McKinley v. Kenai Peninsula Borough & School District, 022521 AKWC, 21-0016

Case DateFebruary 25, 2021
CourtAlaska
CATRIN MCKINLEY, Employee, Claimant,
v.
KENAI PENINSULA BOROUGH & SCHOOL DISTRICT, Employer,
and
ALASKA MUNCIPAL LEAGUE JOINT INSURANCE, Insurer, Defendants.
AWCB Decision No. 21-0016
AWCB No. 201012918
Alaska Workers Compensation Board
February 25, 2021
         FINAL DECISION AND ORDER           Judith A. DeMarsh, Designated Chair.          Catrin McKinley’s petition for a Second Independent Medical Evaluation (SIME) and Kenai Peninsula Borough & School District’s petitions to dismiss Employee’s petition for an SIME and her claim were heard in Anchorage, Alaska on January 13, 2021, a date selected on November 29, 2020. A November 10, 2020 hearing request gave rise to this hearing. Attorney J.C. Croft appeared and represented Catrin McKinley (Employee). Attorney Colby Smith appeared and represented Kenai Peninsula Borough & School District (Employer). McKinley v. Kenai Peninsula Borough, AWCB Decision No. 201012918, July 28, 2020 (McKinley I) dismissed Employee’s August 23, 2017 claim under AS 23.30.110(c). Witnesses included Employee, who testified telephonically, and Dr. Thomas McCarty, who testified telephonically for Employee. The record closed when the panel concluded deliberation on February 12, 2021.          ISSUES          Employer contends Employee’s April 23, 2020 claim is barred by res judicata as it is essentially identical to her August 23, 2017 claim, which was dismissed under AS 23.30.110(c).          Employee contends neither form of res judicata, either issue or claim preclusion, applies to her April 23, 2020 claim as there has never been a final decision on the merits of her claim. Furthermore, her April 23, 2020 claim is only for future benefits as opposed to the past benefits dismissed in McKinley I and is therefore not barred by either form of res judicata.          1) Should Employee’s April 23, 2020 claim be dismissed?          Employer asserts the September 2020 SIME petition is also barred by res judicata as the medical opinions relied upon are the same as those in her prior SIME petition. Employer contends since McKinley I was issued in July 2020, there has been no new medical evidence indicating Employee’s need for new hearing aids and although Dr. McCarty testified Employee did need new hearing aids, he has not treated Employee since July 2017. Employer contends Employee is entitled to file a new claim, but it must be for something new, based on medical evidence.          Employee contends there is a significant and relevant medical dispute in her case and an SIME will assist the board to resolve the dispute. Therefore, her petition for an SIME should be granted.          2) Should Employee’s September 25, 2020 SIME petition be granted?          FINDINGS OF FACT          The findings of fact in McKinley I are incorporated herein and a review of the record establishes the following facts and factual conclusions:          1) Richard Hodgson, M.D., otolaryngologist, conducted a records review Employer’s Medical Examination (EME) on April 7, 2014. (EME report.)          2) Dr. Hodgson’s EME report was filed with the board on May 7, 2014, and mailed to Employee on May 6, 2014, per Employer’s Certificate of Service. (Agency files.)          3) As the EME report was mailed to Employee on May 6, 2014 to her address of record at the time, service was complete on May 6, 2014. (Agency files.)          4) Employee’s August 23, 2017, workers’ compensation claim (WCC)requested the following:
1. A board order that hearing loss and related treatment is compensable regardless of Medicare coverage.
2. Payment of hearing aid and related treatment.
3. Penalty, interest.
4. Attorney fees and costs.
(WCC, August 23, 2017.)          5) On July 28, 2020, McKinley I dismissed Employee’s August 23, 2017 WCC, in part, for failure to timely request a hearing under AS 23.30.110(c). McKinley I dismissed the following claims:
1. Payment of hearing aids and related treatment
2. Penalty and interest
3. Attorney fees and costs (McKinley I.)
         6) McKinley I also denied Employee’s October 3, 2019 SIME petition as moot, as it related to the August 23, 2017 claim, which was dismissed. (Id.)          7) On April 23, 2020, Employee filed a second claim for benefits, requesting the following:
1. For a board order that employee’s hearing loss occurred in the course and scope of her employment
2. Payment of hearing aid related treatment
3. Penalty and interest
4. Attorney fees and costs
(WCC, April 23, 2020.)          8) On September 25, 2020, Employee filed an SIME petition. (SIME petition, September 25, 2020.)          9) On October 12, 2020, Employer asserted it was inappropriate to proceed with an SIME as Employee’s claim had been dismissed as time barred in McKinley I and thus the September 25, 2020 claim and petition were barred by res judicata. (Answer, October 12, 2020.)          10) On October 21, 2020, Employer filed a petition to dismiss Employee’s April 23, 2020 claim for workers’ compensation benefits and her September 25, 2020 SIME petition as barred by res judicata. (Employer’s petition, October 21, 2020.)          11) On November 19, 2020, Employee amended her April 23, 2020 claim to be for future medical costs and not past medical costs. (Prehearing conference (PHC) summary, November 19, 2020.)          12) Employee testified she is married and has lived with her husband in Alaska during two time periods, the first in June of 2001 for less than a year and the second being from June 2007 to June 2018. She now lives in Cleveland, Tennessee. (McKinley.)          13) Employee testified she worked for Northwest Airlines from December 1995 to June 2001. While employed there she had yearly hearing tests as part of her job. She recalled those tests showed she had not suffered any hearing loss at that time. (Id.)          14) Employee worked as a substitute teacher in Michigan off and on starting in September 2002 while she earned her education degree, which she did in June 2007. She then moved back to Alaska and applied for teaching jobs, but only substitute teaching jobs were available. Therefore she obtained a position as a 911 dispatcher with the Kenai Peninsula Borough starting in April or May of 2008. (Id.)          15) Employee wore headsets that plugged into the console used to answer the phone, and talk with anyone within the 911 system and also record calls. (Id.)          16) Employee believes she suffered hearing loss as a result of her work as a dispatcher. After about a month working as a dispatcher, she started losing hearing in one of her ears, then in her other ear. She went to several doctors who were unable to determine what the problem was. She had a hearing test at that time and was then referred to a specialist who diagnosed ear infections and attributed the infections to the type of “inside-the-ear” headsets she was using. Her ear infections were treated with antibiotics and cleared up. (Id.)          17) After two years working as a dispatcher, Employee felt she needed a hearing test as she was experiencing tinnitus. She saw Thomas McCarty, Au.D., an audiologist, who diagnosed hearing loss and prescribed hearing aids. Employee did purchase and start wearing hearing aids shortly after they were prescribed. (Id.)          18) Employee’s hearing aids were replaced in 2013, but she has not replaced them since that time. She does not recall if she has had any other treatment for her hearing loss since 2013. (Id.)          19) Employee would like to have her hearing checked again. Her tinnitus is really bad. She did see a doctor within the last couple months as her ears started to be “impacted” again. Her ears were flushed and she was given medication, which she said it turned out she did not need. (Id.)          20) She would like treatment in the future in the form of a hearing test, the blockage she experiences in her ears, and new...

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