2010-141. Mayflower Contract Services Inc. and Travelers Insurance Co. Appellants vs. Marcie Redgrave Appellee.

• Case Date: December 14, 2010
• Court: Alaska

Alaska Workers Compensation Decisions 2010. Workers' Compensation Appeals Commission 2010-141. Mayflower Contract Services Inc. and Travelers Insurance Co. Appellants vs. Marcie Redgrave Appellee Alaska Workers' Compensation Appeals CommissionMayflower Contract Services, Inc. and Travelers Insurance Co., Appellants, vs. Marcie Redgrave, Appellee.Decision No. 141 December 14, 2010AWCAC Appeal No. 09-028 AWCB Decision No. 09-0188 AWCB Case No. 199401080Final Decision Final decision on appeal from Alaska Workers' Compensation Board Decision and Order No. 09-0188, issued at Anchorage on December 7, 2009, by southcentral panel members William J. Soule, Chair, Linda Hutchings, Member for Industry, Patricia Vollendorf, Member for Labor. Appearances: Krista M. Schwarting, Griffin and Smith, for appellants Mayflower Contract Services, Inc. and Travelers Insurance Company. Marcie Redgrave, self-represented appellee. Proceedings: Appeal filed December 11, 2009; Motions for Stay filed December 11, 2009; Motions for Stay heard on January 5, 2009; Order on Motions for Stay issued on February 25, 2010; Clerk's Notice of Correction regarding Motions for Stay issued on March 5, 2010; briefing completed May 28, 2010; oral argument presented July 15, 2010.Appeals Commissioners: David Richards, Philip Ulmer, Andrew M. Hemenway, Chair Pro Tempore.By: Andrew M. Hemenway, Chair Pro Tempore. 1. Introduction. Marcie Redgrave incurred an on-the-job injury in 1994. She was provided temporary total disability (TTD) benefits for several months and continued medical care for several years, but after 2001 she did not obtain further treatment for that injury. On June 26, 2007, Ms. Redgrave requested authorization for an examination by a neurologist. Further compensation was controverted on August 7, 2007, and, following an employer's medical examination (EME), on December 11, 2008. Following a hearing on June 25, 2009, the board on December 7, 2009, issued a decision denying TTD benefits after August 12, 1994, but finding that Ms. Redgrave was entitled to continued medical treatment. The board ruled that the August 7, 2007, controversion was in bad faith, frivolous and unfair, and it imposed a penalty and ordered a copy of its decision sent to the division of insurance. Mayflower Contract Services, Inc. and Traveler's Insurance Company (Mayflower) appeal. Mayflower asserts that the board erred in determining that Ms. Redgrave needs continued medical care for her on-the-job injury. Mayflower also asserts that the board erred in determining that the controversion was in bad faith, frivolous and unfair. We conclude that there is substantial evidence to support the board's determination that Ms. Redgrave is in need of continued treatment for the injury she incurred in 1994, and we therefore affirm the board's factual determination on that issue. We also conclude that the board erred in imposing a penalty and in its determination that the controversion was in bad faith, frivolous and unfair, and we therefore reverse the penalty and vacate the determination. 2. Factual and Procedural Background.(fn1) Marcie Redgrave was employed as a bus driver by Mayflower Contract Services, Inc., when, on January 10, 1994, she slipped on the ice and struck her head and neck against a bus. She experienced head and neck pain, headaches, blurred vision, and numbness in the hands, which she attributed to the incident. She filed a timely claim for workers' compensation benefits, and her employer paid TTD benefits through August 12, 1994. Ms. Redgrave returned to work in different employment in May 1995. From 1994-2001, Ms. Redgrave was periodically examined or treated by various doctors and other medical practitioners in connection with her symptoms, which several of them attributed to the 1994 injury. Mayflower paid medical benefits for those visits, which included multiple examinations by neurologists and mental health professionals. She was consistently found to be in need of psychological counseling in connection with her symptoms resulting from the 1994 injury, but she did not obtain such treatment. After 2001, Ms. Redgrave's symptoms continued, but she dealt with them without obtaining medical treatment. Eventually, on June 26, 2007, Ms. Redgrave submitted a handwritten request for authorization to see a neurologist. The