Lena v. Fred Meyer Stores, 123016 AWCB, 16-0135

Docket Nº:AWCB Decision 16-0135
Case Date:December 30, 2016
SABAJET LENA, Employee, Claimant,
FRED MEYER STORES, Self-Insured Employer Defendant.
AWCB Decision No. 16-0135
AWCB No. 201506641
Alaska Workers' Compensation Board
December 30, 2016
          FINAL DECISION AND ORDER           Ronald P. Ringel, Designated Chair.          Sabajet Lena's August 10, 2015 claim was heard on December 7, 2016 in Anchorage, Alaska. This hearing date was selected on August 19, 2016. Attorney Keenan Powell appeared and represented Sabajet Lena (Employee) who testified on her own behalf. Attorney Vicki Paddock appeared and represented Fred Meyer Stores (Employer). Laura Spirlin and Anthony Gurule testified as witnesses. The record closed at the hearing's conclusion on December 7, 2016.          ISSUES          Employee contends her work for Employer was the substantial cause of her disability and need for medical treatment. She also contends she timely reported the injury to Employer. Employer contends the substantial cause of Employee's disability and need for medical treatment is her preexisting condition, not her work for Employer. Employer also contends Employee did not timely report her injury.          1. Did Employee timely report the injury to Employer?          2. Was her work for Employer the substantial cause of Employee's disability and need for medical treatment?          Employee contends her attorney provided valuable legal services in securing her benefits, and she is entitled to attorney fees. Employer contends Employee is not entitled to additional benefits, and, consequently, is not entitled to attorney fees.          3. Is Employee entitled to an award of attorney fees and costs, and, if so, in what amount?          FINDINGS OF FACT          The following facts and factual conclusions are undisputed or established by a preponderance of the evidence:          1. Employee was hired by Employer in November 2008, and began working in Employer's deli department. The job required standing and walking for the entire eight hour shift, except for two 15 minute breaks. (Employee).          2. Laura Spirlin, Employer's corporate safety manager, explained Employer has long had a safety policy for employee footwear, but the specific requirements vary by department. Deli employees must have slip resistant soles, and Employer provided three options. First, Employees could use "CrewGuards," which are slip-on overshoes that employees can wear over their regular shoes. Employer provided CrewGuards at no cost to employees. Second, employees could purchase slip resistant shoes from Shoes for Crews, with the price of the shoes being deducted from the employee's paychecks. Third, employees could purchase slip resistant shoes from SRmax. (Spirlin).          3. Employee initially used the CrewGuards, but sometimes had problems with them coming off because not all sizes were always available. Although the exact date is unclear, about May 2014, Employee purchased a pair of slip resistant shoes from Shoes for Crews, and the price of the shoes was deducted from her pay. (Employee).          4. About June 11, 2014, Employee began experiencing pain in her right foot. She took ibuprofen hoping the pain would go away. (Employee; Employee Deposition).          5. On June 25, 2014, Employee went to First Care Medical Centers reporting pain in the second toe and ball of her right foot. An x-ray showed no fractures or arthritic changes. She was prescribed Motrin, taken off work for ten days, and referred to Carol LaRose, DPM. (First Care Chart Notes, June 25, 2014).           6. Employee was seen by Dr. LaRose on July 16, 2014. Employee reported continued pain, and was particularly painful over the second metatarsal head. Although an x-ray showed no visible fracture, Dr. LaRose did not rule out a stress fracture affecting the intermetatarsal nerve. She prescribed a cast-boot, and released employee to work with the restriction she be able to sit occasionally. (Alliance Foot & Ankle, Chart Note, July 16, 2014).          7. On July 24, 2014, Employee returned to Dr. LaRose who noted she was still very tender. Employee brought her work shoes to the exam. Dr. LaRose examined the shoes, noting they were extremely flexible in the MPJs" (metatarsophalangeal joints), and stated "I could see how these would aggravate any neuroma or metatarsalgia." Dr. LaRose gave Employee an injection at the second interspace and restricted her from work until September 24, 2014. (Alliance Foot & Ankle, Chart Note and Excused Absence Form, July 24, 2014).          