ALASKA WORKERS' COMPENSATION BOARD



ALASKA WORKERS' COMPENSATION BOARD

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

| |) | |

| |) | |

|RICKY A. WEBB, |) | |

|Employee, |) |FINAL DECISION AND ORDER |

|Respondent, |) | |

| |) |AWCB Case No. 200015967 |

|v. |) | |

| |) |AWCB Decision No. 04-0025 |

|BROWN & SONS AUTO PARTS, INC., |) | |

|Employer, |) |Filed with AWCB Fairbanks, Alaska |

| |) |on January 26, 2004 |

|and |) | |

| |) | |

|AMERICAN HOME ASSURANCE CO., |) | |

|Insurer, |) | |

|Petitioner. |) | |

| |) | |

| |) | |

| |) | |

| |) | |

| |) | |

We heard the employer's petition for modification of the reemployment benefit eligibility determination and reimbursement of the employee’s benefits under AS 23.30.250(b), and the parties’ disputes over additional medical benefits and permanent partial impairment (“PPI”) benefits, on January 15, 2004, in Fairbanks, Alaska. The employee represented himself. Attorney Robert Griffin represented the employer and insurer ("employer"). We closed the record at the conclusion of the hearing.

ISSUES

1. Should the employee's benefits be barred under AS 23.30.250(b) for knowingly making a false or misleading statement to obtain benefits, and the benefits, costs and attorney fees reimbursed to the employer?

2. To what PPI benefits, if any , is the employee entitled under AS 23.30.190?

3. Is the employee entitled to additional medical benefits under AS 23.30.095(a)?

4. Is the employee entitled to additional reemployment benefits under AS 23.30.041?

5. Shall we modify the Reemployment Benefit Administrator (“RBA”) determination of eligibility for reemployment benefits under AS 23.30.130, terminating those benefits?

SUMMARY OF THE RELEVANT EVIDENCE AND CASE HISTORY

The employee injured his right shoulder working for the employer when his forklift struck a curb on August 14, 2000.[1] Certified Physician Assistant[2] Lara Catalano of the Tanana Valley Clinic saw the employee on August 15, 2000, assessed a right shoulder trapezius strain, restricted the employee from work, and provided ongoing conservative care.[3] The employer accepted the compensability of the injury, and began providing temporary total disability (“TTD”) benefits.[4] The records in the employee’s file are numerous; we here specifically address only those documents pertinent to the issues being resolved in this decision.

On August 22nd, 2000, PA-C Catalano provided Vicodin, Norflex, trigger point injections, and referral to physical therapy at the Equinox clinic.[5] On September 7, 2000, PA-C Catalano assessed, inter alia, early reflex sympathetic dystrophy ("RSD").[6] A magnetic resonance imaging ("MRI") study of this shoulder on September 25, 2000, and an MRI study of the cervical spine on October 17, 2000, revealed no abnormalities.[7] PA-C Catalano prescribed a TENS unit for the employee on November 10, 2000.[8] Tanana Valley Clinic orthopedic surgeon Richard Cobden, M.D., referred the employee to Grant Roderer, M.D., at the Advanced Pain Center of Alaska, who recommended joint and nerve injections and physical therapy.[9]

On December 2, 2000, the employer’s chosen medical examiner,[10] orthopedic surgeon John Ballard, M.D., saw the employee and reported that he suffered right shoulder pain with symptom magnification, had few objective findings, expected him to be medically stable in four to six weeks, and anticipated the employee would have no permanent impairment from his injury.[11] Dr. Ballard felt the employee should return to light duty work.[12] On April 7, 2001, the employer had the employee examined by orthopedic surgeon James Dineen, M.D., who felt the employee suffered a shoulder strain, but had returned to preinjury status, with no ratable permanent impairment for his injury.[13]

On June 13, 2001, Dr. Cobden diagnosed suprascapular nerve entrapment, and recommended nerve release surgery.[14] Dr. Cobden performed this surgery (and a rotator cuff repair) on July 10, 2001.[15] On December 6, 2001, Dr. Cobden noted the employee reported that his symptoms had not improved very much.[16] Dr. Cobden continued to restrict the employee from heavy work, and referred him to a work hardening program.[17] On September 11, 2002, Dr. Cobden diagnosed complex regional pain syndrome ("CRPS - II") based on the employee’s report of his symptoms, and rated the employee’s right upper extremity with a 53 percent whole-person PPI under the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th Ed. (“AMA Guides”).[18] Dr. Dineen re-evaluated the employee on October 4, 2002, and gave the employee a PPI rating of 11.5 percent.[19]

