Wright v. State, 110618 AKWC, 18-0117

• Case Date: November 06, 2018
• Court: Alaska

JANA L. WRIGHT, Employee, Claimant, v. STATE OF ALASKA, Self-Insured Employer, Defendants. AWCB Decision No. 18-0117 AWCB Case No. 201604175 Alaska Workers' Compensation Board November 6, 2018           INTERLOCUTORY DECISION AND ORDER           Kathryn Setzer, Designated Chair.          Jana L. Wright’s (Employee) September 12, 2016 claim was scheduled to be heard on October 23, 2018 in Juneau, Alaska, a hearing date selected on August 28, 2018. A June 20, 2018 affidavit of readiness for hearing (ARH) gave rise to this hearing. Employee appeared telephonically and testified. Attorney Adam Franklin appeared and represented Alaska Marine Highway System and State of Alaska (Employer). There were no other witnesses. The record closed at the hearing’s conclusion on October 23, 2018.          ISSUE          As a preliminary issue, Employee orally requested a hearing continuance. Employee contended a hearing continuance should be granted because several of her witnesses were unavailable. Employer objected to continuing the hearing and requested the hearing proceed. The panel orally granted Employee’s request to continue the hearing.          Was the oral order continuing the October 23, 2018 hearing correct?          FINDINGS OF FACT          The following facts and factual conclusions are undisputed or established by a preponderance of the evidence:          1) On March 14, 2016, Employee reported trouble breathing and a non-productive cough aggravated by chemicals while working for Employer on the M/V Kennecott. (Employee First Report of Occupational Injury or Illness, March 14, 2016).          2) On March 14, 2016, Employee visited the emergency room at Ketchikan General Hospital for a dry cough starting three days ago. Employee reported trouble breathing. She was diagnosed with a viral infection and instructed, “No strenuous activity. Rest. Return to work when better. ([W]ear a mask at work).” Employee was prescribed an albuterol inhaler, Robitussin AC, and Tessalon perles. (Emergency Room Report, March 14, 2016).          3) On March 16, 2016, Employee followed up with Donna Paul, ARNP, for ongoing chest congestion and cough. Employee reported mild intermittent episodes of shortness of breath worse at night and a persistent cough beginning three months ago. ARNP Paul assessed asthma exacerbation, cough and smoking history greater than 30 pack years. ARNP Paul noted:

Unfortunately patient presents with an extended history of cough. 11/30 she was seen by acute care and treated for bronchitis with prednisone and Z-Pak. She was instructed to return to the clinic in 10 days if not improved. She did return to the clinic at that time for persistent cough but again saw the acute care provider and not her PCP. She was given an inhaled steroid and was told to follow up with her PCP in 2 weeks if she was still having an issue. Patient reports that she will use the albuterol but that she is not using the inhaled steroid because it is “scary” – chest x-ray at that time was negative. Patient had thought that she had improved but was seen again in acute care 2/5/2016 with a flare of her bronchitis and a secondary ear infection which was treated with albuterol and Augmentin. She returned to work on the ferry and found herself becoming more and more [short of breath] - especially at night. She had a roommate with a humidifier and it got a lot worse when she moved to another room. She left the boat that morning on 3/14/2016 and was seen in the ER in [Ketchikan]. Normal EKG and chest x-ray -she was instructed to follow through with her PCP and was given 2 forms of cough suppressant. She needs a work excuse today. . . . The good news is that patient has stopped smoking about 1 week ago because of this cough. (Paul Chart Note, March 16, 2016).

