Standifer v. Kendall Dealership Holdings, 042221 AKWC, 21-0036

• Case Date: April 22, 2021
• Court: Alaska

BRANDY C. STANDIFER, Employee, Claimant, v. KENDALL DEALERSHIP HOLDINGS, Employer, And REPUBLIC INDEMNITY CO. OF AMERICA (RIG), Insurer, Defendants. AWCB Decision No. 21-0036 AWCB No. 202006744 Alaska Workers Compensation Board April 22, 2021           FINAL DECISION AND ORDER           William Soule, Designated Chair          Employee Brandy Standifer's December 10, 2020 petition for a second independent medical evaluation (SIME) and for review of the Rehabilitation Benefits Administrator's designee's (RBA-designee) eligibility decision was heard on April 22, 2021, in Anchorage, Alaska, a date selected on March 4, 2021. A January 27, 2021 hearing request gave rise to this hearing. Employee represented herself and testified as the only witness. Attorney Krista Schwarting represented Kendall Dealership Holdings and its insurer. (Collectively, Employer). All participants appeared by telephone. The record closed at the hearing's conclusion on April 22, 2021.          ISSUES          Employee contends she is entitled to an SIME.          Employer contends there are no medical disputes between Employee's attending physician and its Employer's medical evaluator (EME) Donald Schroeder, M.D. Consequently, her request for an SIME should be denied.          1) Should an SIME be ordered at this time?          Employee disagrees with the RBA-designee's determination that she is ineligible for reemployment benefits. She seeks an order overturning that decision.          Employer contends the RBA-designee followed proper procedures and relied on Dr. Schroeder's prediction that Employee would have permanent physical capacities to perform a job she held in the 10 years prior to her injury, a finding that rendered her not eligible for reemployment benefits. It seeks an order affirming the RBA-designee's decision.          2) Should the RBA-designee's determination be affirmed?          FINDINGS OF FACT          A preponderance of the evidence establishes the following facts and factual conclusions:          1) On May 27, 2020, Employee strained her back at work while working as a janitor for Employer. (First Report of Injury, June 18, 2020).          2) On May 29, 2020, John Ellison, D.O., with South-Central Foundation, Anchorage Native Primary Care Center, removed Employee from work for one week due to a back injury. He subsequently referred her to physical therapy and restricted her to light duty work through June 26, 2020. (Ellison reports, May 29, 2020; June 16, 2020).          3) On June 22, 2020, lumbar spine x-rays showed degenerative disc space narrowing and a vacuum phenomenon at L5-S1. (X-ray report June 22, 2020).          4) A July 2, 2020 a magnetic resonance imaging (MRI) showed broad-based disc bulges from L3-4 through L5-S1, which combined with facet joint degenerative change, caused moderate to severe neural foramina stenosis and moderate to severe central canal stenosis at L4-5, and mild to moderate central canal stenosis at L3-4 and L5-S1. (MRI report, July 2, 2020).          5) On July 10, 2020, Erin Carrick, PA-C, removed Employee from work through July 24, 2020,. due to her back pain. (Carrick report, July 10, 2020).          6) On July 20, 2020, John Fitzpatrick, DC, referred Employee to her primary care provider. The record reports:

The patient presents with back pain. The context of the back pain: occurred after repetitive work duties. Patient presents over the phone in distress with intense back pain, difficult to understand going off track and giving lots of dates. Patient explained that she has been working at Kendall Toyota since 9/2019 and states she was at this time a healthy individual. She states that she has documented that she let her boss know of her back pain 4/06. She reported having a large order of paper products 5/27. Patient states because of the repetitive duties overtime, that triggered her present back pain. . . (Fitzpatrick report, July 20, 2020).

         7) On July 30, 2020, neurosurgeon Norman Rokosz, M.D., evaluated Employee for her back and right leg pain and charted:

She started having some low back pain at the beginning of the Covid lockdown.

She already had a large workload, but this was complicated by the lockdown including his [sic] significantly increased cleaning standards which she was responsible for.

She often asked for additional help but never got any.

Except for an injury at work, 05/27/2020 with significant low back pain and pain radiating down the right leg. Her right toe is somewhat numb.

ASSESSMENT AND PLAN: A 39-year-old female with right L5 radiculopathy secondary to some acquired factors causing lumbar stenosis at L4-5 but mostly right L4-5 disc protrusion....

         He recommended an epidural steroid injection at L5 and additional therapy, with surgery as an option if she did not respond to more conservative treatment. (Rokosz report, July 30, 2020).          8) On July 31, 2020, Employee had an epidural steroid injection. (Chart note, July 31, 2020).          9) September 8, 2020, Employee reported that the epidural steroid injection did not help her symptoms. (Chart note, September 8, 2020).          10) On September 15, 2020, Employee reported to PA-C Carrick that she was waiting for a neurosurgery appointment and consultation. Carrick recorded:

States there was a report that states unable to identify where the injury came from and states she was completely overworked and did work for 3-4 people herself and then was ignored for 2 months. She thinks that things got worse for 2 months and she thinks the disc actually ruptured in May 2020 and was healthy prior. (Carrick report, September 15, 2020).

         11) On September 17, 2020, Dr. Rokosz offered Employee back surgery at L4-5, and she was willing to proceed. (Rokosz report, September 17, 2020).          12) Employee's medical care for her work injury has all come within the Alaska Native Health Care system. None of Employee's attending physicians has opined concerning causation of Employee's ongoing symptoms, permanent impairment, expected physical capacities or need for medical treatment or any related disability. (Inferences drawn from all the above).          13) On October 2, 2020, EME Dr. Schroeder examined Employee and noted a "mild amount of pain behavior throughout the entire examination." He diagnosed a lumbar strain related to exertional stress at work; preexisting, multilevel degenerative disc disease in the lumbar spine; preexisting severe neural foraminal stenosis at L4-5 on the right; history of drug abuse and depression; and pain behavior. In his opinion, diagnoses one through three are causes of Employee's disability and need for medical treatment after the May 27, 2020 injury. Considering these three causes, Dr. Schroeder opined the work injury was the substantial cause of Employee's need for treatment and disability for the first five months post-injury, but the work injury "has resolved," and now the degenerative changes in her lumbar spine was the substantial cause of her current symptoms and disability. He agreed a microdiscectomy at L4-5 is reasonable and necessary but it is not related to her work exposure. Dr. Schroeder further opined Employee was medically stable from her work injury and it was "undetermined" if her injury would result in any PPI rating but she had "no ratable impairment at this time." In his view, any further medical treatment would be palliative. Employee was unable to return to work as a janitor because of her spinal stenosis; Dr. Schroeder placed no restrictions on Employee caused by work exposure. In his opinion, she should be able to return "to sedentary type work" but "she would be better served doing light sedentary type work in the future." (Schroeder report, October 2, 2020).          14) On October 9, 2020, rehabilitation specialist Janice Shipman submitted an eligibility evaluation to the RBA-designee. Shipman stated Employee's attending physician would not make predictions about her physical capacities or PPI until "after surgery is completed." Surgery could not be completed until dental work was done. Therefore, Shipman recommended the evaluation be suspended pending further information from the attending physician. (Eligibility evaluation, October 9, 2020).          15) On October 23, 2020, the RBA-designee suspended the evaluation and gave the specialist further instructions. (RBA-designee letter, October 23, 2020).          16) On November 1, 2020, Shipman again requested suspension because Employee's...