Legerat v. Alaska Railroad Corp., 011419 AKWC, 19-0005

Docket Nº:AWCB Decision 19-0005
Case Date:January 14, 2019
Court:Alaska
 
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VICTORIA C. LEGERAT, Employee, Claimant,
v.
ALASKA RAILROAD CORPORATION, Self-Insured Employer, Defendant.
AWCB No. 201617009
AWCB Decision No. 19-0005
Alaska Workers’ Compensation Board
January 14, 2019
          FINAL DECISION AND ORDER           Robert Vollmer, Designated Chair.          Victoria Legerat’s February 22, 2017 claim was heard in Fairbanks, Alaska on November 8, 2018, a date selected on September 5, 2018. Employee’s July 20, 2018 affidavit of readiness for hearing gave rise to this hearing. Attorney John Franich appeared and represented Ms. Legerat (Employee), who also appeared and testified on her own behalf. Attorney Michael Budzinski appeared and represented Alaska Railroad Corporation (Employer). The record closed on November 23, 2018, upon expiration of Employee’s time to reply to Employer’s objections to Employee’s attorney fees and costs.          ISSUES          Employer contends adequate medical facilities were available to Employee in Fairbanks, Alaska, so it is not liable for her medical transportation expenses to Wasilla, Alaska.          Employee contends her treating physician referred her to a physician in Wasilla, Alaska because her recommended surgery required a physician with highly specialized surgical skills, and since a physician possessing the requisite surgical skills was not available in Fairbanks, Alaska, she is entitled to an award of transportation costs for her treatment in Wasilla, Alaska.          1) Is Employee entitled to medical transportation costs to Wasilla, Alaska?          Employer contends Employee made an unauthorized change of physician, so it is not liable for her medical transportation costs for treatment in Vail, Colorado. It also contends, since Employee could have received her surgical procedures from a physician in Wasilla, Alaska, neither is it liable for Employee’s medical transportation costs to Vail, Colorado on this basis as well.          Employee contends the physician to whom her treating physician referred her does not perform the type of surgery she required, so the next physician she saw was a substitution of physician rather than a change of physician, and she is entitled to a medical transportations costs award. She also contends Employer’s arguments based on the availability of surgical procedures in Wasilla, Alaska are based on “hindsight,” and she contends her medical decision-making was “reasonable” such that medical transportation costs should be awarded.          2) Is Employee entitled to medical transportation costs to Vail, Colorado?          Employer contends some of Employee’s medical transportation costs to Vail, Colorado were excessive and, if medical transportation costs are ordered, it requests those costs be paid according to the Workers’ Compensation Division’s most recent bulletin on medical travel.          Employee does not dispute Employer’s contentions on excessive medical travel costs, but rather contends she an Employer can “work it out” if medical travel costs are ordered.          3) Were Employee’s medical transportation costs to Vail, Colorado excessive?          Employee contends she was aided by her attorney’s efforts and seeks attorney fees and costs based on any award of medical transportation benefits, as well as Employer’s withdrawal of previous controversions.          Employer contends it recognizes some fees are due Employee’s attorney for his work in securing the withdrawal of previous controversions, but it contends fees for time spent on issues for this hearing should not be awarded since Employee is not entitled to the medical transportation costs she seeks.          4) Is Employee entitled to attorney fees and costs?          FINDINGS OF FACT          The following facts and factual conclusions are established by a preponderance of the evidence:          1) On November 10, 2016, Employee was injured when she slipped and fell on ice, landing on her right elbow, while working for Employer as a Terminal Support Clerk. (First Report of Injury, November 23, 2016; WC Worksheet, November 16, 2016).          2) On November 16, 2016, Employee sought treatment at U.S. HealthWorks, complaining of pain in her right elbow that was shooting up into her right shoulder, and down into her right hand. (WC Worksheet, November 16, 2016). Right shoulder, right elbow, and right humerus x-rays showed no abnormalities and a right elbow computed tomography (CT) study was performed, ruling out an occult fracture. (X-ray reports, November 16, 2016; Raymond letter, undated). Since the supervising physician thought there might be a neuropathic component to Employee’s symptoms, he referred her for nerve conduction studies and to McKinley Orthopedics for further evaluation. (Work Status Report, November 16, 2018; Raymond letter, November 21, 2016; Raymond letter, undated).          3) On November 17, 2016, Employee began treating with Jennifer Malcolm, D.O., at McKinley Orthopedics. Dr. Malcolm initially thought Employee had suffered a nerve injury, from which Employee might take a “significant amount of time to recover,” but as Employee failed to improve, Dr. Malcolm later suspected a contusion with bursal inflammation and thought “further workup may be required.” (Malcolm chart notes, November 17, 2016; November 29, 2016). Dr. Malcolm later began to think Employee’s symptoms might be caused by unspecified labrum pathology. (Malcolm chart notes, December 6, 2016).          4) On November 21, 2016, Employee began physical therapy. (Daily Therapy Treatment Note, November 21, 2016).          5) On December 12, 2016, nerve conduction studies did not show evidence of nerve entrapment, neuropathy, plexopathy or mononeuropathy. (Foelsch report, December 12, 2016).          6) On December 14, 2016, a right shoulder magnetic resonance imaging (MRI) study showed mild supraspinatus and infraspinatus tendinopathy without rotator cuff tear. (MRI report, December 14, 2016).          7) On December 16, 2016, Employee reported her elbow, shoulder, and neck pain was worse following the nerve conduction studies, and her radicular pain, numbness and tingling would shoot up and down her arm from her elbow. Dr. Malcolm administered a subacromial injection, prescribed anti-inflammatory cream and discussed the “longevity of nerve recovery” with Employee. (Malcolm chart notes, December 16, 2016).          8) On December 22, 2016. Dr. Malcolm spent most of Employee’s appointment time on “counselling and patient education” while discussing Employee symptoms. Dr. Malcolm now thought physical therapy was” the most important part of [Employee’s] treatment process.” (Malcolm chart notes, December 22, 2016).          9) On January 5, 2017, Employee continued to make slow progress with topical medication and physical therapy, and another six to eight weeks’ physical therapy was ordered. (Employee Work Status Report, January 5, 2017).          10) On January 17, 2017, Employee’s shoulder was “popping out all the time” and she was experiencing a “super sharp pain.” She thought, “Everything seems to be going backwards,” since her last visit with Dr. Malcolm, who did not have an explanation for the popping or pain in Employee’s shoulder. Dr. Malcolm though continuing physical therapy was the best course of action. (Malcolm chart notes, January 17, 2017).          11) On January 24, 2017, Amit Sahasrabudhe, M.D., evaluated Employee on Employer’s behalf. Dr. Sahasrabudge diagnosed a right elbow contusion resulting the work injury, which he thought had resolved by the date of his evaluation. He was unable to identifying any cause of Employee’s right shoulder complaints and did not think additional medical treatment was necessary for either the elbow or the shoulder. (Sahasrabudhe report, January 24, 2017).          12) Employee made a decision to seek medical treatment from Richard Cobden, M.D., because Dr. Malcolm did not know “what was wrong” with her shoulder. (Legerat).          13) On February 2, 2017, Employer controverted all benefits. (Controversion Notice, February 2, 2017).          14) On February 21, 2017, Employee began treating with Dr. Cobden, and although her elbow pain had resolved, she was now experiencing shoulder pain and weakness, which would cause her to occasionally drop light objects. An additional MRI was ordered, which showed a partially torn infraspinatus tendon with tendinopathy, mild supraspinatus tendinopathy without tearing and a small labral tear. A steroid injection was administered. (Pomeroy chart notes, February 21, 2017; MRI...

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