On September 13, 2002, the employee was referred to rehabilitation specialist Thomas Clark, who performed a reemployment benefit eligibility evaluation.[20] Mr. Clark reported that the employee’s physician, Dr. Cobden, did not release the employee to return to his work at injury, or to any work[21] performed for the ten years preceding the injury: stock clerk, sales clerk, sales route driver, tractor-trailer moving van helper, light truck driver, and dump truck driver.[22] Mr. Clark reported the employee met all the eligibility criteria under AS 23.30.041.[23] Based on the eligibility evaluation and Dr. Cobden’s restriction of the employee from his previous work, the RBA determined the employee was eligible for reemployment benefits on November 8, 2002.[24] The employer began providing PPI benefits, and on November 3, 2002 began paying compensation under AS 23.30.041(k).[25]

The employer had to the employee examined to by Stephen Fuller, M.D., on January 13, 2003. Dr. Fuller found the employee exhibited positive Waddell’s signs and other non-anatomical pain responses.[26] He diagnosed the employee with a resolved right shoulder strain, without permanent impairment.[27]

At our direction, orthopedic surgeon Larry Levine, M.D., performed a “second independent medical examination”[28] of the employee on March 27, 2003. Dr. Levine reported that the employee claimed to be severely restricted to by his right arm pain.[29] He noted the employee offered his left hand to shake hands and held his right arm in a protected position.[30] Dr. Levine reported that it was difficult to assess the employee's right shoulder due to his significant pain complaints.[31] He diagnosed CRPS, and rated his condition with a 10 percent whole-person PPI under the AMA Guides.[32]

The employer secured the services of a private investigator to surreptitiously videotape the employee on June 25, 2003, June 26, 2003, and June 27, 2003. The videotape was filed with us on August 18, 2003. The videotape shows the employee loading objects with his right hand into a boat in the back of a truck, using various tools with his right hand, swinging a baseball bat and throwing a ball with his right hand, and raising his hands above his head, all with no apparent discomfort.

The employer deposed the employee on August 4, 2003. In his deposition, the employee testified he could exert no force with his right arm,[33] and that he preferred to use his left hand for tools.[34] He testified he did not raise his arm above his head, but kept it in close to his torso.[35] He testified he did not use his right arm unless he had to do so,[36] and that any use of that arm increases his discomfort level.[37] The employee testified his physical limitations had not changed since, at least, early 2001.[38]

The employer deposed Dr. Levine on August 7, 2003. At his deposition, Dr. Levine was shown the videotape of the employee, and responded that the employee’s presentation in the video was completely inconsistent with his presentation during the SIME examination.[39] He felt the employee had not been truthful in his examination.[40] Dr. Levine felt the employee did not have CRPS,[41] suffered no more than two percent PPI from his work injury,[42] needed no additional treatment, and could return to work as a retail clerk or retail store manager without accommodation.[43] During this deposition, the employee’s then-attorney attended by telephone. He asked for a copy of the videotape, and indicated that he may have questions after viewing the tape.[44] The employer agreed to provide the tape.[45] The documentary record contains no objection to the videotape being filed with us.[46]

Based on Dr. Levine’s deposition and release of the employee to return to work he performed during the ten years before his injury, the employer filed a Petition to modify the RBA eligibility determination on August 8, 2003.[47] Based on Dr. Levine’s deposition, the employer filed and served a Controversion Notice on August 22, 2003, denying PPI benefits greater than two percent, denying future medical benefits, and denying future reemployment benefits (but indicating benefits under AS 23.30.041(k) would be continued to be paid, pending Board modification of the RBA eligibility determination).[48]

After viewing the videotape, Dr. Roderer responded to a recitation of a discussion with the employer’s counsel in a letter from the employer.[49] In his December 4, 2003 response, Dr. Roderer indicated the employee did not suffer CRPS, could return to work as a retail store manager and sales clerk, and needed no additional physical therapy or radio frequency lesioning, no additional nerve blocks, and needed no psychological treatment.[50]

After viewing the videotape, Dr. Cobden responded to a questionnaire from the employer.[51] In his December 4, 2003 response, Dr. Cobden indicated he now agreed with Dr. Levine’s revised rating of two percent PPI.[52] Dr. Cobden diagnosed the employee with a resolved shoulder strain.[53] He felt the employee had not been truthful with him.[54] Dr. Cobden indicated the employee did not suffer CRPS, could return to work as a retail store manager and sales clerk, and needed no additional treatment.[55]

The employer deposed Dr. Fuller on December 11, 2003. In the deposition, Dr. Fuller testified the employee’s upper right extremity had suffered no atrophy, and he had suffered neither suprascapular nerve injury nor CRPS.[56] He testified the employee had suffered a shoulder strain, which resolved within four weeks of his work injury.[57] He testified he employee’s reports of symptoms were inconsistent and not consistent with the objective findings, and he felt the employee was not truthful.[58]

