DAVID PATCHETT, Employee, Claimant,
v.
SNUG HARBOR SEAFOODS INC., Employer,
And
LIBERTY NORTHWEST INSURANCE CORP., Insurer, Defendants.
AWCB Decision No. 21-0028
AWCB No. 201804399
Alaska Workers Compensation Board
March 30, 2021
INTERLOCUTORY
DECISION AND ORDER
Kathryn Setzer, Designated Chair.
Snug
Harbor Seafoods Inc. and Liberty Northwest Insurance
Corp.’s (Employer) November 13, 2020 petition for
review of decision of the reemployment benefits administrator
designee (RBA-designee) was heard in Juneau, Alaska on
February 23, 2021, a date selected on December 17, 2021. A
November 13, 2020 affidavit of readiness for hearing gave
rise to this hearing. Attorney Justin Eppler appeared
telephonically and represented David Patchett (Employee).
Attorney Stacey Stone appeared telephonically and represented
Employer. There were no witnesses. The record remained open
to receive Employee’s supplemental attorney’s
fees and costs affidavit and Employer’s response and
closed on February 26, 2021.
ISSUES
Employer
contends the RBA-designee abused her discretion in finding
Employee eligible for reemployment benefits. It contends it
was an abuse of discretion to seek Alfred Lonser’s,
M.D., opinion because Mark Flanum, M.D., already provided an
opinion. Employer contends it was abuse of discretion to rely
upon Tamara Brothers-McNeil’s, PA-C, opinion because
she simply regurgitated Dr. Lonser’s opinion and Dr.
Flanum’s opinion was more credible. It requests an
order granting its petition.
Employee
contends the RBA-designee did not abuse her discretion and
correctly found Employee eligible. He contends substantial
evidence supports the RBA-designee’s decision. Employee
requests an order denying Employer’s petition.
1)
Did the RBA-designee abuse her discretion in finding Employee
eligible for benefits?
Employee
requests attorney’s fees and costs be awarded for time
spent and costs incurred for defending against
Employer’s petition.
Employer
contends Employee’s attorney’s fees and costs
were not set as an issue for hearing. Alternatively, it
contends the attorney’s fees and costs were
unreasonable. Employer requests an order denying
Employee’s attorney’s fees and costs.
2)
Should Employee’s request for attorney’s fees and
costs be considered?
FINDINGS
OF FACT
The
following facts are reiterated from David Patchett v.
Snug Harbor Seafoods, Inc., AWCB Decision No. 20-0009
(February 27, 2020) (Patchett I) and David
Patchett v. Snug Harbor Seafoods, Inc., AWCB Decision
No. 20-0044 (June 8, 2020) (Patchett II) are
undisputed or are established by a preponderance of the
evidence:
1) On
November 2, 2017, Employee reported lower back and left knee
pain that began over a month earlier at work. He was driving
a large truck and the brake system locked up, causing the
truck to lunge forward, raise off the ground three to four
feet and slam down. Employee said he felt immediate low back
pain radiating down his left leg and his left leg gave out
when he attempted to stand. He continued to experience upper
thigh pain and numbness extending to his foot. Kent
Sandquist, PA-C, ordered a magnetic resonance imaging (MRI).
(Patchett I).
2) On
November 28, 2017, Employee continued to report lumbar pain
radiating down his left leg and weakness occasionally causing
his left leg to “give out.” PA-C Sandquist
diagnosed low back pain and referred Employee to Timothy
Johans, M.D. (Id.).
3) On
November 30, 2017, Employee reported low back and left leg
pain and weakness since the work injury. He said the truck he
was driving on a steep incline stalled out on a hill and when
he tried to get it going, it jumped significantly. Employee
felt immediately low back and left leg pain and his left leg
gave out and he lost bladder control when he got out of his
truck. He had hot or burning pain in the anterior thigh and a
little past the knee medially into the lower medial leg and
tingling in the bottom of his left foot under his toes. Dr.
Johans diagnosed a left femoral neuropathy secondary to
neurotmesis. He said Employee sustained a direct impact left
femoral nerve injury during the injury because the lap belt
put pressure on his femoral nerve. Dr. Johans prescribed
physical therapy and medications for nerve pain.
(Id.).
4) On
March 22, 2018, Employee’s lumbar spine MRI revealed a
L4-5 right paracentral and foraminal disc protrusion abutting
both the existing L4 nerve and traversing L5 nerve root, a
small disc protrusion indenting the thecal sac at L5-S1 and
moderate right and mild left foraminal stenosis.
(Id.)
5) On
March 22, 2018, Dr. Johans opined Employee sustained a
femoral nerve injury because Employee’s MRI revealed
right-sided lumbar nerve problems but his left side was
“absolutely clean.” He concluded surgery was not
in Employee’s best interest and said, “I really
don’t have anything else to help him.”
(Id.).
6) On
March 23, 2018, Employer filed an employer first report of
occupational injury (FROI) stating Employee injured his upper
leg while delivering seafood to a facility when he started to
move the truck and it lurched forward. (Id.).
7) On
January 17, 2019, Dr. Johans recommended either femoral nerve
or spinal cord stimulation (SCS) because Employee could not
handle Cymbalta or gabapentin. He also recommended a formal
strength training course for Employee’s left hip flexor
and knee extensor. Dr. Johans said Employee did not need to
see him anymore but he was not at “medical maximum
regarding pain management.” (Id.).
8) On
June 13, 2019, Employee followed up with R. Lynn Carlson,
M.D., for persistent left leg pain. He declined injections in
the past because of his previous response to Lyrica. Dr.
Carlson encouraged Employee to consult with Dr. Lonser, at AA
Spine & Pain Clinic Inc., for pain management.
(Patchett II).
9) On
September 4, 2019, R. David Bauer, M.D., an orthopedist,
performed an EME and diagnosed an entrapment neuropathy or
contusion of Employee’s lateral femoral cutaneous
nerve. He stated the work injury was the substantial cause of
Employee’s neuropathy and anterior thigh dysesthesias.
Dr. Bauer assessed a one percent permanent partial impairment
(PPI) rating. He said there was “no objective
physiologic condition” preventing Employee from
returning to the job he held at the time of the work injury.
Dr. Bauer opined Employee was capable of medium or heavy
physical duty work prior to the work injury and he remained
capable of such work. (Patchett I).
10) On
September 10, 2019, Employer denied all benefits based upon
Dr. Bauer’s September 4, 2019 EME report. It contended
there was no medical evidence that time loss was related to
the work injury. (Id.).
11) On
September 13, 2019, Employer denied TTD benefits after March
6, 2019, PPI benefits in excess of one percent, medical costs
not reasonably related to the work injury, attorney’s
fees and costs, penalty, interest and rehabilitation benefits
based upon Dr. Bauer’s September 4, 2019 EME report. It
contended it paid TTD benefits beyond the medical stability
date in Dr. Bauer’s report which resulted in an
overpayment. Employer admitted TTD benefits “as
supported by appropriate medical evidence through March 6,
2019,” reasonable and necessary medical costs and a one
percent PPI rating. (Id.).
12)On
September 25, 2019, Employee saw PA-C Brothers-McNeil at AA
Spine & Pain Clinic Inc., for an initial pain management
assessment for low back pain upon referral from Dr. Carlson.
Employee complained of low back pain radiating down his left
leg after a work accident when he was driving a tractor
trailer and was stopped on a downhill slope and the brake did
not release when he attempted to move and the truck jumped up
and slammed down on the...
