We went to hearing again in the Cavitt case recently and won our sixth favorable decision. So far, we have gone to hearing and appeal as follows:
Cavitt I, AWCB Dec. No 17-0109 (September 13, 2017). After fighting the case, the Employer agreed at hearing that the injury was work-related. The Employer agreed to continue medical benefits. The Board ordered payment of TTD. A win.
Cavitt v D&D Services, AWCAC Dec.
No 248 (May 4, 2018). On appeal from Cavitt I, the Commission reversed
the Board’s award of attorney fees as inadequate. In addition, the Commission
awarded fees on appeal. A win.
Cavitt II, AWCB Dec. No 18-0060 (June
25, 2018): The Board awarded continuing TTD and increased the attorney fees
awarded in Cavitt I. The Board refused to order life-time medical
benefits. A win and a loss.
The denial of life-time medical
benefits was appealed leading to the Commission’s Decision No 259 (March 29,
2019) affirming the Board’s denial. That decision has been appealed to the Supreme
Court and is ripe for an opinion.
In Cavitt III, AWCB Dec. No 18-0103 (October 15, 2018), the Board held it did not have jurisdiction to award penalties arising from late-paid TTD because an appeal was pending on a similar issue. The Commission reversed the Board on appeal leading to the hearing and win in 20-0012.
D&D Services v Cavitt, 444 P 3rd 165 (Alaska, 2019). After paying fees ordered in AWCAC Dec. No 248, Liberty appealed the fees award to the Supreme Court. The Court affirmed those fees and further awarded additional fees for the Supreme Court appeal. A double win.
Cavitt v D&D Services, AWCAC Dec.
No. 264 (July 8, 2019): The Commission reversed Cavitt III and ordered
the Board to consider penalties for late-paid TTD. A win.
Cavitt IV, Dec. No 20-0012 (March 6,
2020) awarded penalties and interest for the late-paid TTD which was the Board originally
refused to consider in Cavitt III resulting in the Commission’s reversal in Dec.
No 264. Link: http://appeals.dol.alaska.gov/docs/workerscomp/2020/D&O%2020-0012.pdf
The moral of the story is: If your
claim is insured by Ohio Casualty, Liberty Mutual or Liberty Northwest, you’re
in for a fight. You need to speak with an experienced workers compensation
attorney as soon as possible.
Keenan Powell has practiced Workers Compensation law in the
State of Alaska for over 35 years and has dedicated her practice to Workers
Compensation representing injured Alaskans handling hundreds of cases. www.keenanpowell.com
All consultations are free. To
make an appointment, email: keenan@keenanpowell.com or
call: 907 258 7663.
The employee, a personal care
attendant, had injured her back in 2009 while working in an assisted living
home. She had two back surgeries and was sufficiently recovered to return to work
on a full-time basis without restriction although she continued to experience
chronic pain.
When working for a new employer in
2017, her pain increased to the point that another surgery was recommended. The
new employer hired Dr. David Bauer as its “independent” medical evaluation who
opined that her back problem was the result of natural degeneration exacerbated
by her surgeries for the 2009 injury. In Alaska Workers Compensation law, when
a work-related injury combines with, accelerates or aggravates a pre-existing
condition, the injury is compensable as a workers compensation injury. The second
employer controverted.
As it happens, all of the employee’s
treating physicians also stated that the 2009 injury was the cause of her
ongoing symptoms and need for treatment. So we filed a claim against the 2009 employer.
The 2009 employer didn’t hire an “independent” medical expert of its own, later
stating that it wanted to save the $10,000. So all the medical evidence
supported the Board’s ruling that the 2009 injury was the substantial cause of
the employee’s need for treatment. Meili v Sterling Assisted Living/Liberty
Northwest, Dec. No 19-0092.
The day after Decision No 19-0092
came out, the 2009 employer and its insurer noticed an “independent” medical
evaluation with Dr. Todd Fellars. Dr. Fellars opined that the 2009 injury was
not the cause for the current need for treatment. On the basis of that, Liberty
Northwest controverted and has refused to pay for any benefits although there
is an outstanding Board order, Decision 19-0092, that says it must pay benefits
and further it was unable to obtain a stay of that order.
The case went to hearing again before
the Board on December 18, 2019. Liberty
claimed that the new “independent” medical evaluation was “newly discovered
evidence” justifying the Board reconsidering its earlier decision.
The Board disagreed. The Board
reasoned that Liberty had made a strategic decision before the first hearing
not to hire its own expert, it could have, and it did not justify its failure
to do so. Dr. Fellars’ report was excluded from the record and the Board
refused to modify Meili I. Meili v Sterling Assisted Living/Liberty
Northwest, Dec. No 20-0010 (February 28, 2020).
Interestingly, this is the same
insurance company and the same defense firm which lost the following cases in
2019: D&D Services and Liberty Mutual vCavitt 444 P 3rd
165 (Alaska 2019), Cavitt v Liberty Mutual, AWCAC No 264 (July 8, 2019),
Bruketta v Liberty Mutual, RBA Dec. No 19-0002 (March 19, 2019) and Bruketta
v Liberty Mutual, Dec. No. 19-0096 (September 23, 2019). See my blog post: https://www.keenanpowell.com/blog/2020/01/06/never-give-up-never-surrender-2019-victories/
Additionally Liberty lost Cavitt
again on March 6, 2020. I’ll blog about that in the near future.
The moral of the story is: If your claim
is insured by Liberty Mutual or Liberty Northwest, you’re in for a fight. You
need to speak with an experienced workers compensation attorney as soon as
possible.
Keenan Powell has practiced Workers Compensation law in the
State of Alaska for over 35 years and has dedicated her practice to Workers
Compensation representing injured Alaskans handling hundreds of cases. www.keenanpowell.com
All consultations are free. To make an appointment, email: keenan@keenanpowell.com or call: 907 258 7663.
Complex Regional Pain Syndrome (CRPS) is nasty stuff. In every day terms, it happens when the body's nervous system overreacts to an injury. It can happen to an injury as slight as a broken toe.
Since that time, data has been collected and treatments have been developed but there is no known cure. The patient will suffer pain and motor dysfunction for the rest of his or her life.
Not only does the patient suffer extreme pain in a body part, that body part will also change color, swell (edema), have a different temperature, develop a different hair pattern, the nails will grow differently, and there will be weakness and disrupted motor function. These are all objectively measurable changes. In other words, even though there is no x-ray or MRI that can point to what is causing the pain, other physical symptoms support the diagnosis.
Mr. Harrison was working at a camp when a bear broke in to the building. He ran away, as one would. As he was running his toe caught on something and was fractured.
The toe was splinted but the fracture took an unusually long time to heal. Once it did, he still suffered pain. Eventually his doctors diagnosed him with CRPS.
Dr. Chong performed an "independent" medical evaluation and wrote a report stating that there was nothing was wrong with Mr. Harrison, he didn't need any more treatment, and he could go back to work. Based on that report, Liberty Northwest controverted his benefits. They cut off his disability payments and medical treatment.
We filed a claim, obtained a second independent medical evaluation, and went to hearing.
The Board disagreed with Dr. Chong. In fact, the Board found that Dr. Chong's testimony was inadequate to rebut the presumption that Mr. Harrison was entitled to benefits and further that Dr. Chong's deposition testimony supported the need for medical treatment. The Board also awarded TTD because it found Dr. Chong's report failed to rebut the presumption.
The Employee won!
Keenan Powell has practiced Workers
Compensation law in the State of Alaska
for over 35 years and has dedicated her practice to Workers Compensation
representing injured Alaskans handling hundreds of cases. www.keenanpowell.com.
All consultations are free. To make an appointment,
email: keenan@keenanpowell.com or
call: 907 258 7663.
2019 was a very good year at the Law Office of Keenan Powell. Following are a list of Board decisions and appeals in which I had the honor to represent injured workers. You will note that all but one of the cases were against Liberty insurance.
