Blanas v. The Brower Co., 120997 AKWC, 97-0252

• Case Date: December 09, 1997
• Court: Alaska

HARRY BLANAS, Employee, Applicant, v. THE BROWER CO., Employer, and TRANSAMERICA INSURANCE, Insurer, Defendants. AWCB Decision No. 97-0252 AWCB No. 9018428 Alaska Workers Compensation Board December 9, 1997          DECISION AND ORDER           Rhonda Reinhold, Designated Chairman          The Alaska Supreme Court remanded this claim to us with instructions to hold an evidentiary hearing on whether to set aside the March 1992 Compromise and Release Agreement (C&R). Blanas v. The Brower Company, 938 P.2d 1056 (Alaska 1997).1 We heard Employee's July 6, 1994 Petition To Reopen Claim For Modification, on October 30 and November 4, 1997. Employee represents himself. Employer is represented by Attorney Deidre Ford. We closed the record on November 11, 1997, the first day on which the Board met after we completed the hearing.          ISSUE          Should we set aside the Compromise and Release Agreement with Addendum (C&R) we approved on March 12, 1992 because Employee's signature was obtained through fraud or under duress?          SUMMARY OF THE EVIDENCE AND ARGUMENTS          At hearing, Employee argued (as he did in his July 6, 1993 Petition to Reopen Claim for Modification) that the C&R should be set aside because he signed the C&R while under financial distress caused by Employer's representatives and through the fraudulent misrepresentations made by Employer's attorney, Penny Zobel. Employee testified he was under financial stress when he signed the C&R because his temporary total disability benefits had been improperly terminated when his physicians, unduly influenced by Employer's adjustors and Zobel, found him medically stable. Furthermore, Employee testified that when he signed the C&R, Zobel lied to him when she said that there was an approved reemployment plan in place and/or that reemployment benefits would remain open even after the C&R was approved.          Employee fractured his sacrum (tailbone) and strained the illiolumbar ligament in his low back on July 27, 1990 while working for Employer. Employee treated with Michael Newman, M.D., an orthopedic surgeon. In his March 5, 1991 report, Dr. Newman stated Employee was medically stable, had a zero permanent partial impairment (PPI), but that he also "doubt[ed] [Employee would] be able to return to his previous occupation." Morris Horning, M.D., a physiatrist, evaluated Employee on referral from Dr. Newman. In his April 29, 1991 letter to Dr. Newman, Dr. Horning stated that he agreed with Dr. Newman that Employee was medically stable and had a zero percent permanent partial impairment (PPI) rating under the American Medical Association Guides to the Evaluation of Permanent Impairment, third edition (1988).          Carolyn Starr Bates, who is President of Local 97 (Insulators and Asbestos workers), testified that she would not be able to dispatch Employee to jobs without a full release to heavy duty work. Based on the medical reports she reviewed at the hearing, she testified she could not dispatch Employee because of his physical limitations. (AWCB Exhibits 1-7). In their depositions, both Drs. Horning and Newman reaffirmed their opinions about Employee's medical stability and zero impairment rating. (Dr. Newman, October 17, 1991 dep. 14; Dr. Horning, September 9, 1991 dep. 10-11). Dr. Horning also testified that if Employee wanted to return to the work he was doing before the injury, he would not restrict him. (Dr. Horning dep. 31). Both physicians denied they were influenced by any statements, correspondence or meetings with Employer's attorney and/or adjustor.

Q: [Before] we had to cancel [your] deposition because Mr. Blanas had a confusion as to when it was set and we did not go forward with, correct?

A: Yes, that's right.

Q: And at the time of that you and I had a discussion, this, I believe, was prior to his -- your receiving his CT results but had his EMG, is that --

A: --That's correct--

Q: -- correct? And as a result of that conversation did you feel that you were at all influenced as to any of your opinions or any of these statements that you've made today?

A: No.

Q: And the opinions that you stated to me on that date, were they -- any of them different from what you've told me today?

A: I don't think so. I think at the time I was talking about the multiples of degenerative changes in the back, and then concluded that if -- depending on what finding came up with the outstanding tests, that conceivably we could declare a rating based -- and I mentioned the things, his radiculopathy, possible range of motion loss. I guess just those two things.

(Dr. Horning dep. 31-32).          Dr. Newman testified in his deposition as follows:

Q: At this point in time do you recommend any further treatment for Mr. Blanas?

A: No.

Q: Have there in the past, Doctor, been any meetings with any adjustors for the insurance carrier?

A: Not that I recall. I wouldn't swear to it, but I don't recall any.

Q: All right, do you recall any kind of correspondence from any of the adjustors?

A: I don't recall any, no.

Q: Does your file reflect any?

A: Well, let me just look here. I have correspondence from Mr. Blanas. I have a letter from February 14th of 1991 from Joanna (sic) Spires, who's an adjustor, asking me the usual questions about permanent impairment and possible return to work. And another letter just prior to that, January, asking me if this was -- if his injury that I was treating him for was a new injury or an aggravation of an underlying condition, and also the usual questions about permanent impairment and return to work. And that's all.

Q: All right. Has any correspondence or any kind of conversations that you've had with any adjustor or with anyone in my office in any way influenced any of the opinions that you've given in this matter?

A: No.

(Dr. Newman dep. 13-14).          Employee testified he fired Dr. Newman and began treating with Alexander Baskous, M.D., a physician certified in family practice and occupational medicine. Dr. Baskous, in turn, referred Employee to Richard Garner, M.D., an orthopedist. Laura Jackson, the adjustor assigned to Employee's claim at the time, testified at hearing that she wrote Dr. Garner because she was concerned about the duplicitous medical expenses which might be incurred given that Employee had already been orthopedically treated by Drs. Newman and Horning.          Therefore, Jackson testified she wrote a September 20, 1991 letter to Dr. Garner advising him that the insurer would only authorize an initial evaluation, and pending review of the report, would decide whether continuing coverage would be provided for further care. (AWCB Exhibit 3). On September 26, 1991, Employer's attorney, Penny Zobel, sent Dr. Garner a complete set of Employee's medical records and Dr. Horning's deposition. Her cover letter expressed her "hope these documents [would] assist [him] in performing [his] medical evaluation" and "provid[e] a more complete medical history." (AWCB Exhibit 11). Zobel testified she inadvertently failed to copy Employee with the letter as was her normal practice when corresponding with the physicians of injured workers.          Dr. Garner suspended further care and would not perform an impairment rating. Dr. Garner's October 16, 1991 report indicates, that in his opinion, Drs. Newman and Horning "were aware of this gentleman's radiologic, including CT and bone scan and MR finding and electrodiagnostic findings at the time at which he was rated at 0% permanent...