2011-147. M-K Rivers and ACE Indemnity Insurance Co. Appellants vs. Willard L. Harris Appellee.

• Case Date: March 04, 2011
• Court: Alaska

Alaska Workers Compensation Decisions 2011. Workers' Compensation Appeals Commission 2011-147. M-K Rivers and ACE Indemnity Insurance Co. Appellants vs. Willard L. Harris Appellee Alaska Workers' Compensation Appeals CommissionM-K Rivers and ACE Indemnity Insurance Co., Appellants, vs. Willard L. Harris, Appellee.Decision No. 147 March 4, 2011AWCAC Appeal No. 09-027 AWCB Decision No. 09-0176 AWCB Case No. 198102824Final Decision Final decision on appeal from Alaska Workers' Compensation Board Decision No. 09-0176, issued at Anchorage on November 24, 2009, by southcentral panel members William J. Soule, Chair, Robert Weel, Member for Industry, Patricia Vollendorf, Member for Labor. Appearances: Robert J. Bredesen, Russell, Wagg, Gabbert and Budzinski, P.C., for appellants, M-K Rivers and ACE Indemnity Insurance Co.; Mark C. Choate, Choate Law Firm, LLC, for appellee, Willard L. Harris. Commission Proceedings: Appeal filed December 8, 2009; briefing completed November 12, 2010; oral argument held December 9, 2010.Appeals Commissioners: Jim Robison, Stephen T. Hagedorn, Laurence Keyes, Chair.By: Laurence Keyes, Chair. 1. Introduction. Appellee, Willard L. Harris (Harris), while employed as a teamster by appellant, M-K Rivers, was injured in a rollover accident off the Richardson Highway in 1976 that left him paraplegic. This appeal involves primarily medically-related disputes between Harris, M-K Rivers, and its workers' compensation carrier, appellant, ACE Indemnity Insurance Co. (collectively M-K Rivers). The specific issues presented are whether the Alaska Workers' Compensation Board (board) 1) erred in finding M-K Rivers' controversions of A) a Clinitron bed, and B) treatment for Harris's diabetes, hypertension, and sleep apnea, were unfair, frivolous, or in bad faith, entitling Harris to penalties and interest; 2) erred in prohibiting M-K Rivers from controverting possible future claims for A) diabetes treatment, and B) attendance at a non-medical fitness facility; 3) erred in ordering M-K Rivers to pay for A) occupational therapy, B) an orthotic device, and C) a resistance exercise device; 4) erred in finding the costs of an air conditioning system and the electrical expenses to operate it compensable; and 5) erred in its rulings on awards of attorney fees.(fn1) For the reasons set forth below, the commission affirms the board in part, reverses the board in part, and remands the attorney fees award to Mr. Choate, Harris's counsel, to the board for review in light of this decision. 2. Factual background and proceedings. Harris was twenty-two years old when he was injured in a rollover accident on October 8, 1976.(fn2) The spinal cord injuries Harris suffered left him paraplegic and bound to a wheelchair.(fn3) As a result, Harris has had extensive ongoing medical requirements. Initially, M-K Rivers paid him workers' compensation benefits, and no litigated disputes arose between the parties.(fn4) Harris settled personal injury claims against third parties for a total amount in excess of $1 million.(fn5) The payment of benefits by M-K Rivers was interrupted for over 10 years while Harris used the settlement proceeds to cover his needs.(fn6) On February 6, 1991, Harris filed a claim for medical costs, permanent total disability (PTD), and other benefits.(fn7) This claim was resolved through a partial settlement agreement, filed with and approved by the board on August 16, 1991.(fn8) The agreement provided, among its terms, that M-K Rivers would begin payment of PTD benefits as of July 12, 1991.(fn9) On August 28, 1991, Harris filed a second claim, primarily seeking payment for home attendant care services.(fn10) Eventually, the claim would include a request for a vehicle with accessibility modifications.(fn11) On January 14, 1992, Harris filed a third claim, the purpose of which was to obtain a compensation rate adjustment.(fn12) The parties settled these claims in a Partial Compromise and Release (CandR) that was filed with the board on September 2, 1993, and approved by the board on September 7, 1993.(fn13) Harris submitted a fourth claim, dated October 1, 1993, in which he sought to have M-K Rivers purchase a handicap accessible house for him.(fn14) A fifth claim, dated October 22, 1993, was filed with the board, seeking medical equipment including a wheelchair and occupational therapy table.(fn15) These claims were settled in a Partial CandR that was approved by the board on April 17, 1996.(fn16) This CandR provided in part for the settlement of "all past, present, or future disputes between the parties with respect to all housing/home/dwelling/accommodations related expenses of any kind[.]"