The employer filed an Affidavit of Readiness for Hearing on September 12, 2003. In a prehearing conference on October 21, 2003, the Board designee set the employer’s petition for a hearing on January 15, 2004.[59] The Prehearing Conference Summary also noted the employer was raising the issue of forfeiture of the employee’s benefits under AS 23.30.250(b) for fraudulent or misleading acts. The employer filed an Affidavit of Costs and Fees 0n January 9, 2004, itemizing attorney hours and paralegal assistant hours, totaling $16,364.50, and other legal costs totaling $2,728.96.[60]

In its brief, and at the hearing, the employer argued none of the physicians recommend additional medical treatment. It argued the employee suffers no more than two percent PPI, based on the opinions of the employee’s treating physician and the SIME physician. It noted the employee has already received more PPI benefits than that rating would warrant. It asserted Drs. Cobden, Levine, and Fuller all have now released the employee to return to work as a sales clerk and retail store manager. Because the employee worked in both of these positions during the ten years preceding his injury, it argued we should modify the RBA eligibility determination, and terminate those benefits. The employer argued the employee’s actions in the videotape were inconsistent with his reports to the physicians, and inconsistent with his testimony in his deposition. It argued the employee mislead the physicians and the employer in order to obtain additional benefits, and the employee’s benefits should be barred under AS 23.30.250(b) as of the date of the first videotaping, June 25, 2003. In the hearing, the employer requested that if we find the employee’s benefits should be barred under AS 23. 30.250(b), that we provide it an opportunity to submit an affidavit of benefits, costs, and legal fees it requests to have reimbursed under that section of the statute.

At the hearing, the employee argued he still has pain, but does not know what it is. He asserted he is pleased that he does not have CRPS, but argued he did not attempt to deceive the physicians. He criticized the videotape, indicating it did not show the events preceding and succeeding the scenes taped. He testified he was taking more pain medication at the time of the videotapes than usual. He testified his use of tools on the boat caused him to suffer severe symptoms for some time following that activity. He argued Levine mistook some of his actions on the videotape. He asserted the videotape has caused him mental stress, for which he feels the employer should be held accountable. He argued he continues to need various forms of conservative self-treatment, and asserted he takes pain medication only as needed. He argues he should be entitled to PPI benefits based on the initial ten percent rating of Dr. Levine or on the 11.5 percent rating of Dr. Dineen. He asserted he is unable to return to his previous work, and has signed up for classes at the Tanana Valley Campus of the University of Alaska, to begin his reemployment benefit plan.

During the hearing, we observed that the employee moved his right arm freely, picked up objects with it, and occasionally tapped or struck the table with his right hand. We could observe no significant favoring of that limb.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

I. SCOPE AND STANDARD OF PROOF FOR FORFEITURE, AS 23.30.250

AS 23.30.250 provides, in part:

(a) A person who (1) knowingly makes a false statement, representation, or submission related to a benefit under this chapter . . . is guilty of theft by deception as defined in AS 11.46.189, and may be punished as provided by AS 11.46.120 – 11.46.150.

(b) If the board, after a hearing, finds that a person has obtained compensation, medical treatment, or another benefit provided under this chapter by knowingly making a false or misleading statement or representation for the purpose of obtaining that benefit, the board shall order that person to make full reimbursement of the cost of all benefits obtained. Upon entry of an order authorized under this subsection, the board shall also order that person to pay all reasonable costs and attorney fees incurred by the employer and the employer's carrier in obtaining an order under this section and in defending any claim made for benefits under this chapter. If a person fails to comply with an order of the board requiring reimbursement of compensation and payment of costs and attorney fees, the employer may declare the person in default and proceed to collect any sum due as provided under AS 23.30.170(b) and (c).

In DeNuptiis v. Unocal,[61] we found that the standard of proof required to bar an employee’s claim under AS 23.30.250 and to order forfeiture of benefits is “clear and convincing evidence,” because of the potential criminal implications arising from subsection (a) and the coercive and severe consequences arising from subsection (b).[62] However, on appeal to the Alaska Superior Court in Unocal v. DeNuptiis,[63] the Honorable Karen Hunt reversed and remanded that decision to us, concluding the proper standard of proof to be the “preponderance of the evidence” standard. Specifically, the court found we erred in reading subsections (a) and (b) together.[64] The court found that subsection (b) authorizes us to order reimbursement of only those benefits fraudulently received. Subsection (a) involves criminal, potentially felonious consequences, and necessarily involves a full criminal court proceeding.[65] The court found subsection (b) is remedial in nature, intended only to “… return both parties to the point they would have been had the fraud not occurred.”[66] Accordingly, the court held the “preponderance of the evidence” standard of proof from the Alaska Administrative Procedure Act[67] applies to AS 23.30.250(b).[68] The Superior Court decision was appealed, and the Alaska Supreme Court affirmed Judge Hunt’s decision.[69]

