SHANNON K. KAIMIMOKU, Employee, Claimant,
v.
HARNISH GROUP, INC., Self-Insured Employer, Defendant.
AWCB Decision No. 18-0116
AWCB No. 201403833
Alaska Workers' Compensation Board
November 6, 2018
FINAL DECISION AND ORDER
Ronald
P. Ringel, Designated Chair.
Shannon
K. Kaimimoku’s February 25, 2015 and October 23, 2015
claims and August 24, 2018 petition for a reemployment
benefits eligibility evaluation were heard on October 10,
2018 in Anchorage, Alaska. This hearing date was selected on
September 14, 2018. Attorney Eric Croft appeared and
represented Mr. Kaimimoku (Employee), who appeared and
testified. Attorney Rebecca Holdiman Miller appeared and
represented Harnish Group, Inc. (Employer). The record closed
at the hearing’s conclusion on October 10, 2018.
ISSUES
Employee
contends he is entitled to temporary total disability (TTD)
through January 30, 2018, the date the second independent
medical evaluator (SIME) found him to be medically stable.
Employer contends Employee was paid TTD through September 23,
2018, the date its doctor found Employee to be medically
stable, and he is not entitled to further TTD.
1.
Is Employee entitled to additional TTD?
Employee
contends he is entitled to additional medical and
transportation costs. Employer contends all compensable
medical and transportation costs have been paid.
2.
Is Employee entitled to additional medical or transportation
costs?
Employee
makes two contentions regarding permanent partial impairment
(PPI) benefits for his right ankle. Employee first contends
he was not timely paid for the one percent impairment rating
by Employer’s medical evaluator (EME). Employee’s
second contention is that the correct impairment rating is
five percent, as determined by the SIME physician, and he
should be paid the difference. Employer contends that not
only was Employee timely paid the one percent rating, he was
overpaid. Employer also contends the SIME physician’s
rating was incorrect, and Employee is not entitled to further
PPI benefits.
3.
Was Employee timely paid for the one percent
impairment?
4.
Is Employee entitled to additional PPI
benefits?
Employee
contends Employer’s controversions should be found to
be unfair or frivolous. Employer contends its controversions
were based on credible factual evidence so are not unfair or
frivolous.
5.
Did Employer unfairly or frivolously controvert
benefits?
Employee
contends he is entitled to a penalty on the one percent
impairment rating that was not timely paid. Employer contends
Employee was timely paid PPI benefits, and no penalty is
owed.
6.
Is Employee entitled to a penalty on unpaid
benefits?
Employee
contends he is entitled to a finding he is eligible for
reemployment benefits, or in the alternative that the
Reemployment Benefits Administrator (RBA) be ordered to
determine if he is eligible. Employer contends Employee does
not meet the requirements for an eligibility evaluation, so
he should not be found eligible, and an order to the RBA is
unnecessary.
7.
Is Employee eligible for reemployment benefits, or should the
RBA be ordered to make that determination?
FINDINGS
OF FACT
The
following facts and factual conclusions are undisputed or
established by a preponderance of the evidence:
1. On
February 5, 2014, Employee fell on the ice while at work and
immediately felt pain in his right ankle. (First Report of
Occupational Injury, February 13, 2018).
2.
Employee sought urgent medical care on February 5, 2014 for
complaints of severe pain and numbness in his right foot and
ankle. Employee was referred for orthopedic care at
Orthopedic Physicians Anchorage (‘‘OPA") and
followed up the same day. Raymond Farrell, PA-C, examined
Employee and reviewed x-ray images, and diagnosed a
nondisplaced distal fibula fracture. Mr. Farrell applied a
splint and recommended he remain off work for the remainder
of the week. (Partial Compromise and Release, October 10,
2016).
3. A
cast was applied at a February 25, 2014, appointment and
Employee was released to limited duty work with a restriction
on weight bearing on his right lower extremity. (Partial
Compromise and Release, October 10, 2016).
