ERIC McDONALD, Employee, Claimant,
v.
ROCK & DIRT ENVIRONMENTAL, INC., Employer,
and
INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA, Insurer, Defendants.
AWCB Decision No. 19-0066
AWCB Case No. 201410268
Alaska Workers’ Compensation Board
June 13, 2019
INTERLOCUTORY DECISION AND ORDER
Ronald
P. Ringel, Designated Chair.
Eric
McDonald’s August 20, 2018 petition for clarification
of AS 23.30.095(e), his February 4, 2019 oral petition to
cross-examine employer’s medical evaluators (EME), his
November 26, 2018 petition to compel discovery, and Rock
& Dirt Environmental, Inc.’s January 31, 2019
petition to order Mr. McDonald to attend an EME without
interference were heard on the written record on May 15,
2019, in Anchorage, Alaska, a date selected on April 26,
2019. This hearing arose from the parties’ February 4,
2019 stipulation. Mr. McDonald (Employee) represented
himself. Attorney Colby Smith represented Rock & Dirt
Environmental, Inc. and Insurance Company of the State of
Pennsylvania. (Employer). The record was reopened after
deliberations on May 15, 2019. The parties were asked to file
additional evidence and closed on June 4, 2019.
HISTORY
OF THE CASE
McDonald
v. Rock & Dirt Environmental, AWCB Decision No.
18-0039 (April 17, 2018) (McDonald I) determined
Employer was entitled to releases for psychiatric and
substance abuse records, ordered Employee to appear for a
deposition within 45 days, and quashed Employee’s
subpoena duces tecum to Employer’s nurse case
manager.
McDonald
v. Rock & Dirt Environmental, AWCB Decision No.
18-0076 (August 2, 2018) (McDonald II) denied
Employee’s oral request to continue the hearing,
granted Employer’s petition for a second independent
medical evaluation (SIME), denied Employee’s petition
to exclude the law firm Delaney Wiles from the case and to
exclude a letter from Alaska Heart & Vascular Institute.
McDonald II clarified that McDonald I had
quashed the subpoena issued to Exam Works. McDonald
II explained to Employee that if he had filed a request
to cross-examine Employer’s doctors, Employer would
have to produce them for a deposition or call them as
witnesses at a hearing on the merits of Employee’s
claim, or the doctor’s report would not be admitted.
McDonald II also explained to Employee he could
depose Employer’s doctors at his own expense.
McDonald
v. Rock & Dirt Environmental, AWCB Decision No.
18-0089 (August 30, 2018) (McDonald III) granted
Employee’s request for reconsideration and modification
of McDonald II, allowed the parties to file
additional briefing, and set the McDonald IV
hearing.
McDonald
v. Rock & Dirt Environmental, AWCB Decision No.
18-0109 (October 23, 2018) (McDonald IV) denied
Employee’s petition for reconsideration of McDonald
II.
McDonald
v. Rock & Dirt Environmental, AWCB Decision No.
18-0121 (November 19, 2018) (McDonald V) denied
Employee’s petition for reconsideration of McDonald
IV.
McDonald
v. Rock & Dirt Environmental, AWCB Decision No.
19-0006 (January 15, 2019) (McDonald VI) modified
one factual finding in McDonald IV based on the
Board’s recognition it had misunderstood one piece of
Employee’s evidence.
McDonald
v. Rock & Dirt Environmental, AWCB Decision No.
19-0016 (February 8, 2019) (McDonald VII) denied
Employee’s petition for reconsideration of McDonald
VI.
McDonald
v. Rock & Dirt Environmental, AWCB Decision No.
19-0026 (February 27, 2019) (McDonald VIII) granted
in part Employee’s petition for a protective order
preventing Employer from ex parte contacts with his
doctors and denied Employee’s petitions to strike
various evidence and medical records. McDonald VII
interpreted 42 U.S.C. §290dd-2 and 24 C.F.R. part 2 to
require that Employee’s substance abuse records be
stricken from the record; however, there were no such records
in his file. Therefore, Employee’s petition to strike
substance abuse treatment records from his file was denied.
