LAURA MULGREW, Employee, Claimant,
v.
CITY & BOROUGH OF JUNEAU, Self-Insured Employer, Defendant
AWCB Decision No. 21-0020
AWCB No. 201802000
Alaska Workers Compensation Board
March 2, 2021
FINAL DECISION AND ORDER
Kathryn Setzer, Designated Chair.
Laura
Mulgrew’s (Employee) May 28, 2020 claim was heard on
January 26, 2021 in Juneau, Alaska, a date selected on
November 25, 2020. A November 10, 2020 affidavit of readiness
for hearing gave rise to this hearing. Attorney Robert
Bredesen appeared in-person and represented Employee, who
appeared in-person and testified. Attorney Colby Smith
appeared telephonically and represented City & Borough of
Juneau (Employer). The record remained open to receive
Employee’s supplemental attorney’s fees and costs
affidavit and Employer’s response and closed on
February 5, 2021.
ISSUES
Employee
contends physical and massage therapy enables her to continue
working and relieves chronic debilitating pain. She contends
the substantial compliance doctrine applies to AS
23.30.095(c) and 8 AAC 45.082 because they are
“affirmative” rather than
“prohibitive.” Employee contends her medical
provider substantially complied with the treatment plan
requirements under AS 23.30.095(c). She contends Employer was
not prejudiced by her medical provider’s failure to
provide the treatment plan within 14 days after treatment
exceeding the frequency limitations began and to require
strict compliance would produce a harsh result. Employee
contends AS 23.30.095(a) provides broad authority to
authorize ongoing future medical treatment, including ongoing
physical and massage therapy in excess of the treatment
frequency standards. She contends ongoing physical and
massage therapy is reasonable and necessary to enable her to
continue working and relieve chronic debilitating pain.
Employee requests orders awarding past medical bills for
physical and massage therapy and authorizing further physical
and massage therapy in excess of the treatment frequency
guidelines.
Employer
contends past physical and massage therapy was not reasonable
or necessary. It contends Employee was able to and continued
to work without it. Employer contends Employee’s
medical provider exceeded the frequency limitations under AS
23.30.095(c) and failed to comply to provide a treatment plan
within 14 days after treatment commenced. It contends ongoing
physical and massage therapy is not reasonable or necessary.
Employer requests an order denying past and continuing
physical and massage therapy.
1) Is
Employee entitled to past and continuing physical and massage
therapy?
Employee
contends she is entitled to attorney’s fees and costs.
She requests an award of attorney’s fees and costs.
Employer
contends Employee is not entitled to past or continuing
physical and massage therapy. It requests an order denying
attorney’s fees and costs.
2) Is
Employee entitled to attorney’s fees and costs?
FINDINGS
OF FACT
A
preponderance of the evidences establishes the following
facts and factual conclusions:
1) On
October 17, 2017, Employee reported right ankle pain after a
student kicked her and she rolled her ankle. (Frank Mesdag,
D.P.M., chart note, October 17, 2017).
2) On
December 28, 2017, Employee was released to return to work
with no restrictions. (Mesdag, Physician’s Report,
December 28, 2017).
3) On
February 6, 2018, Employer reported a student repeatedly
stomped on Employee’s right foot on February 2, 2018.
(First Report of Occupational Injury or Illness, February 6,
2018).
4) On
February 9, 2018, Employee said her right foot and ankle pain
never went away after the October 2017 injury. She reported
the same student stomped on her right foot on February 2,
2018, and she had throbbing right foot pain. Employee’s
right foot was swollen and she had moderate synovitis along
the lateral aspect of her right ankle when compared to the
left. She was put in a Cam Walker. (William Martin, III,
M.D., chart note, February 9, 2018).
5) On
March 6, 2018, Employee reported continued but improved right
foot pain. Her foot was moderately swollen and she around her
right foot and ankle. Dr. Martin ordered a right foot MRI.
(Martin chart note, March 6, 2018).