Cavitt v Liberty Mutual, Alaska Supreme Court Op. No. 7383, July 5, 2019
In August of 2017, the Cavitt case went to hearing before
the Alaska Workers Compensation Board. The Board ordered Liberty to continue paying temporary total
disability (TTD) and interest for late-paid TTD. It awarded $500 in attorney
fees. An appeal was filed and the Commission reversed the fees award holding
that the award of future TTD was a valuable benefit which the Board had
undervalued for purposes of attorney fees. Then the Commission awarded $6,000
in fees, one-half of what was sought, to the Employee’s attorney. Liberty appealed the
award to the Supreme Court and lost. Attorney fees are an important benefit to
Employees to make sure that there are experienced skilled counsel available to
take their claims.
The Employee won.
Cavitt v Liberty Mutual, Alaska Workers’ Compensation Appeals Commission Dec. No 264, July 8, 2019
On May 15, 2018, the case went to hearing before the Board
seeking temporary total disability and medical benefits. On the morning of the
hearing, Liberty’s
attorney represented to the Board that it had withdrawn all its controversions
as of May 10, 2018 and would pay eight weeks of back-TTD. Amongst other things,
the Board ordered that if the TTD was not paid within 14 days of May 10, i.e.
May 24, then Liberty
owed the Employee 25% penalties.
The TTD was paid late, after May 24; however Liberty refused to pay
the penalties. A new claim was filed for penalties and went to hearing on
September 27, 2018. The Board ruled that because there was another appeal
pending in Cavitt on the issue of
penalties, it did not have jurisdiction to hear the case.
An appeal was filed to the Commission. The Commission ruled
that the issues in the first appeal were different than the second appeal therefor
the Board had jurisdiction to decide the penalties issue. It remanded the case
to the Board instructing it to award penalties.
The Employee won.
Bruketta v Liberty Mutual, Reemployment Benefits Administrator Dec. 19-0002, March 19, 2019
The Employee entered into a settlement agreement with
Liberty Mutual on April 25, 2017 by which they agreed that he was eligible for
reemployment benefits. The agreement, drafted by Liberty’s counsel Holmes, Weddle &
Barcott stipulated “the employee agrees to immediate participation in the
reemployment plan process and agrees to continue participation per medical
advice and evidence. Soon thereafter, he had another surgery and additional
complications and was not able to go to school. On August 27, 2018, his physician
requested that the plan be put on hold until he recovered. The Reemployment
Specialist notified Liberty
and the Reemployment Benefits Administrator (RBA) that the plan was on hold for
medical reasons, attaching the doctor’s note.
On February 4, 2019, Liberty
filed a petition with the RBA to have Mr. Bruketta deemed non-compliant in the
reemployment process because he had not begun school yet. As of that date, the
doctor had not released him to start classes.
Liberty’s petition went to
hearing before the RBA who ruled that Mr. Bruketta was not in non-compliance as
he was following medical advice, as was permitted under the settlement
agreement Liberty’s
own attorney drafted.
The Employee won.
Meile v Liberty Northwest, AWCB Dec. No 19-0092, September 9, 2019
The Employee injured her back while working for an assisted
living home in 2009. As a result, she had two surgeries but was eventually
released to return to work as a personal care attendant. However, her physician
told her that she would continue to suffer pain for the rest of her life. And
she did continue to suffer pain intermittently. When she was working for a new
employer in 2017, she had two more injuries to her back. That second employer
hired Dr. David Bauer to say that her problems were caused by the 2009 injury.
Two of her physicians also said the 2009 injury was the cause. A claim was
filed against the first employer, insured by Liberty. Liberty did not send her to a defense medical
examination.
The case went to hearing on July 17, 2019. Liberty insisted that it needed to depose one
of the treating physicians so the Board kept the record open for thirty days.
On the thirtieth day, Liberty’s
attorney filed a notice that it would not be deposing the doctor.
The Board ruled that the Employee had proven that her
current need for medical treatment was the result of the 2009 injury and
awarded her medical benefits, future temporary total disability if she needed
and permanent partial impairment benefits if she had a new PPI.
The Employee won.
Bruketta v Liberty Mutual, AWCB Decision 19-0096, September 23, 2019
After winning the reemployment benefits case, the Employee
sought attorneys fees. The petition went to hearing on August 22, 2019. The
Board ruled the Employee was entitled to have his attorney paid.
The Employee won.
Campoamor v Berkshire Hathaway, AWCB Decision 19-0114, November 8, 2019
While at work, the Employee slipped on stairs wet from
melting snow and grabbed a handrailing to keep from falling, injuring his
shoulder. After complications that required five surgeries, his physician
recommended a total shoulder replacement. Berkshire Hathaway hired Dr.
Youngblood to state his opinion that further treatment was not necessary.
At his deposition, Dr. Youngblood admitted that he charged
$600 per hour for reading medical records, performing “independent” medical
examinations, and writing his reports, and $650 per hour for depositions and
that he typically performed 15 such evaluations per month. In an earlier case,
the Board had estimated that Dr. Youngblood has the potential of earning
$85,000 per month performing “independent” medical evaluations. Piasini-Branchflower
v ASD, AWCB Dec. No 17-0041 (April
11, 2017). His rate had increased since the Piasini-Branchflower
case.
The Board held that Dr.
Youngblood’s report was unreliable. He failed to consider symptoms clearly documented
in the medical records and failed to explain the Employee’s symptoms. Because Berkshire
Hathaway had relied on his opinion to controvert, the Board held that the
controverion was unfair and/or frivolous.
The Employee won.
Keenan Powell has practiced Workers Compensation law in the State of Alaska for over 35 years and has dedicated her practice to Workers Compensation representing injured Alaskans.. www.keenanpowell.com.
All consultations are free. To make an appointment,
email: keenan@keenanpowell.com or
call: 907 258 7663.
The Employee slipped on stairs that were wet from melting snow, grabbed a handrail to catch himself and injured his shoulder. After horrific complications, the insurance company, Berkshire Hathaway, hired Dr. Scot Youngblood to perform an so-called "independent" medical evaluation. Not surprisingly, Dr. Youngblood wrote in his report that the Employee did not require further medical treatment, was medically stable, and could return to work. Berkshire Hathaway then controverted his benefits.
A claim was filed on his behalf. He was seen for a second independent medical evaluation, the Board's doctor, and Dr. Youngblood was deposed. The case went to hearing.
The Alaska Workers Compensation Board ruled in the case of Campoamor v Berkshire Hathway AWCB Dec. No. 19-0114 (November 8, 2019) that Dr. Youngblood's report and testimony would be given less weight than the treating physicians for several reasons:
While he claimed the injured worker would become medically stable by a certain date, he didn't explain his reason for selecting that date.
Although he stated the injured worker could return to work, there was no physical capacity evaluation.
Although he claimed that the pain the injured worker was currently suffering was not work-related, he couldn't explain what was causing the pain, therefor, he could not logically rule out a work-related cause.
He minimized the injured worker's symptoms which was the basis of his opinion that the injured worker could go back to work although every other doctor documented significant pain symptoms.
He pointed to medical records to support his opinion but ignored other medical records that conflicted with his opinion.
He admitted that if his patient had the injured worker's symptoms, he'd refer them to another specialist.
He refused to discuss or consider one of the documented injuries.
The Employee won past and future disability and medical benefits.
Keenan Powell has practiced Workers
Compensation law in the State of Alaska
for over 35 years and has dedicated her practice to Workers Compensation
representing injured Alaskans handling hundreds of cases. www.keenanpowell.com.
All consultations are free. To make an appointment,
email: keenan@keenanpowell.com or
call: 907 258 7663.
“The Gang of Seven”
blog series, I am reviewing seven of the most relied-upon insurance defense
medical examiners: Dr. David Bauer, Dr. Lynne Bell, Dr. Dennis Chong, Dr. Keith
Holley, Dr. Stephen Marble, Dr. Patrick Radecki, and Dr. Marilyn Yodlowski.
Today, we’re looking at Patrick Radecki MD.
If your
insurance company sends you to any of these doctors, beware!