Accordingly, we here apply the “preponderance of the evidence” standard to the employer’s petition for reimbursement under AS 23.30.250(b).[70] We also interpret that subsection to authorize forfeiture and reimbursement of only those benefits resulting from intentional false or misleading statements or representations.[71]

II. FALSE OR MISLEADING STATEMENT TO OBTAIN BENEFITS

We viewed the surreptitious videotape, and we find the employee’s behavior on the videotape is inconsistent with his reports to the physicians. However, we find his behavior on the videotape is consistent with his behavior during the hearing. Although the admissibility of the videotape was not timely challenged by the employee, we have no testimony from the investigator concerning the time, location, and circumstances of the creation of the videotape to provide a sound evidentiary foundation for the videocassette filed with us. Accordingly, we find the videotape is hearsay evidence, without full authentication.[72] Nevertheless, because the employee’s physical capacities in the videotape are consistent with the direct evidence of the employee’s actions in the hearing, we will consider the videotape as admissible evidence in our record, corroborating direct evidence.[73]

The employer requests us to find fraudulent or misleading acts by the employee to obtain benefits as of the date of the videotaping. However, the videotape was asserted to have been taken after the employee had last seen any of the physicians in this case, and he was not specifically questioned concerning his symptoms at or around the time of the videotaping until he was deposed on August 4, 2003. We find the employee’s answers during the deposition were flatly contradictory to his actions on the videotape, and inconsistent with our observation of his actions during the hearing.[74] By the preponderance of the evidence available to us, we find his deposition answers were misleading and intended to perpetuate his benefits beyond the date of the deposition. We find the benefits, in fact, continued beyond the date of his deposition, based on his continued assertion of his symptoms and disability. We conclude the employee’s benefits following August 4, 2003 are barred by AS 23.30.255(b).

The employer requested an opportunity to provide an affidavit of the benefits, attorney fees and legal costs it requests us to order reimbursed. AS 23.30.255(b) specifically provides for the forfeiture and reimbursement of benefits obtained through fraudulent or misleading acts. We have determined the date of forfeiture to be August 4, 2003; we will exercise our discretion to permit the employer to file and serve an affidavit concerning the requested reimbursement within 14 days following the filing of this decision and order. The employee will have an opportunity to file and serve a response to that affidavit within seven days after after the affidavit is served on the employee. We will retain jurisdiction to file a decision and order concerning the reimbursement issue, pending receipt of the affidavit and response.

III. MODIFICATION OF THE RBA DETERMINATION OF ELIGIBILITY

AS 23.30.130(a) provides:

Upon its own initiative, or upon the application of any party in interest on the ground of a change in conditions, including, for the purposes of AS 23.30.175, a change in residence, or because of a mistake in its determination of a fact, the board may, before one year after the date of the last payment of compensation benefits under AS 23.30.180, 23.30.185, 23.30.190, 23.30.200, or 23.30.215, whether or not a compensation order has been issued, or before one year after the rejection of a claim, review a compensation case under the procedure prescribed in respect of claims in AS 23.30.110. Under AS 23.30.110 the board may issue a new compensation order which terminates, continues, reinstates, increases or decreases the compensation, or award compensation.

AS 23.30.041(e) provides, in part:

An employee shall be eligible for benefits under this section upon the employee’s written request and by having a physician predict that the employee will have permanent physical capacities that are less than the physical demands of the employee’s job … for

(1) the employee’s job at the time of injury; or

2) other jobs that exist in the labor market that the employee has held or received training for within 10 years before the injury ….

The employer timely requests that we modify the RBA eligibility determination under AS 23.30.130(a).[75] The Alaska Supreme Court discussed subsection 130(a) in Interior Paint Company v. Rodgers,[76] the court stated: "The plain import of this amendment [adding "mistake in a determination of fact" as a ground for review] was to vest a deputy commissioner with broad discretion to correct mistakes of fact whether demonstrated by wholly new evidence, cumulative evidence, or merely further reflection on the evidence initially submitted."[77] We also apply AS 23.30.130 to changes in condition, including those affecting reemployment benefits and vocational status.[78]

Our regulation at 8 AAC 45.150(e) requires specific facts, not just a general allegation, of a change of condition or mistake of fact to serve as a basis for modification. In the instant case, the employer identifies specific, recently discovered facts, which it argues should render the employee not eligible for reemployment benefits under AS 23.30.041. Accordingly, we will consider the employer’s petition in light of the whole record, including the new evidence concerning the employee’s physical capacities.

