RANDALL LEWIS, Employee, Claimant,
v.
HICKEL INVESTMENT COMPANY, Employer,
and
ALASKA NATIONAL INSURANCE, Insurer, Defendants.
AWCB No. 201514492
AWCB Decision No. 18-0084
Alaska Workers’ Compensation Board
August 22, 2018
FINAL DECISION AND ORDER
HENRY
TASHJIAN, DESIGNATED CHAIR.
Randall
Lewis’s May 11, 2016 claim for benefits was heard on
July 24, 2018 in Anchorage, Alaska, a date selected on May
22, 2018. Randall Lewis (Employee) appeared and represented
himself. Attorney Michelle Meshke appeared and represented
Hickel Investment Company and Alaska National Insurance
(Employer). No witnesses testified. The record closed at the
hearing’s conclusion on July 24, 2018.
ISSUES
Employee
raised preliminary issues, contending that late filing of his
evidence packet and witness list should be excused. In the
alternative, Employee requested continuance of the hearing so
that he would be able to continue treatment and further
prepare for hearing.
Employer
stipulated to admission of Employee’s medical records,
but opposed admission of the remainder of the late-filed
evidence and Employee’s witness list, arguing
acceptance of these filings would be prejudicial to Employer,
and their exclusion would not cause manifest injustice.
Employer opposed continuance, stating that no good cause
existed for the request.
At
hearing, an oral order was issued excluding the late-filed
witness list and evidence and denying continuance.
1.
Was the oral order excluding late-filed documents
correct?
2.
Was the oral order denying continuance correct?
Employee
contends he is entitled to workers’ compensation
benefits including temporary total disability (TTD),
permanent total disability (PTD), medical costs,
transportation costs, penalty, interest, unfair or frivolous
controversion, and attorney fees and costs. Employee further
contends a reemployment benefits eligibility determination
should be reviewed and overturned, and requests a monetary
award of $20,000,000.00.
Employer
contends it has paid the benefits due to Employee under the
Act, and that Employee has not met the evidentiary burden of
showing he is entitled to his requested awards. Employer
contends no basis in law or fact exists for Employee’s
requested monetary award.
3.
Is Employee entitled to compensation for TTD?
4.
Is Employee entitled to compensation for PTD?
5.
Is Employee entitled to compensation for medical
costs?
6.
Is Employee entitled to compensation for transportation
costs?
7.
Is Employee entitled to penalty and interest?
8.
Is Employee entitled to a finding of unfair or frivolous
controversion?
9.
Is Employee entitled to review or modification of the
eligibility determination?
10.
Is Employee entitled to a monetary award?
11.
Is Employee entitled to attorney fees and
costs?
FINDINGS
OF FACT
The
following facts are established by a preponderance of the
evidence:
1) On
July 29, 2005, Employee was examined by Catherine Giessel,
FNP-CS. FNP Giessel reported Employee complained of neck
pain, which he had not previously described. (Giessel Report,
July 29, 2005).
2) On
February 22, 2008, Employee was examined by Jane Sonnenburg,
PA-C, at Orthopedic Physicians Anchorage. Employee reported
symptoms including left shoulder pain, and PA Sonnenburg,
after reviewing x-ray imaging, diagnosed osteoarthritis of
the left shoulder AC joint and glenohumeral joint.
(Sonnenburg Report, February 22, 2008).
3) On
April 20, 2015, Employee was examined by his treating
physician, T. Noah Laufer, M.D. He reported pain in his right
hip, left shoulder, and back. (Laufer Report, April 20,
2015).
4) On
August 30, 2015, Employee reported he had sustained a
repetitive motion injury to his cervical spine while working
for Employer. (MTC First Report of Injury, September 14,
2015).
5) On
September 3, 2015, Employee reported to Dr. Laufer that he
had felt a twinge in his neck the previous Sunday around
noon, and symptoms increased the rest of the day. He reported
decreased range of motion, pain, muscle spasms (right greater
than left over the trapezius muscles), and numbness and
weakness of the right arm. He did not identify a specific
trauma, but indicated he had been busy and performing
frequent manual labor at work over a short period of time.
