SUSAN PIASINI-BRANCHFLOWER, Employee, Claimant,
v.
ANCHORAGE SCHOOL DISTRICT, Employer, Defendant.
AWCB Decision No. 17-0041
AWCB No. 200901607
Alaska Workers’ Compensation Board
April 11, 2017
DECISION AND ORDER
William Soule, Designated Chair.
Susan
Piasini-Branchflower’s (Employee) claims were heard on
November 30, 2016, in Anchorage, Alaska, a date selected on
June 29, 2016. Attorneys Lawrence Perle and Michael Jensen
appeared and represented Employee who appeared and testified.
Attorney Michelle Meshke appeared and represented the
self-insured Anchorage School District (Employer). The record
initially closed on December 14, 2016, when the parties
submitted final attorney fee and cost affidavits and
objections. The record reopened on that date until December
31, 2016, so parties could present evidence and argument
addressing Employer’s request for Employee’s past
benefits to be “suspended” or
“forfeited” for her alleged failure to file a
petition for a protective order or timely sign and return
discovery releases. The parties needed additional time to
prepare and present the requested evidence and arguments and
stipulated to the record closing on January 13, 2017. Given
the additional issue and need for more evidence, and the
panel members’ schedules, the record closed March 23,
2017, when panel members deliberated. This decision addresses
several preliminary issues, decides Employee’s claims
on their merits and resolves the subsequently briefed,
post-hearing benefit suspension or forfeiture issue.
ISSUES
As a
preliminary matter, Employee objected to the factfinders
considering evidence showing Gregory Konrath, M.D., had
committed a crime. She contended this evidence is irrelevant
because Dr. Konrath’s crime had nothing to do with
treatment he provided to Employee years earlier.
Employer
contended evidence demonstrating Dr. Konrath’s crime is
relevant because it demonstrates his character. Employer
contended the factfinders should consider this evidence.
1)
Is collateral evidence of a physician’s crime
admissible?
As
another preliminary matter, Employee contended the
factfinders should not consider nurse case manager Tracy
Davis’ reports because Employee filed a request for
cross-examination and Employer did not produce Davis for
questioning. Employee also contended Davis “manipulated
doctors” and inappropriately affected Employee’s
medical treatment and ultimately her claim.
Employer
contended numerous depositions reference Davis’
reports. Consequently, Employer contended the factfinders
should consider Davis’ reports over Employee’s
Smallwood objection.
2)
Are Davis’ documents admissible over Employee’s
objection?
As a
third preliminary issue, Employer contended the factfinders
should not consider Dr. Konrath’s medical records
because Employer timely filed a Smallwood objection
and Employee did not produce Dr. Konrath for
cross-examination. Employer also contended the subject
records are not an exception to the Smallwood
doctrine.
Employee
contended Dr. Konrath’s records are admissible as
“business record” exceptions to the
Smallwood doctrine. She contended Employer’s
Smallwood objections were also untimely and the
factfinders should consider Dr. Konrath’s records over
Employer’s objection.
3)
Are Dr. Konrath’s records admissible over
Employer’s Smallwood objection?
Employee
contends she injured multiple body parts when she slipped and
fell down on the job while working for Employer in 2009.
Specifically, she claims benefits for her right trigger
thumb, right basilar joint, right knee and right ankle.
Employee seeks an order finding her claims for various
benefits under the Act related to these body parts
compensable.
Employer
contends Employee suffered only cervical and thoracic strains
and sprains when she fell on the job in 2009. It contends her
work-related symptoms resolved within months and she is not
entitled to any additional benefits under the Act.
4)
Are Employee’s injuries to her right trigger thumb,
right hand basilar joint, right knee and right ankle
compensable?
Employee
contends she is entitled to temporary total disability (TTD)
from March 11, 2009, and continuing until medical stability
and her disability ends.
Employer
contends Employee is not entitled to any disability benefits
after March 11, 2009.
5)
Is Employee entitled to TTD benefits?
Employee
contends she is entitled to permanent partial impairment
(PPI) benefits.
Employer
contends Employee is entitled to little or no PPI for her
work injuries.
6)
Is Employee entitled to PPI benefits?
Employer
contends any awardable benefits should be suspended or
forfeited because Employee refused to sign discovery
releases.
Employee
contends her benefits should not be suspended or forfeited,
because she signed releases.
7)
Should Employee’s benefits be suspended or forfeited
for failure to sign discovery releases?
Employee
contends she is entitled to permanent total disability (PTD)
benefits resulting from her work injury with Employer.
Employer
contends Employee is not entitled to PTD benefits because she
can return to work.
8)
Is Employee entitled to PTD benefits?
Employee
contends she is entitled to past and future medical costs and
related transportation expenses for her various injuries
arising from her January 26, 2009 work injury.
Employer
contends Employee is not entitled to any additional past or
future medical costs or related transportation expenses
arising from her work injury.
9)
Is Employee entitled to past or future medical costs and
related transportation expenses?
Employee
contends she is entitled to a vocational reemployment
eligibility evaluation because she can no longer return to
work as a teacher. She further contends she is entitled to
benefits under AS 23.30.041(k) during periods for which she
is not entitled to other indemnity benefits.
Employer
contends Employee is not entitled to vocational reemployment
benefits because she can return to work as a teacher and,
alternately, has not vigorously pursued vocational
reemployment benefits. It contends equitable principles like
laches should prohibit her claim.
10)
Is Employee entitled to a vocational reemployment eligibility
evaluation or §041(k) compensation?
Employee
contends she is entitled to statutory interest on all
benefits awarded.
Employer
contends as no benefits are awardable Employee is not
entitled to interest.
11)
Is Employee entitled to interest?
Employee
contends she is entitled to attorney fees and costs on all
issues on which she prevails.
Employer
contends as no benefits are awardable Employee is not
entitled to attorney fees or costs.
12)
Is Employee entitled to attorney fees or costs?
FINDINGS
OF FACT
A
preponderance of the evidence establishes the following facts
and factual conclusions:
1) On
March 7, 2006, Employee said, “She is only 1 yr. from
retirement & maybe she should consider taking a medical
early retirement.” (Orthopedic Physicians Anchorage,
March 7, 2006).
2) On
June 1, 2007, Dale Trombley, M.D., wrote to Employee’s
principal suggesting “health-wise and
emotion-wise,” it was better for Employee to continue
working with “intermediate level children” rather
than younger children, “until her retirement.”
(Trombley letter, June 1, 2007).
3) On
April 3, 2008, Employee had an automobile accident.
(Employee).
4) On
August 19, 2008, Employee said she fell approximately four
weeks earlier and landed on her right knee. Since then,
Employee had difficulty kneeling because her kneecap was
tender. (Trombley chart note, August 19, 2008).
5) On
October 28, 2008, Lawrence Stinson, M.D., diagnosed Employee
with among other things cervical spondylosis with ongoing
cervicalgia and right upper extremity radiculitis symptoms.
(Stinson report, October 28, 2008).
6)
Employee’s past medical records show no significant
right thumb, hand, or ankle injuries or symptoms...