The RBA designee’s determination found the employee eligible for reemployment benefits, in part, because his treating physician indicated he could not return to any of the jobs he performed during the ten years preceding the injury. The employer now requests modification of the RBA designee determination, under AS 23.30.130(a), based on the employee’s release to return to two of those jobs by Drs. Cobden, Levine, and Fuller.[79]

Under AS 23.30.041(d), we must uphold an eligibility decision of the RBA absent "an abuse of discretion on the administrator's part." Although the instant case involves a petition for modification of an RBA determination under AS 23.30.130 rather than a direct appeal under AS 23.30.041(d), we have applied the same evidentiary standard to reviews of RBA eligibility determinations under either section of the statute.[80] Several definitions of the phrase "abuse of discretion" appear in the laws of Alaska, although none occur in the Alaska Workers' Compensation Act. In Sheehan v. University of Alaska,[81] The Alaska Supreme Court has stated abuse of discretion consists of "issuing a decision which is arbitrary, capricious, manifestly unreasonable, or which stems from an improper motive."[82] We also consider an agency's misapplication of the law or a failure to exercise sound, reasonable, and legal discretion to fall within the definition of "abuse of discretion.”[83] In the Administrative Procedure Act the legislature has provided another definition to be used by the courts in considering appeals of administrative agency decisions. It contains terms similar to those cited above, but also expressly includes reference to a substantial evidence standard:

Abuse of discretion is established if the agency has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence . . . . If it is claimed that the findings are not supported by the evidence, abuse of discretion is established if the court determines that the findings are not supported by (1) the weight of the evidence; or (2) substantial evidence in the light of the whole record.[84]

On appeal to the courts, our decision reviewing an RBA determination is subject to reversal under the abuse of discretion standard of AS 44.62.570, incorporating the substantial evidence test. Concern with meeting that standard on appeal leads us to apply a substantial evidence standard in our review of an RBA determination. Applying a substantial evidence standard, a "[reviewer] may not reweigh the evidence or draw its own inferences from the evidence. If, in light of the record as a whole, there is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, then the order . . . must be upheld." [85]

The task of determining whether an abuse of discretion has taken place is aided by our practice of allowing additional evidence into the record at the review hearing. The practice is based on the rationale expressed in several superior court opinions addressing that issue on appeal of our decisions following the review hearings. [86] Nevertheless, under 8 AAC 45.070(b)(1)(A), we are precluded from considering additional evidence in review of an RBA determination of eligibility under AS 23.30.041(d) if the party offering that evidence has failed to exercise reasonable diligence in developing and presenting that evidence.[87]

In the instant case, the record contains new evidence concerning the employee’s physical capacities from the videotape, the subsequent depositions and medical opinions, and our observations during the hearing, all developed after the RBA issued his eligibility determination. Under 8 AAC 45.070(b)(1)(A) we find this evidence is newly discovered and could not with due diligence have been produced for the administrator’s consideration by the employer. We conclude 8 AAC 45.070(b)(1)(A) does not exclude this evidence from our consideration. [88]

After allowing the parties to enter their evidence, we review it and the evidence before the RBA to assess whether an RBA decision was supported by substantial evidence and therefore reasonable.[89] If, in light of all the evidence, we find the RBA's decision is not supported by substantial evidence, we conclude that the RBA abused his or her discretion and remand the matter for reexamination of the evidence and necessary action.

Although Dr. Cobden previously felt the employee did not have the capacity to return to any of the jobs he held during the ten years preceding the injury, Dr. Cobden retracted that opinion on December 4, 2003. Based on our review of the record, we find no physician who currently believes the employee lacks the physical capacity to return to work as a sales clerk or retail store manager. The rehabilitation specialist and the RBA identified the position of sales clerk as one of the positions for which the employee had adequate experience and training during the ten years before the injury. Because we can find no physician opinion to currently restrict the employee from returning to work as a sales clerk, we must conclude the employee is no longer eligible for reemployment benefits under AS 23.30.041(e)(2).

Based on our review of the present record, in light of AS 23.30.041(e)(2) we cannot find substantial evidence to support the RBA designee's determination. Accordingly, we find an abuse of discretion by the RBA, within the meaning of AS 23.30.041(d). Under AS 23.30.130, we will modify the RBA determination. We will grant the employer’s petition to terminate benefits under AS 23.30.041.

IV. ENTITLEMENT TO PPI BENEFITS

At the time of the employee’s injury, AS 23.30.190 provided, in part:

(a) in case of impairment partial in character but permanent in quality. . . the compensation is $177,000 multiplied by the employee's percentage of permanent impairment of the whole person. The compensation is payable in a single lump sum, except as otherwise provided in AS 23.30.041 . . . ."