6) On
March 7, 2018, a right foot MRI showed a chronic plantar
plate tear at the second metatarsophalangeal joint with
hypertrophic scarring and shallow stripping of the plantar
lateral capsule from the phalangeal base and adjacent mild
subcutaneous and phalangeal base edema, medial subluxation of
the phalangeal base form capsular insufficiency, diffuse
scarring with thickening of the medial collateral ligament at
the first metatarsophalangeal join, varus angulation at the
first metatarsal, mild arthrosis at the first
metatarsophalangeal joint with marginal chondral thinning and
spurring, and hammertoe deformities from the second through
the fifth toes. (MRI report, March 7, 2018).
7) On
March 13, 2018, Dr. Martin diagnosed a chronic plantar plate
tear involving the second metatarsophalangeal joint with
hypertrophic scarring and shallow stripping of the plantar
lateral capsule which correlated well with where
Employee’s pain was located. Dr. Martin added Hapads to
her shoes on top of her orthotics and recommended she wear
stiff soled shoes. (Martin chart note, March 13, 2018).
8) On
April 12, 2018, Dr. Martin performed a corticosteroid
injection into Employee’s plantar aspect of her right
second metatarsophalangeal joint. (Martin chart note, April
12, 2018).
9) On
August 21, 2018, Dr. Martin referred Employee to Eric Heit,
M.D., for a plantar plate surgery. (Martin chart note, August
21, 2018).
10) On
November 28, 2018, Dr. Heit performed a plantar plate repair
of the second metatarsophalangeal joint and a hammertoe
correction with flexor digitorum longus tendon transfer of
the right second toe. (Heit operative report, November 28,
2018).
11) On
December 6, 2018, a right lower extremity ultrasound revealed
a deep vein thrombosis. (Ultrasound report, December 6,
2018).
12) On
February 11, 2019, Dr. Heit recommended physical therapy for
Employee’s right foot and ankle pain secondary to a
second metatarsophalangeal joint plantar plate repair and
hammertoe correction surgery on November 28, 2018. (Heit
therapy referral, February 11, 2019).
13) On
May 20, 2019, Robert Waltz, M.D, an orthopedic surgeon,
examined Employee for an Employer’s Medical Evaluation
(EME) and observed a slight subtle antalgic gain with
decreased stance phase on the right compared to the left, her
second toe had an approximately 20 degree slightly lateral
deviated deformity and it touched her third toe without
overlap, a neutral alignment of her great toe without
residual hallux valgus deformity, and slight asymmetric
swelling in the right ankle and forefoot compared to the
left. Her second toe demonstrated metatarsophalangeal joint
motion of neutral flexion to 30 degrees extension; intact
active flexion and extension; her second toe proximal
interphalangeal joint was completely ankylosed without any
motion and her second toe distal interphalangeal joint
demonstrated zero degrees of extension to 20 degrees of
flexion. Employee reported her right foot throbbed and
swelled at the end of the day; her foot and toes were achy
and stiff, she could not sit or stand as long as she could
prior to the injury, limitations with squatting, gardening
and home improvement projects. Dr. Waltz diagnosed a
preexisting right foot second toe plantar plate rupture
permanently aggravated by the work injury, a work-related
right foot contusion and crush injury, a preexisting right
foot hammertoe deformity from the second through fifth digits
permanently aggravated by the work injury and a work-related
right lower extremity deep vein thrombosis related to the
surgical treatment of the second toe plantar plate and flexor
digitorum longus transfer. He recommended ongoing physical
therapy to improve her overall gait and her second toe
function and manual therapy, ankle range of motion therapy
and strengthening of her right lower extremity two times per
week for eight weeks. (Waltz EME report, May 20, 2019).
14) On
November 18, 2019, Dr. Heit recommended physical therapy for
Employee’s chronic right foot and ankle pain two times
per week for eight weeks. (Heit therapy referral, November
18, 2019).
15) On
December 6, 2019, Dr. Waltz examined Employee for a second
EME and observed her...
