Zorislav M. Stojanovich, Appellant,
v.
NANA Regional Corporation, Inc. and ACE American Insurance Company, Appellees.
Decision No. 207
AWCAC Appeal No. 14-001
AWCB Decision No. 13-0157
AWCB No. 201004694
Alaska Workers Compensation Appeals Commission
January 26, 2015
Final
decision on appeal from Alaska Workers' Compensation
Board Final Decision and Order No. 13-0157, issued at
Fairbanks, Alaska, on December 2, 2013, by northern panel
members Amanda K. Eklund, Chair, Rick Traini, Member for
Labor, and Krista Lord, Member for Industry.
Commission
proceedings: Appeal filed January 2, 2014; briefing completed
October 21, 2014; oral argument held on January 13, 2015.
Zorislav M. Stojanovich, self-represented appellant;
Robert
J. Bredesen, Russell, Wagg, Gabbert & Budzinski, P.C.,
for appellees,
NANA
Regional Corporation, Inc. and ACE American Insurance
Company.
Commissioners: James N. Rhodes, S. T. Hagedorn, Laurence
Keyes, Chair.
FINAL DECISION
LAURENCE KEYES, CHAIR.
1.
Introduction.
Appellant,
Zorislav M. Stojanovich (Stojanovich), was employed by
appellee, NANA Regional Corporation, Inc. (NANA), which is
insured for workers' compensation liability by appellee,
ACE American Insurance Company. Stojanovich alleges that on
March 23, 2010, he injured his right hip while working for
NANA as a kitchen helper on the North Slope. After NANA
controverted benefits, Stojanovich filed his first
workers' compensation claim with the Alaska Workers'
Compensation Board (board) on or about September 10, 2010. He
filed subsequent claims on or about December 11, 2012, and
April 10, 2013. The board held hearings on Stojanovich's
claims on December 27, 2012, May 9, 2013, June 27, 2013, and
September 19, 2013. It issued Interlocutory Decisions and
Orders (ID&O) on February 22, 2011,
1 October 31, 2012,
2 and January 17, 2013.
3 It issued two Final Decisions and
Orders (FD&O), the first on July 25, 2013,
4 and the second on December 2,
2013.
5 Ultimately, the board
held that Stojanovich's "disability or need for
medical treatment for any body part did not arise out of and
in the course of his employment with
[NANA]."
6
Stojanovich
filed an appeal of the board's decision in
Stojanovich V to the Workers' Compensation
Appeals Commission (commission), essentially taking issue
with the board's reasoning in denying his
claims.
7 We affirm.
2.
Factual background and proceedings.
The
board incorporated all findings of fact in Stojanovich I,
II, III, and IV in its decision in Stojanovich
V, and found them to have been established by a
preponderance of the evidence.
8 Those findings, paraphrased to some
extent, are as follows.
For
several years prior to the alleged work injury, Stojanovich
treated with Brent A. Ursel, PA-C, and Robert Reeg, M.D., for
chronic lower back pain. Beginning in 2006, he obtained
prescriptions for narcotic pain medication from both PA-C
Ursel and Dr. Reeg simultaneously and had them filled at
different pharmacies. Neither PA-C Ursel nor Dr. Reeg was
aware that Stojanovich was obtaining narcotics from more than
one source.
9
On July
19, 2009, Stojanovich appeared at the Providence Seward
Medical Center emergency department complaining of heart
palpitations. He was diagnosed with recurrent atrial
fibrillation. As part of the routine diagnostic procedure,
Stojanovich underwent a urine toxicology screen. Despite
concurrent narcotic prescriptions provided by PA-C Ursel and
Dr. Reeg, his toxicology results were negative for
opiates.
10
At
Stojanovich's request, on January 18, 2010, Dr. Reeg
wrote a "To Whom It May Concern" letter:
I am Zorislav Stojanovich's primary care provider. I have
reviewed the letter from NMS [NANA Management Services] dated
January 14, 2010, in regard to the job description for remote
kitchen helper.
Based upon the information that I have available and from my
interactions with the patient, I do believe that Mr.
