2010-142. Dolores J. Bundy Appellant Cross-Appellee vs. State of Alaska Department of Health and Social Services Appellee Cross-Appellant.

• Case Date: December 20, 2010
• Court: Alaska

Alaska Workers Compensation Decisions 2010. Workers' Compensation Appeals Commission 2010-142. Dolores J. Bundy Appellant Cross-Appellee vs. State of Alaska Department of Health and Social Services Appellee Cross-Appellant Dolores J. Bundy, Appellant, Cross-Appellee, vs. State of Alaska, Department of Health and Social Services, Appellee, Cross-Appellant.Decision No. 142 December 20, 2010AWCAC Appeal No. 10-006 AWCB Decision No. 10-0002 AWCB Case No. 200408624Final Decision Final decision on appeal from Alaska Workers' Compensation Board Decision No. 10-0002, issued at Anchorage on January 7, 2010, by southcentral panel members Deirdre D. Ford, Chair, James P. Fassler, Member for Labor, Robert C. Weel, Member for Industry. Appearances: Joseph A. Kalamarides, Kalamarides and Lambert, Inc., for appellant, cross-appellee, Dolores J. Bundy; Daniel N. Cadra, Assistant Attorney General, for appellee, cross-appellant, State of Alaska, Department of Health and Social Services. Commission proceedings: Appeal filed February 3, 2010; Cross-appeal filed February 13, 2010; briefing completed July 26, 2010; oral argument presented September 23, 2010. Commissioners:Jim Robison, Philip E. Ulmer, Laurence Keyes, Chair.By: Laurence Keyes, Chair. Appellant, cross-appellee, Dolores J. Bundy (Bundy), worked as a Certified Nursing Aide at the Anchorage Pioneer Home, in the employ of appellee, cross-appellant, State of Alaska, Department of Health and Social Services (DHSS or Department). On May 10, 2004, Bundy injured her left shoulder, left arm, and neck, while attempting to prevent one of the residents from falling out of a wheelchair.(fn1) In the ensuing twenty-two months, three cervical surgeries were performed on Bundy. Despite this treatment, Bundy continued to complain of pain. In due course, her workers' compensation claim went to hearing before the Alaska Workers' Compensation Board (board) on September 15 and 18, 2009. In its Final Decision and Order (DandO), the board concluded: 1) Bundy's second and third cervical surgeries are not work-related; 2) she is not permanently and totally disabled (PTD); 3) she is entitled to permanent partial impairment (PPI) benefits commensurate with a 25% rating; and 4) she is entitled to an award of attorney fees.(fn2) Bundy appeals the first two rulings and the Department cross-appeals the board's award of attorney fees and denial of a "credit" for prior payment of reemployment benefits against the amount owed and paid Bundy in additional PPI benefits.(fn3) The commission affirms the board in all respects except two. We remand to the board on the issues whether Bundy is PTD and whether DHSS is entitled to any reimbursement under AS 23.30.155(j) for overpayment of AS 23.30.041(k) stipend benefits, and if so, in what amount. 1. Factual background and proceedings. On May 17, 2004, a week after the May 10, 2004, incident in which Bundy was injured, she consulted Timothy D. Coalwell, M.D., complaining of neck and shoulder pain, including a popping in her shoulder.(fn4) His diagnosis was neck and left shoulder strain with degenerative disk disease of the cervical spine.(fn5) That same day, an x-ray of her cervical spine showed marked disk space narrowing at C3 and C5 with some neural foraminal encroachment.(fn6) The impression was severe degenerative disk disease at C3 and C5.(fn7) The x-ray also revealed intense sclerosis in the vertebral endplates, C3-4 and C5-6.(fn8) An x-ray of the left shoulder showed abnormalities of the acromion clavicular (AC) joint and coracoclavicular junction.(fn9) Dr. Coalwell arranged for a magnetic resonance imaging (MRI) study of Bundy's cervical spine and left shoulder,(fn10) which was done on May 20, 2004. It showed a small-to-moderate-sized protrusion to the left at C6-7 and a moderate-sized protrusion slightly to the left of midline at C5-6, causing mild left foraminal stenosis.(fn11) On May 25, 2004, Bundy was referred to Larry Kroop, M.D., of Interventional Pain Consultants of Alaska, for pain management and possible steroid injection to the AC joint.(fn12) Two days later, Dr. Kroop performed a cervical selective nerve root block C6 for the cervical nerve root compression with radiculopathy.(fn13) On June 24, 2004, at the request of Dr. Kroop, Eric M. Kussro, D.O., performed sensory and motor nerve conduction studies and needle electromyogram in the left upper extremity. Dr. Kussro found no focal compressive median or ulnar neuropathy affecting the left upper extremity and no evidence of active cervical radiculopathy.(fn14) On July 7, 2004, Dr. Coalwell refined his diagnosis to neck pain with radiculopathy secondary to degenerative disk disease of the cervical spine and referred Bundy to Louis L. Kralick, M.D.