(b) All determinations of the existence and degree of permanent impairment shall be made strictly and solely under the whole person determination as set out in the American Medical Association Guides to the Evaluation of Permanent Impairment . . .

(c) The impairment rating determined under (a) of this section shall he reduced by a permanent impairment that existed before the compensable injury.

The Alaska Supreme Court held in Thompson v. UPS,[90] that the version of a statute in effect at the time of injury is the version under which the substantive rights of an employee arise. We have also applied this general principle to PPI benefits.[91] In keeping with these cases, we find the version of AS 23.30.190 in effect in August 2000 applies to the employee’s claim.

The employee argues he is entitled to PPI benefits based on the rating by Dr. Dineen and the initial rating by Dr. Cobden. We find these ratings raise the presumption under AS 23.30.120(a) of the employee’s entitlement to the claimed PPI benefits.[92]

Once the presumption attaches, substantial evidence must be produced showing the claimed benefits are not work connected and compensable.[93] Substantial evidence is such relevant evidence as a reasonable mind would accept in light of all the evidence to support a conclusion.[94] There are two methods of overcoming the presumption of compensability: (1) presenting affirmative evidence showing that the benefit is not work-related and compensable; or (2) eliminating all reasonable possibilities that the benefits are due for the work-related condition.[95]

AS 23.30.190(b) is specific and mandatory that PPI ratings must be calculated under the AMA Guides. We have consistently followed this statute in our decisions and orders.[96] We note Dr. Dineen’s rating of 11.5 percent PPI is not in accord with the AMA Guides, which require whole number percentage ratings.[97] Accordingly, we cannot base a finding on his rating. We note that Dr. Cobden has retracted and reduced his earlier ten percent rating. We find these opinions provide substantial affirmative evidence that the employee is entitled PPI benefits based on a ten percent or 11.5 percent impairment rating. We find this evidence rebuts the presumption the employee is entitled to PPI benefits based on those ratings.[98]

Once substantial evidence shows the condition is not work-related, the presumption drops out, and the employee must prove all elements of the case by a preponderance of the evidence.[99] The treating physician and the SIME physician now agree that the employee suffers a two percent PPI rating under the AMA Guides. Based on our review of the entire record, especially the current opinions of Drs. Cobden and Levine, we find the preponderance of the evidence indicates the employee suffers a two percent PPI related to his work injury. We conclude the employee is entitled to PPI based on a two percent impairment, totaling $3,540.00.

V. MEDICAL BENEFITS

AS 23.30.095(a) provides, in part:

The employer shall furnish medical, surgical, and other attendance of treatment, nurse and hospital service, medicine, crutches, and apparatus for the period, which the nature of the injury or the process of recovery requires....

The Alaska Workers' Compensation Act at AS 23.30.120 provides a presumption of compensability for an employee's injuries. AS 23.30.120(a) reads, in part: "In a proceeding for the enforcement of a claim for compensation under this chapter it is presumed, in the absence of substantial evidence to the contrary, that (1) the claim comes within the provisions of this chapter. . . ." The presumption attaches if the employee makes a minimal showing of a preliminary link between the claimed disability benefit and employment.[100] The presumption of compensability under AS 23.30.120(a) also specifically applies to claims for medical benefits.[101] If complications from the injury or treatment occur, the subsequent treatment would still be compensable, and the employer would still be liable for continuing medical benefits under subsection 95(a).[102] Treatment must be reasonable and necessary to be payable under AS 23.30.095(a).[103] In claims based on highly technical medical considerations, medical evidence is often necessary in order to make that connection,[104] though in less complex cases, lay evidence may be sufficiently probative to establish causation.[105] We find this case is medically complex, and medical evidence is necessary to raise the presumption.

In the instant case, none of the physicians recommend any specific future treatment. Based on our review of the record, we cannot find the employee has provided medical evidence that additional treatment is reasonable and necessary for the employee’s work injury. Accordingly, we must deny the employee’s claim for additional medical benefits, at this time.

ORDER

1. The employer’s petition for forfeiture of benefits under AS 23.30.250(b) is granted, in part. The employee shall forfeit all benefits paid by the employer from August 4, 2003 through the date of this order.

2. We retain jurisdiction over the employer’s petition for reimbursement of benefits forfeited under AS 23.30.250(b) for 21 days in accord with the terms in this decision, pending receipt of the employer’s affidavit of the benefits, attorney fees and legal costs it requests us to order reimbursed, and pending receipt of the employee’s response.

3. Under AS 23.30.130, we grant the employer’s petition to modify the RBA determination of eligibility, and to terminate reemployment benefits. The employee is not eligible for reemployment benefits under AS 23.30.041(e)(2).

