2011-153. Stonebridge Hospitality Associates LLC Argonaut Insurance Co. and Broadspire Services Inc. Appellants vs. Debra K. Settle Appellee.
Case Date | June 14, 2011 |
Court | Alaska |
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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