EDDIE SHIVERS, Employee, Claimant,
v.
SILVER BAY SEAFOODS, LLC, Employer,
and
LIBERTY INSURANCE CORPORATION, Insurer, Defendants.
AWCB Decision No. 21-0007
AWCB No. 201913896
Alaska Workers Compensation Board
January 26, 2021
INTERLOCUTORY
DECISION AND ORDER
Ronald
P. Ringel, Designated Chair
An
issue related to the Eddie Shivers’ June 9, 2020
petition for a second independent medical evaluation (SIME)
was heard in Anchorage, Alaska on January 13, 2021, a date
selected on November 18, 2020. An October 22, 2020 affidavit
of readiness for hearing gave rise to this hearing. Attorney
Patricia Huna appeared and represented Eddie Shivers
(Employee) who appeared and testified. Attorney Jeffrey
Holloway appeared and represented Silver Bay Seafoods, LLC
and Liberty Insurance Corporation (Employer). There were no
other witnesses. The record closed at the hearing’s
conclusion on January 13, 2021.
ISSUE
The
parties previously agreed to an in-person SIME. Employee
contends he is willing to travel to an out-of-state SIME
despite the COVID-19 pandemic, and he asks that the SIME be
ordered to proceed. Employer states it might be liable if
Employee contracted COVID-19 while traveling to the SIME and
the cost of complying with travel restrictions is too high;
it contends the risk is too great and asks that the SIME be
postponed until the risk has decreased.
Should
an in-person SIME be ordered?
FINDINGS
OF FACT
A
preponderance of the evidence establishes the following facts
and factual conclusions:
1) On
October 6, 2019, Employee slipped and fell while working in a
freezer. (First Report of Occupational Injury, October 8
2010).
2) On
June 29, 2020, the parties filed an SIME form, stipulating
that there were disagreements between Employee’s
doctors and Employer’s medical evaluator as to the
cause and compensability of Employee’s disability, the
need for medical treatment, and other issues including
functional capacity. The parties agreed the SIME should be
conducted by an orthopedist. (SIME Form, June 29, 2020).
3)
Employee lives in Phoenix, Arizona. (Record).
4) The
Board’s list of SIME doctors includes fifteen
orthopedists. Six practice in California, five in Hawaii,
three in Oregon, and one in Washington. None of the
orthopedists on the Board’s list of SIME doctors
perform evaluations in Arizona. (Bulletin 20-06, November 4,
2020)
5) On
August 13, 2020, the division issued Bulletin 20-02 (Revised)
regarding travel to SIMEs during the COVID-19 pandemic. The
bulletin noted the United States Center for Disease Control
(CDC) recommended high risk individuals avoid nonessential
air travel. The bulletin stated that travel to out-of-state
SIMEs was suspended for high risk individuals. The bulletin
also stated that if an injured work was not at high risk and
all parties agreed, travel to SIMEs could proceed. The
bulletin does not address cases in which an injured worker is
not at high risk but the parties do not agree on travel to
the evaluation. (Bulletin 20-02 (Revised), August 13, 2020).
6) At
the October 22, 2020 prehearing conference, Employee’s
attorney stated Employee was willing to accept the additional
risk of travel to an SIME during the COVID-19 pandemic.
Employer’s attorney stated Employer was not willing to
accept the...
