Padilla v. University of Alaska, 121317 AKWC, 17-0138

Docket Nº:AWCB Decision 17-0138
Case Date:December 13, 2017
MARTIN PADILLA, Employee, Claimant,
UNIVERSITY OF ALASKA, Self-Insured Employer, Defendant.
AWCB Decision No. 17-0138
AWCB No. 201607261
Alaska Workers’ Compensation Board
December 13, 2017
          INTERLOCUTORY DECISION AND ORDER           William Soule, Designated Chair.          On November 30, 2017, a date selected on November 22, 2017, a hearing occurred in Anchorage, Alaska to determine whether to approve the parties’ proposed compromise and release (C&R) agreement. Martin Padilla (Employee) appeared, represented himself and testified. Attorney Jeffrey Holloway appeared by telephone and represented University Of Alaska (Employer). There were no other witnesses. The record closed at the hearing’s conclusion on November 30, 2017.          ISSUE          An oral order at the hearing denied the C&R after the panel found it not to be in Employee’s best interest. Employee requested a written decision and order explaining the denial.          Was the oral order denying the proposed C&R correct?          FINDINGS OF FACT          A preponderance of the evidence establishes the following facts and factual conclusions:          1) Employee was a student at Employer’s Anchorage campus and worked part-time as a parking enforcement officer. (Deposition of Martin Padilla, June 20, 2017, at 25-26). In early December 2015, Employee slipped in a parking lot while working and felt “something” in his right knee although there was no pain at the time. (Id. at 44; Employee).          2) Employee’s knee gradually became more painful, and on December 4, 2015, he went to the Veteran’s Administration (VA) Clinic, where he reported twisting his right knee when he slipped on ice. (Settlement Agreement, November 14, 2017, at 1; Employee).          3) Employee reported the injury to one of his two supervisors within a week and filled out a written report, although he cannot recall specifically to which of his supervisors, Ahmad or Brian, he spoke or gave the report. (Employee).          4) Employee gave Employer timely notice of his injury. Employer through its supervisors had actual knowledge of the injury. (Judgment and inferences drawn from the above).          5) On March 10, 2016, x-rays of Employee’s right knee showed degenerative changes to his tibiofemoral and patellofemoral joints. (VA Consultation Report, March 10, 2016).          6) On May 10, 2016, Timothy Vanderbilt, M.D., saw Employee at the VA Clinic, reviewed the x-rays and saw no significant degenerative joint disease. Dr. Vanderbilt ordered a right knee magnetic resonance imaging (MRI) study. (VA Consultation Report, May 10, 2016).          7) On May 11, 2016, the right knee MRI revealed a subacute complex osteochondral fracture and a complex medial meniscus tear. (VA Radiologic Examination Report, May 11, 2016).          8) A subacute fracture is one that likely occurred from weeks to months earlier. (Observations, experience).          9) On May 16, 2016, Dr. Vanderbilt assessed, “Right knee pain that started acutely in December 2015.” Dr. Vanderbilt recommended a total knee replacement. (VA Chart Note, May 16, 2016).          10) On June 3, 2016, Michael Fraser, M.D., saw Employee for an employer’s medical evaluation (EME). Dr. Fraser diagnosed osteonecrosis of the femoral condyle and subsequent collapse. He stated an acute injury in December 2015 would have shown up on the March 2016 x-rays. In response to a question asking him to identify all substantial factors in bringing about Employee’s “diagnosed condition,” Dr. Fraser included age, medical comorbidities, outside activities, and the fact that in a large percentage of cases, there is no identified cause for osteonecrosis in the knee. Dr. Fraser did not include the work injury as a substantial factor. He concluded the workplace injury had not aggravated any preexisting condition. Dr. Fraser agreed the fragmentation of the subchondral bone shown on the May 2016 MRI warranted a total knee replacement, but he disagreed the December 2015 work injury was the cause. (Fraser report, June 3, 2016).          11) On June 13, 2016, Dr. Vanderbilt performed the total knee replacement. (VA Operative Note, June 13, 2016).          12) On October 8, 2017, Dr. Fraser reviewed additional medical records and issued a supplemental report. He diagnosed osteonecrosis in the medial femoral condyle with collapse of the subchondral bone, and end-stage arthritis. When asked to identify all substantial factors in bringing about Employee’s “disability and need for medical treatment,” Dr. Fraser stated “the process” was most consistent with spontaneous osteonecrosis of the knee, which was “idiopathic.” He identified several factors associated with osteonecrosis of the knee: obesity, sickle cell anemia, liposomal fat storage diseases, and other medical conditions, but he noted none of these causes were present in Employee. Dr. Fraser did not list the work injury as a causative factor. He also stated the osteonecrosis could be secondary to trauma with significant bone bruising or subchondral fracture. When asked which of the identified factors was the most significant, Dr. Fraser answered, “osteonecrosis,” but he also stated
[T]here is no indication that a minor twisting injury to the knee in a relatively healthy male is causative of the underlying osteonecrosis. It is more likely than not that the minor twisting injury was associated with the initial onset of symptoms for an underlying process that was unrecognized at that time.
         Dr. Fraser found Employee to be medically stable and provided a 10 percent, whole-person permanent partial impairment (PPI) rating for Employee’s right knee pursuant to the American Medical Association Guides to the Evaluation of Permanent Impairment, Sixth Edition. He said no PPI was attributable to the work injury. (Fraser Supplemental EME Report, October 8, 2017).          13) “Idiopathic” means “without a known cause.” (Mosby’s Medical Dictionary 864 (6th Ed. 2002).          14) The benefit for a 10 percent PPI rating is $17,700.00. (Experience, judgment, observations).          15) On November 14, 2017, the parties filed a proposed C&R. Under the proposed agreement, Employee would waive all past and future benefits, including medical, medical related transportation, disability, PPI, reemployment benefits, penalties and interest in exchange for $12,500.00. (Settlement Agreement, November 14, 2017).          16) Because Employee had no attorney and he was waiving future medical benefits, a board panel had to review the C&R to determine if it was in Employee’s best interest. (Experience, judgment and inferences drawn from the above).          17) On November 21, 2017, the division notified the parties that the board panel was unable to determine if the proposed C&R was in Employee’s best interest. The notification explained Employee’s waiver of future medical benefits did not appear to be in Employee’s best interest given Dr. Fraser’s October 8, 2017 EME report. The division told the parties they could request an oral hearing. (C&R Denial Letter, November 21, 2017).          18) At the November 30, 2017 hearing, Employee said he had injured his right knee in 2010, but recovered quickly. He had never even thought about his knee between 2010 and the 2015 injury. He explained that while working in parking enforcement he had slipped on a patch of ice. While he did not fall, he felt “something” in his right knee, but no immediate pain. Over the next few days, the pain got worse, and by the end of the semester, he could barely walk. On December 4, 2015, he went to the VA clinic for his knee, but they were unable to schedule an appointment for a few months. Employee said while he still did not have full range of motion after the right knee replacement, he was able to walk without limping. Employee believed the C&R was in his best interest because he had only been able to work sporadically in the two years since the injury, his landlord was evicting him, and he...

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