99-0156 - Alaska



ALASKA WORKERS' COMPENSATION BOARD

P.O. Box 25512 Juneau, Alaska 99802-5512

COLEEN A. GRANUS, )

)

Employee, )

Applicant, ) INTERLOCUTORY

) DECISION AND ORDER

v. )

) AWCB CASE No. 9509365

WILLIAM P. FELL, D.D.S., )

) AWCB Decision No.99-0156

Employer, )

)

and ) Filed in Anchorage, Alaska

) July 23, 1999

CNA INSURANCE COMPANY, )

)

Insurer, )

Defendants. )

___________________________________)

We heard the parties' joint request for a follow-up, second independent medical evaluation (SIME) under AS 23.30.095(k) at Anchorage, Alaska on May 19, 1999. Attorney Robert Rehbock represents the employee. Attorney Constance Livsey represents the employer. We proceeded as a two-member panel, which constitutes a quorum. AS 23.30.005(f). We closed the record on June 19, to allow the parties a 30 day opportunity to nominate doctors for us to choose who will perform the SIME.

ISSUE

Which doctor to choose to perform an SIME?

SUMMARY OF THE EVIDENCE AND PROCEEDINGS

We incorporate by reference our prior decisions in Granus v. William Fell, D.D.S., AWCB Decision No. 96-0231 (June 11, 1996) (Granus I), and AWCB Decision No. 99-0016 (January 20, 1999) (Granus II). At the May 19, 1999, hearing the parties filed a joint request for a follow-up SIME form. The parties agree disputes exist under AS 23.30.095(k) regarding causation, compensability, and the recommended course of treatment (if any) for the employee's condition. The form indicates a physician with a specialty in psychiatry and/or psychology should be chosen to perform the SIME.

The employee, a dental assistant, claims she suffered a thumb-puncture on a sterile instrument on May 18, 1995. Based on recommendations from her physicians, who have diagnosed reflex sympathetic dystrophy (RSD), caused by the alleged puncture, the employee has received a wide range of treatments. The employer contests these treatments are neither reasonable nor necessary, or work-related.

In Granus I, we granted the parties' joint request for an SIME, and directed the parties to suggest names of physicians with a specialty in psychiatry. On November 13, 1996, the employee was evaluated by Wandal W. Winn, M.D., a Board certified psychiatrist and neurologist, at the request of the Board. In Granus II, we made several orders regarding discovery and releases.

On May 19, 1999, the employee nominated the following two doctors for our consideration: Richard Rauck, M.D., and Michael Stanton Hicks, M.D. The only information provided by the employee about Dr. Rauck is that he is the "Director Pain Control Center, Bowman Gray School of Medicine" and his address in North Carolina. The only information provided by the employee about Dr. Hicks is that he is he is the "Director Pain Management Center, Cleveland Clinic Foundation" and his address in Ohio.

At the May 19, 1999 hearing, the employer requested we select Dr. Winn to perform the follow-up SIME, and that psychiatry remains the appropriate area of specialty. Nonetheless, on June 15, 1999, the employer also nominated the following two doctors for our consideration: Neil L. Pitzer, M.D., and Raymond R. Gaeta, M.D. According to his Curriculum Vitae, Dr. Pitzer serves as the Associate Medical Director of the Center for Spine and Orthopedic Rehabilitation in Englewood Colorado, and an Assistant Clinical Professor of Rehabilitation Medicine and the University of Colorado Health Sciences Center in Denver. Dr. Pitzer's research interests include: Electrodiagnosis of Reflex Sympathetic Dystrophy; Magnetic Stimulation of the Phrenic Nerve; Electordiagnostic Parameters of Peripheral Nerve Regeneration; and Electrophysiologic Monitoring of Sympathetic Nerve Block. The employer also included an article by Dr. Pitzer, published in the Colorado Neurological Institute Review, Summer 1996, titled: "Reflex Sympathetic Dystrophy."

According to his Curriculum Vitae, Dr. Gaeta serves an Associate Professor of Anesthesia and Director of the Pain Management Service, Department of Anesthesia at Stanford Medical Center, Stanford, California. Dr. Gaeta's bibliography reflects a strong emphasis in published works in anesthesia issues.

FINDINGS 0F FACT AND CONCLUSIONS OF LAW

AS 23.30.095(k) provides in pertinent part:

In the event of a medical dispute regarding determinations of causation, medical stability, ability to enter a reemployment plan, degree of impairment, functional capacity, the amount and efficacy of the continuance of or necessity of treatment, or compensability between the employee's attending physician and the employer's independent medical evaluation, the board may require that a second independent medical evaluation be conducted by a physician or physicians selected by the board from a list established and maintained by the board. The cost of an examination and medical report shall be paid by the employer. The report of an independent medical examiner shall be furnished to the board and to the parties within 14 days after the examination is concluded.

We find, as we found in Granus I, there are medical disputes regarding causation, compensability, and the recommended course of treatment (if any) for the employee's condition.[1] We find Dr. Winn has performed an adequate psychiatric SIME which accurately and adequately answered our psychiatric questions. We find a follow-up SIME by a physician who specializes in RSD would significantly benefit the Board in making our decisions. Furthermore, we find the parties agree to our ordering an SIME. Based on the parties' agreement and our findings, we exercise our discretion under AS 23.30.095(k) to order an SIME.

