Davis v. Wrangell Forest Products, 112119 AKWC, 19-0121

Docket Nº:AWCB Decision 19-0121
Case Date:November 21, 2019
Court:Alaska
 
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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...

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