ALASKA WORKERS' COMPENSATION BOARD

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

) FRANK M. DANFORD, ) Employee, ) INTERLOCUTORY ) DECISION AND ORDER Petitioner, ) ) v. ) AWCB Case No. 199922593 ) COSTCO WHOLESALE CORPORATION, ) AWCB Decision No.01-0087 Employer, ) ) Filed with AWCB Anchorage, Alaska ) And ) May 3, 2001 ) COSTCO WHOLESALE CORPORATION, ) Insurer, ) ) Respondents. ) )

We heard the employee’s petition for a protective order and for a second independent medical examination (SIME) on April 18, 2001, at Anchorage, Alaska. The employee represents himself in this matter. Attorney Tasha Porcello represents the employer. We closed the record at the conclusion of the hearing.

ISSUES 1. Shall we grant the employee’s request for a protective order regarding the release of Guide Hunt records? 2. Shall we order an SIME?

SUMMARY OF THE EVIDENCE I. Release FRANK DANFORD v. COSTCO WHOLESALE CORPORATION

The employee filed a report of occupational injury stating he injured his right elbow on November 8, 1999 while working for the employer as a salesman. Specifically, the employee stated he injured his elbow while loading heavy furniture and appliances.1 The employer paid five days of temporary total disability (TTD) benefits from November 12, 1999 through November 16, 1999. Thereafter, the employer controverted additional time loss benefits on the basis the employee had been released to light duty work and refused an offer of light work from the employer.2 On March 19, 2000, the employee filed a workers’ compensation claim for TTD benefits from November 16, 1999 and continuing. On November 29, 2000, the employee requested a reemployment benefits eligibility evaluation. On January 11, 2001, the employer petitioned for an order to compel the employee to sign a release for Guide Hunt records from the Division of Occupational Licensing. At a prehearing conference on February 20, 2001, the employee requested protective order regarding the Guide Hunt records. Prehearing chairperson Cathy Gaal ordered the employee to sign a release for his Division of Occupational Licensing records. Specifically, Ms. Gaal stated: Following the PH, the chair determined that EE should sign a release for his Guide Hunt records in the possession of Division of Occupational Licensing. This information is relevant because EE is making a claim for disability benefits during the time period covered by the Guide hunt records. In addition, EE has filed a request for reemployment (vocational rehabilitation) benefits, and these records would be relevant in determining his eligibility for reemployment benefits.

Thereafter, the employee provided the employer with a modified release for Guide Hunt records from November 8, 1999 through April 1, 2000. At a follow-up prehearing on March 13, 2001, prehearing chairperson Gaal once again ordered the employee to sign the original release. Ms. Gaal also noted the employee withdrew his claim for additional TTD benefits. Ms. Gaal determined: EE signed a modified release for his guide records until 4-1-00. Porcello stated that the limited release is useless, since guiding is seasonal, and would not have occurred during that time anyway. In addition the complete records are relevant to EE’s claim for medical care after 4-1-00, and that EE’s physician relied on EE’s statements that he did not work as a guide and his injury was the result of his work at Costco. Porcello stated that EE testified at his deposition that he was not working as a guide.

1 Report of Occupational Injury dated 11/9/99. 2 Controversion Notice dated 3/10/00.

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Ms. Gaal went on to state: The PH chair determined that even without EE’s claims for TTD and vocational rehabilitation, the information requested by the guide record release would likely lead to admissible evidence regarding causation and medical issues, and that EE should sign the original release for the guide records. EE must sign the original release form and return to Porcello within 10 days of this PH.3

II. Request for an SIME After his injury, the employee began treating with Stan Throckmorton, D.C. Dr. Throckmorton referred the employee to Edward Barrington, D.C. for testing. Dr. Barrington diagnosed the employee with mild/acute right ulnar neuropathy.4 On January 20, 2000, Dr. Throckmorton indicated the employee suffered a mild neuropathy of the right arm related to the work injury. Dr. Throckmorton authorized the employee off work through January 25, 2000. On January 25, 2000, Dr. Throckmorton referred the employee to Richard Garner, M.D., who diagnosed contusion of the right elbow, right tardy ulnar nerve palsy, and right thoracic outlet syndrome. Dr. Garner was concerned the ulnar findings at the elbow may originate from “higher up,” so he referred the employee to Shawn Hadley for further testing.5 On February 2, 2000, Dr. Hadley determined the electrodiagnostic studies did not clearly identify carpal tunnel syndrome, right cervical radiculopathy, ulnar neuropathy at the level of the elbow or clear evidence of thoracic outlet syndrome. Dr. Hadley questioned whether the employee had generalized neuropathy. Richard Peters, M.D. then examined the employee at Dr. Garner’s request. Dr. Peters concluded the employee did not have thoracic outlet syndrome but may have scarring within the substance of the ulnar nerve.6 On May 9, 2000, Dr. Throckmorton noted the employee was weaning off his medications. According to Dr. Throckmorton, the employee would be released back to work when he discontinues medication. Throughout the summer of 2000, the employee underwent physical therapy and acupuncture treatment with Michael James, M.D.7 On September 18, 2000, Aleksandra Zietak, M.D. examined and evaluated the employee at the employer’s request. The employee complained of constant numbness in the entire right hand

3 Prehearing Conference Summary dated 3/13/01. 4 Dr. Barrington’s report dated 12/17/99. 5 Dr. Garner’s 1/25/00 report 6 Dr. Peters’ report dated 3/2/00. 7 Physical therapy records from 6/27/00 – 7/24/00 and Dr. James’s chart notes dated 7/24/00, 7/31/00 and 8/28/00.

