Rosales v. Inlet Worldwide Oil, Inc., 111219 AKWC, 19-0118

Case DateNovember 12, 2019
CourtAlaska
JAMIE ROSALES, Employee, Claimant,
v.
INLET WORLDWIDE OIL, INC., Employer,
And
AMERICAN ZURICH INSURANCE CO., Insurer, Defendants.
AWCB Decision No. 19-0118
AWCB No. 201604532
Alaska Workers Compensation Board
November 12, 2019
          FINAL DECISION AND ORDER           Jung M Yeo, Designated Chair.          Jaime Rosales’s (Employee) June 20, 2017 claim and Inlet Worldwide Oil, Inc.’s (Employer) September 13, 2019 petition were heard on September 24, 2019, in Anchorage, Alaska, a date selected on June 7, 2019. Employee’s December 24, 2018 hearing request gave rise to this hearing. Attorney Michael Patterson appeared and represented Employee who appeared and testified. Attorney Michelle Meshke appeared and represented Employer. Coby Shabolin appeared and testified for Employee. Ronald Teed, M.D., Daniel Kaufman, and Dan Asakawa appeared telephonically and testified for Employer. Bruce McCormack, M.D., appeared telephonically and testified. An oral order granted Employer’s September 13, 2019 petition to exclude Exhibit 14 in Employee’s September 6, 2019 exhibit list. This decision examines the oral order and decides Employer’s June 20, 2017 claim on its merits. The record remained open for supplemental fee affidavit, objection and reply, and closed on October 11, 2019.          ISSUES          As a preliminary matter, Employer sought to exclude Exhibit 14 on Employee’s September 6, 2019 Exhibit List based on hearsay and irrelevance. Exhibit 14 is a second independent medical evaluation (SIME) report of an unrelated claimant, Tanya Anderson, by Marvin Zwerin, D.O., which involves an employer’s medical evaluation (EME) report from Dr. Teed and Dr. Zwerin’s negative comments about Dr. Teed’s opinion. Employer also contended medical report disclosure of an unrelated claimant may violate the Health Insurance Portability and Accountability Act (HIPAA) privacy rules.          Employee contended medical facts in Anderson’s case were similar to those in Employee’s case; therefore Exhibit 14 would be relevant to cross-examine Dr. Teed who relied on the controversial Bradford-Hill criteria in Anderson’s case to establish a causal relationship between Anderson’s work injury and her subsequent medical condition. Employee made an offer of proof that Anderson authorized him to use her SIME report and contended she would be a necessary witness for rebuttal or to authenticate Exhibit 14. An oral order issued granting Employer’s request to exclude Exhibit 14.          1)Was the oral order excluding Exhibit 14 on Employee’s September 6, 2019 Exhibit List correct?          Employee contends he sustained a compensable injury on September 27, 2015, while working for Employer, and is entitled to temporary total disability (TTD) benefits.          Employer disagrees; it contends the work injury is not the substantial cause of Employee’s need for medical treatment, and his disability is due to the progression of a pre-existing condition.          2) Is Employee entitled to TTD benefits?          Employee contends he sustained a compensable injury on September 27, 2015, while working for Employer, and is entitled to permanent partial impairment (PPI) benefits.          Employer disagrees; it contends the work injury is not the substantial cause of Employee’s need for medical treatment, and any permanent impairment due to progression of a pre-existing condition.          3) Is Employee entitled to PPI benefits?          Employee contends he needs continuing medical care and treatment for his work injury. He seeks an order requiring Employer to pay for all medical benefits necessitated by his work injury.          Employer contends Employee is entitled to no additional medical care or related transportation costs based on its EME opinions, and his claim should be denied.          4) Is Employee entitled to medical and transportation costs?          Employee contends he is entitled to interest on unpaid TTD and PPI benefits. He contends his attorney provided valuable services that will result in the award of benefits; consequently, he should be awarded attorney fees and costs.          