ANNALISE MAY GROSSMANN, Employee, Claimant,
v.
STATE OF ALASKA, Employer/Insurer, Defendant.
AWCB Decision No. 21-0023
AWCB No. 202003500
Alaska Workers Compensation Board
March 15, 2021
INTERLOCUTORY
DECISION AND ORDER
Cassandra Tilly, Designated Chair.
Employee
Annalise May Grossman’s July 9, 2020 and October 5,
2020 Petitions for Protective Order and Employer State of
Alaska’s July 31, 2020 Petition to Compel IME
Attendance and Forfeiture of Benefits were heard on the
written record on October 22, 2020, in Fairbanks, Alaska, a
date selected on October 7, 2020. A September 8, 2020
Affidavit of Readiness for Hearing gave rise to this hearing.
Attorney J. John Franich appeared and represented Employee.
Attorney Henry G. Tashjian appeared and represented Employer.
The record closed on December 4, 2020, to allow additional
evidence to be filed. The record was re-opened on December
10, 2020 for additional evidence filed on December 9, 2020,
and closed on December 11, 2020.
ISSUES
Employee
contends she cannot be compelled to attend an
employer’s medical examination (EME) as she has
returned to work and is no longer disabled as defined in AS
23.30.395(16). She further contends AWCB Bulletin 20-02
relating to out-of-state air travel for second independent
medical evaluations (SIMEs) during the COVID-19 pandemic
should apply to EMEs. Employee contends she has good cause
not to attend the EMEs as attendance would require her to
take time off from work without compensation. She contends
Employer’s sole remedy for an unreasonable failure to
attend an EME is to reduce compensation payable to Employee
under 8 AAC 45.090(g)(2)(A).
Employer
contends Employee’s stated reasons for refusing to
attend the EME are not well-founded and undermine its ability
to obtain evidence and litigate the workers’
compensation case. It requests that suspended benefits be
forfeited, and Employee be compelled to attend the EME.
1)
Should Employee be compelled to attend an EME?
Employee
presents the same assertions for granting her petition for a
protective order as noted above: the logic behind Bulletin
20-02 relating to SIMEs during the COVID-19 pandemic should
apply to all workers’ compensation air travel; she
should be excused from attending an EME as she has returned
to work and is no longer disabled as defined in AS
23.30.395(16); and she has shown good cause not to attend.
Employer
contends Employee has not provided good cause not to attend
the EME, Bulletin 20-02 does not apply to EMEs, and Employee
should not be granted a protective order excusing her
attendance at the EME.
2)
Should Employee be granted a protective order excusing her
attendance at an EME?
FINDINGS
OF FACT
A
preponderance of the evidence establishes the following facts
and factual conclusions:
1)
Employee is employed by Employer as a dispatcher. (Record).
2) On
March 5, 2019, Employee was being treated by Bill Tewson,
D.C. at Sun 7 Chiropractic Clinic. Diagnoses were: segmental
and somatic dysfunction of cervical region, cervicalgia,
segmental and somatic dysfunction of thoracic region, pain in
thoracic spine, segmental and somatic dysfunction of lumbar
region, and low back pain. Dr. Tewson referred Employee for
massage therapy “at two times for one month.”
(Tewson record, March 5, 2019).
3)
Employee received chiropractic treatment on several dates
between March 6, 2019 and May 14, 2020. (Tewson records,
assorted dates).
4) On
February 15, 2020, Employee noted right ear pain and
bleeding. She presented at First Care Fairbanks with a slight
temperature and was examined by Peter Dillon, M.D., who
diagnosed right ear pain and prescribed decongestants, oral
antibiotics, and over the counter pain relievers. (Dillon
record, February 15, 2020).
5) On
March 6, 2020, Employee presented to Beacon Occupational
Health & Safety with bilateral ear pain and sinus and
cold symptoms. Since finishing antibiotics her symptoms
continued including muffled hearing on her right side.
Tympanic membranes were intact without erythema. Pearl
Churchill, PA-C diagnosed acute upper respiratory infection
and provided advice for over the counter symptomatic
treatment. (Churchill record, March 6, 2020).
