MARTIN PADILLA, Employee, Claimant,
v.
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
(6
th 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...
