Wood v. State, 122818 AKWC, 18-0131

• Case Date: December 28, 2018
• Court: Alaska

ANGELEE J. WOOD, Employee, Respondent, v. STATE OF ALASKA, Self-Insured Employer, Petitioner. AWCB Decision No. 18-0131 AWCB No. 201509544 Alaska Workers' Compensation Board December 28, 2018           INTERLOCUTORY DECISION AND ORDER           Janel Wright, Designated Chair.          State of Alaska's (Employer) December 11, 2018 petition for review of a board designee (designee) order denying Employer's October 3, 2018 and October 11, 2018 petitions was heard on the written record on December 18, 2018, in Anchorage, Alaska, a date selected on December 11, 2018. Employer's December 11, 2018 petition gave rise to this hearing. Attorney John Franich represents Angelee Wood (Employee). Assistant Attorney General Daniel Cadra represents Employer. Wood v. State of Alaska, AWCB Decision No. 18-0014 (February 14, 2018), denied Employee's request for a protective order against attending a neuropsychological examination with neuropsychological testing. (Wood I). The record closed at the hearing's conclusion on December 18, 2018.          ISSUE          Employer contends the designee abused his discretion when he denied Employer's petitions to strike records from the second independent medical evaluation (SEVJE) binders.          Employee opposed Employer's petitions to strike records from the SIME binders and contends the designee did not abuse his discretion, and denial of Employer's petitions should be affirmed.          Did the designee abuse his discretion when he denied Employer's petition to strike records from the SIME binder?          FINDINGS OF FACT          A preponderance of the evidence establishes the following facts and factual conclusions:          1) The parties stipulated in Woods I as follows: Employee was assaulted by an inmate at Highland Mountain Correctional Facility on June 16, 2015, during the course of her employment as a correctional officer; the inmate who assaulted Employee was wearing a cast and broke Employee's nose; this is an extremely complex medical case; Employer commenced workers' compensation benefits and those benefits have continuously been paid since the injury date; Employer originally scheduled a psychiatric and neuropsychological panel employer's medical evaluation (EME) in August 2017, rescheduled it at Employee's request, accommodated her numerous scheduling conflicts, and rescheduled the EME for October 3 and 4, 2017, with Paul Craig, Ph.D.; Employee is eligible for reemployment benefits and reemployment plan development has been suspended. Employee received treatment from a naturopath, chiropractor and psychiatrist. (Woods I.)          2) On August 16, 2017, Employee underwent a neuropsychological assessment with Thomas Bergquist, Ph.D., LP. He made "behavioral observations" including Employee had a clear stutter throughout the evaluation and understood most directions but needed directions repeatedly clarified. Occasionally, she seemed unable to concentrate for extended periods. She displayed a good attitude and established and maintained good rapport throughout the evaluation. Employee warned Dr. Bergquist she has difficulty controlling her temper and is easily frustrated mainly due to 'how high functioning' she used to be compared to how much difficulty she has now. Despite this warning, Employee was calm and pleasant throughout testing and handled even the difficult tests well. Dr. Bergquist felt Employee put forth good effort but, at the same time, noted she performed quite poorly. He stated she performed "well below the chance level on a measure of performance validity testing" and in certain other instances seemed to give effort that was much less than optimal. Dr. Bergquist emphasized Employee "refused to guess on items of the TOMM, a forced choice measure of performance validity testing, and gave a 'don't know' response despite significant prompting from the examiner on the majority of items on that particular measure. On those items which she did give response, she was correct in all but one instance." Dr. Bergquist determined Employee's evaluation results were of questionable validity, and as a result the data's integrity was questionable. He nonetheless interpreted the results with this factor in mind. Employee performed poorly on the vast majority of the evaluation's measures, including her basic measured intelligence, on which her overall performance was in the first percentile, a "clearly impaired range." Dr. Bergquist's impressions were:

The results of neurological testing are positive, but interpretation of the results is complicated by much less than expected, in fact less than chance, level of performance on performance validity testing measures. As a consequence, I am unable to confidently interpret the true significance of these results in terms of their representation of level of underlying cognitive dysfunction and even more so to the degree to which they represent underlying brain injury. They do represent that Mrs. Wood is having difficulties with functioning at this time. She essentially shows poor and impaired performances in the vast majority of measures given as part of this evaluation, with her performances varying from at, or even in some cases, above the average range to in other cases being clearly, even markedly, impaired. This includes her performance of measured intelligence which are markedly below expectation and are at the 1st percentile.

Also elevated are scores on measures of both anxiety and depression which are significantly elevated in both instances. In fact, her score in both measures are at or near the ceiling level including endorsement of suicidal ideation, though she denies any specific plan or intent. She also performs markedly poorly and well within the impaired range on measures of both motor speed and motor functioning bilaterally in both hands.

Thus in summary, these results, while not useful for determining the actual degree and nature and pattern of neurocognitive impairment, do represent a means to degree to which Mrs. Wood feels she is having difficulty and essentially can be considered almost a 'cry for help.' The fact that her performance is not only poor, but well below the chance level, on performance validity testing suggests some degree of an attempt to present to the examiner in such a way that she is trying to show how much difficulty she is having and the degree to which she is impaired.

She likely can benefit from the brain rehabilitation services including among other things cognitive rehabilitation, but these are really secondary to the need to address emotional, psychological factors and perhaps, most importantly, her own perception of her current situation. Also, related to this are the circumstances surrounding her injury and her job history in which she was involved in regular levels of stress on the job as a corrections officer.

(Mayo Clinic Neuropsychological Assessment, Dr. Bergquist, August 16, 2017.)          3) On September 20, 2017, Aryeh Levenson, M.D., sent an email to claims administrator Penser because he became aware Employer had scheduled a neuropsychological evaluation with Paul Craig, Ph.D. Dr. Levenson stated to maintain validity of neuropsychological testing the tests cannot be repeated within the same year; otherwise, recognition of the test invalidates the test scoring. It was unclear to Dr. Levenson what further information a retest would provide when the Mayo Clinic, "one of the nation's foremost institutions with expertise in head injuries" performed the initial test. Finally, Dr. Levenson asserted, "Ms. Wood's brain injury and juxtaposed PTSD have left sufficiently limited cognitive and emotional reserve that such frequent evaluations and reevaluation severely impact her emotional, cognitive, and psychiatric well-being." Dr. Levenson stated Employee's extensive evaluation history and treatment records document her strengths, limitations, and disabilities and further evaluations were unnecessary. Dr. Levenson concluded his email to Penser stating, "I do not feel comfortable discussing the details of her case or specific psychiatric, cognitive, and functional limitations further via email. However, I would like to discuss this case review so to avoid requiring additional unnecessary evaluations that inadvertently lead to further compromise of her mental and cognitive states." (Email from Dr. Levenson to Penser, September 20, 2017, SFME Number 2551.)          4) On November 29, 2017, Adam Grove, CBIS, ND, wrote to Assistant District Attorney (ADA) Lawrence Monsma, prosecutor from the Alaska Department of Law's Criminal Division responsible for prosecuting the inmate who broke Employee's nose. Dr. Grove was concerned the litigation of charges against Employee's assailant was causing Employee's...