BRYCE WARNKE GREEN, Employee, Claimant,
v.
PRO WEST CONTRACTORS LLC, Employer,
and
LIBERTY NORTHWEST INSURANCE CORP, Insurer, Defendants.
AWCB Decision No. 16-0090
AWCB No. 201500985
Alaska Workers’ Compensation Board
October 19, 2016
FINAL DECISION AND ORDER
Robert
Vollmer, Designated Chair.
Bryce
Warnke Green’s (Employee’s) November 27, 2015
claim was heard in Fairbanks, Alaska on April 21, 2016. This
hearing date was selected on March 17, 2016. Attorney Eric
Croft appeared and represented Bryce Warnke Green, who
testified telephonically on his own behalf. Attorney
Constance Livsey appeared and represented Pro-West
Contractors, L.L.C. and Liberty Northwest Insurance
Corporation (Employer). Employer’s adjuster, Berni
Seever, appeared and testified on its behalf. The record
closed at the conclusion of deliberations on May 24, 2016.
ISSUES
Employee,
who suffers from C-4 tetraplegia, contends Employer is
obligated to provide both a van, as well as modifications to
that van, because one is medically necessary and would aid in
the process of his recovery from the work injury. He contends
a van would provide him and his family with the security of
knowing they can quickly respond to emergency situations, and
would allow him to “get back out into the world.”
Employee cites numerous decisions from other jurisdictions
and contends Employer should bear the full purchase price of
both the van and necessary modifications.
Employer
contends the Workers’ Compensation Act does not require
it to purchase a new, personal vehicle for Employee’s
use. Instead, it contends its legal responsibilities under
the Act are to reimburse mileage expenses for medical-related
travel, which it has been doing. Employer also contends
Seattle has excellent handicapped accessible paratransit
public transportation available.
1)
Does the Workers’ Compensation Act provide for the
purchase of an automobile as a medical benefit?
The
parties reiterate their contentions set forth above.
2)
Alternatively, in the event Alaska Workers’
Compensation Act does provide for the purchase of an
automobile as a medical benefit, do the facts in this case
support awarding one to Employee?
Employee
contends the Cabulance service is insufficient to meet his
medical transportation needs and he requests an award of
“medically appropriate” van.
Employer
contends it has been providing Employee with the Cabulance
service to meet Employee’s medical transportation
needs.
3)
Is Employee entitled to the purchase of an automobile as a
transportation benefit so that he can obtain medical
treatment?
Employee
contends he should not be compelled to contribute toward the
base price of a hypothetical automobile, or be responsible
for contributing the value of his personal vehicle in Nome
toward the purchase price of a van. Employee analogizes the
benefit of a modified van to orthotic foot ware, where the
price of the shoe is not deducted under the Workers’
Compensation Act.
Employer
points to 35 years of “well-reasoned” board
precedent and contends, if Employee’s injury makes it
impractical for Employee to use his personal vehicle, it may
be deemed responsible for the difference in cost between a
standard, mid-sized car and a standard van equipped with
necessary modifications.
4)
Is Employee entitled to the difference in price between a
standard, mid-sized car and a standard van equipped with
necessary modifications?
Employee
requests an award of attorney’s fees and costs.
Employer
contends, since it is not responsible for providing the
benefit sought, Employee should not be awarded
attorney’s fees and costs.
5)
Is Employee entitled to attorney’s fees and
costs?
FINDINGS
OF FACT
The
following facts and factual conclusions are established by a
preponderance of the evidence:
1) On
September 28, 2014, Employee was working for Employer as a
laborer in Nome and positioning a truck while a co-worker was
moving a crane. The crane toppled over with the boom landing
the roof of the truck, crushing the cab with Employee inside.
(First Report of Injury, January 22, 2015; Employee’s
hearing brief, April 14, 2016; Employer’s hearing
brief, April 14, 2016).
2)
Employee suffers from an American Spinal Injury Association
level A, C4 tetraplegia complicated by spasms, chronic pain,
neurogenic bowel and bladder and immobility leading to
pressure wounds. He relies on an electric wheelchair for
mobility and requires full-time assistance with his basic
activities of daily living. (Oz report, December 1, 2015;
Katiraie reports, May 29, 2015; September 24, 2015).
3) It
is undisputed the September 28, 2014 work injury caused
Employee’s C4 tetraplegia. (Record).
4)
Given the severity of Employee’s injury, there is a
paucity of medical reports in the record. (Experience,
observations, unique facts of the case; record).
5) The
record contains three medical summaries: one, filed by
Employer on March 22, 2016, contains a four page physical
examination report; another, filed by Employer on April 6,
2016, contains 37 pages of chart notes concerning
Employee’s admission to Harbor View Medical Center for
bed sores and documenting patient education for bed sores;
and the third, filed by Employee on April 7, 2016, contains
six pages of reports from Pushing Boundaries,
Employee’s physical therapy provider. (Medical
Summaries, March 22, 2016; April 4, 2016; April 6, 2016).
6)
Employee’s April 4, 2016 summary also includes an
unsigned September 17, 2015, letter addressed to one of
Employee’s providers, Deborah Crane, M.D., and a
November 23, 2015 letter from Dr. Crane, expressing her
opinion Employee should remain in Seattle versus returning to
Alaska. (Unsigned letter, September 17, 2015; Crane letter,
November 23, 2015).
7)
Employee does not dispute there are no medical prescriptions
in the record for either a van, or for any specific
modifications to a van, except for perhaps one that is
“handicapped accessible.” (Record).
8) On
September 24, 2015, physical therapist Roozbeh Katiraie at
Pushing Boundaries completed a 12 week evaluation of
Employee’s progress, which noted, “Observed
improved emotional state due to him being able to leave the
confines of his home and interact with the community.”
The report also included recommendations for the next 12 week
period:
It has been stressed to [Employee] to keep attempting to be
as active as possible outside of Pushing Boundaries by doing
range of motion exercise and getting out of bed. . . .
Pushing Boundaries remains the main source of physical
activity that [Employee] receives and he continues to comment
on how much he looks forward to coming and exercising and
continues to put forth great effort during his sessions.
While current transportation limitations are challenging, we
are encouraging increased social interactions within the
community to promote psychosocial health and reintegration.
(Katiraie report, September 24, 2015).
9) On
November 27, 2015, Employee filed a claim seeking a
“new modified van” and attorneys’ fees and
costs. (Claim, November 23, 2015).
10) On
December 8, 2015, Employer answered Employee’s November
23, 2016 claim, denying his claim in its entirety, including
the purchase of a “new modified van.”
(Employer’s Answer, December 8, 2015).
11) On
February 2, 2016, Employer served a controversion denying
housing costs after September 2015 on the basis Employee had
been released by his physician to return to Alaska, if he
chose to do so. It also denied reimbursement for a home
generator, gas cans and an extension cord that had been
purchased by Employee’s family members. Employer denied
payment for routine yard maintenance at Employee’s
rented house. It also denied payment of charges for repairing
yard and landscape damage caused by Employee’s and his
family member’s dogs. Employer denied payment of
routine, non-medical, transportation expenses.
(Controversion, February 2, 2016).
12) At
a March 17, 2016 prehearing conference, Employee’s
November 23, 2015 claim was set for hearing on April 21,
2016. (Prehearing Conference Summary, March 17, 2016).
13) On
April 14, 2016, Employer filed an objection to the unsigned
and undated letter to Dr. Crane, filed with Employee’s
April 4, 2016 medical summary, on numerous...
