Martin Williams, Appellant,
v.
Harnish Group, Inc., Appellee.
Decision No. 284
AWCAC Appeal No. 20-011
AWCB Decision No. 20-0045
AWCB Case No. 201501268
Alaska Workers Compensation Appeals Commission
March 17, 2021
Appeal
filed July 10, 2020; briefing completed November 12, 2020;
oral argument held on December 17, 2020.
Final
decision on appeal from Alaska Workers' Compensation
Board Final Decision and Order on Modification No. 20-0045,
issued at Fairbanks, Alaska, on June 12, 2020, by northern
panel members Robert Vollmer, Chair, and Jacob Howdeshell,
Member for Labor.
Kristina M. Miller, CSG, Inc., for appellant, Martin
Williams; Krista M. Schwarting, Griffin & Smith, for
appellee, Harnish Group, Inc.
Commissioners: Michael J. Notar, Amy M. Steele, Deirdre D.
Ford, Chair. By: Deirdre D. Ford, Chair.
FINAL DECISION
Deirdre D. Ford, Chair
1.
Introduction.
Martin
Williams timely appealed from the decision in Williams v.
Harnish Group, Inc. on his petition for modification
concerning the appropriate amount of attorney fees awarded
and whether a settlement occurred.1 The Alaska Workers'
Compensation Board (Board) originally heard the merits of his
claim on April 25, 2019, at which time the Board awarded
partial attorney fees based on settlement mentioned in the
attorney fees billing statements. Harnish Group, Inc.
(Harnish) accepted liability for past medical benefits on the
record the day of the hearing.2 The Board found a settlement was
reached by the parties as of April 15, 2019, because that was
the last mention of possible settlement in the billing
statement. The Board then denied any attorney fees accruing
after that date. Mr. Williams petitioned the Board on
December 9, 2019, seeking modification of Williams
I, based on several mistakes of fact. The Board
corrected the date of April 15, 2016, to April 15, 2019, and
denied the rest of the petition.3 Mr. Williams then appealed
to the Alaska Workers' Compensation Appeals Commission
(Commission). The Commission heard oral argument on December
17, 2020, and now remands this matter to the Board for
reconsideration.
2.
Factual background and proceedings[4]
Mr.
Williams asserts he fell on September 23, 2013, while at
work. Mr. Williams had pre-existing right elbow cubital
tunnel syndrome and right elbow epicondylitis.[5] On October 9,
2013, the magnetic resonance imaging (MRI) study of his right
elbow showed moderate bursitis, severe tendinopathy, and torn
common flexor tendon.6 On November 12, 2013, Jimmy M. Tamai,
M.D., performed right medial elbow debridement and common
flexor tendon repair surgery.7
By
December 9, 2013, Mr. Williams had made "excellent
clinical progress" following his November 12, 2013,
surgery. He had recovered full range of motion in his right
elbow without pain and was performing all activities of daily
living.8
On
November 19, 2014, Mr. Williams completed a formal injury
report, indicating he had slipped on September 23, 2013,
while exiting a pickup truck and landed on his right side,
injuring his right arm, shoulder, and tailbone.[9] Harnish completed
its section of the report on January 5, 2015, and filed the
report with the Workers' Compensation Division (Division)
on January 20, 2015.10
On
January 27, 2016, Harnish controverted all benefits on the
basis Mr. Williams had failed to timely report the injury,
and because Dr. Tamai's treatment records made no mention
of a work injury.11
On
February 10, 2016, Mr. Williams reported his September 23,
2013, fall at work to Dr. Tamai, and presented him with
documents concerning the injury report and Mr. Williams's
correspondence with his supervisor after the injury. In
response, Dr. Tamai wrote that he had billed Mr.
Williams's private health insurance because he was
unaware Mr. Williams's treatment involved a workers'
compensation injury. Had Dr. Tamai been aware the treatment
involved a workers' compensation injury, he "would
rectify this area." Dr. Tamai concluded, "there is
in fact a causal relationship from [Mr. Williams's]
injuries, to the subsequent diagnostic findings at
surgery."12
On
April 4, 2016, Ralph N. Purcell, M.D., evaluated Mr. Williams
on Harnish's behalf. Mr. Williams told him he was feeling
"perfect" four to five months before the accident.
However, Dr. Purcell opined that this was not consistent with
the medical records he reviewed. Dr. Purcell made eleven
different diagnosis, eight of which related to Mr.
Williams's right elbow, and concluded the work injury had
caused an elbow contusion, but the cause of Mr.
Williams's right elbow cubital tunnel syndrome was
idiopathic in nature, as there had been "no trauma
associated with that area." He also opined the cause of
Mr. Williams's preexisting right elbow medial
epicondylitis was also "idiopathic or degenerative in
nature[,] as there was no clear alternative etiology ever
presented in the records reviewed."[13]
On
April 27, 2016, Harnish controverted all benefits on the
basis of Dr. Purcell's April 4, 2016, employer's
medical examination (EME) report.14
On
March 12, 2018, Dr. Tamai wrote that he disagreed with Dr.
Purcell's April 4, 2016, EME report and opined,
"Following the injury, [Mr. Williams] presented with
objective clinical symptoms beyond `contusions to the
elbow.' His symptoms persisted and were consistent with
medial epicondylitis."15 Dr. Tamai opined Mr.
Williams's work for Harnish was the substantial cause of
Mr. Williams's need for medical care of his
elbow.16
On July
9, 2018, Mr. Williams claimed medical and transportation
costs, permanent partial impairment (PPI) benefits, interest,
and attorney fees and costs. He also sought a second
independent medical evaluation.17
On July
30, 2018, Harnish answered Mr. Williams's July 9, 2018,
claim and controverted time loss, medical, and PPI
benefits.18
On
September 21, 2018, Mr. Williams testified in deposition
concerning the details of his September 23, 2013, work
injury. Mr. Williams discussed the return of symptoms in his
right upper extremity following his second
surgery.19 He also called the lack of reference to
a work injury in Dr. Tamai's chart notes a "front
office snafu."20
On
October 31, 2018, Dr. Tamai testified in deposition regarding
Mr. Williams's medical treatment. He first saw Mr.
Williams in October of 2012 for a chronic right elbow
pain.21 Mr. Williams's condition in this
regard likely preexisted the 2013 work injury.[22]
The
mechanism of injury, as Mr...