Dr. Radecki graduated medical school in 1973. He has been
practicing in Portland Oregon
since 1983 and has been performing “independent” medical examinations in Alaska since 2001. His
specialty is Physical Medicine and Rehabilitation.
I saw this Dr for an IME. Unfortunately the other reviewers are spot on.
This physician beside manner made me quite uncomfortable. He’s awkward and at
times downright rude. Throughout my exam he told me about his many years of
working for insurance companies to deny claims. He’s an insurance company pawn.
Despite having positive test results for my condition and no other way to
justify how I could have developed these issues he filled a report claiming my
issues were not work related.
There are seventy-five reported decision by the Alaska
Workers Compensation Board in which Dr. Radecki is named beginning in 2002. The
following is a selection.
Nichols v Alaska National Insurance Co., AWCB Dec. No 02-0209 (October 8, 2002)
In 1995, the worker was sitting in a pickup at work when it
was rammed by a forklift, shoved over a berm, rolled several times and landed
on its top. When the pickup stopped rolling, he unfastened his seat belt and
fell to the roof of the cab.
He went to ER and had x-rays that showed no injury. Although
he had aches and pains, particularly in his neck, he went back to work. His
condition continued to get worse although he was taking pain medication until
1998 so he retired from his union and began drawing social security benefits.
In 2000, Dr. Kralick told him that he needed surgery and
that the 1995 accident was the cause. He underwent a multilevel fusion in 2001.
The Employer sent him to Dr. Radecki who opined that the
motor vehicle accident was not the cause of his condition and that he was
simply suffering from the natural progression of spondylosis, a preexisting
injury. The SIME doctor agreed with Dr. Radecki on causation. He also stated that
the Employee could return to work as an ironworker. Dr. Kralik and the SIME
doctor both stated he could not return to work.
The Board believed the Employee and his physician over Dr.
Radecki and awarded him medical benefits and permanent total disability. The Employee won.
Mary Samuel v Alaska National Insurance Co. AWCB Dec. No 03-103 (May 9, 2003)
The Employee injured her low back in 2000 when she fell from
her chair while working as a car rental sales agent. An MRI showed a herniated
disc. Surgery was recommended. She declined surgery and pursued chiropractic
treatment instead.
The Employer sent her to Dr. Radecki. He opined that the
work-related event was a temporary exacerbation of a pre-existing condition,
she needed no further treatment and was capable of returning to her regular
duties full-time. Another “independent” medical evaluation with Richard
Peterson, DC, agreed.
The SIME doctor found that she had herniated her disc in the
fall at work and recommended back surgery.
By the time the case got to hearing in 2003, the Employee
wanted the surgery.
The Board found the testimony of the Employee and her
physicians were more persuasive. She won her case.
James Wood v Ace Fire Underwriters, AWCB Dec. No 05-0005 (Jan. 13, 2005)
On 2002, the Employee was injured while driving a truck for
his employer. The truck slipped and rolled over. He was taken to the hospital
with right shoulder and back pain.
The Employer sent him to Dr. Radecki. He opined that the
Employee had recovered from his injuries, did not need any more treatment,
could go back to work as a truck driver and alluded to “nonphysiologic
presentation” (that means he was faking his injury). His treating physicians
stated that the injury was related to the work accident.
The Employee continued to suffer pain. In 2003, an MRI
revealed a rotator cuff tear, degenerative changes, and tendinitis in the
biceps tendon. Surgery was recommended.
The Board believed the Employee and his treating physicians
over Dr. Radecki. The Employee won benefits for his shoulder injury.
Ramondino v Hartford Insurance Co, AWCB Dec. No 12-0214 (December 20, 2012)
Prior to her work injury, the Employee had been on low
dosage narcotics for low back pain. He had never had any hip problems before
she was injured at work. In early March 2011, he began experiencing right hip
pain working as an assistant store manager at Sports Authority. By June 2011,
his physician took him off work. He was diagnosed with right hip osteoarthrosis
with acute exacerbation.
The Employer sent him to Dr. Radecki. He opined that there
was no injury, that his work temporarily aggravated a preexisting condition, he
could return to work, and he did not need any more medical treatment. His
physicians offered him a variety of treatment including injections and surgery.
The SIME doctor said that work had caused the symptoms and
suggested the Employee may need a total hip replacement.
The Board relied upon the Employee’s testimony combined with
his treating physicians’ recommendations and the SIME report over Dr. Radecki’s
opinions. The other doctors reports were given more weight because they made
sense. Regarding Dr. Radecki’s opinions, the Board stated:
Lastly,
weighing the evidence, Dr. Radecki's contrary opinion is not credible and is afforded
very little weight. AS 23.30.122.
According to his report, Dr. Radecki reviewed only three medical records before
formulating his initial opinions. Dr. Radecki did not address all the questions his client asked
him, but rather, provided answers not relevant to the medical-legal inquiry.
Dr. Radecki focused on the
substantial cause of the right hip “condition,” rather than on the substantial
cause of Employee's disability and need for medical care regarding his right
hip. As stated above, Dr. Radecki has an improper legal understanding of “injury”
under Alaska
law.
He believes
there must be a traumatic event. Nothing in the 2005 amendments to the Alaska
Workers' Compensation Act suggests the legislature intended to eliminate
aggravations of preexisting conditions as “injuries.” DeYonge.
Even Employer's representative appears to acknowledge this, when he or she
inquired of Dr. Radecki initially
and for clarification of his initial opinion, and queried about “cumulative”
injury, as discussed below. Hawkins; Thurston. Consequently,
Dr. Radecki's reports are
given extremely little weight. They are inadequate to overcome the significant
weight given to the opinions of Drs. Ross, Davidhizar and particularly SIME
Silverman on the causation and compensability issues.
The Employee won benefits for his hip injury including
medical benefits and TTD.
In sum, despite the fact that Dr. Radecki’s opinion has
often been discounted by the Alaska Workers Compensation Board, the insurance
companies keep hiring him to say the same thing he always says: that the
Employee wasn’t injured, that he suffers from a preexisting condition, that he
doesn’t need medical treatment, and he can go back to work.
The reason the insurance companies keep hiring him is
because the majority of Employees they send to him don’t fight their cases so
even if the insurance companies lose from time to time, they are saving a
fortune on those other cases that were denied.
If you don’t want to walk away from your case, your best bet
for winning is to hire an experienced workers compensation attorney.
***
Keenan Powell has practiced Workers
Compensation law in the State of Alaska
for over 35 years and has dedicated her practice to Workers Compensation
representing injured Alaskans handling hundreds of cases. www.keenanpowell.com.
All consultations are free. To make an appointment,
email: keenan@keenanpowell.com or
call: 907 258 7663.
“The Gang of Seven” blog series, I am
reviewing seven of the most relied-upon insurance defense medical examiners:
Dr. David Bauer, Dr. Lynne Bell, Dr. Dennis Chong, Dr. Keith Holley, Dr.
Stephen Marble, Dr. Patrick Radecki, and Dr. Marilyn Yodlowski. Today, we’re
looking at Stephen Marble MD.
If your
insurance company sends you to any of these doctors, beware!
Stephen Marble MD is an orthopedic surgeon practicing in Utah. He renewed his
license in the beginning of 2019, so expect to see more of him. There are
reported administrative opinions involving Dr. Marble’s testimony since 1996
making a comprehensive review impossible. So let’s look at the general trend.
However, some of them do go to hearing and the employee has
won despite the insurance company’s reliance upon Holley’s opinion. Following
are a sample of such cases which can be accessed on the Alaska Workers
Compensation Board website at: http://appeals.dol.alaska.gov/SearchRoot/workerscomp/
Olsen v Sealand
Services, AWCB Dec. No 97-0144 (7/1/97). The Employee, a truck driver, twisted
his right knee climbing down from a truck. Shortly after he had surgery on the
right knee, his left knee began bothering him. He had surgery on that for a
torn ACL and medial meniscus. His surgeon believed he had injured the left knee
compensating for the right knee injury. The Employer hired Dr. Marble and Dr.
