2008-094. Linda Schouten Appellant vs. Alaska Industrial Hardware and AIG Claims Services Appellees.
Case Date | December 05, 2008 |
Court | Alaska |
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...
To continue reading
Request your trial