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...