adjuster denied the request, and on August 7, 2007, Mayflower controverted continued medical treatment on the grounds that continued treatment was barred due to the lack of treatment for more than two years, and that there was no recommendation for treatment. On December 13, 2007, Ms. Redgrave attended an EME. On December 11, 2008, based in part on the report from the prior year's examination, Mayflower controverted payment of benefits for medical treatment, TTD after April 10, 1994, vocational rehabilitation, and a rating for permanent partial impairment (PPI). Ms. Redgrave's claim was heard by the board on June 25, 2009. The board's decision was issued on December 7, 2009. The board determined that the presumption of compensability attached to Ms. Redgrave's claim for TTD payments from August 13, 1994, until she returned to work in 1995, that Mayflower had presented substantial evidence to rebut the presumption, and that the preponderance of the evidence did not support an award of TTD compensation after August 12, 1994. The board determined that the presumption of compensability attached to the claim for continued medical treatment and that Mayflower had presented substantial evidence sufficient to rebut the presumption. The board determined that the preponderance of the evidence established a need for continuing medical treatment arising out of the on-the-job injury and that, based on Dr. Pervier's 1994 "prescription for neuropsychological therapy," she was "entitled to pre-authorization of that treatment."(fn2) The board determined that if recommended by her physician, "cranial therapy" and treatment from a physiatrist was also pre-authorized.(fn3) The board determined that Ms. Redgrave was entitled to payment for a rating for PPI, if referred for a rating by her physician.(fn4) The board directed Ms. Redgrave to file copies of any prior medical bills that she believed were work-related with the board, and retained jurisdiction to consider payment of those bills.(fn5) Finally, the board determined that the August 7, 2007, controversion was in bad faith, unfair and frivolous, because it was based on an incorrect interpretation of AS 23.30.095(a),(fn6) and therefore imposed a penalty on the value of the controverted evaluation and directed that a copy of its decision be provided to the division of insurance.(fn7) 3. Issues Raised. Mayflower's brief argues that (A) the board erred in determining that Ms. Redgrave is in need of continued medical treatment for her 1994 injury because (1) she did not provide a current medical opinion connecting a need for treatment to the on-the-job injury(fn8) and the claim is time-barred by (2) AS 23.30.095(a)(fn9) or (3) the doctrine of laches.(fn10) Mayflower's brief also argues that (B) the board erred in determining that the August 7, 2007, controversion was in bad faith, unfair and frivolous, because a controversion based on AS 23.30.095(a) had "some legal basis" and was "not designed to mislead or deceive."(fn11) 4. Standard of Review. We must affirm the board's factual findings if they are supported by substantial evidence in light of the record as a whole.(fn12) Substantial evidence is relevant evidence that a reasonable mind would accept as adequate to support a conclusion.(fn13) Whether AS 23.30.095(a) bars claims for medical treatment occurring more than two years after the date of injury or the date of last treatment is a legal question as to which we exercise our independent judgment.(fn14) Whether the board has applied the correct legal test in determining that a controversion is in bad faith, unfair and frivolous is also a legal question, upon which we exercise our independent judgment. 5. Discussion. a. The board did not err in finding a need for continued treatment. i. A current medical opinion was not required. The centerpiece of Mayflower's argument that the board erred in its determination that Ms. Redgrave is presently in need of treatment for her 1994 injury is this:

The physicians from whom [Ms. Redgrave] has sought treatment since returning to Alaska [after 2001] have not specifically related the need for that treatment to the 1994 work injury. While the physicians have recorded the employee's assertions that her symptoms have been present since the 1994 work injury, there is no evidence that any of them have reviewed all of the medical records and made specific findings as to the causation of any need for further treatment.

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