SHANNON LONGWAY-MAROTTA, Employee, Claimant,
v.
COLASKA, INC., Employer,
and
LIBERTY INSURANCE CORPORATION, Insurer, Defendants.
AWCB Decision No. 17-0137
AWCB No. 201612550
Alaska Workers’ Compensation Board
December 8, 2017
FINAL DECISION AND ORDER
William Soule, Designated Chair.
Colaska,
Inc.’s (Employer) August 24, 2017 petition for a second
independent medical examination (SIME) and Shannon
Longway-Marotta’s January 3, 2017 claim were heard in
Anchorage, Alaska, on September 20-21, 2017, dates selected
on June 19, 2017. Attorney Elliott Dennis appeared and
represented Employee who appeared and testified. Attorney
Rebecca Holdiman-Miller appeared and represented Employer and
its insurer. Witnesses included Travis Foreman, Shereen
Whitford and Sharla Hintermeister who testified for Employee,
and Amber Creeger, Karen Zemba and Toby Tuttle who testified
for Employer. As a preliminary matter, an oral order denied
Employer’s SIME petition and overruled its objection to
a medical record not previously filed on a medical summary.
This decision examines the oral SIME and medical record
orders, and decides Employee’s claim on its merits. The
record remained open for Employer’s objection to
Employee’s attorney fee and cost request, and closed on
November 30, 2017, when the panel met to review the extensive
evidence and to deliberate.
ISSUES
Employer
contended medical opinions from its employer’s medical
evaluator (EME) Scot Youngblood, M.D., created medical
disputes when compared with opinions from Employee’s
attending physician. Given these disputes, Employer requested
an SIME.
Employee
vigorously opposed an SIME and contended Employer waived its
right to request an SIME, its SIME request was a delaying
tactic and there was already adequate medical information in
this case, rendering an SIME unnecessary. She sought an order
denying the SIME request.
1)
Was the oral order denying the SIME petition
correct?
Employer
objected to admission of a medical record from Sean Taylor,
M.D., because Employee failed to file it 20 days prior to
hearing. Employer also objected on grounds that the document
is not a business record and was inadmissible hearsay.
Employee
offered Dr. Taylor’s report into evidence noting she
had just given it to her attorney after finding it in her
personal belongings at home. Employee contended that although
she did not file it on a medical summary, the medical report
is admissible as a simple business record.
2)
Was the oral order admitting Dr. Taylor’s May 5, 2017
record correct?
Employee
contends her work injury with Employer continued to disable
her after Employer laid her off, ending her light duty
employment. She seeks temporary total disability (TTD)
benefits from December 2, 2016, and continuing until she
reaches medical stability or returns to work.
Employer
contends it continued Employee’s salary through
December 1, 2016. Thereafter, it contends several physicians
found Employee medically stable and able to return to her
regular employment. Therefore, Employer contends Employee is
not entitled to TTD benefits.
3)
Is Employee entitled to TTD benefits?
Employee
contends her medical care and treatment, including diagnostic
evaluations, is not yet completed. She requests an order
requiring Employer to pay for additional diagnostic testing
and, if necessary, treatment.
Employer
contends Employee completed her medical treatment for the
work injury. It contends any additional diagnostics are
unreasonable and unnecessary or unrelated to the work injury.
Employer seeks an order denying Employee’s request for
continuing medical care.
4)
Is Employee entitled to additional medical care for her work
injury?
Employee
contends she is entitled to a vocational reemployment
eligibility evaluation because her work injury with Employer
has caused disability from her job for more than 90 days. She
contends her work injury caused a permanent partial
impairment (PPI) and restricts her from returning to her
normal work.
Employer
contends several physicians released Employee to return to
her regular employment, without restriction. It further
contends the same physicians predicted no ratable PPI
resulting from Employee’s work injury.
5)
Is Employee entitled to a vocational reemployment eligibility
evaluation?
Employee
contends her lawyer provided valuable legal services in
obtaining benefits to which she is entitled. She requests an
order awarding actual attorney fees and costs.
Employer
contends Employee is entitled to no additional benefits.
Therefore, it contends her lawyer is not entitled to any
attorney fees or costs. Employer also contends the requested
attorney fees are excessive in time and in hourly rate.
6)
Is Employee entitled to an award of attorney fees and
costs?
FINDINGS
OF FACT
A
preponderance of the evidence establishes the following facts
and factual conclusions:
1)
Between 2009 and 2013, Employee saw providers at Sunshine
Community Health Center in Talkeetna, Alaska. The record
template includes and repeats, among other things, complaints
including “chronic neck, shoulder, back pain”
related to a 1991 snowmachine wreck. The providers prescribed
medication for Employee’s chronic pain complaints.
There is no indication of treatment specifically addressing
Employee’s “shoulders.” (Sunshine Community
Health Center records, December 31, 2009 to May 30, 2013).
2)
Between 2011 in 2014, Employee saw Matthew Peterson, M.D.,
for chronic pain issues resulting from the snowmachine crash
20 years prior. Employee’s main complaints were
cervical and low back pain and pain throughout her back,
including the upper back near the shoulder blades. Dr.
Peterson offered no “shoulder” diagnoses.
Concurrent physical therapy records show therapy applied
mainly to Employee’s back from her neck to her lumbar
spine and do not demonstrate particular treatment directly
addressing any shoulder issues and especially no anterior
shoulder complaints. (Peterson reports; Back & Neck
Center reports, 2011-2014).
3) On
August 18, 2016, a municipal bus drove through a construction
zone and hit the signing paddle in Employee’s right
hand, causing her right arm and shoulder to suddenly and
forcefully hyperextend backwards. (Employee).
4) On
August 22, 2016, Nicole Pressman-Schneider, M.D., examined
Employee for her work injury. Employee gave a history of her
August 18, 2016 injury and stated she had “no similar
problems in right shoulder previously.” Dr.
Pressman-Schneider said Employee had right shoulder pain and
muscle spasm, had a “work-related injury,” did
not say she was medically stable, and removed her from work
for up to seven days. (Physician’s Report, August 22,
2016).
5) On
September 12, 2016, Timothy Olson, PA-C, examined Employee,
diagnosed a rotator cuff sprain and shoulder pain, and
continued her restrictions. (Olson report, September 12,
2016).
6) On
November 7, 2016, Tucker Drury, M.D., examined Employee,
diagnosed right shoulder impingement and rotator cuff
tendinopathy with right shoulder AC joint osteoarthritis, and
continued Employee’s five-pound lifting restriction.
(Drury report, November 7, 2016).
7) On
November 18, 2016, Dr. Youngblood performed an EME and
concluded Employee had a right pectoralis major strain. The
August 18, 2016 work injury is the substantial cause of the
strain. In Dr. Youngblood’s opinion, Employee’s
condition had resolved and she is medically stable effective
November 18, 2016, with no ongoing disability or need for
further treatment and no objective basis to limit her
activities. (Youngblood report, November 18, 2016).
8) By
at least December 1, 2016, Employer had Dr.
Youngblood’s EME report and controverted
Employee’s benefits based on his report. (Controversion
Notice, December 1, 2016).
9) On
December 5, 2016, Dr. Drury diagnosed Employee with right
shoulder impingement, rotator cuff tendinopathy, AC joint
osteoarthritis and a possible brachial plexus injury with
right upper extremity radiculopathy. He recommended a
brachial plexus magnetic resonance imaging (MRI). Dr. Drury
also said Employee was partially disabled and still limited
to no lifting with her right upper extremity and no lifting
greater than five pounds for four weeks. Dr. Drury stated
Employee...