         4) On March 21, 2016, Employee followed up with Lynn Prysunka, M.D., for respiratory issues. Employee reported ongoing cough, wheezing, shortness of breath and right ear pain. Dr. Prysunka diagnosed mild intermittent asthma beginning months ago, aggravated by airborne chemicals and respiratory infections and noted Employee’s family history of brittle severe asthma. She stated Employee “did not really have symptoms of this until a viral infection last fall. Recently Employee’s job on the ferry exposed her to fumes while cleaning. Her symptoms have improved now but she continues to feel short of breath and wheezy with moderate activity.” Employee used both nebulized and metered doses of albuterol. Employee’s examination was fairly normal. Dr. Prysunka took Employee off work for another week and scheduled reevaluation on March 28, 2016. (Prysunka Chart Note, March 21, 2016).          5) On March 28, 2016, Dr. Prysunka assessed chemical pneumonitis or acute asthmatic reaction caused by exposure to fumes at work, because Employee’s symptoms started after exposures to chemicals while cleaning the ferry she worked on last October and November. Employee’s milder cough and dyspnea improved but upon returning to work she was exposed to chemicals which caused a rebound in symptoms in March with increased severity. Employee’s examination revealed expiratory wheezes and a non-productive cough. A pulmonary function test indicated obstructive ventilatory defect. Initially, Dr. Prysunka thought Employee’s symptoms were due to an asthma exacerbation. In retrospect, Dr. Prysunka noted Employee’s only other asthma-like symptoms occurred in October when she was initially exposed to chemicals at work. Dr. Prysunka continued Employee on albuterol and Flovent 44 µg. She did not release Employee to work. Employee requested to see a specialist. (Prysunka Chart Note, March 28, 2016).          6) On April 21, 2016, Employer denied all benefits contending Employee’s claim is medically complex and she failed to produce medical evidence linking her employment and the medical condition and need for treatment. (Controversion Notice, April 21, 2016).          7) On April 26, 2016, Employer withdrew its April 21, 2016 controversion notice. (Withdrawal Notice, April 26, 2016).          8) On June 9, 2016, Emil Bardana, M.D., a pulmonologist, examined Employee for an Employer’s Medical Evaluation (EME). Dr. Bardana diagnosed adult-onset, non-allergic, non-occupational, moderately severe bronchial asthma precipitated by acute respiratory infections, probably viral, and probable mild to moderate chronic bronchitis associated with chronic tobacco smoking. He opined Employee’s employment is not the substantial cause of her need for medical treatment or disability. After reviewing the cleaning products with Employee and the industrial hygiene data, Dr. Bardana stated the medical evidence does not support the exposures to cleaning chemicals at work as a likely contributor to Employee’s ongoing asthma. He opined the substantial cause of Employee’s need for treatment and disability are the recurrent respiratory infections Employee developed and her smoking history. (Bardana EME Report, June 9, 2016).          9) On June 20, 2016, Employer denied all benefits based upon Dr. Emil Bardana’s EME report. (Controversion Notice, June 20, 2016).          10) On September 12, 2016, Employee filed her claim seeking permanent total disability (PTD). (Claim for Workers’ Compensation Benefits, September 12, 2016).          11) On October 27, 2016, Employer deposed Dr. Prysunka. (Deposition Transcript, October 27, 2016).          12) On December 21, 2016, Employee visited Dr. Prysunka and she scheduled an appointment with the pulmonologist through Alaska Native Medical Center. (Prysunka Chart Note, December 21, 2016).          13) On December 22, 2016, the parties stipulated to an SIME and set deadlines for filing SIME medical records, SIME questions and a mutually signed SIME form. (Prehearing Conference, December 22, 2016).          14) On January 16, 2017, Employee visited Dustin McLemore, M.D., a pulmonologist, who stated:

This is a 56-year-old who comes to establish care for inhalational injury induced asthma.

According to the records and she developed asthma symptoms in March 2016 following heavy exposure to cleaning solutions while detailing the state rooms of an Alaska Marine Highway ferry. The patient works on the Alaska Marine Highway system as a cashier and occasionally cook, and in the spring of this year was assisting the crew in detailing state rooms when she was exposed to high concentrations of unspecified cleaning chemicals. Immediately after that she developed shortness of breath,

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