6) On
March 12, 2020, Employee’s chiropractor referred her
for massage therapy, four times for one month. Diagnosis
were: segmental and somatic dysfunction of cervical region,
cervicalgia, segmental and somatic dysfunction of thoracic
region, pain in thoracic spine, segmental and somatic
dysfunction of lumbar region, and low back pain. (Tewson
record, March 12, 2020).
7) On
March 13, 2020, Employee received an audiology referral to
Fairbanks Hearing and Balance Center for bilateral hearing
loss. (Churchill referral, March 13, 2020).
8) On
March 13, 2020, Employee reported a work injury from February
15, 2020. She reported that while taking a 911 call, her
right ear (earphone dominant) began bleeding. The injury was
reported as “Rupture.” (Report of Injury, March
13, 2020).
9)
After March 15, 2020, Employee traveled on commercial
airlines for medical treatment on at least three occasions:
April 27, 2020; June 1, 2020; and June 29, 2020.
(Adjuster’s notes, April 23, 2020; May 29, 2020; and
June 29, 2020).
10) On
April 27, 2020, Employee had an audiology examination and
bilateral hearing aid fitting with Thomas McCarty, Au. D. at
Audiology Associates in Anchorage, Alaska. Procedure notes
also include aural rehabilitation, post lingual. (Audiology
Associates record, April 27, 2020).
11) On
May 4, 2020, Employee was referred to massage therapy, two
times for one month. (Tewson record, May 4, 2020).
12) On
May 11, 2020, Employee flew from Fairbanks to Anchorage on a
private plane to receive medical treatment. (Email from
Employee to adjuster, May 11, 2020; Fuel Receipts, May 11,
2020).
13) On
May 11, 2020, Employee had a hearing aid check and aural
rehabilitation, post lingual, with Dr. McCarty. She was
referred to Orthopedic Medical Specialists. “[Employee]
was seen for follow up and reported neck pain and numbness as
a result Of (sic) the stress associated with the significant
work place caused noise induced hearing loss.” (McCarty
Record, May 11, 2020).
14) On
May 11, 2020, Richard Ellis, PA-C at Orthopedic Physicians
Alaska examined Employee who presented with “pain in
the left neck the left arm and left side of the face. Patient
is a 911 dispatcher she states approximately 4 days ago she
began to have pain in the left side of the neck . . .
.” Employee denied any recent trauma, falls, or
injuries. She had attempted chiropractic treatment without
improvement. PA-C Ellis diagnosed neck pain and strain of
neck muscle, initial encounter. Employee was referred to the
“spine team” for follow-up. PA-C Ellis opined
“this is all related to stress patient currently is
undergoing a Workmen’s Comp. claim about damage to her
ear she is very stressed about her work and I believe this is
the main cause . . . .” (Ellis record, May 11, 2020).
15) On
May 15, 2020, Employee underwent cervical spine magnetic
resonance imaging (MRI) without contrast at North Star
Radiology. Jessee Kincaid, M.D. reviewed the MRI and stated:
“Premature cervical spine degenerative changes are
seen, which are most prominent at C3-C4. Moderate right-sided
neuroforaminal narrowing can be seen at C2-C3 and
C3-C4.” (North Star Radiology record, May 15, 2020).
16) On
May 18, 2020, Dr. Tewson referred Employee to James Foelsch,
M.D. at Fairbanks Psychiatric & Neurological Clinic
regarding left cervical pain, with pain and paresthesia down
left arm to fingers, as well as paresthesia in her left face
and left upper chest. (Tewson record, May 18, 2020).
17) On
June 16, 2020, Employer’s adjuster issued a notice and
travel itinerary for an EME set for July 10, 2020 before a
three-physician panel. EME specialists included audiology,
otorhinolaryngology, and orthopedics. Notice of mandatory
attendance was provided, including a warning “[i]f you
fail to attend, or you fail to cooperate with the
examination, your workers’ compensation benefits may be
affected.” (Notice of EME, June 16, 2020).
18) On
June 17, 2020, Employer’s adjuster issued a $148.17
check to Employee for ground transportation and per diem;
this check cleared on June 23, 2020. (KeyBank Detail Sheet,
number 398406, July 10, 2020).
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