2011-154. Lynden Transport Inc. and ACE American Insurance Co. Appellants vs. Milton K. Mauget Aurora Diagnostic Imaging LLC and Advanced Pain Centers of Alaska Appellees.

• Case Date: June 17, 2011
• Court: Alaska

Alaska Workers Compensation Decisions 2011. Workers' Compensation Appeals Commission 2011-154. Lynden Transport Inc. and ACE American Insurance Co. Appellants vs. Milton K. Mauget Aurora Diagnostic Imaging LLC and Advanced Pain Centers of Alaska Appellees Alaska Workers' Compensation Appeals CommissionLynden Transport, Inc. and ACE American Insurance Co., Appellants, vs. Milton K. Mauget, Aurora Diagnostic Imaging, LLC, and Advanced Pain Centers of Alaska, Appellees.Decision No. 154 June 17, 2011AWCAC Appeal No. 10-018 AWCB Dec. Nos. 10-0094 and 10-0108 AWCB Case Nos. 200803009 and 200702478Final Decision Final decision on appeal from Alaska Workers' Compensation Board Decision No. 10-0094, issued at Fairbanks on May 21, 2010, by northern panel members William Walters, Chair, Damian J. Thomas, Member for Labor, and Debra G. Norum, Member for Industry, and Alaska Workers' Compensation Board Decision No. 10-0108, issued at Fairbanks on June 20, 2010, by northern panel members William Walters, Chair, and Damian J. Thomas, Member for Labor. Appearances: Colby J. Smith, Griffin and Smith, for appellants, Lynden Transport, Inc. and ACE American Insurance Co.; James M. Hackett, James M. Hackett, Inc., for appellee, Milton K. Mauget; Aurora Diagnostic Imaging, LLC, and Advanced Pain Centers of Alaska, appellees, did not participate. Commission proceedings: Appeal filed June 10, 2010; motion for stay granted July 6, 2010; briefing completed February 24, 2011; oral argument held April 27, 2011.Commissioners: David Richards, S.T. Hagedorn, Laurence Keyes, Chair.By: Laurence Keyes, Chair. 1. Introduction. On April 22, 2010, the Alaska Workers' Compensation Board (board) heard the claim of appellee, Milton K. Mauget (Mauget), who works for appellant, Lynden Transport, Inc. (Lynden). In due course, the board issued a decision(fn1) and a decision on reconsideration.(fn2) In the first decsion, it found: 1) Mauget's right knee injury was not compensable;(fn3) 2) developments at the hearing necessitated the hearing agenda to be modified;(fn4) and 3) Mauget was entitled to an award of additional disability benefits for his left knee injury.(fn5) The second and third rulings are at issue in this appeal. The commission concludes that the board erred in modifying the issues for hearing, vacates its decision awarding additional disability benefits for the left knee injury, and remands this matter to the board so that it may hear and decide whether Mauget is entitled to more disability benefits in connection with his left knee injury. 2. Factual background and proceedings. Mauget has worked for Lynden for many years as a truck driver.(fn6) His regular duties require him to load and unload the trucks. On February 1, 2007, Mauget injured his left knee at work.(fn7) He was treated by Richard Cobden, M.D., who performed left knee surgery on Mauget, a partial arthroscopic lateral meniscectomy, on March 2, 2007.(fn8) Lynden, through its workers' compensation insurer, ACE American Insurance Co. (ACE), paid Mauget: 1) temporary total disability (TTD) benefits beginning February 12, 2007, and ending May 6, 2007; and 2) permanent partial impairment (PPI) benefits based on a 2% whole person rating.(fn9) On January 31, 2008, Dr. Cobden reviewed x-rays of Mauget's left knee, finding degenerative arthritis and internal derangement of that knee, and predicting that Mauget may eventually need a lateral compartment or total knee replacement.(fn10) On February 14, 2008, Mauget injured his left knee at work.(fn11) On seeing him on February 18, 2008, Dr. Cobden's impression was degenerative arthritis and medial meniscus tear of the left knee.(fn12) Mauget was placed on light duty and paid temporary partial disability (TPD) benefits beginning February 18, 2008, and ending October 19, 2008.(fn13) Charles N. Brooks, M.D., performed an employer's medical evaluation (EME) of Mauget on March 22, 2008.(fn14) After noting Mauget's left knee complaints following the work incidents on February 1, 2007, and February 14, 2008,(fn15) Dr. Brooks diagnosed: 1) a lateral meniscus tear of the left knee as a result of the February 1, 2007, incident; and 2) a medial meniscus tear of the left knee that was probably a degenerative condition.(fn16) Elsewhere in his report, he stated that Mauget did not need further medical treatment for the left lateral meniscus tear, that his "current knee pain is probably due to the pre-existing and ongoing degenerative and possibly posttraumatic arthritis in his left knee[,]"(fn17) and that "Mauget's condition with respect to the February 1, 2007, occupational injury is medically stable and has been for some time."(fn18) When commenting on the arthritis in the left knee, Dr. Brooks stated that Mauget "reportedly does not have symptomatic arthritis in the uninjured right knee."(fn19) Until April 2008, Mauget's complaints were primarily related to his left knee, although he had occasionally mentioned that both knees bothered him.(fn20) On May 7, 2008, he saw Marc Slonimski, M.D.,(fn21) complaining of pain in both knees...