(fn17) A sixth claim was filed on April 28, 1997.(fn18) In this claim, Harris sought coverage for his diabetes and a daily increase in home attendant care hours.(fn19) The parties stipulated to a settlement of this claim on May 29, 1998.(fn20) The stipulation included a recital that Harris's diabetes was compensable and M-K Rivers would pay for past and continuing medical treatment for his diabetes.(fn21) Patti Mackay (Mackay) has been the adjuster on Harris's workers' compensation file since 1998.(fn22) In February 2005, she issued a controversion in which she denied, among other things, reimbursement for a central air conditioner that Harris purchased.(fn23) In 2006, Mackay arranged for an employer's medical evaluation (EME) by physiatrist Nicole Chitnis, M.D., after Mackay noticed an increase in Harris's medical treatment.(fn24) In her report, Dr. Chitnis concluded that Harris had long-term relationships with his medical providers whose treatment was appropriate.(fn25) However, Dr. Chitnis questioned certain aspects of Harris's health care regimen, such as the frequency of his acupuncture treatments.(fn26) She also specifically noted that Harris had stopped using a Clinitron bed and had switched to a Flap Chair bed.(fn27) On February 9, 2007, Mackay issued a controversion which denied medical benefits that Dr. Chitnis had regarded as excessive or unnecessary and denied air conditioning on the grounds that it was a housing expense that had been settled previously.(fn28) Thereafter, a prescription dated February 18, 2007, for a Clinitron bed on a three-month trial basis(fn29) was presented to M-K Rivers and controverted on March 19, 2007.(fn30) A prehearing conference was held on April 26, 2007, at which the controversion of the Clinitron bed and other benefits were discussed.(fn31) M-K Rivers received a letter dated May 17, 2007, addressed to "To Whom It May Concern," and signed by Andrew Ross, M.D., Harris's primary physician.(fn32) The letter begins: "[The f]ollowing is a list of medical prescriptions Willard Harris Jr. will require for the rest of his life."(fn33) The letter goes on to list as "medical prescriptions," by category, Harris's requirements in terms of physical therapy, personal training, respiratory therapy, occupational therapy, clinical nutrition, and nutritional supplements.(fn34) Elsewhere, the letter states: "Mr. Harris also requires the following medical expenses guaranteed."(fn35) There follows a list of "medical expenses" he "requires." By category, they are: medical, service care hours, administrative costs, transportation, energy bills for heating and cooling, and medical personal care.(fn36) Among Harris's requirements in the medical category were "[t]he Clinitron bed and any other bed therapy that is required for the rest of his life without considerations of cost which is justified by physicians and not the carrier."(fn37) As was later revealed, Harris authored this letter.(fn38) On June 1, 2007, Harris filed a workers' compensation claim in which he took issue with the controversions dated February 9, 2007, and March 19, 2007. He also sought benefits in accordance with the categories listed under medical prescriptions and medical expenses in the May 17, 2007, letter he authored.(fn39) On June 27, 2007, M-K Rivers filed a controversion and an Answer to Harris's claim, in which it denied the benefits Harris was seeking that were inconsistent with the EME report provided by Dr. Chitnis.(fn40) In the Answer and an addendum to the controversion, benefits for Harris's diabetes, hypertension, and sleep apnea were also denied.(fn41) At that time, counsel for M-K Rivers made a written request for the make and model of Clinitron bed that had been prescribed by Dr. Ross.(fn42) The parties, through respective counsel, attended a prehearing conference on September 20, 2007. The prehearing conference summary indicates that M-K Rivers was asserting defenses designated in its February 9, 2007, controversion, and its June 27, 2007, controversion and Answer.(fn43) The summary also specifically identifies the Clinitron bed as an issue.(fn44) As the parties prepared the claim for a hearing before the board, prehearing conferences were held on April 1, and April 7, 2008.(fn45) At the latter prehearing, the Clinitron bed was deleted as an issue.(fn46) Another prehearing conference took place on March 17, 2009.(fn47) At that prehearing, the Clinitron bed that had been requested by Harris was replaced by a request for an Ortho Hillrom bed.(fn48) There were prehearing conferences on April 3, May 1, and June 11, 2009.(fn49) The controversion of the Clinitron bed was not otherwise referenced in any of the prehearing conference summaries.(fn50) The denial of benefits for diabetes, hypertension, and sleep apnea, which first...