NANCY A. DWYER, Employee, Claimant,
v.
ICICLE SEAFOODS, INC., Employer,
and
SEABRIGHT INSURANCE COMPANY, Insurer, Defendants.
AWCB Decision No. 19-0036
AWCB No. 201202260
Alaska Workers’ Compensation Board
March 14, 2019
FINAL DECISION AND ORDER
Ronald
P. Ringel, Designated Chair
Nancy
A. Dwyer’s September 14, 2015 claim and Icicle
Seafoods, Inc.’s June 14, 2018 petition for a finding
of an excessive change in physicians and its June 28, 2018
petition to recover an overpayment were heard on February 13,
2019 in Anchorage, Alaska, a date selected on November 6,
2018. An October 22, 2018 affidavit of readiness for hearing
gave rise to this hearing. Non-attorney Mark Dwyer appeared
and represented Nancy A. Dwyer (Employee). Attorney Merrilee
Harrell appeared and represented Icicle Seafoods, Inc. and
Seabright Insurance Company (Employer). Employee, Mr. Dwyer,
Doug Imagliazzo, Seanne Popp and Aleksandra Zietak, M.D.,
testified. The record closed at the hearing’s
conclusion on February 13, 2019.
ISSUES
Employee
contends her work injury remains the substantial cause of her
disability and need for medical treatment and she is entitled
to additional temporary total disability (TTD) benefits,
medical and transportation costs, and attorney fees and
costs. Employer contends the work injury is no longer the
substantial cause of Employee’s disability or need for
medical treatment, so no further benefits are owed.
1)
Is the work injury the substantial cause of Employee’s
disability and need for medical treatment, and, if so, to
what benefits is she entitled?
Employer
contends Employee made an excessive change in physicians when
she changed from a doctor in Texas to a previous doctor in
North Dakota and back again. Employee contends the Texas
doctor only provided pain management services, and the North
Dakota doctor was her attending physician.
2)
Did Employee make an unauthorized change in
physicians?
Employer
contends Employee was overpaid permanent partial impairment
(PPI) benefits and should be ordered to return the
overpayment to Employer. Employee argues the overpayment
resulted from Employer’s poor accounting and contends
the money should not be returned until her proper impairment
rating has been established.
3)
Should Employee be ordered to reimburse Employer for the
overpayment of benefits?
FINDINGS
OF FACT
A
preponderance of the evidences establishes the following
facts and factual conclusions:
1) On
January 2, 2012, Employee began working for Employer as a
seafood processor aboard the processing vessel Bering Star at
Dutch Harbor, Alaska. (Employee; Report of Injury, February
9, 2014).
2) On
January 5 and 6, 2012, Employee reported sore muscles and
aches and pains. On January 15, 2012, she reported a
“knot” on her upper right back, and she
couldn’t turn her head. She was given ice packs and
pain relief gel. On January 16, 2012, her neck was still
stiff, and on January 17, 2012, she was given Ibuprofen and
additional pain relief gel. On February 4, 2012, Employee
again complained of a “knot” in her upper right
shoulder and was given a heating pad, ice, and pain relief
gel. (Employer, 2012 Medical Log).
3) On
January 17, 2012, Employee was taken off work due to a cold;
she was released to return to light-duty work on January 25,
2012, with a resumption of full-duty work on January 29,
2012. (Iliuliuk Family & Health Services (IFHS), Chart
Notes, January 17, 2012, January 21, 2012, and January 24,
2012).
4) On
February 4, 2012, Employee again complained of a
“knot” in her upper right shoulder and was given
a heating pad, ice, and a pain relief gel. (Employer, 2012
Medical Log).
5) On
February 8, 2012, Employee reported that on February 4, 2012
she began experiencing pain in her shoulders, mostly on the
right, and on February 8, 2012 the pain began to spread to
her mid-back. (Report of Injury, February 9, 2012).
6) On
February 9, 2012, Employee also completed an Employee Injury
Report for Employer. She described the pain as being in the
top of her shoulders leading to the mid-back area and stated
the injury occurred while she was at the sorting table
sorting roe. On a pain diagram, she indicated the pain was
over both shoulder blades and in her right lumbar area.