4. We conclude the employee is entitled to PPI benefits under AS 23.30.190, based on a two percent impairment, totaling $3,540.00.

5. The employee is entitled to no additional medical benefits under AS 23.30.095(a), at this time.

Dated at Fairbanks, Alaska this 26th day of January, 2004.

ALASKA WORKERS' COMPENSATION BOARD

____________________________

William Walters, Designated Chairman

____________________________

John Giuchici, Member

____________________________

Dorothy Bradshaw, Member

APPEAL PROCEDURES

This compensation order is a final decision. It becomes effective when filed in the office of the Board unless proceedings to appeal it are instituted. Proceedings to appeal must be instituted in Superior Court within 30 days of the filing of this decision and be brought by a party in interest against the Board and all other parties to the proceedings before the Board, as provided in the Rules of Appellate Procedure of the State of Alaska.

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 Final Decision and Order in the matter of RICKY A. WEBB employee / respondent; v. BROWN & SONS AUTO PARTS, INC., employer; AMERICAN HOME ASSURANCE CO., insurer / petitioners; Case No. 200015967; dated and filed in the office of the Alaska Workers' Compensation Board in Fairbanks, Alaska, this 26th day of January, 2004.

_________________________________

Victoria J. Zalewski, Admin. Clerk

-----------------------

[1] Report of Occupational Injury or Illness dated August 15, 2000; and David Bokerman, M.D., emergency room report, August 14, 2000.

[2] ("PA-C ").

[3] PA–C Catalano medical report, August 15, 2000.

[4] Compensation Report, August 28, 2003.

[5] PA–C Catalano medical report, August 22, 2000.

[6] PA–C Catalano medical report, September 7, 2000.

[7] Jeffrey Zuckerman,M.D., radiographic reports, September 25, 2000, and October 17, 2000.

[8] PA–C Catalano Certificate of Medical Necessity, December 5, 2000.

[9] Dr. Roderer consultation report to, February 20, 2001.

[10] “EME,” pursuant to AS 23.30.095(e).

[11] Dr. Ballard EME report, December 2, 2000, at 6-8.

[12] Id. at 8.

[13] Dr. Dineen EME report, April 7, 2001, at 5-6.

[14] Dr. Cobden medical chart note, June 13, 2001.

[15] Dr. Cobden operative note, July 10, 2001.

[16] Dr. Cobden medical chart note December 6, 2001.

[17] Id.

[18] Dr. Cobden medical chart note September 11, 2002.

[19] Dr. Dineen EME report, October 4, 2002.

[20] Eligibility Evaluation Report, October 24, 2002.

[21] Jobs as described in the US Department of Labor’s Selected Characteristics of Occupations Defined in the Dictionary of Occupational Titles (“SCODDOT”), for which he had completed sufficient training and/or experience.

[22] Id.

[23] Id.

[24] Determination of eligibility for reemployment benefits, dated November 8, 2002.

[25] Compensation Report, August 28, 2003.

[26] Dr. Fuller EME report, January 13, 2003.

[27] Id.

[28] (“SIME”), pursuant to AS 23.30.095(k).

[29] Dr. Levine SIME report, March 27, 2003.

[30] Id. at 8.

[31] Id.

[32] Id. at 12.

[33] Webb dep. at 62.

[34] Id. at 64.

[35] Id. at 71.

[36] Id. at 75.

[37] Id. at 78.

[38] Id. at 51.

[39] Dr. Levine dep. at 12, 14.

[40] Id. at 17.

[41] Id. at 15.

[42] Id. at 16.

[43] Id. at 17.

[44] Id. at 18.

[45] Id.

[46] The employee’s attorney filed a Notice of Withdrawal from the case on September 2, 2003.

[47] Petition dated August 8, 2003.

[48] Controversion Notice dated August 22, 2003.

[49] Dr. Roderer’s December 4, 2003 response to a November 18, 2003 letter from Robert Griffin, Esq.

[50] Id.

[51] Dr. Cobden’s December 4, 2003 response to a December 4, 2003 letter from Robert Griffin, Esq.

[52] Id.

[53] Id.

[54] Id.

[55] Id.

[56] Dr. Fuller dep. at 21-23.

[57] Id. at 25.

[58] Id. at 28-30.

[59] Prehearing Conference Summary, October 21, 2003.

[60] Affidavit of Costs and Fees, dated January 7, 2004.

[61] AWCB Decision No. 98-0189 (July 22, 1998).

[62] Id. at 31-32.

[63] 3AN 98-7673 CI (Alaska Super. Ct, October 7, 1999).

[64] Id. at 9.

[65] Id.

[66] Id. at 11.

[67] AS 44.62.460(e).

