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...