3 FRANK DANFORD v. COSTCO WHOLESALE CORPORATION and the fingers and stated he lacked strength in his right arm. Dr. Zietak diagnosed work-related right-elbow contusion/strain and found the employee was medically stable shortly after his release to light-duty on March 21, 2000. According to the Dr. Zietak, the employee required no further testing or treatment, including surgery. In addition, she found the employee could have performed a light-duty job since December of 1999. Dr. Zietak found a number of contradictions between what the employee told her and what he told other practitioners.8 Based on Dr. Zietak’s report, the employer controverted all chiropractic care after October 18, 2000, as well as additional testing.9 Dr. Barrington reexamined the employee in September of 2000, and he believed the employee suffered from thoracic outlet syndrome. The employee complained of increased symptoms at night while lying on his shoulder and/or raising his arms. Dr. Barrington determined the employee should have further testing to include a three-phase bone scan, a Doppler study and a thermogram of his right shoulder and arm.10 Doppler and bone scan testing were negative for thoracic outlet syndrome and reflex dystrophy. After additional EMG testing, Dr. Barrington diagnosed slowed ulnar sensory latency. Dr. Barrington concluded the employee suffered an injury to the ulnar nerve at work, which caused degeneration of the ulnar nerve. He predicted the ulnar nerve condition would heal approximately two years from the date of injury.11 Moreover, on December 18, 2000, Dr. Throckmorton opined: We are sending Mr. Danford to Dr. Chandler for diagnostic objective evaluation and pain management care, while his nerve injury continues healing. We are in disagreement with any denial of care for Frank, as he is medically unstable. He is subjectively quite symptomatic, and complains of arm weakness, numbness, and pain during the day, at night, and with daily activities. I believe Frank is benefiting from our care and I will continue to provide it. Frank will attempt to fully resolve this injury as time allows. He believes fully that this condition is unstable, harmful, and may potentially require appropriate follow up medical care and support until he stabilizes, including possible surgery.12

On March 17, 2001, the employee petitioned for an SIME based on disputes between Drs. Throckmorton and Barrington and Dr. Zietak. At the hearing, both parties agreed there were medical disputes to warrant an SIME. However, the employer argued the SIME should not be held

8 Dr.Zietak’s report dated 10/18/00. 9 Controversion Notice dated 10/18/00. 10 Dr. Barrington’s report dated 9/26/00. 11 Id. dated 10/26/00 and 11/28/00. 12 On December 19, 2000 the employer controverted all medical care on the basis of Dr. Zietak’s 10/18/00 report.

4 FRANK DANFORD v. COSTCO WHOLESALE CORPORATION until the employee signs a release for his guide records. The employer asserted these records could impact and SIME physician’s opinion regarding the employee need for future treatment and ability to return to work.

FINDINGS OF FACT AND CONCLUSIONS OF LAW I. DISCOVERY REQUEST A. Standard of Review Under AS 23.30.108(c), we must uphold a designee’s discovery decision absent, “an abuse of discretion.” 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.” Sheehan v. University of Alaska, 700 P.2d 1295, 1297 (Alaska 1985); Tobeluk v. Lind, 589 P.2d 873, 878 (Alaska 1979) (footnote omitted). Additionally, an agency’s failure to properly apply the controlling law may also be considered an abuse of discretion. Manthey v Collier, 367 P.2d 884 (Alaska 1962). In the Administrative Procedure Act, the legislature has provided another definition to be used by the courts in considering appeals of administrative agency decisions: 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) the substantial evidence in light of the whole record. AS. 44.62.570.

On appeal to the courts, our decision reviewing the designee’s determination is subject to reversal under the abuse of discretion standard of AS 44.62.570, incorporating the substantial evidence test. The Board’s concern with meeting that standard on appeal leads it to apply a substantial evidence standard in our review. 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.” Miller v. ITT Arctic Services, 577 P.2d 1044, 1049 (Alaska 1978) (footnotes omitted).

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B. Discovery Determination AS 23.30.108(c) provides that: At a prehearing on discovery matters conducted by the board’s designee, the board’s designee shall direct parties to sign releases or produce documents, or both, if the parties present releases or documents that are likely to lead to admissible evidence relative to an employee’s injury. If a party refuses to comply with an order by the board’s designee or the board concerning discovery matters, the board may impose appropriate sanctions in addition to any forfeiture of benefits, including dismissing the party’s claim, petition, or defense. If a discovery dispute comes before the board for review of a determination by the board’s designee, the board may not consider any evidence or argument that was not presented to the board’s designee, but shall determine the issue solely on the basis of the written record. The decision by the board on a discovery dispute shall be made within 30 days. The board shall uphold the designee’s decision except when the board’s designee’s determination is an abuse of discretion.