[68] Unocal v. DeNuptiis ,3AN 98-7673 CI at 11-12.

[69] DeNuptiis v. Unocal Corp., ___ P.3d ___ (Alaska 2003), Slip Op. No. 5657(Alaska Supreme Court, January 31, 2003).

[70] Id. at 9-10.

[71] Id. at 10.

[72] Cf Alaska Rules of Evidence, Rule 801(c), Rule 901, Rule 1001(2), Rule 1002, & Rule 1003.

[73] 8 AAC 45.120(e).

[74] AS 23.30.122.

[75] See Hodges v. Alaska Constructors, 957 P2d 957 (Alaska 1998).

[76] 522 P.2d 161 (Alaska 1974).

[77] 522 P.2d at 168. Quoting from O'Keeffe v. Aerojet-General Shipyards, Inc., 404 U.S. 254, 256 (1971)

[78] See, e.g., Imhof v. Eagle River Refuse, AWCB Decision No. 94-0330 (December 29, 1994).

[79] Although it appears that employer’s use of Dr. Fuller may have been an excessive change of EME physician under AS 23.30.095(e), we have not specifically relied on his opinions in this decision, and we decline to consider that issue.

[80] See, e.g., Brown v. Asbestos Removal Specialists, AWCB Decision No. 03-0131 (June 6, 2003).

[81] 700 P.2d 1295, 1297 (Alaska 1985).

[82] 700 P.2d at 1297; Tobeluk v. Lind, 589 P.2d 873, 878 (Alaska 1979)(footnote omitted).

[83] See, Manthey v. Collier, 367 P.2d 884, 889 (Alaska 1962); Super v. Providence Hospital, AWCB No. 90-0042 (March 12, 1990); Black's Law Dictionary 25 (7th ed. 1999).

[84] AS 44.62.570.

[85] Miller v. ITT Arctic Services, 577 P.2d 1044, 1049 (Alaska 1978)(footnotes omitted).

[86] See, e.g., Kelley v. Sonic Cable Television, 3AN 89-6531 CIV (Alaska Ct. of Appeals, February 2, 1991); Quirk v. Anchorage School District, 3AN-90-4509 CIV (Alaska Ct. of Appeals, August 21, 1991).

[87] See, Snell v. Interstate Brands Corp., AWCB Decision No. 99-0110 (May 12, 1999); Kin v. Norcon, AWCB Decision No. 99-0041 (March 1, 1999); Lemire v. B&R Construction, AWCB Decision No. 99-0019 (January 28, 1999); Buxton v. Cameron Corporation, AWCB Decision No. 99-0005 (January 8, 1999).

[88] See, e.g., Walin v. First National Bank of Anchorage, AWCB Decision No. 01-0094 (May 8, 2001).

[89] See, Yahara v. Construction & Rigging, Inc., 851 P.2d 69 (Alaska 1993).

[90] 975 P.2d 684 (Alaska 1999).

[91] See McRay v. Anchorage School District, 3AN-01-3989 (Alaska Superior Court, September 11, 2001).

[92] Meek v. Unocal Corp., 914 P.2d 1276, 1279 (Alaska 1996).

[93] Burgess Const. Co. v. Smallwood, 623 P.2d 312, 316 (Alaska 1981).

[94] Kessick v. Alyeska Pipeline Serv. Co., 617 P.2d 755, 757 (Alaska 1980).

[95] DeYonge v. NANA/Marriott, 1 P.3d 90, 96 (Alaska 2000); Grainger v. Alaska Workers' Compensation Board, 805 P.2d 976, 977 (Alaska 1991).

[96] See, e.g., Jarrard v. Nana Regional Corp., AWCB Decision No. 90-0299 (December 14, 1990).

[97] AMA Guides, at 20, 439.

[98] Smallwood, 623 P.2d at 316.

[99] Veco, Inc. v. Wolfer, 693 P.2d 865, 870 (Alaska 1985).

[100] Olson v. AIC/Martin J.V., 818 P.2d 669, 675 (Alaska 1991).

[101] Municipality of Anchorage v. Carter, 818 P.2. 661, 665 (Alaska 1991).

[102] Kodiak Oilfield Haulers v. Adams, 777 P.2d 1145, 1149 (Alaska 1989); Toporowski v. Subway of Fairbanks, Inc., AWCB Decision No. 00-0043 (March 9, 2000).

[103] See Weidner & Associates v. Hibdon, 989 P.2d 727, 731 (Alaska 1999).

[104] Burgess Const. Co. v. Smallwood, 623 P.2d 312 (Alaska 1981).

[105] Veco, Inc. v. Wolfer, 693 P.2d 865, 871 (Alaska 1985).

-----------------------

[pic]

................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download