Stojanovich can perform the requirements of the job without
presenting a health or safety risk to himself or anyone
else.11
Less
than a week later, on January 20, 2010, Dr. Reeg reported:
Patient is a 54 year-old male here to pick up the letter I
wrote stating that it would be acceptable to perform a job
for which he has applied. He also requests additional opiate
prescription as he states that apparently the previous
prescription was written for one OxyContin b.i.d. instead of
two b.i.d. Approximately one week ago, I was contacted by
Costco Pharmacy reporting some irregularities in patient
filling his medications. He had filled a week's supply of
his OxyContin four different times within a 12-day period.
This prompted a call from Costco Pharmacy. I initially had
been under the impression that patient's prescriptions
were filled by Purdue. I had thought that he was getting
prescription assistance from Pardue (sic) and had to get his
medications there. It came to my attention that patient was
seeing Brent Ursel, physician's assistant in town, and
getting a monthly supply of Vicodin in addition to having
OxyContin and Percocet prescribed by me, so this is a clear
violation of his pain contract.
Patient initially denied that he had gotten prescriptions
filled at Costco. It is still not clear to me what the role
of Purdue Pharmaceuticals has been in filling his
prescriptions as it appears that his prescriptions have been
filled at Costco. Nonetheless, I had a frank discussion with
the patient, stating that his filling opiate prescriptions at
two different providers is a clear violation of his pain
contract. I will discuss that I will no longer provide
opiates for chronic management of his pain. I have asked the
Medical Assistant to contact Purdue Pharmaceuticals tomorrow
to get further information as to what exactly has been
dispensed from them.[12]
The
following day, January 21, 2010, at Stojanovich's
request, Dr. Reeg prescribed a tapering schedule, to limit
the discomfort of opiate withdrawal.
13
On
March 23, 2010, Stojanovich alleged he "turned suddenly
to the right and felt sharp pain in [his] right hip, [he]
felt something pop inside [his] hip" while working for
NANA.
14 The same day, he saw
NANA's on-site medic, Jose Diaz, PA. Stojanovich
described his injury as "twisted my body to the right
and hurt my hip and behind the butt." He indicated the
injury occurred at 4:00 a.m. PA Diaz diagnosed right hip pain
and recommended over-the-counter pain
medications.
15 Later in the day,
Stojanovich returned to the on-site medical clinic, where he
was diagnosed with "hip pain – probably
exacerbation [of] prior personal condition" and received
acupuncture treatment.
16 The following day, March 24, 2010,
he was sent home for additional treatment.
17
On
April 2, 2010, Stojanovich saw PA-C Ursel, complaining of
right hip pain. He reported he "was at work on March
23rd. He was standing at his station. He went to turn, and
heard a click in his right hip. He had immediate pain."
PA-C Ursel noted that Stojanovich walked with a limp and had
difficulty rising from a chair. X-rays taken that day were
negative for fracture or dislocation. PA-C Ursel referred
Stojanovich to Richard W. Garner, M.D., an orthopedist and
excused him from work until April 15, 2010.
18
Stojanovich
saw Dr. Garner on April 19, 2010, reporting he "was
working on [t]he North Slope at a kitchen counter, when he
turned suddenly to the right and had immediate sharp,
stabbing pain in the anterior right hip." The
nurse's notes from that visit indicate Stojanovich
"thinks [he] twisted not sure if had foot planted."
Dr. Garner ordered a magnetic resonance imaging (MRI) study
and diagnosed a probable labral tear. He noted, "It was
my comment to the patient that his medication should be more
than adequate, and I specifically declined to order him
anything additional, nor would I go so far as to use the
fentanyl patch, were that my decision."
19
Stojanovich
underwent a hip MRI on April 22, 2010, which revealed
subchondral cysts, labral tear, and early degenerative
changes in the articular surface of the femoral
head.
20 He followed up with
Dr. Garner, who diagnosed a labral tear, probably acute, in
the right hip superimposed on a moderate degree of
osteoarthritis. Stojanovich described his pain as
"unrelenting," and he walked with a "markedly
antalgic gait on the right." Dr. Garner prescribed
Percocet for pain, but noted Stojanovich was already on a
fentanyl patch with Norco for breakthrough pain, as
prescribed by PA-C Ursel, and "I informed him...