GARY R. DAVIS, Employee, Claimant,
v.
WRANGELL FOREST PRODUCTS, Employer,
And
WAUSAU UNDERWRITERS INSURANCE COMPANY, Insurer, Defendants.
AWCB Decision No. 19-0121
AWCB No. 198803834
Alaska Workers Compensation Board
November 21, 2019
FINAL DECISION AND ORDER
Kathryn Setzer, Designated Chair.
Gary R.
Davis’ (Employee) August 7, 2013 and July 10, 2019
claims were heard on October 8, 2019 in Juneau, Alaska, a
date selected on April 18, 2019. A March 22, 2019 affidavit
of readiness for hearing (ARH) gave rise to this hearing.
Employee appeared telephonically, represented himself and
testified. Attorney Martha Tansik appeared and represented
Wrangell Forest Products and its insurer (Employer). As a
preliminary issue, Employer objected to consideration of
several medical records and an oral order was issued. This
decision examines the oral order and Employee’s claims.
The record closed on October 22, 2019, to provide Employee
the opportunity to file a cost affidavit and for Employer to
file a response.
ISSUES
As a
preliminary issue, Employer contended medical records from
Brent Adcox, M.D., and Kristen Jessen, M.D., were not
admissible as a business record over its objection because
they were hearsay and prepared for litigation as they were
prompted by a letter from counsel. It contended the records
should not be considered.
Employee
contended the medical reports were admissible because they
are medical records and should be considered. An oral order
denied Employer’s request to exclude the medical
records.
1) Was
the oral order denying Employer’s request to exclude
medical records from Drs. Adcox and Jessen correct?
Employee
contends the work injury is a substantial factor in his need
for left knee medical treatment. He contends he sustained a
low back work injury which caused radicular pain and the
radicular pain caused him to misstep while on a treadmill and
injure his left knee. Employee seeks an order granting his
claim for past and continuing left knee medical benefits.
Employer
contends the work injury is not a substantial factor in his
need for left knee medical treatment because there is no
evidence that but-for the work injury Employee would have
needed left knee medical treatment and a reasonable person
would not regard the work injury as a cause for his need for
medical treatment. It seeks an order denying his claim.
2) Is
Employee entitled to medical benefits for his left knee?
Employee
contends he is entitled to attorney’s fees for the time
he spent pursuing his claims and costs he incurred while
litigating his claims. He requests the same amount of fees
paid to Employer’s attorney to defend against his
claims and reimbursement for travel expenses and copy and
postage costs.
Employer
contends the Alaska Workers’ Compensation Act (the Act)
does not provide compensation for time spent by a pro
se claimant pursuing his own claim and that Employee is
not an attorney. It contends he is entitled to costs on
issues upon which he prevailed at hearing. Employer also
contends Employee failed to itemize his costs. It requests
Employee’s request for attorney’s fees and costs
be denied. Alternatively, Employer requests the costs be
reduced.
3) Is
Employee entitled to attorney’s fees and costs?
FINDINGS
OF FACT
The
following facts are reiterated from Davis and Wrangell
Forest Products v. C&R Logging Company, AWCB
Decision No. 89-0064 (March 9, 1989) (Davis I),
Davis v. Wrangell Forest Products, AWCB Decision No.
17-0049 (May 2, 2017) (Davis II), and Davis v.
Wrangell Forest Products, AWCB Decision No. 18-0018 (February
27, 2018) (Davis III) are undisputed or are
established by a preponderance of the evidence:
1) On
January 21, 1987, Employee injured his back while employed
with C&R Logging Company when a log rolled on him.
(Davis I).
2) On
March 9, 1988, Employee reported he injured his back again
carrying coils of haywire while employed with Employer.
(Id.).
3) On
May 5, 1988, John Gibson, M.D., performed an L3-4 micro
discectomy. He noted, “There were epidural adhesions
present binding down the nerve root. In addition, there was a
bulging disc.” (Id.).
