' contentions require the commission to determine the scope of the board's authority to address questions that the parties have not raised and to retroactively suspend benefits. In addition, the commission must examine whether the board made adequate findings of fact. The commission concludes that the board failed to decide the issue raised by the employer's petition, that being whether Schouten's TTD benefits should end because she had reached medical stability. In addition, the commission concludes that the board may not retroactively suspend an employee's TTD as of the date that the employer controverted benefits under Metcalf v. Felec Services.(fn4) Therefore, the board's decision is vacated and the case is remanded with instructions to decide the issue of Schouten's medical stability. 2. Factual background. Linda Schouten was a storage center manager hired by Alaska Industrial Hardware (AIH) on July 15, 2005.(fn5) She reported that on September 12, 2005, she injured herself while trying to close a garage bay door.(fn6) She filed a notice of occupational injury on September 23, 2005.(fn7) She was seen by a number of different physicians, including Dr. Edward Barber and Dr. John Duddy.(fn8) Both doctors diagnosed pre-existing spondylolisthesis at L5-S1 vertebral level.(fn9) Dr. Duddy also noted that she had degenerative disc disease and that both conditions were acutely exacerbated.(fn10) Dr. Duddy recommended a spine management class and physical therapy, but he noted that Schouten refused to participate in physical therapy.(fn11) Dr. Barber did a series of chiropractic treatments in September and October 2005.(fn12) Schouten sought a second opinion from Dr. Edward Voke, who diagnosed the same conditions as Dr. Duddy and also recommended physical therapy.(fn13) Drs. Voke and Duddy referred her to the Alaska Spine Institute, where Dr. Sean Taylor evaluated her.(fn14) A physical therapist, Jim Werner, at the Alaska Spine Institute recommended physical therapy two times a week.(fn15) In February and March 2006, Schouten attended physical therapy four times,(fn16) cancelled three times,(fn17) and "no showed" for her remaining four appointments.(fn18) Schouten missed at least one of the appointments because she was ill.(fn19) Her reasons for not attending the other appointments included that she was in pain and that her prescription for physical therapy ran out.(fn20) She went back to Dr. Duddy on April 24, 2006. He noted that Schouten had not kept her January appointment and noted, again, she refused all physical therapy.(fn21) An employer's medical evaluation was scheduled and Dr. Steven Schilperoort examined Schouten on May 8, 2006.(fn22) He concluded that she may have had a soft tissue sprain as a result of the September 12, 2005, injury,(fn23) but that she had reached medical stability as of May 8, 2006.(fn24) Dr. Schilperoort found her pain complaints were disproportionate to her injury(fn25) and gave her a zero percent...

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