Bald who opined that his left knee injury was pre-existing and not
work-related.
The Board agreed with the treating surgeon, that the left
knee injury was caused because the Employee was compensating for his right
knee, therefor the left knee injury was work-related. The Employee won.
Leen v RJ Reynolds,
AWCB Dec. No 98-0243 (9/23/98). The Employee injured his back when he fell off
a ladder while installing a bay window. He had back surgery and was off work
for two years. He went back to work and his back was injured again in a
rear-end accident and when erecting a cigarette display rack at Carr’s in Eagle River.
On the last occasion he heard a “pop” and experienced immediate pain. The next
day, he could not stand up straight and went to surgeon. The Insurer sent him
to Dr. Marble who opined that he needed no further medical treatment, could go
back to work in medium category and his chronic low back pain was related to
pre-existing condition.
The Board gave Dr. Marble’s testimony little weight as
compared to the testimony of the two treating physicians. The Employee won
continued medical benefits.
Troy v Save-U-More,
AWCB Dec. No 01-0042 (3/7/02). In this case, the worker was lifting 50-pound
bags of dog food at work when he developed back pain. An MRI showed central
disc protrusion at L-45 and mild annular bulging at L2-3 and L3-4. He treated
with physical therapy. He worked off and on after that. The Insurer hired Dr.
Marble who opined that there was no need for additional medical treatment, his
medication was due to pre-existing degenerative disc disease, and that he only
suffered a lumbar sprain/strain in the work-event which had resolved. His treating physicians said that his back
was injured at work and his treatment was for that back injury. The Board agreed
with the treaters. The Employee won.
Miscovich v Tri-Con
Mining of Alaska, AWCB Dec. No 04-0091 (4/23/04). The Employee got a puncture wound in his left
ankle while stepping down from a loader working at a remote gold mine. He ended
up developing an infection and had surgery. Although Dr. Marble agreed that
there was a work injury, he found there was no PPI rating. The treating
physician found he had a 3% rating. The Board found that Dr. Marble’s report
was insufficient to rebut the presumption because he couldn’t rule out the
infection was work-related and agreed with the treating physician regarding the
PPI rating. The Employee won.
Laframboise v Weldin
Construction, AWCB Dec. No 08-0139 (7/29/08). The Employee was driving a
front-end loader on the shoulder of the road when the dirt gave away and the
loader crashed. He heard his spine snap and was immediately unable to move or
feel his legs and he had pain in his chest and upper quadrant. Despite surgery,
the injury rendered him paraplegic. Despite that, the Insurer sent him to see
Dr. Marble who agreed he had a work injury, awarded him an unheard-of 94% PPI
rating and said he could go back to work performing sedentary physical work
after he had vocational rehabilitation. The Insurer, Liberty Northwest,
reversed its strategy and agreed the Employee was PTD (permanently totally
disabled) – after he hired an attorney. The Employee won.
***
Keenan Powell has practiced Workers
Compensation law in the State of Alaska
for over 35 years and has dedicated her practice to Workers Compensation
representing injured Alaskans handling hundreds of cases. www.keenanpowell.com.
All consultations are free. To make an appointment,
email: keenan@keenanpowell.com or
call: 907 258 7663.
On September 9, 2019, the Alaska Workers Compensation Board entered Meili v Sterling Assisted Living/Liberty Northwest Decision No. 19-0092 awarding the injured worker medical, disability and transportation benefits.
In that case, the employee, a personal care attendant, had injured her back in 2009 while working at an assisted living home. She had back surgery and recovered sufficiently to return to work on a full-time basis although she continued to experience chronic pain.
When working for a new employer in 2017, she suffered two aggravations, the second of which was so severe that she had to quit her job and seek medical attention. Her doctors believe she now needs another back surgery. Thinking that the 2017 aggravations were new injuries, she filed a claim against the second employer. It obtained a defense medical evaluation from Dr. David Bauer who opined that her problems were because of the progression of the 2009 injury. The second employer therefor controverted her benefits.
Within a month of receiving the controversion, she filed a claim against the first employer. The first employer failed to hire a defense doctor of its own, but instead based its defense on the two-year statute of limitations. It claimed that she was injured in 2009 and her new claim for medical treatment did not fall within the two years of 2009.
The Board disagreed with the employer, relying on the fact that the employee is not a medical professional and although she believe she had a new injury, the evidence including Dr. Bauer's report indicated otherwise. Further, because she filed her claim within a month of learning that her current problems were related to the 2009 injury, she was well within the statute of limitations.
The moral of this story: Don't believe anything an insurance adjuster, or doctor, or lawyer says. Get a consultation from an experienced workers compensation attorney and find out what the truth is.
Keenan Powell has practiced Workers
Compensation law in the State of Alaska
for over 35 years and has dedicated her practice to Workers Compensation
representing injured Alaskans handling hundreds of cases. www.keenanpowell.com.
All consultations are free. To make an appointment,
email: keenan@keenanpowell.com or
call: 907 258 7663.
In The Gang of Seven Episode III, I featured Dr. Dennis Chong. The Gang is a blog series devoted to identifying some of the insurance industry’s most frequently-used “independent” medical examiners. The Gang of Seven include: Dr. David Bauer, Dr. Lynne Bell, Dr. Dennis Chong, Dr. Keith Holley, Dr. Stephen Marble, Dr. Patrick Radecki, and Dr. Marilyn Yodlowski. This episode is devoted to Dr. Keith Holley.
If your
insurance company sends you to any of these doctors, beware!
Keith Holley MD is an orthopedic surgeon practicing in Idaho. He was previously
licensed to practice in Alaska
however his license is now inactive. Under Alaska Workers Compensation law, he
must be licensed in the state in which he performs an Employer Medical
Evaluation or the so-called “independent medical evaluation” so at this time he
shouldn’t be performing EMEs in Alaska.
But it is still possible that an insurance company will send an injured worker
to see him in Idaho
or some other state where he might be licensed.
His evaluations have shown up quite a bit in Alaska workers
compensation cases but interesting, not many of them go to hearing. The logical
conclusion is that despite the insurance company going to the expense of
obtaining Holley’s opinion, if the employee fights the case, the insurance
company is likely to settle.
The trend of Dr. Holley’s reports is to opine that the employee’s need for treatment and disability are related to a pre-existing condition or some other non-work related event. Despite this opinion, employees have fought their cases and won despite the insurance company’s reliance upon Dr. Holley. Following are a sample of such cases which can be accessed on the Alaska Workers Compensation Board website at: http://appeals.dol.alaska.gov/SearchRoot/workerscomp/
Innes v Vend and Commerce and Industry Ins Co., AWCB Decision No. 10-0005 (1/24/10)
The employee injured her lower
back when she fell from the back of a truck, landing on a concrete floor on May
24, 2005, while working as a driver for the employer.
Lawrence Stinson, M.D., of the
Advanced Medical Centers of Alaska, saw the employee on May 22, 2008, noted the
persistence of the employee's symptoms from her 2005 work injury and diagnosed
multilevel lumbar
spondylosis and degenerative changes
with positive slump testing indicative of epidural inflammation, primarily
right-sided and L5/S1 disc protrusion. Dr. Stinson referred her to
physical therapy for spinal stabilization and prescribed a lumbar
brace. Dr. Stinson recommended an epidural steroid injection to palliate
her symptoms to permit her to pursue physical therapy rehabilitation. Dr.
Stinson administered a caudal epidural steroid injection on May 23, 2008
At the employer's request, KeithHolley, M.D., of the Objective Medical Assessments Corporation, Seattle, Washington, performed an EME examination of the employee on August 1, 2008, and opined the employee suffered a work related injury in 2005, but her current condition was degenerative in nature. Dr. Holley opined the work injury was not the substantial cause of her symptoms.
