2011-153. Stonebridge Hospitality Associates LLC Argonaut Insurance Co. and Broadspire Services Inc. Appellants vs. Debra K. Settle Appellee.

Case DateJune 14, 2011
CourtAlaska
Alaska Workers Compensation Decisions 2011. Workers' Compensation Appeals Commission 2011-153. Stonebridge Hospitality Associates LLC Argonaut Insurance Co. and Broadspire Services Inc. Appellants vs. Debra K. Settle Appellee Alaska Workers' Compensation Appeals CommissionStonebridge Hospitality Associates, LLC, Argonaut Insurance Co., and Broadspire Services, Inc., Appellants, vs. Debra K. Settle, Appellee.Decision No. 153 June 14, 2011AWCAC Appeal No. 10-017 AWCB Decision No. 10-0089 AWCB Case No. 200905575Final Decision Final decision on appeal from Alaska Workers' Compensation Board Decision No. 10-0089, issued at Anchorage on May 20, 2010, by southcentral panel members William Soule, Chair, Patricia Vollendorf, Member for Labor, Janet Waldron, Member for Industry. Appearances: Colby J. Smith, Griffin and Smith, for appellants, Stonebridge Hospitality Associates, LLC, Argonaut Insurance Co., and Broadspire Services, Inc.; Debra K. Settle, self-represented appellee. Commission proceedings: Appeal filed June 2, 2010; briefing completed March 1, 2011; oral argument was not requested.Commissioners: Jim Robison, S.T. Hagedorn, Laurence Keyes, Chair.By: Laurence Keyes, Chair. 1. Introduction. The appellee, Debra K. Settle (Settle), began working for appellant, Stonebridge Hospitality Associates, LLC (Stonebridge(fn1)), in December 2008. Stonebridge assigned Settle duties as a housekeeper.(fn2) According to Settle, on or about February 15, 2009, while performing her housekeeping responsibilities, she injured her lower back when lifting or moving a mattress or mattresses. Shortly thereafter, Settle was terminated. Two months later, on April 14, 2009, she first sought medical treatment for her back. Settle filed a claim with the Alaska Workers' Compensation Board (board) in May 2009. Following a hearing on April 13, 2010, among other things, the board concluded: 1) because Settle had not obtained a permanent partial impairment (PPI) rating, her claim for PPI benefits was not ripe;(fn3) and 2) any reemployment eligibility evaluation by the rehabilitation benefits administrator (RBA) would be contingent on the PPI rating.(fn4) Stonebridge appeals these board rulings to the commission. We vacate the board's decision on the PPI issue and remand this matter to the board to resolve it. As explained below, the outcome of the remand of the PPI issue will necessarily determine whether Settle is entitled to a reemployment eligibility evaluation by the RBA. 2. Factual background and proceedings. Settle had suffered back pain for about three years(fn5) when, in early 2007, a magnetic resonance imaging (MRI) study of Settle's lumbar spine revealed a disk herniation at L4-5, a compression fracture, and degenerative disk disease at L3-4, L4-5, and L5-S1.(fn6) Settle had back surgery, a microdiskectomy at L4-5, on April 11, 2007.(fn7) In August 2007, Settle had a physical capacities evaluation (PCE) that indicated she could work, provided there were restrictions on her lifting capacity and activities involving stooping.(fn8) Settle began her employment with Stonebridge on December 18, 2008.(fn9) She was terminated on or about February 15, 2009.(fn10) Settle was seen and evaluated by two doctors at the Central Peninsula Hospital emergency room on April 14, 2009,(fn11) reporting to them that she injured her back at work on February 15, 2009.(fn12) Settle then saw Pedro Perez, M.D., on April 22, 2009,(fn13) and Cynthia H. Kahn, M.D., on the following day.(fn14) A lumbar spine MRI was performed on April 29, 2009, which was read as showing, among other things, postsurgical and degenerative changes at L4-5.(fn15) Dr. Kahn saw Settle again on May 7, 2009, and she noted the recent MRI study, which diagnosed disk protrusion and facet hypertrophy at L4-5.(fn16) Dr. Kahn recommended a lumbar epidural steroid injection that she administered to Settle the following day.(fn17) Settle filed a workers' compensation claim dated May 13, 2009. Her claim included requests for PPI benefits and a reemployment benefits eligibility evaluation.(fn18) Stonebridge controverted all benefits based on Settle's alleged failure to sign and return releases for medical records.(fn19) The first of several prehearing conferences (PHC) was held on June 4, 2009.(fn20) Settle reiterated her requests for PPI benefits and a reemployment benefits eligibility evaluation.(fn21) With respect to PPI benefits, the board's designee for the PHC stated in the summary: "PPI - Ms. Settle indicated she understood the concept of [a] PPI rating and indicated she would like to assert the right to PPI when and if a rating became appropriate."(fn22) Dr. Kahn reevaluated Settle on June 5, 2009, recommended physical therapy, and expressed her desire to see Settle again in four weeks.(fn23) Settle followed through with physical therapy through the end of June 2009.(fn24) On July 16, 2009, Timothy R. Borman, D.O., performed an employer's medical evaluation (EME) of Settle and prepared a report.(fn25) Of relevance here are: 1) his diagnosis of a possible lumbar paravertebral muscle strain related to the work incident on February 14, 2009; and 2) his impressions of pre-existing lumbar spine degenerative disk disease and pre-existing lumbar spine facet degenerative joint disease at multiple levels.(fn26) However, based in part on the fact that Settle did not seek medical treatment for two months,(fn27) Dr. Borman was of the opinion that the work incident was not the substantial cause of any lumbar muscle strain or need for treatment,(fn28) and did not aggravate her pre-existing lumbar spine conditions.(fn29) Dr. Borman also believed Settle could return to work as a housekeeper as long as she followed the restrictions outlined in her 2007 PCE and that her current spinal condition was identical to her spinal condition before February 14, 2009.(fn30) Finally, when responding to a question regarding a permanent impairment rating for Settle, Dr. Borman stated: "It is my professional opinion that Ms. Settle did not suffer a work-related injury on February 14, 2009. Therefore, assignment of any impairment regarding a February 14, 2009, work event is not applicable."(fn31) Another PHC was held on July 29, 2009.(fn32) The summary, like those for each PHC, indicated that Settle's...

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