4) On
December 26 and 28, 1988, David Samani, M.D., evaluated
Employee’s right knee. Employee reported he injured his
right knee on December 25, 1988, when he slipped on ice, and
his left knee gave out causing him to twist his right knee.
Dr. Samani diagnosed a right medial meniscal tear and
recommended a diagnostic arthroscopy. (Id.).
5) On
January 11, 1989, Joseph Shields, M.D., recommended
arthroscopic right knee surgery and opined Employee’s
“back and subsequent nerve difficulties with his left
leg caused his left leg to give way and that is the direct
cause of the fall and the injury to Employee’s right
knee.” He opined Employee’s right knee
difficulties are attributable to the March 1988 work injury.
(Id.).
6) On
January 12, 1989, Employee underwent right knee trochlea
debridement and arthroscopic partial medial meniscectomy. Dr.
Shields diagnosed a medial meniscus tear with minimal fraying
of the anterior cruciate ligament and traumatic
chondromalacia of the trochlear side of the patella-femoral
joint. (Id.).
7) On
June 6, 1989, Hamid Mehdizadeh, M.D., performed a bilateral
laminectomy at L3-4 with cauda equine decompression and
exploration of the L3-4 nerve root bilaterally, a laminectomy
at L4-5, a left sided discectomy at L3-4 with decompression
of the L3-4 nerve root on the left side, a posterior
interbody fusion of L3-4 using a cadaver back bone, and
placed Harrington rods between L3-4 with a cross link between
the Harrington rods. Dr. Mehdizadeh also performed a
posterior and anterior and posterolateral fusion at the L3-4
levels. (Id.).
8) On
December 3, 1990, a compromise and release (C&R)
settlement agreement was approved. It settled indemnity
benefits for Employee’s March 3, 1988 work injury;
medical benefits remained open. (Davis II).
9) On
January 25, 1994, Employee reported twisting his left knee on
January 12, 1993, when he jumped off a piece of equipment.
(Alaska Native Medical Center signature illegible, chart
note, January 25, 1994).
10) On
January 26, 1994, J. Michael Holloway, M.D., performed a left
knee arthroscopy with partial medial meniscectomy for left
knee pain and a torn medial meniscus. (Holloway operative
report, January 26, 1994).
11) On
October 25, 2005, Employee complained of middle lower back
pain radiating to the left side of his back, hip and left
leg. (Gail Krivan, M.D., chart note, October 25, 2005).
12) On
November 29, 2006, Employee reported left buttock and
posterolateral thigh pain down to his knee and sometimes down
into the lateral aspect of his leg with occasional numbness
and tingling into his foot. (Michael Fry, M.D., chart note,
November 29, 2006).
13) On
March 30, 2007, Employee continued to experience mainly back
pain with some leg numbness and tingling. (Fry chart note,
March 30, 2007).
14) On
June 5, 2007, Phelps Kip, M.D., examined Employee for an
Employer Medical Evaluation (EME). Employee reported left leg
and back pain with a sensation of weakness and numbness in
his legs. Dr. Kip opined Employee’s back and leg pain
was consistent with the stenosis seen on the March 7, 2006
magnetic resonance imaging (MRI) and the instability seen in
the March 2006 flexion and extension x-rays. (Kip EME report,
June 5, 2007).
15) On
December 12, 2007, Employee complained of back pain radiating
sometimes into the anterior thighs and leg pain. (Fry chart
note, December 12, 2007).
16) On
December 13, 2007, Dr. Fry performed a takedown of the L4-5
pseudoarthrosis, mass exploration at the L4-5 fusion, L3-5
bilateral lateral intertransverse process fusion and
posterior segmental instrumentation using Synthes Click X.
(Fry operative report, December 13, 2007).
17) On
February 20, 2008, Employee said he had a little bit of right
anterior thigh weakness and pain but it was not as noticeable
as before. (Rebecca Pelkola, PA-C, chart note, February 20,
2008).
18) On
February 28, 2008, Employee had lower back pain radiating
through his right hip. (Krivan chart note, February 28,
2008).
19) On
April 7, 2008, Employee reported lower back pain and sharp
pain in the right hip area to his...
