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
P. Ringel, Designated Chair.
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.
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.
Did Employee timely report the injury to Employer?
Was her work for Employer the substantial cause of
Employee's disability and need for medical
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
Is Employee entitled to an award of attorney fees and costs,
and, if so, in what amount?
following facts and factual conclusions are undisputed or
established by a preponderance of the evidence:
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).
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).
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).
About June 11, 2014, Employee began experiencing pain in her
right foot. She took ibuprofen hoping the pain would go away.
(Employee; Employee Deposition).
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,
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).
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).
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).
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).
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
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).
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).
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).
Larose continued Employee's restricted reduced work
hours. (Alliance Foot & Ankle, Release to Work Forms,
January 12, 2015 & February 16, 2015).
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).
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
LaRose prescribed eight to twelve weeks of physical therapy
on March 16, 2016. (Physical Therapy Referral, March 16,
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
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...