At the Board's direction,
the employee underwent a second independent medical evaluation
(“SIME”) with physiatrist Larry Levine, M.D., on August 20, 2009. In his
August 20, 2009, report Dr. Levine stated the employee's 2005 work injury is a
substantial cause of her continuing low back symptoms, her medical care has
been reasonable, and there is no evidence of back problems pre-existing the
employee's work injury. Dr. Levine opined the degenerative changes in her
original X-ray were asymptomatic. Dr.
Levine indicated the facet blocks and rhizotomy treatments received by the employee provided good
relief to permit her to get good exercise for core stabilization. He
recommended she continue to be trained in proper lifting and posture and
dynamic stabilization, and should be involved in a core exercise program.34 He
recommended she stop smoking and control her weight. Dr.
Levine indicated he “… would not have ongoing recommendation for interventions
such as injections, rhizotomies, etc., for a long period of time. This would be
recommended for the pain issues, but not solely for the work injury from
2005.” Dr. Levine rated the employee with a one percent whole person
partial impairment (“PPI”), under the American Medical Association Guides
to the Evaluation of Permanent Impairment, 6th Ed.,
At the beginning of the hearing
on December 17, 2009, the employer accepted liability for the claimed TTD
benefits from April 28, 2008 through October 13, 2008, accepted liability for
one percent PPI benefits based on Dr. Levine's rating, and accepted liability
to hold the employee harmless for all medical benefits through the date of the
hearing.
Employee won.
Serafin v Denali Alaska Federal Credit Union and Liberty Northwest Insurance Co, AWCB Decision No 17-0332 (3/21/17)
On February 24, 2010, Employee
was working as a receptionist for Employer when she reported experiencing pain in
her back, right leg, and foot while she and a co-worker were moving a small
refrigerator in the office
1. Mild degenerative
disc disease lower lumbar spine L4-L5 and L5-S1 including 3-4
mm central disc protrusion L5-S1. Central canal and foramen are adequate.
2. Dissection-degenerative
changes L4-L5 and L5-S1 discs. There may be local internal derangement of the
superior aspect of the L4-L5 disc at the interface with the endplate resulting
in small fluid collections. (Diagnostic Health Chart Note, April 29, 2010).
On May 5, 2012, Employee
was seen by orthopedic surgeon KeithHolley,
M.D., for an employer's medical examination (EME). Dr. Holley diagnosed:
1. Lumbar strain with right lower extremity
radicular component, related to occupational Injury of February 24, 2010.
2. Mild lumbar spondylosis with degenerative disk
changes by MRI. These are age-related degenerative changes, pre-existing, and
not occupationally related.
3. Current symptoms of low back pain and right lower extremity radiculopathy in January 2012 after prolonged computer gaming at home, now improved after epidural steroid injection and physical therapy. This is not occupationally related to the injury of February 24, 2010.
Dr. Holley opined the February
24, 2010 work injury is the substantial cause of the first diagnosis but not
the substantial cause of diagnoses 2 and 3. Dr. Holley opined the work
injury is not the substantial cause of Employee's then-current need for medical
treatment and that all treatment from January 2012 onward is substantially
caused by the computer gaming incident at home in combination with the
pre-existing degenerative changes in Employee's lumbar spine. Dr. Holley
did not believe did not believe the February 24, 2010 incident permanently
aggravated or accelerated the pre-existing condition. No further treatment was
recommended. Dr. Holley opined Employee was medically stable as of July 6,
2010.
On September 20, 2013,
orthopedic surgeon Mark Flanum, M.D., performed a right side microdiscectomy with no complications
On May 16, 2014, neurosurgeon
James Coulter, M.D., performed a second independent medical examination (SIME).
Dr. Coulter concluded the February 24, 2010 work injury aggravated and combined
with pre-existing lumbar
spondylosis to cause a permanent change of the right L5-S1
nerve root radiculopathy.
In answer to the question concerning the need for the September 20, 2013 microdiscectomy,
Dr. Coulter concluded the 2010 MRI showed a disc herniation rather than a
protrusion. Dr. Coulter stated:Yes, the work injury of 02/24/2010 was the
substantial cause of the need for L5-S1 microdiscectomy.
Ms. Serafin's escalation of symptoms, in my opinion, was related to the
enlarging L5-S1 disc herniation which reached 9 mm in size, occupying about
three quarters of AP diameter of the spinal canal on the right side at that
time. At surgery the extruded disc fragment was found lying beneath the
traversing right S1 nerve root, and there was subtle indications that disc
extrusion was present at the time of the first MRI in April 2010, compressing
and minimally dorsally displacing the right S1 nerve root.
On November 4, 2015, an MRI was
taken of Employee's lumbar spine. On reviewing the study, Dr. Flanum
opined:This shows interval resection of the large disc herniation that was not
present previously. Now there is some facet arthropathy and
thickening of the ligamentum flavum, along with recurrent disc extrusion that
looks a little more far lateral. This is consistent with a compression of
the S1 nerve root.Dr. Flanum's report indicates Employee reported her pain is
“intermittent at best.” Dr. Flanum recommended revision L5-S1
microdecompression and microdiscectomy.
On January 14, 2016, orthopedist
David Bauer, M.D., preformed an EME and opined the degenerative
disc disease at L4-S5 and L5-S1
pre-existed the February 24, 2010 work injury. Dr. Bauer recommended Employee
proceed with a nerve root injection. If the injection was successful, Employee
might then be a candidate for surgery. Dr. Bauer concluded the February 24,
2010 work injury was not the substantial cause of any then-current disability
or need for medical treatment, including surgery.
On July 24, 2016, Dr. Coulter
performed an addendum SIME on the issue of the need for the revision surgery.
Dr. Coulter performed a physical examination of Employee, as well as a records
review, and opined: It remains my neurosurgical SIME opinion, counter to the
historical inconsistencies pointed out supra, that there exists substantial
factual support for the claimant's assertion that she did not have S1 radiculitis and radiculopathy prior
to the February 2010 lifting injuries in the course and scope of her employment
...I consider the patient's presentation to be credible in view of the general
findings including definite radicular S1 nerve root motor and sensory
impairment, limited lumbar ranges of motion and limited right straight leg
raising ...Dr. Flanum has continued to recommend a second disc excision in this
case at the L5-S1 level. He continues to opine that the second operation is
directly related to the 2010 work injury, and as the neurosurgical SIME, I
would agree with Dr. Flanum concerning causation and need for surgical
treatment ...The objective MRI and physical examination evidence supports the
previous SIME opinion that the February 24, 2010 work injury did aggravate and
combine with the pre-existing lumbar
spondylosis at the L5-S1 level, and accelerated L4-L5 disc
degeneration to cause increasing impairment, and need for treatment, including
the L5-S1 lumbar
discectomysurgery performed 09/20/2013.
In response to the question of
whether he agreed with Dr. Bauer's opinion that Employee should pursue only
conservative care in the form of transforaminal nerve root injection prior to surgery,
Dr. Coulter opined:No, I do not agree with Dr. Bauer that Ms. Serafin should
pursue any further care of epidural
injection prior to reasonable and necessary surgical treatment
... She had lumbar epidural
steroid injection in the past, which was of only brief
transient benefit of a few weeks pain modification.
The Alaska Workers Compensation Board held that “the lack of significant prior back pain or radicular
symptoms in Employee's medical history, combined with her credible testimony
and the credible testimony and opinions of Drs. Johnston and Flanum receive
more weight than the EME opinions of Drs. Bauer and Holley.”
Employee won.
Johnston v Chez Lmtd and Commerce and Industry Insurance Co., AWCB Decision No 17-0004 (1/11/17)
On March 11, 2008, Employee was
working for Employer on a frame machine in an auto body shop. A clamp and chain
slipped off a vehicle and Employee fell about three feet trying to avoid
injury. Employee landed hard on his right foot on a concrete floor and
immediately noticed sharp stabbing pain, like he had been electrocuted,
radiating from his knee up and down his right leg into his groin and lower
back. He also injured his right shoulder
On July 24, 2008, on referral
from Dr. Valentz, Employee had his first lumbar spine
magnetic resonance imaging (MRI).
