JOSE GONZALEZ, Employee, Claimant,
v.
OCEAN BEAUTY SEAFOODS, LLC, Employer,
And
LIBERTY INSURANCE CORPORATION, Insurer, Defendants.
AWCB Decision No. 21-0013
AWCB No. 201909943
Alaska Workers Compensation Board
February 22, 2021
INTERLOCUTORY
DECISION AND ORDER
Jung
M. Yeo, Designated Chair.
Ocean
Beauty Seafoods, LLC’s (Employer) October 27, 2020
petition for a second independent medical evaluation (SIME)
was heard on January 21, 2021, in Anchorage, Alaska, a date
selected on December 1, 2020. A November 17, 2020 hearing
request gave rise to this hearing. Attorney Elliot Dennis
appeared telephonically and represented Jose Gonzalez
(Employee), who appeared telephonically but did not testify.
English is Employee’s second language; Gabriela Lievano
interpreted Spanish for Employee. Attorney Jeffrey Holloway
appeared telephonically and represented Employer. Employee
reserved attorney fees and costs issue for a future merits
decision. The record closed at the hearing’s conclusion
on January 21, 2021.
ISSUES
At
hearing, Employee sought to testify about the prejudice he
would suffer if an SIME were ordered. An oral order declined
to hear his testimony for this decision.
1) Was
the oral order declining to hear Employee’s testimony
correct?
Employer
contends there are significant medical disputes regarding
Employee’s shoulder injury between his attending
physician and Employer’s medical evaluator (EME) and
requests an SIME to resolve these disputes.
Employee
contends there is no medical dispute to warrant an SIME.
2)
Should an SIME be ordered?
FINDINGS
OF FACT
A
preponderance of the evidence establishes the following facts
and factual conclusions:
1) On
July 20, 2019, Employee reported he injured his shoulder
while working for Employer. (First Report of Injury, July 26,
2019).
2) On
July 23, 2019, John Koller, M.D., saw Employee and diagnosed
“right arm, shoulder strain, trapezius strain.”
(Koller report, July 23, 2019).
3) On
July 24, 2019, an x-ray showed “unremarkable
radiographic appearance of the scapula” and
“prominent acromioclavicular joint line
spurring.” However, Wendell Wilmoth, M.D., noted
“[g]iven the complex morphology of the scapula and
close composition to other stuctures, if there is high
clinical suspicion for injury, CT could provide better
evaluation if clinically indicated.” (Wilmoth report,
July 24, 2019).
4) On
July 29, 2019, Employee was released to work with no
restrictions. Although the release form states “John M.
Koller, MD” as the signee, the signature on this form
is different from Dr. Koller’s signature shown on other
documents. (Return to Work/School Release, July 29, 2019;
observation; judgment).
5) On
November 14, 2019, a magnetic resonance imaging (MRI) showed
(1) supraspinatus tendinosis and tiny intrasubstance tear,
(2) infraspinatus tendinosis with large intrasubstance tear
distally, (3) SLAP tear in the superior labrum, (4)
multiloculated cyst in the scapular notch, (5) AC joint
degenerative hypertrophic change extending inferiorly,
contacting the supraspinatus muscle at the musculotendinous
junction and mildly displacing it, and (6) type II acromion.
(James Bise, D.O., report, November 14, 2019).
6) On
November 19, 2019, Employee claimed temporary total
disability benefits, compensation rate adjustment, penalty
and interest. (Claim for Workers’ Compensation
Benefits, November 19, 2019).
7) On
February 21, 2020, Eric Hofmeister, M.D., saw Employee for an
EME and diagnosed him with (1) right posterior shoulder
girdle contusion substantially caused by the July 20, 2019
work injury, and (2) right shoulder superior labral tear,
multiloculated cyst, acromioclavicular joint hypertrophy, and
degenerative acromioclavicular joint and rotator cuff, not
substantially caused by the July 20, 2019 work injury. Dr.
Hofmeister opined Employee’s need for medical treatment
ended as of July 29, 2019, “when Dr. Koller released
him back to full work without restrictions.” Dr.
Hofmeister stated Employee’s July 20, 2019 work injury
reached medical stability, and he could “return to all
physical capacities required for the job he held at the time
of injury as a fish roe processor.” Dr. Hofmeister also
opined Employee could...