We find the SIME must be performed by a physician on our list unless we find the physicians on our list are not impartial or lack the qualifications or experience to perform the examination. 8 AAC 45.092(f). We find our list does not contain the name of a physician who specializes in RSD. We find, according to his Curriculum Vitae, that Neil L. Pitzer, M.D., has specialized experience in RSD. Accordingly, we select Dr. Pitzer to perform the SIME.

We will direct the parties in the order as to the remainder of the procedures for the SIME.

ORDER

1. An SIME shall be conducted by Dr. Pitzer on the issues of whether the employee's condition is compensable, the cause of her condition, and the recommended course of treatment (if any) for the employee's condition.

2. The parties shall proceed as follows:

A. All filings regarding the SIME shall be directed to Workers' Compensation Officer Cathy Gaal's attention. Each party may submit up to 6 questions by August 6, 1999, for us to consider including in the letter to the SIME physician. The questions must relate to the issue currently in dispute under AS 23.30.095(k), as listed under order number 1 above.

B. The employer shall prepare two copies of all medical records in their possession, including physicians' depositions (or supplement the existing binders, as the case may be, with additional medical records received after our order in Granus I), put the copies in chronological order by date of treatment starting with the first medical treatment and proceeding to the most recent medical treatment, number the pages consecutively, put the copies in two binders, and serve the binders on the employee with an affidavit verifying the binders contain copies of all the medical records in the employer's possession regarding the employee. This must be done by August 6, 1999.

We emphasize the need to place the records in chronological order with the initial treatment record at the start of the binder, and on top of the latter reports. The most recent treatment record or report is to be placed at the end of the binder. We will return the binder for reorganization if not prepared in accordance with this order.

C. The employee shall review the binders. If the binders are complete, the employee shall file the binders with us by August 13, 1999, together with an affidavit stating the binders contain copies of all the medical records in the employee's possession. If the binders are incomplete, the employee shall prepare three copies of the medical records, including physicians' depositions, missing from the first set of binders. The employee shall place each set of copies in a separate binder as described above. The employee shall file two of the supplemental binders with us, the two sets of binders prepared by the employer, and an affidavit verifying the completeness of the medical records. The employee shall serve the third supplemental binder upon the employer together with an affidavit stating it is identical to the binders filed with us. The employee shall serve the employer and file the binders with us by August 20, 1999.

D. If either party receives additional medical records or doctors' depositions after the binders have been prepared and filed with us, the party shall prepare three supplemental binders as described above with copies of the additional records and depositions. The party must file two of the supplemental binders with us within seven days after receiving the records or depositions. The party must serve one supplemental binder on the opposing party, together with an affidavit stating it is identical to the binders filed with us, within seven days after receiving the records or depositions.

E. The parties shall specifically identify the film studies which have been done and which films the employee will hand carry to the SIME. The employer shall prepare a list of past studies, indicate the studies they want the employee to hand carry to the examination, and serve it on the employee along with the medical records outlined above. The employee shall review the list for additions, discrepancies, or objections. After reviewing the list, the employee shall serve the employer with notice of her agreement or objection to the list, and file the same with us by August 13, 1999.

F. Other than the film studies which the employee hand carries to the SIME and the employee’s conversation with the SIME physician or the physician’s office about the examination, neither party shall contact the SIME physician, the physician’s office, or give the SIME physician anything else, until the SIME physician has submitted the SIME report to us.

G. If the employee or employer find it necessary to cancel or change the SIME appointment date or time, the requesting party shall immediately contact Workers' Compensation Officer Cathy Gaal and the physician’s office.

Dated at Anchorage, Alaska this _________________ day of _________________, 1999.

ALASKA WORKERS' COMPENSATION BOARD

___________________________________

Steven Constantino,

Designated Chairman

___________________________________

Marc Stemp, Member

RECONSIDERATION

A party may ask the Board to reconsider this decision by filing a petition for reconsideration under AS 44.62.540 and in accordance with 8 AAC 45.050. The petition requesting reconsideration must be filed with the Board within 15 days after delivery or mailing of this decision.

MODIFICATION

Within one year after the rejection of a claim or within one year after the last payment of benefits under AS 23.30.180, 23.30.185, 23.30.190, 23.30.200 or 23.30.215 a party may ask the Board to modify this decision under AS 23.30.130 by filing a petition in accordance with 8 AAC 45.150 and 8 AAC 45.050.

CERTIFICATION

I hereby certify that the foregoing is a full, true and correct copy of the Interlocutory Decision and Order in the matter of Coleen A. Granus, employee / applicant; v. William Fell, D.D.S., employer; and CNA Insurance Co., insurer / defendants; Case No. 9509365; dated and filed in the office of the Alaska Workers' Compensation Board in Anchorage, Alaska, this _________ day of _____________, 1999.

_________________________________

Brady D. Jackson III, Clerk

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[1]In Granus I, we also found a dispute existed on the issue of the date of the employee's medical stability.

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