His symptoms included low back and right posterior thigh pain. Radiologist
Ronald Lewis, M.D., read decreased signal intensity at L1, L3 and L4
interspaces with a moderate posterior protrusion at L3-4. Dr. Lewis noted no
other abnormalities at the L1-2 or L2-3 levels. There was a circumferential
disc protrusion at L3-4 with severe facet joint disease much greater on the
left than right, and a protruding disc into the left neural foramen but without
compressing the nerve root. At L4-5, Dr. Lewis saw a circumferential disc
protrusion with mild impingement on the lateral recess with facet joint hypertrophy, which caused “some definite encroachment on the exiting
L4 root.” The “major abnormality is at L4-5, where a combination of facet
joint disease and disc protrusion intrude into the right neural foramen with
some compression of the right L4 root as it exits through this foramen.” Dr.
Lewis stated, “Potentially, this may correlate with the patient's current
symptoms.”
On July 24, 2008, after reviewing
the MRI results, Dr. Valentz noted Employee's leg numbness and tingling was on
the anterior right thigh and said, “It looks like he has disc protrusion at
L4-L5 involving the right lateral recess. His pain is mainly at right L4 nerve
root. I recommend an epidural steroid injection.
On July 25, 2008, Dr. Valentz
performed a right L4 epidural steroid injection for right leg pain
On August 21, 2008, Dr. Valentz
performed another right L4 epidural steroid injection. Employee reported good
relief for one week. Dr. Valentz referred Employee to Dr. Wright for surgical
consultation
On September 19, 2008, Employee
had a lumbar spine CT without contrast. Radiologist Christopher Kottra, M.D.,
found moderate L4-5 degenerative
disc disease with mild degenerative
disc disease present throughout the
remaining lumbar levels. At L4-5, there was a small, broad, posterior disc
protrusion resulting in at least mild canal stenosis and some degree of right
foraminal stenosis, and moderate bilateral facet degenerative
joint disease. At L3-4 there was a
small, mild, broad, posterior disc protrusion accompanied by degenerative
hypertrophic ligamentum flavum on both sides and pronounced left-sided
facet degenerative
joint disease resulting in mild
canal stenosis. At L2-3 there was “very slight disc bulging as well as
bilateral facet ligamentous flavum hypertrophy resulting in canal stenosis.” Dr. Kottra did not
mention any soft tissue mass at or near L2-3.
Dr. Wright opined Employee's
sciatica symptoms, precipitated “by his on-the-job injury,” arose from the
foraminal stenosis at L4-5 associated with marked facet disease. Dr. Wright
surmised Employee probably “jammed” the joint when he fell, narrowing the
neural foraminal and precipitating sciatica. He recommended a contrast-enhanced
MRI scan to verify the suspected
soft tissue mass
On October 4, 2008, KeithHolley,
M.D. performed an employer's medical evaluation (EME) on Employee. Employee's
chief complaints were low back and right leg pain. Dr. Holley reviewed
Employee's medical records, including two MRIs and noted nothing from those
reports referencing L2-3, except Dr. Wright's reference. He also reviewed both
lumbar MRIs and the lumbar CT digitally. (Deposition of KeithHolley,
M.D., August 2, 2016, at 5-6). Dr. Holley said the CT “more clearly shows what
appears to be a broad-based disc osteophyte complex
far lateral to the right at L2-3.” When asked about Employee's July 2008 MRI
scan, Dr. Holley said the MRI showed facet joint arthritis. He
stated, “The arthritic changes in the facet joints are certainly traumatic in
nature.” On examination, Employee demonstrated weakness on the right side on heel
walking. Dr. Holley saw no leg atrophy but found decreased sensation on the
right, anterior, medial thigh consistent with an L2 dermatome. Dr. Holley
diagnosed right lower extremity radiculopathy with
examination findings suggesting sensory loss in the L2 dermatome, and
corresponding imaging suggesting a far right lateral disc osteophyte complex
at L2-3, both related to the work injury. He also diagnosed multilevel lumbar spondylosis,
degenerative disc and facet joint changes, preexisting and not caused by the
work injury, but temporarily aggravated. Dr. Holley concurred with Dr. Wright's
recommendation for surgery at L2-3.
On October 20, 2008, Dr. Wright performed surgery on Employee at L2-3. Employee had brief relief he attributed to surgical medications, but his symptoms returned.
On February 3, 2010, Dr. Wang
reviewed the July 24, 2008 MRI and noted a broad-based disc protrusion at L4-5 causing
bilateral, lateral recess stenosis and severe facet joint hypertrophy at this level. Relevant findings included right L3
and L4 radiculopathy. Dr. Wang recommended another MRI with and without
contrast, and a possible lumbar epidural
steroid injection followed by PT
and pain medication
On June 17, 2010, Employee's
primary complaint was right-sided spasm in his low back. Dr. Wang diagnosed
right L3 and L4 radiculopathy, with right-sided muscle spasms possibly secondary to
lumbar facet arthropathy.
On May 13, 2011, Employee
received a right L3 and L4 medial branch and L5 dorsal rami block. The May 9,
2011 reference to a “left” injection was a dictation or typographical error. On
June 2, 2011, Employee received right L3 and L4 medial branch blocks and an L5
injection. On June 27, 2011, Employee received a right L3 and L4 medial branch
block and an L5 dorsal rami radiofrequency neurotomy.
The prior two medial branch and dorsal rami injections resulted in greater than
80 percent pain reduction. The radiofrequency neurotomy was
done for therapeutic purposes. On June 30, 2011, Employee said the recent
medial branch and L5 dorsal rami radiofrequency neurotomy provided
90 to 95 percent lumbar pain relief and he had significantly reduced his pain
pill use as a result. On August 24, 2011, Employee reported doing better since
his radiofrequency neurotomy and
was able to sit in a car for a longer period. He continued to have right-sided
radicular symptoms, which were unresponsive to epidurals. Dr. Wang again
diagnosed right L3 and L4 radiculopathy,
““unchanged.” On November 23, 2011, Employee had restarted his pain medication.
Dr. Wang continued to diagnose right L3 and L4 radiculopathy,
“unchanged” and lumbar
spondylosiswell-controlled following radiofrequency neurotomy.
On April 16, 2012, Employee
received another right L3 and L4 medial branch and L5 dorsal rami
radiofrequency neurotomy.
On May 29, 2012, Employee told Dr. Wang the recent injections and
radiofrequency neurotomy provided
90 to 100 percent pain relief. His remaining pain was localized in the right
low back and groin and he described it as an aching cramping sensation
radiating down his right anteromedial thigh. By July 24, 2012, Employee
reported low back pain relief but continued right anterolateral thigh pain. He
used Percocet daily
to control pain
On October 20, 2012, Dr. Holley performed another EME. Employee told Dr. Holley when his symptoms did not improve with conservative care Dr. Wright performed an “L2-L3-L4 lateral discectomy.” The surgery did not help. Employee moved to Michigan and had additional steroid injections and PT, which did not help. Employee still exhibited diminished sensation over the medial right thigh. Dr. Holley reviewed the February 9, 2010 MRI on a CD-ROM, which he interpreted to show multilevel degenerative disc disease with a broad-based posterior bulge most prominent at L4-5 creating mild, central, lateral recess narrowing but no nerve root impingement. The L2-3 and L3-4 levels were mildly degenerative with lesser bulging and there was no recurrent herniation at L2-3. Dr. Holley diagnosed a right L2-3 far lateral disc herniation with associated right lower extremity radiculopathy, status post discectomy in October 2008. He attributed this disc herniation to the March 11, 2008 work injury. He also found multilevel spondylosis, degenerative disc disease and facet arthropathy, which in his view were all preexisting but temporarily aggravated by the March 11, 2008 work injury. Dr. Holley opined the substantial cause of Employee's current disability and need for medical care was natural progression of his degenerative lumbar changes and not the March 11, 2008 work injury. Dr. Holley found no intervening factors affecting Employee's lumbar spine. In his view, Employee needed no further diagnostic studies, tests or treatment. Dr. Holley opined pain medications, Flexeriland epidural steroid injections were not reasonable or necessary going forward, though they were medically acceptable in the past. The substantial cause of the ongoing need for these modalities was, in Dr. Holley's opinion, natural progression of Employee's degenerative lumbar spine condition and not the March 2008 work injury.