(Employer Report of Injury Form, February 9, 2012).
7) On
February 9, 2012, Employee was seen at IFHS. Employee
reported right shoulder blade pain radiating to the left
shoulder. She stated the pain had begun three days before
when she was packing heavy fish. X-rays were taken, and
Employee was restricted from work until evaluated by an
orthopedic surgeon. (IFHS, Chart Note and Work Status Note,
February 6, 2012).
8) On
February 11, 2012, Employee went to the Providence Alaska
Medical Center (PAMC) emergency department in Anchorage. A
cervical MRI of Employee’s thoracic spine showed a
small disc protrusion at T7-8, but was otherwise normal. An
MRI showed multilevel degenerative changes and disc bulges
causing cervical stenosis, and she was referred to Timothy
Cohen, M.D. The emergency room physician:
9) ___
10)
Discussed the results at length with the patient. She
perseverated somewhat on the idea that all the
findings/abnormalities on the studies were related to her
job. I explained that while some of her symptoms may be
related to the physical demands of her current job, many of
the findings present took many years to develop.
11) ___
12)
(PAMC, Emergency Department Note, February 11, 2012; PAMC
Radiology Report, February 12, 2012).
13)
Employee returned to the PAMC emergency room on February 15,
2012, stating she had been unable to see Dr. Cohen due to
insurance issues. She asked for another referral, and was
referred to Susanne Fix, M.D. (PAMC, Emergency Department
Notes, February 15, 2012).
14) On
February 23, 2012, Employee completed another Report of
Injury form listing the date of injury as February 6, 2012.
She explained the injury occurred as a result of “16
hour shifts of my head being down with repeated arm and
shoulder movements,” and during a truck ride to the
clinic, the pain had spread up the right side of her neck.
(Report of Injury, February 23, 2012).
15)
Employee was next seen at Mercy Medical Center in Williston,
North Dakota, on April 24, 2012 seeking a refill of her pain
medications. (Mercy Medical Center, Chart Note, April 24,
2012).
16) On
June 11, 2012, Employee was seen by Gary Ramage, M.D., at
McKenzie County Healthcare Systems. Employee reported that on
February 6, 2012 she had suffered a chronic repetitive injury
from working 16 hour shifts. Dr. Ramage prescribed a muscle
relaxer and Valium and referred Employee to physical therapy.
(Dr. Ramage, Chart Note, June 11, 2012).
17) On
September 3, 2012, Employee went to McKenzie County
Healthcare Systems, reporting the onset of right shoulder and
upper arm pain after moving chairs and tables while setting
up for a BBQ. She stated the pain was related to her February
2012 work injury. Employee brought a copy of the MRI done in
February. X-rays of both shoulders were normal. She was
prescribed a muscle relaxer and a non-steroidal
anti-inflammatory. (McKenzie County Healthcare Systems, Chart
Note, Radiology Report, September 3, 2012).
18) On
October 2, 2012, Employee was seen by Charles Peterson, M.D.,
an orthopedic surgeon, for an employer’s medical
evaluation (EME). Dr. Peterson reviewed Employee’s
medical records since the injury as well as x-rays and MRIs.
Dr. Peterson stated a shoulder exam was almost impossible to
perform due to Employee’s inhibited movement.
Employee’s range of motion, both active and passive,
was limited to a greater extent on the left than on the
right, and she refused to do adduction on either side. He
diagnosed cervical and bilateral shoulder strains as a result
of the work injury, as well as preexisting cervical and
thoracic spondylosis and degenerative disc disease that were
not aggravated by the work injury. Dr. Peterson stated
Employee demonstrated nonphysiological behavior and
volitionally limited her neck, shoulder, and arm movement.
Dr. Peterson stated the strains had long since resolved and
needed no further treatment. Dr. Peterson rated Employee with
a one percent whole person impairment due to the work injury.
(Dr. Peterson, EME Report, October 2, 2012).
19) On
October 16, 2012, Employee...