Employer contends Employee is not entitled to interest, attorney fees and costs as it timely controverted his claims, and he is not entitled to any benefit in this case.          5) Is Employee entitled to interest, attorney fees or costs?          FINDINGS OF FACT          A preponderance of the evidence establishes the following facts and factual conclusions:          1) Employee was born with a high riding left testicle. Once as a child, he had to go to the hospital due to testicular pain. (Medical Summary, March 23, 2019; Employee).          2) Employee has had intermittent lower back pain since he was 17 years old. He had been involved in three car accidents, which aggravated his pain but resolved. (Medical Summary, Brandy Atkins, DNP, report, January 8, 2018; Employee).          3) In 2008, working as a cashier at Fred Myers, Employee developed back pain that radiated to the front of his groin. An emergency room physician diagnosed sciatic nerve pain. Employee has had a sore back since. (Affidavit of Service, September 17, 2019).          4) On November 15, 2011, Employee was involved in a car accident. (Medical Summary, Patient Information, February 5, 2018).          5) On December 2, 2011, Employee visited Diamond Medical Clinic for back pain caused by the November 15, 2011 accident. (Medical Summary, Diamond Medical Clinic, March 7, 2018).          6) On December 6, 2011, Employee saw Douglas Luther, D.C. An x-ray showed no evidence of fracture, tumor, or other pathological conditions in his back. Dr. Luther diagnosed subluxation of cervical, thoracic, and lumbar spine, and recommended chiropractic treatment three times per week. (Medical Summary, Radiology Report, February 5, 2018).          7) On March 28, 2012, Employee reported 90 percent improvement since starting care with Dr. Luther. He also reported having “no pain at the moment” and being able to “lift heavy weights without extra pain.” (Medical Summary, Interim Reexamination Questionnaire, February 5, 2018).          8) On March 29, 2012, Dr. Luther concluded Employee reached “maximal medical improvement” and instructed him to return for symptomatic relief on an as-needed basis. (Medical Summary, Luther report, February 5, 2018).          9) In May 2012, Employee began working for Employer. (Employee).          10) On August 15, 2012, Richard Peterson, D.C., opined he expected no low back injury from the November 15, 2011 accident due to its minimal nature, only a mild strain to the cervical and thoracic regions, which “would usually resolve within six weeks.” (Medical Summary, Independent Medical Records Review, March 7, 2018).          11) On September 27, 2015, Employee injured his low back lifting a tire while working for Employer. He had been working extended hours changing tires since the winter tire season started. (Deposition of Jaime Rosales, March 27, 2018, at 30; Medical Summary, Atkins report, January 8, 2018).          12) Employee was an assistant manager, and his job was mostly administrative until Employer introduced the tire changeover services in 2014. (Kaufman; Employee).          13) In Alaska, businesses generally offer winter tire changeover services beginning the 15th of September. (Observation; knowledge).          14) Employee reported his September 27, 2015 injury to Daniel Kaufman, his supervisor. Kaufman could not recall the exact date Employee reported the work injury. (Kaufman).          15) On September 28, 2015, Employee woke up with pain in bilateral lower extremities mainly to the buttock region. (Employee’s Exhibit List, September 6, 2019, Exhibit 1).          16) On September 29, 2015, Employee visited First Care due to intense pain in his lower back and was given a Toradol shot. The First Care medical record reads “History of sciatica, left side, then right side after car accident. No injury.” Later on the same date, Employee saw Kathleen Nuttle, PA-C. He denied any specific injury, but stated he recently changed heavy tires at work. PA-C Nuttle diagnosed low back pain and a probable bulging disc at L5-S1. An x-ray showed moderate disc space narrowing at L4-5 and L5-S1 without evidence of compression fracture or instability. (Medical Summary, January 8, 2018).          17) On October 12, 2015, a magnetic resonance imaging (MRI) showed an L4-5 disc protrusion and...

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