On January 12, 2015, given these
results Dr. Morris advised bilateral medial facetectomies without
fusion at L4-5. Employee wanted to proceedOn March 26, 2015, Dr. Morris
performed lumbar surgery on Employee. The surgical records are not found in the
agency file.
On June 25, 2015, Alan Roth,
M.D., saw Employee for a second independent medical evaluation (SIME). Employee
had “significant degenerative spine and disc disease” prior to his work injury,
which was not caused by the injury. However, he also had “some significant disc
protrusion, particularly pushing against the right L4 nerve root,” which Dr.
Roth opined “probably was related to the — more likely than not, was related to
the work injury.” Dr. Roth said it was possible the disc protrusion at L4 could
have been caused by or impacted by the July 22, 2008 rock incident at home, but
further stated “it's my understanding that he had some radicular complaints in
the distribution of L4 and L3 levels at the time of — subsequent to the time of
his work injury, that he didn't have before his work injury, and that he
continued to have and, possibly, became more significant after the home
injury.”
Employee's symptoms
progressively got worse from the beginning. His right foot drop was always
present, continuous and gradually got worse.
Board weighed evidence and
Employee won.
***
Keenan Powell has practiced Workers
Compensation law in the State of Alaska
for over 35 years and has dedicated her practice to Workers Compensation
representing injured Alaskans handling hundreds of cases. www.keenanpowell.com.
All consultations are free. To make an appointment, email:
keenan@keenanpowell.com or call:
907 258 7663.
Last week, I featured Dr.
Lynne Bell in “The Gang of Seven”, a blog series devoted to identifying some of
the insurance industry’s most frequently-used “independent” medical examiners.
“The Gang of Seven” include: Dr. David Bauer, Dr. Lynne Bell, Dr. Dennis Chong,
Dr. Keith Holley, Dr. Stephen Marble, Dr. Patrick Radecki, and Dr. Marilyn
Yodlowski.
If your insurance
company sends you to any of these doctors, beware!
Today’s installment
features Dr. Dennis Chong, a physiatrist (physical medicine and rehabilitation)
who has been practicing for 26 years. He currently has no disciplinary actions
nor reported medical malpractice cases. https://fortress.wa.gov/doh/providercredentialsearch/
His
Healthgrades review is 3 stars. One of the comments was: “If you have an IME scheduled with this
guy watch out.”
Interestingly, the Alaska Workers Compensation
Board as stated that Dr. Chong is less credible due to his extensive contact
with the insurance industry. His first job was a ten-year stint as a medical
director of a Cigna. His second job was as a medical director for Blue Cross. It
was his job to tell the doctors what they could and could not do in treatment
of patients. He has only been in private practice since 2009.
Alaska Cases
The following are a selection of cases in which he testified in Alaska. The overall trend of these decisions is that the Board rejected Dr. Chong’s opinions because he didn’t rely on the legal standard for causation in his opinions.
Umiker v Bristol Bay Area, Seabright Insurance
Company. AWCB Decision No.
15-0006 January 21, 2015
The Employee was injured on the job while
working for Employer as a registered nurse on November 15, 2011. Employee
contends the work injury caused significant time loss from work, medical
expenses, and required considerable treatment, including surgery, to address
pain in her back, legs, buttocks, and foot.
On August 8, 2012, Employee was examined by Dennis Chong, MD, for
an Employer's Medical Evaluation (EME). Dr. Chong's EME report states, in
relevant part: Diagnosis: By historical record in proximate physician and
chiropractic examination, bilateral knee contusion,
related to the industrial event on November 15,2011. Neck strain and thoracic
area back strain, related to the industrial event of November 15, 2011. Development
of right buttock pain at the end of January 2012 as reported to her
chiropractor after chiropractic adjustments at greater than two months
subsequent to the industrial event of November 15, 2011. This is most likely
not related to the industrial event of November 15, 2011.Pre-existing severe
degenerative disk disease, L5-S1, with grade 2 spondylolisthesis
of L5 on S1. This is not related to the industrial event of November 15, 2011
....
Regarding causation, Dr. Chong opined: The work injury of
November 15, 2011 is the substantial cause of bilateral knee contusion and
neck strain and thoracic back strain.
Regarding further medical treatment, he stated: With regard to
Ms. Umiker's spondylolisthesis,
I would recommend that further diagnostic imaging of the lumbar spine ... be
obtained to assess for stability. .... However, this would not be related to
the claim under study. There is no further medical treatment recommended for
conditions related to the November 15, 2011 injury. Ms. Umiker's work related
conditions are medically stable at this time. She is currently not stable with
regard to her pre-existing condition. There is no impairment to rate with
respect to her work-related condition
The Board held that in context of a back injury,
a common industrial injury often difficult to objectively diagnose or describe,
the Employee's credible testimony concerning her suddenly deteriorating
physical abilities after November 15, 2011, was given significant weight. Her
testimony is strongly corroborated by changes in her life following the work
injury. Further, Dr. Chong's report opined the medical condition, spondylolisthesis combined with pre-existing degenerative disc disease, is not related to the work injury.
However, that is not the legal issue. The question is whether the work injury is the
substantial cause for the need for medical treatment or disability. Therefore,
the EME and SIME reports of Drs. Chong and Pitzer are given less weight.
Employee won medical benefits, TTD, PPI and
reemployment benefits.
Nielson v Alaska Teamster Local 955, AWCB Decision No. 19-0019, February 15, 2019
On April 21, 2008, Employee rammed his head
onto a truck differential housing while working as a mechanic for Employer.
On June 25, 2011, Scott Fechtel, D.C., M.D.,
saw Employee for an EME. There was no evidence of preexisting neck or head
pain. Dr. Fechtel found “rigid paraspinal muscles” and diagnosed among other
things severe neck pain with severe guarding, muscle spasm and limited motion,
which appeared to be neurogenic, and a possible posttraumatic cervical dystonia. He offered the posttraumatic dystonia as why Employee's magnetic resonance imaging (MRI) findings were not sufficient to
explain all his symptoms, particularly the muscle rigidity. Dr. Fechtel found
posttraumatic cervical dystonia present in the medical literature and associated with past, violent
neck movements, which could suggest an alternative therapeutic approach to
Employee's symptoms. He recommended electromyography (EMG) with an evaluator “comfortable with cervical dystonia evaluation.” Dr. Fechtel endorsed recommendations from Thomas Grissom,
M.D., and added Botox injections as an added treatment.
On January 7, 2013, Dr. Kralick performed an
anterior discectomy, spinal canal nerve root decompression and total disc arthroplasty at C6-7.
On August 18, 2014, Matthew Peterson, M.D., diagnosed Employee
with chronic cervical spine pain, cervical spondylosis
and postsurgical pain syndrome with previous disc replacement at C6-7.
(Operative Report, August 18, 2014). On September 17, 2014, Dr. Peterson opined
Employee had exhausted all medical treatment options and was at “maximum
medical improvement.” His ongoing care was for “palliative pain management.”
On March 22, 2018, Dennis Chong M.D., examined
Employee for an EME. He interviewed Employee and reviewed his medical records,
including those recording his consistent complaints of neck and head pain
through 2017…Based on his “Review of Symptoms,” itself
based on the medical documentation and “an interview with the examinee,” Dr.
Chong knew Employee had nausea, sleep problems and neck pain. He diagnosed a
cervical and left shoulder ““sprain/strain”
substantially caused by Employee's work injury “and long since resolved”;
bilateral, curative shoulder surgeries; preexisting cervical spine multilevel
degenerative disease and spondylosis,
unrelated to, not caused by and not aggravated by the work injury; and a C6-7
disc arthroplasty, with
a “postoperative explosion of subjective pain complaints” including headache,
worsened left upper extremity symptoms, circumferential neck pain, upper torso
pain and dysequilibrium. Dr. Chong opined Employee's symptoms “cannot be
explained by an uncomplicated, technically successful C6-7 disc arthroplasty.”