(fn15) On July 15, 2004, Dr. Kralick evaluated Bundy and recommended a two-level disk excision and instrumented anterior fusion.(fn16) Later that month, on July 22, 2004, Dr. Kralick performed an anterior diskectomy and osteophyte removal with canal and nerve decompression, C5-6 and C6-7. His post-operative diagnosis was cervical spondylosis with root compression and radiculopathy at C5-6 and C6-7.(fn17) Bundy followed up with both Dr. Kralick and Dr. Coalwell over the next year. On September 7, 2004, Dr. Kralick saw Bundy and reported her incision was well-healed.(fn18) He noted she had some limitation in her range of motion, but had no tenderness to palpation and no obvious sensory deficit.(fn19) Bundy was instructed to increase her activity level and to wean to a soft collar.(fn20) A cervical spine x-ray showed a stable appearance of the instrumentation and allograft construct(fn21) and moderate degenerative disk changes at C3-4 with narrowing of the disk space, sclerosis along the disk margin, and hypertrophic spurring.(fn22) Dr. Kralick saw Bundy on November 2, 2004, and reported that she was comfortable on examination with improved range of motion, stable strength, and tone that was normal with subdued but present tendon responses.(fn23) A cervical spine x-ray taken that day showed: 1) a stable appearance at the operative level; 2) bone grafts in stable position with less distinct margins indicating beginning fusion; 3) anterior hardware was stable and bone alignment was also stable; and 4) moderate, but stable degenerative disk changes at C3-4.(fn24) Dr. Coalwell saw Bundy on November 10, 2004, and noted her neck was still stiff and she was still wearing a brace.(fn25) He saw her again on November 24, 2004, and noted she was reporting ongoing pain, including migraines, which she thought were caused by neck pain, and numbness and tingling in both legs. He believed an MRI might be needed if the tingling persisted.(fn26) On January 4, 2005, Bundy consulted Dr. Kralick, who stated she was making satisfactory progress and was benefiting from physical therapy. She had improved range of motion and no focal sensory deficit. Strength was normal and tendon responses, although subdued, were present and symmetric.(fn27) On February 14 and 24, 2005, Dr. Coalwell saw Bundy, who was complaining of continuing pain and migraines, which she said she did not have prior to the work injury. A new MRI did not show any acute changes. Dr. Coalwell prescribed Wellbutrin.(fn28) On April 11, 2005, Shannan F. Schewe, Occupational Therapist, wrote to Dr. Coalwell stating that Bundy's progress had been impeded by "multiple medical and psychosocial stressors" and she attended only 43 out of 64 appointments. She was released by Ms. Schewe to a home exercise program with no further therapy indicated.(fn29) Dr. Kralick saw Bundy on April 19, 2005, and reported she had continued, but slow progress, with residual head and neck ache and nonspecific sensory symptoms. There was no evidence of long-track sign abnormalities on exam and he recommended a follow-up visit in one year.(fn30) On May 19, 2005, Dr. Coalwell saw Bundy, who reported to him that she had pain in her neck and the back of her scalp radiating down her right arm with numbness in her fingers bilaterally. She also reported numbness in her legs.(fn31) Bundy saw Dr. Coalwell again on June 27, 2005. He ordered a urine drug screen and noted a follow-up appointment with Dr. Kralick on referral from Dr. Kroop. Dr. Kroop did not want to do any more injections until Bundy was seen by the surgeon. Dr. Coalwell noted Bundy was taking greater than 100 mg of Oxycontin per day with only fair relief.(fn32) That same day, Bundy also saw Dr. Kroop. He noted she was scheduled for another MRI by Dr. Kralick's office, the massage therapy did not seem to be helping, and her hydrocodone prescription might need adjustment.(fn33) On July 6, 2005, the urinalysis report showed no evidence of Oxycontin, but was positive for cocaine and marijuana.(fn34) On July 8, 2005, Dr. Coalwell's office wrote to Bundy dismissing her from his care immediately.(fn35) On July 12, 2005, he filled out a request from Rehabilitation Specialist Mark Kemberling stating Bundy could participate in development of a reemployment plan, but adding that he no longer treated her.(fn36) Bundy had a cervical spine MRI performed on July 21, 2005, which showed surgical changes with disk disease at C3-4, causing minimal central canal stenosis and mild-to-moderate neural foraminal stenosis, right greater than left.(fn37) On August 2, 2005, Bundy saw Dr. Kralick, who reviewed the MRI with her and ruled out further surgical intervention. Dr. Kralick discussed appropriate conservative management options...