McDonald
v. Rock & Dirt Environmental, AWCB Decision No.
19-0030 (February 28, 2019) (McDonald IX) denied
Employee’s petition for reconsideration of the oral
ruling at the McDonald VIII hearing which denied
Employee’s request to play audio recordings that had
been filed and were part of the record.
ISSUES
Employee
contends the portion of AS 23.30.095(e) that requires EME
physicians to be “authorized to practice medicine under
the laws of the jurisdiction in which the examination
occurs” means the doctors must be licensed in Alaska.
Employer contends the provision requires EME physicians to be
licensed where the examination occurs.
1)
Does AS 23.30.095(e) require EME physicians to be licensed in
Alaska?
Employee
contends that because he has filed requests to cross-examine
Employer’s EME physicians, Employer should be required
to produce them for deposition before any procedural hearings
or before an SIME. Employer contends it is not required to
produce the doctors for deposition or call them as witnesses
at a hearing on the merits unless it wishes to rely on the
doctors’ reports and this issue has been addressed by
McDonald II and by the Alaska Workers’
Compensation Appeals Commission (AWCAC) in its April 12, 2019
order.
2)
Is Employer required to produce its EME doctors for
deposition before any procedural hearings or before an
SIME?
Employer
contends Employee should be compelled to attend an EME
without interference. Employee contends Employer has
manipulated the EME process and misled the EME doctors in the
past. Employee does not consider his requests to the doctors
to be interference and contends he should not be barred from
posing questions to the EME physicians or informing them he
has a right to terminate the EME when he so chooses.
3)
Should Employee be compelled to attend EMEs without
interference?
Employee
contends Employer’s response to his request for the
adjuster’s file and correspondence was incomplete, and
Employer should be ordered to produce the missing documents.
Employer contends it has given Employee all of the
non-privileged documents in its possession.
4)
Should Employer be compelled to produce additional
documents?
FINDINGS
OF FACT
All
factual findings in McDonald I through McDonald
IX are incorporated by reference. The following
additional facts and factual conclusions are undisputed or
established by a preponderance of the evidence:
1) The
term “jurisdiction” may have different meanings
in different contexts. It may mean the power and authority of
a body to adjudicate and make decisions, and it may refer to
the geographic area in which a body may exercise its power.
(Black’s Law Dictionary 853 (6th
Ed. 1990).
2) In
most states, the authorization to practice medicine is
granted through a license. (Observation, Experience).
3) A
license to practice medicine in Alaska does not require
familiarity with the Alaska Workers’ Compensation Act.
(Observation, Experience, 12 AAC chapter 40).
4) On
January 6, 2015, Employee was seen by Gary Olbrich, M.D.,
John Swanson, M.D, and David Glass, M.D., for an EME. (EME
Reports, January 6, 2015).
5) On
September 8, 2015, Drs. Olbrich, Swanson, and Glass again
examined Employee. (EME Reports, September 8, 2015).
6) On
October 14, 2015, Employee file a request to cross-examine
Drs. Olbrich, Swanson, and Glass regarding their September 8,
2015 reports. (Request for Cross-examination, October 14,
2015).
7) On
February 2, 2016, Employee was again seen by Dr. Swanson for
an EME. (EME Report, February 2, 2016).
8) On
March 18, 2016, Employee filed a request to cross-examine Dr.
Swanson regarding his February 2, 2016 report. (Request for
Cross-examination, March 18, 2016).
9) On
March 28, 2017 Employee was seen by Stephen Fuller, M.D., for
an EME, and on March 29, 2017 he was seen by William Baer,
M.D. (Prehearing Conference Summary, September 20, 2017).
10) At
the September 20, 2017 prehearing conference, the parties
agreed Dr. Fuller’s and Dr. Baer’s EME reports
would be stricken from the record. (Prehearing Conference
Summary, September 20, 2017).
11) On
April 25, 2018, Employee filed a request to cross-examine
Drs. Fuller and Baer regarding their March 2017 EME reports.
(Request for Cross-examination, April 25, 2018).
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