(Chong report, March 22, 2018).
The adjuster asked Dr. Chong to “identify all causes” of Employee's disability or need
for medical treatment following his work injury (emphasis in original). He
listed no causes and said no “anatomical or physiological cause” explained
Employee's “current constellation of disparate symptoms to result in
disability.” In response to this question, again
identifying no “causes,” Dr. Chong stated the work injury has not been the
substantial cause for any medical treatment since 2013, when Employee underwent
cervical surgery assuming the disc arthroplasty was administratively accepted. He recommended no further
care or prescription medication because, in his view, chronic opiate therapy
“has not resulted in any functional improvement” and there was no evidence of
signs or symptoms to support other medications.
The Board held: Dr. Chong's report and deposition testimony do nothing to
clarify causation for Employee's continuing
disequilibrium, head, left arm and neck symptoms post-surgery. He says there
is no cause for Employee's pain but he never opines Employee has no pain. His
opinion makes it impossible to evaluate the relative contribution of different
causes of the need for medical treatment, since according to Dr. Chong, there
is no cause. AS 23.30.010(a).
Since there is no cause for the symptoms, he offers no cause with which to compare
the work injury. Huit.
Dr. Chong admits he is not a surgeon and is unfamiliar with arthroplasty
surgical techniques and expressly said he has no opinion on whether a cervical arthroplasty could
cause post-surgical pain. Nevertheless, Dr. Chong concludes the work injury has
not been the substantial cause of Employee's need for medical treatment since
2013. He could find no objective explanation for Employee's continued
disequilibrium, cervical, left arm and head symptoms, because the arthroplasty
was “technically successful.” But the Alaska
Supreme Court has held the lack of objective signs of an injury does not
preclude its existence because there are many injuries which are not readily
disclosed by objective tests. Kessick. As Dr. Chong conceded, “any surgery ... can possibly
result in any complications.” But he opines this surgery did not cause pain or
other symptoms as a post-surgery complication apparently only because he cannot
pinpoint the cause. Dr. Chong admitted there “is no machine that tells the
truth about pain” and no way to objectively measure Employee's subjective pain.
“So pain cannot be seen or shown.” Given this testimony, it is difficult to
accept Dr. Chong's causation opinions as credible because they are simply
conclusory and he offers no alternative explanation for Employee's undisputed
symptoms. Further, though Dr. Chong applied, albeit incorrectly, CDC
“domains” to derive his continued medical treatment opinion, his report never
mentions activities of daily living upon which the CDC domains are reportedly
based and cannot recall discussing them with Employee. Given this analysis, Dr.
Chong's opinion is not credible and is given no weight. AS 23.30.122.
Employee prevails on the entire presumption analysis as well.
The Board that Dr. Chong’s report did not rebut the raised
presumption of compensability, that the Employee was entitled to palliative
medical care, and that the Employer frivolously controverted Employee's right
to benefits and his claims.
Hays v Arctec Alaska,
AWCB Decision No. 18-0068 July
11, 2018
The Employee injured his right shoulder and
neck while lifting a heavy bucket at work, and these injuries necessitated his
participation in a work hardening program and physical therapy, which resulted in further
injuries to his lumbar spine and left shoulder.
On March 13, 2013, Dennis Chong M.D., performed an employer's
medical evaluation (EME). He diagnosed: 1) right shoulder labral tear with
chronic impingement, status post historical previous rotator cuff repair,
related to the March 8, 2012 injury; 2) status post right shoulder
reconstructive surgery, related to the March 8, 2012 injury; 3) learned
voluntary chronic contraction of right shoulder girdle musculature; and 4)
chronic preexisting multilevel cervical spine degenerative disease with presumptive
diagnosis of spinal stenosis,
unrelated to the March 8, 2012 work injury. Dr. Chong did not think Employee's
right shoulder was medically stable and cautioned against a third arthroscopic shoulder procedure since Employee's recovery from his March 22, 2012
surgery was unsuccessful. He also opined Employee's work injury aggravated a
preexisting right shoulder rotator cuff condition and produced a permanent
change, which necessitated Employee's need for treatment. The work injury was
the substantial cause of Employee's right shoulder “condition,” according to
Dr. Chong. (Chong report, March 13, 2013).
The Board held that weightiest causation opinions in the record
come from Employer's medical evaluator, Dr. Chong, and the SIME physician, Dr.
Scarpino. In contrast to Drs. Manion and Eule, Dr. Chong's opinions remained
fairly consistent throughout this case's long pendency, at least with respect
to right shoulder causation. He thought the March 8, 2012 work injury did
aggravate a preexisting right shoulder rotator cuff tear,
which he likened to frayed stitches on an old shirtsleeve, to produce the
“final tear” requiring treatment. However, there is some vacillation in Dr.
Chong's right shoulder medical stability opinion. In his January 22, 2015
report, Dr. Chong initially found Employee's right shoulder to have been
medically stable by September 2012, but he later revised this date to April
2013.
Meanwhile, Dr. Chong did not find work to be the substantial
cause of Employee's cervical spine, lumbar spine and left shoulder treatment.
Instead, Dr. Chong thought the Employee required cervical fusion surgery
because of “many life factors,” such as work activity, leisure activity,
smoking, genetic predisposition and congenital factors. Similarly, Dr. Chong
opines “[a]ll of life's activities,” including work, caused Employee's need for
left shoulder medical treatment, and Employee's need for low back surgery was caused
by decades of work activity, smoking and Employee's other back injuries. It
is interesting to note, though Dr. Chong provides alternative explanations for
Employee's need for treatment, each includes work as a partial, causative
factor even though, in his opinion, it alone does not rise to being “the
substantial factor.”
Between Dr. Chong and Dr. Scarpino, the Board
held that Dr. Scarpino's opinions was afforded the most weight. Dr. Chong's
credibility suffers a bit from his unusually close relationships with the
insurance industry. Id. Even though it is not unusual for independent
medical evaluators to perform a majority of their evaluations for the defense, Dr.
Chong's background includes quite a bit more than merely performing these
evaluations. Dr. Chong underwent training provided by CIGNA insurance company
and worked as an Insurance Medical Director. He also participated in leadership
training provided by a health insurance company and served as a reviewer for
the publication Workplace Disability Guidelines, which was written as a guide for workers'
compensation case managers to instruct them on the ordinary types and lengths
of treatment. Therefore, while Dr. Chong is generally credible, his opinions
are viewed with some skepticism since an inordinate amount of the achievements
on his curriculum vitae have been provided by the insurance industry. Id.
The Employee won his claim for medical benefits, TTD, PTD, and PPI.
Drago v Scan Home, Liberty Northwest, AWCB Decision No. 12-0083 May 7, 2012
On November 6, 2009, Mr. Drago injured his
lower back picking up a heavy box while working for Scan Home. (Report of
Occupational Injury or Illness, November 11, 2009).
Mr. Drago returned to Dr. Kropp on July 20,
2011. Dr. Kropp noted that “[t]oday we met with the equipment representative
and discussed a stimulator trial.”
Dr. Dennis Chong, a specialist in physical
medicine and rehabilitation, also examined Mr. Drago at Scan Home's request.
Dr. Chong also concluded that the November 6, 2009,work incident was the substantial
cause of Mr. Drago's condition and his need for medical treatment. Dr. Chong
stated, “Mr. Drago's current condition does not meet the most common
indications for spinal cord stimulator placement,” and a “spinal cord stimulator trial is not recommended.”
The Employee was granted a second independent
medical evaluation.
Keenan Powell has practiced Workers Compensation law in the State of Alaska for over 35 years and has dedicated her practice to Workers Compensation representing injured Alaskans. www.keenanpowell.com.
All consultations are free.To make an appointment, email: keenan@keenanpowell.com or call: 907 258 7663.
