ROGER L. LABELLE, Employee, Claimant,
v.
KINROSS GOLD USA, INC., Employer,
and
ALASKA INSURANCE GUARANTY ASSOCIATION, Insurer, Defendants.
AWCB Decision No. 21-0015
AWCB No. 199923760
Alaska Workers Compensation Board
February 22, 2021
DECISION
AND ORDER ON RECONSIDERATION
Robert
Vollmer, Designated Chair.
Kinross
Gold USA, Inc.’s October 1, 2020 petition seeking
reconsideration of Labelle v. Kinross Gold USA,
Inc., AWCB Decision No 20-0079 September 18, 2020)
(Labelle I) was heard on the written record in
Fairbanks, Alaska on November 19, 2020, a date selected on
October 20, 2020. Kinross Gold USA’s petition for
reconsideration gave rise to this hearing. Attorney Marrilee
Harrell represented Kinross Gold USA, Inc. and its insurer
(Employer). Attorney Steven Hanson represented Roger Labelle
(Employee). The record closed at the hearing’s
conclusion on November 19, 2020.
ISSUES
Employer
contends Labelle I incorrectly decided the issue of
whether Employee’s shoulder treatment for psoriatic
arthritis was compensable under the parties’ May 12,
2003, compromise and release (C&R) agreement, instead of
deciding the issue presented in its petition, which was
whether Employee waived certain medical benefits in prior
C&R agreements. It now seeks a decision on the issue it
contends it presented.
Employee
opposes reconsideration on the grounds set forth below.
1)
Should the issue presented in Labelle I be
reconsidered?
Employer
contends Employee waived all medical benefits, other than
those explicitly reserved in the parties’ May 12, 2003
C&R agreement, or those that explicitly remained in
dispute. It seeks a decision finding Employee’s medical
treatment is limited to certain specific medications as set
forth in its original hearing brief.
Employee
contends this decision cannot grant Employer’s request
because Employer has never articulated what relief it seeks.
Instead, he contends, Employer seeks a generalized ruling
that some benefits were waived and not others and, even if
the issue was decided in its favor, the parties would have
little more clarity than they do now, so reconsideration
should be denied.
2) Were
medical benefits being claimed by Employee waived by previous
C&R agreements?
FINDINGS
OF FACT
The
following facts and factual conclusions are incorporated from
Labelle I or otherwise established by a
preponderance of the evidence:
1) On
October 1, 1999, Employee was opening a powder magazine door
while working for Employer as a blaster when he injured his
lower back. (Report of Occupational Injury or Illness,
October 7, 1999).
2) On
February 3, 2000, Employee underwent a right decompressive
hemilaminotomy at L5-S1. (Operative report, February 3,
2000). Upon admission, he was noted to have had chronic
psoriasis over the elbows, knees, abdomen and low back.
(Joosse chart notes, February 3, 2000).
3) On
February 29, 2000, Employee developed an infection at the
incision site. (Strauss chart notes, February 29, 2000).
4) On
July 26, 2000, Employee’s dermatologist opined
Employee’s psoriasis and psoriatic arthritis were
exacerbated by his surgery and the subsequent infection.
(Thurmond chart notes, July 26, 2000).
5) On
September 15, 2000, the parties settled indemnity benefits.
(C&R Agreement, September 15, 2000).
6)
Numerous medical disputes emerged between the parties.
Employee contended a variety of medical conditions, including
“psoriasis, psoriatic arthritis, gastrointestinal
reflux, back, knee, depression, cardiac, seizure/syncope,
carpal tunnel hand, and anxiety” were work related and
compensable. On the other hand, although Employer did not
contest the compensability of medical treatment for
Employee’s back, it did contend that most, if not all,
medical treatment for Employee’s other conditions was
not compensable. (C&R Agreement, May 12, 2003).
7) On
May 7, 2002, Employer undertook a panel Employer’s
Medical Evaluation (EME) to address Employee’s numerous
claimed medical conditions. The panel included orthopedic
surgeon William Boettcher, M.D., neurologist Raymond Valpey,
M.D., gastroenterologist Charles Bedford, M.D.,
rheumatologist John Dickson, M.D., and physiatrist David
Zucker, M.D. The panel collectively concluded
Employee’s gastroesophageal reflux, psoriasis and
psoriatic arthritis, seizure/syncope, carpal tunnel, knee
complaints and anxiety were not related to the work injury,
and opined his cardiac symptoms were, in fact,
gastrointestinal in nature. (EME report, May 7, 2002).
8) On
June 4, 2002, Employer controverted all benefits related to
Employee’s gastrointestinal complaints, cardiac
symptoms, seizure, syncope, psoriatic arthritis, carpal
tunnel syndrome, hand complaints, knee problems and anxiety,
as well as low back treatment based on the May 7, 2002 EME
report. (Controversion Notice, June 4, 2002).
9) On
November 6, 2002, the parties agreed to a Second Independent
Medical Evaluation (SIME). (SIME form, November 6, 2002).
10) On
various dates in January 2003, a panel SIME was performed, by
orthopedic surgeon Marvin Bloom, M.D., gastroenterologist
Kenneth Hammerman, M.D, cardiologist Samuel Sobol, M.D., and
dermatologist Helen Manber, M.D. Dr. Bloom thought the stress
of the work injury, back pain, back surgery and back
infection caused Employee’s preexisting psoriatic
arthritis to flare-up. (Bloom report, January 14, 2003).
Similarly, Dr. Manber thought it was “highly
possible” Employee’s pre-existing psoriatic
arthritis was exacerbated by his surgery, subsequent
infection, post-operative stress related to job concerns or
pain. (Manber report, January 28, 2003). Dr. Hammerman opined
Employee’s gastritis and ulcers were the result of
anti-inflammatory medications he was taking to treat the work
injury. (Hammerman report, January 21, 2003). Dr. Sobol
thought Employee’s apparent cardiac symptoms were
non-cardiac in nature and related to Employee’s
gastrointestinal issues, while his syncope was related to the
work injury and its sequelae. (Sobol report, January 22,
2003).
11) On
May 12, 2003, the parties filed a partial C&R agreement
settling certain medical benefits that was approved that same
day. (C&R Agreement, May 12, 2003). The parties agree the
relevant language from the C&R agreement governing their
present dispute is:
. . . .
2) Accepted Conditions/Future Meds. The employer and
AIGA acknowledge that the employee’s psoriasis,
psoriatic arthritis, gastrointestinal, [sic] reflux, back,
and knee are work related. It also accepts Metholtrexate,
aqua/swimming therapy, Vioxx,
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