4. On
February 27, 2014, Employee sought emergency care at
Providence Alaska Medical Center for lumps in his right calf.
Ultrasound images revealed a deep venous thrombus in his
proximal right calf, for which Vicodin, Xarelto, and follow
up care were recommended. (Partial Compromise and Release,
October 10, 2016).
5.
Physical therapy began on March 21, 2014. Although weight
bearing began, modified duty work restrictions continued and
Employer accommodated those restrictions. (Partial Compromise
and Release, October 10, 2016).
6.
Employee reported that on May 20, 2014, he began experiencing
low back pain as a result of using a walking boot. Dr. Eugene
Chang recommended additional physical therapy and
chiropractic care. (Partial Compromise and Release, October
10, 2016).
7. Dr.
Chang released Employee to full duty work on June 27, 2014,
and referred him for a permanent impairment rating. (Partial
Compromise and Release, October 10, 2016).
8. Dr.
Shawn P. Johnston performed the recommended permanent
impairment rating on July 9, 2014. Using the AMA Guides
to the Evaluation of Permanent Impairment, Sixth Edition
(Guides), he rated Employee with four-percent whole
person impairment. Dr. Johnston’s rating was based on a
diagnosis of a malleolar fracture with mild motion deficits
which resulted in a default ten percent lower extremity
rating. He noted Employee had an antalgic gait, loss of
motion, and tenderness, which did not result in any
adjustment to the default ten percent rating, which equates
to a four percent whole person impairment. (Dr. Johnston, PPI
Rating, July 9, 2014).
9.
Physical therapy and chiropractic care continued into
mid-August 2014. (Partial Compromise and Release, October 10,
2016).
10. Dr.
Chang reexamined Employee on November 14, 2014. Although
Employee reported his foot was better, he began complaining
of right shoulder pain. November 20, 2014, MR images of the
right shoulder revealed (1) fairly severe degenerative
changes throughout the posterior half of the glenoid with
posterior subluxation of the humeral head relative to the
glenoid; (2) subchondral cysts without any large loose bodies
in the glenoid; (3) a complex tear throughout the posterior
labrum and degenerative abnormalities in the anterior labrum;
(4) a small partial-thickness defect in the mid-substance of
the insertion of the supraspinatus tendon; and (5)
subchondral cysts along the lateral most aspect of the
humeral head, possibly representing a developing interosseous
ganglion cyst. (Partial Compromise and Release, October 10,
2016).
11. Dr.
Jeffrey Moore assessed Employee’s right shoulder
condition on December 4, 2014 and diagnosed a partial rotator
cuff tear with some early degenerative changes and
recommended conservative treatment. (Partial Compromise and
Release, October 10, 2016).
12. Dr.
Marilyn Yodlowski examined Employee on December 9, 2014, for
an employer’s medical evaluation (EME) and diagnosed
(1) a healed right ankle minimally/nondisplaced distal
fibular fracture; (2) resolved episodes of deep venous
thrombosis in the right calf; (3) possible coagulopathy
requiring ongoing anticoagulation; (4) episodes of low back
pain and stiffness, likely secondary to deconditioning,
inactivity, and altered gait, without acute injury; (5)
multiple degenerative conditions of the right shoulder,
including glenohumeral arthritis, acromioclavicular
arthritis, and rotator cuff tendinopathy, without acute
injury; and (6) right foot plantar discomfort with increased
activity after cast immobilization. She opined
Employee’s right ankle condition was related to the
work injury, which likely led to the plantar fasciitis and a
temporary exacerbation of preexisting low back conditions.
She could not form a conclusion regarding causation of the
deep vein thrombosis, but found the right shoulder symptoms
were not related to the work injury in any manner. Dr.
Yodlowski recommended no further treatment or diagnostic
studies to treat any work-related condition, but noted
coagulopathy studies could be useful in determining causation
of Employee’s deep vein thrombosis condition. Finally,
she...