Dr. Laufer released Employee from work until September 8,
2015. (Laufer Report, September 3, 2015; Laufer Work Note,
September 3, 2015).
6)
Employer has paid TTD benefits from September 1, 2015 through
March 9, 2016. (Compensation Report, March 18, 2016; See also
Work Notes, Laufer, September 11, 2015, September 21, 2015,
September 30, 2015, January 29, 2016, February 29, 2016, Work
Notes, Gevaert, October 12, 2015, October 27, 2015, November
6, 2015, Work Note, Kropp, December 18, 2015, December 30,
2015, January 7, 2016).
7) On
September 3, 2015, on referral from Dr. Laufer, Employee
obtained a magnetic resonance imaging (MRI) study. John
McCormick, M.D. found straightening of the cervical lordosis
and marked disc space narrowing at C5-6 and C6-7 with large
anterior osteophytes. He found no fractures or malignant
changes, and stated the foramen were preserved and soft
tissues were normal. (McCormick Report, September 3, 2015).
8) On
September 4, 2015, Dr. Laufer reviewed Employee’s
imaging, stating it showed “multilevel severe
degenerative disease with neural impingement, but no acute
process such as a ruptured disc or fracture.” He opined
Employee’s symptoms were consistent with a formation
flare, and Employee might benefits from a steroid injection
or surgery. (Laufer Report, September 4, 2015).
9) On
September 11, 2015, Dr. Laufer referred Employee to the
Alaska Spine Institute for specialized examination and
treatment. (Laufer Report, September 11, 2015).
10) On
October 12, 2015, Employee was evaluated by Michel L. Gevaert
at the Alaska Spine Institute. Dr. Gevaert reviewed the
September 4, 2015 MRI, noting it showed “diffuse
degenerative disc disease from C4 through C7, most severe at
C5 and C6. There is foraminal stenosis of the right
C5-6.” He noted past medical history including chronic
low back pain, chronic neck pain in 2005, arthritis, asthma,
and hypertension. His diagnoses included severe neck pain and
pain referral in both upper extremities, sensory loss in the
left upper extremity, positive Waddell signs, and a history
of alcohol abuse. He prescribed MS Contin, Percocet, Norco,
and Valium, and noted that currently-prescribed medications
were Lisinopril, atorvastatin, morphine sulfate, diazepam,
Valium, Norco, and Percocet. Employee reported better control
with Valium than opioids, and was reluctant to escalate
opioids. (Gevaert Report, October 12, 2015).
11) On
October 16, 2015, Dr. Gevaert performed a nerve conduction
study, which indicated bilateral carpal tunnel syndrome
affecting motor and sensory nerve fibers, normal ulnar nerve
conduction study, and no electromyographic evidence of
cervical radiculopathy. He opined Employee could benefit from
physical therapy, and switched his prescription from Percocet
to Roxicodone. Dr. Gevaert listed Employee’s current
prescribed medications as Roxicodone, amlodipine,
hydrochlorothiazide, MS Contin, and Vicodin. (Gevaert Report,
October 16, 2015).
12) On
November 12, 2015, Dr. Gevaert administered Employee an
epidural steroid injection. (Gevaert Surgical Report,
November 12, 2015).
13) On
December 2, 2015, Employee was evaluated by Dr. Gevaert. Dr.
Gevaert stated he had a long discussion with Employee, and
expressed concern with his delayed recovery 4-month span of
off-work status, “despite extensive physical therapy,
appropriate pain management and one epidural steroid
injection.” Employee showed an altered pain perception,
and agreed to return to work full-duty for four hours per
day, while continuing with physical therapy and pain
management. Dr. Gevaert planned a follow-up appointment with
Employee “to evaluate if this strategy is
effective,” and issued a prescription for a home
traction device and Biofreeze. Employee was given a random
drug screen, which found Nordiazepam, Oxazepam, Temazepam,
Hydromorphone, and morphine, all of which were labeled
inconsistent with Employee’s prescribed medications.
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