8. Employee continued to be seen by Dr. LaRose. Employee reported she was able to walk after the injection, but still had pain. Dr. LaRose examined stiff-soled shoes that Employee had brought in, and recommended she try them at home. (Alliance Foot & Ankle, Chart Notes, August 4, August 14, and August 27, 2014).          9. On August 27, 2014, Dr. LaRose completed a short-term disability checklist provided by Employer. In response to a question as to why Employee was unable to perform her job duties, Dr. LaRose stated "Patient had severe foot pain due to inappropriate shoes," but Employee "should be able to work with good supportive, stiff-soled shoes." (Kroger, Disability Checklist, August 27, 2014).          10. Dr. LaRose released Employee to work on September 9, 2014, with the restriction that she needed to wear a custom shoe or cast while working and she could not work on greasy floors. (Alliance Foot & Ankle, Release to Work Form, September 8, 2014).          11. Dr. LaRose on July 15, 2014. Employee reported continued pain in her foot that became worse when she worked in the deli. She stated that Employer would accommodate her for two or three days, and then she would be reassigned to the deli, and her pain would increase. Dr. LaRose diagnosed metatarsalgia to the second metatarsophalangeal joint aggravated with activity, but noted the problem was better with orthotics and the shoes Employee was presently wearing. It is unclear what shoes Employee was wearing, but Dr. LaRose recommended she continue with thicker soles. (Alliance Foot & Ankle, Chart Note, July 15, 2015. Observation).          12. On October 20, 2014, Employee returned to Dr. LaRose with continued tenderness. Employee reported she had been unable to stay off her feet at work. Dr. LaRose took Employee off work for two months. (Alliance Foot & Ankle, Chart Note and Work Restriction, October 20, 2014).          13. On December 10, 2014, Dr. LaRose again released Employee to work, with the restriction that she wear specialty shoes with thick soles. (Alliance Foot & Ankle, Release to Work Form, December 10, 2014).          14. Dr. Larose continued Employee's restricted reduced work hours. (Alliance Foot & Ankle, Release to Work Forms, January 12, 2015 & February 16, 2015).          15. On February 19, 2015, Dr. LaRose completed Employer's form for a disability claim. In the form, she indicated the condition was work-related. (Employer Short-Term Disability Checklist with Dr. LaRose's Response, February 15, 2015).          16. On April 3, 2015, Employee filed a Workers' Compensation Claim seeking temporary total disability (TTD) and temporary partial disability (TPD), permanent partial impairment, medical costs, transportation costs, compensation rate adjustment, penalty, interest, attorney fees and costs, and alleging an unfair or frivolous controversion. (Claim, April 3, 2015).          17. Dr. LaRose prescribed eight to twelve weeks of physical therapy on March 16, 2016. (Physical Therapy Referral, March 16, 2016).          18. On April 24, 2015, Dr. LaRose fitted Employee for custom orthotics and continued her restricted work hours. (Alliance Foot & Ankle, Chart Note and Release to Work Form, April 24, 2015).          19. On July 11, 2015, Employee was seen by Scot A. Youngblood, M.D., for an employer's medical evaluation (EME). Dr. Youngblood stated that wearing soft-soled, non-skid shoes, such as the Shoes for Crews, for one month would not have caused Employee's metatarsalagia or second MTP joint capsulitis. He noted that Employee has worn soft-soled shoes to the evaluation that were very pliable. Dr. Youngblood stated the potential causes of her second toe metatarsophalangeal joint capsulitis were age, genetics, and inherent foot anatomy. In response to a question asking if the work activities aggravated a preexisting condition, Dr. Youngblood replied "Not applicable. No pre-existing condition is identified." He opined Employee was medically stable and needed no further medical treatment. (Dr. Youngblood, EME...

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