AS 23.30.107(a) provides in part, “Upon written request, an employee shall provide written authority to the employer…to obtain medical and rehabilitation information relative to the employee’s injury.” Moreover, “We have reached the conclusion that ‘relative to the employee’s injury’ need only have some relationship or connection to the injury.” Smith v. Cal Worthington Ford, Inc., AWCB Decision No. 94-0091, at page 3 (April 15, 1994). “If the information sought appears to be ‘relative’,” the appropriate means to protect an employee’s right of privacy is to exclude irrelevant evidence from the hearing and the record, rather than to limit the employer’s ability to discover information that may be relative to the injury. Id. (citing Green v. Kake Tribal Corp., AWCB Decision No. 87-0149 (July 6, 1987); Cooper v Boatel, Inc., AWCB Decision No. 87-0108 (May 4, 1987). In addition, we have long interpreted AS 23.30.005(h)13 as empowering us to order a party to release and produce records “that relate to questions in dispute.” Schwab v. Hooper Electric, AWCB Decision No. 87-0322 (December 11, 1987); See also 8 AAC 45.054(b). Based on the above, we find designee Gaal did not abuse her discretion when she ordered the employee to sign a full release. We find the employer’s request for release of information is the kind contemplated under AS 23.30.107(a). We agree these records may impact the medical 13 AS 23.30.005(h) provides in pertinent part: “The board or a member of it may for the purposes of this chapter subpoena witnesses, administer or cause to be administered oaths, and may examine or cause to have examined the parts of the books and records of the parties to a proceeding that relate to questions in dispute.”

6 FRANK DANFORD v. COSTCO WHOLESALE CORPORATION disputes in this matter. We find designee Gaal, on two separate occasions, ordered the employee to sign a full release for his Guide Hunt records after the date of injury. We find the employee has only provided a modified release for records from November 8, 1999 until April 1, 2000. Under our discretionary authority under 8 AAC 45.054(b), we order the employee to sign the original release for Guide Hunt records with the Department of Occupational Licensing and mail it to the employer within 14 days after the filing of this decision and order. We further inform the employee that willful failure to comply with the board’s discovery order may result in sanctions, including the exclusion of evidence at hearing or dismissal of his claims. 8 AAC 45.054(d); Millard v. National Bank of Alaska, AWCB Decision No. 00-0006 (January 14, 2000).

II. SIME REQUEST Should the Board order an SIME? AS 23.30.095(k) provides in pertinent part: In the event of a medical dispute regarding determinations of causation, medical stability, ability to enter a reemployment plan, degree of impairment, functional capacity, the amount and efficacy of the continuance of or necessity of treatment, or compensability between the employee’s attending physician and the employer’s independent medical evaluation, the board may require that a second independent medical evaluation be conducted by a physician or physicians selected by the board from a list established and maintained by the board...

We find AS 23.30.095(k) requires there be a medical dispute between the employee’s attending physician and the employer’s physician for the purposes of an SIME. We find Drs. Throckmorton and Barrington and Dr. Zietak clearly have medical disputes regarding the employee’s condition and the need for medical treatment. We find an SIME evaluation would assist us with these disputed issues. Consequently, we will exercise our discretion under AS 23.30.095(k) to order an SIME. We are not persuaded to delay the implementation of the SIME process pending the employer’s receipt of records from the Department of Occupational Licensing. We find the well- developed medical record in this case, coupled with a physical examination of the employee, will provide the SIME physician with ample evidence to make determinations regarding the disputed issues in this case. Moreover, the employer will have an opportunity to cross-examine the SIME

7 FRANK DANFORD v. COSTCO WHOLESALE CORPORATION physician, should the employer wish to question the SIME physician regarding any information received from the Department of Occupational Licensing. 8 AAC 45.092(j). An SIME must be performed by a physician on our list, unless we find the physicians on our list are not impartial. 8 AAC 45.095(f). We find a medical doctor with a specialty in neurology is suited to perform this SIME. David Spindle, M.D. is a physician on our list who specializes in neurology. We therefore choose Dr. Spindle, pending his acceptance, to perform the SIME, provided no subsequent conflicts are discovered.

ORDER 1. We affirm designee Gaal’s March 13, 2001 discovery order. The employee’s petition for a protective order is denied. 2. The employee shall provide a release in accordance with the above within 14 days of this decision and order. 3. The employee’s request for an SIME is granted. We refer this matter to Workers’ Compensation Officer Cathy Gaal to proceed with the SIME.

Dated at Anchorage, Alaska this day of May, 2001.

ALASKA WORKERS' COMPENSATION BOARD

______Kathleen M. Snow, Designated Chairman

______S. T. Hagedorn, Member

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

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

CERTIFICATION I hereby certify that the foregoing is a full, true and correct copy of the Interlocutory Decision and Order in the matter of FRANK M. DANFORD employee / petitioner; v. COSTCO WHOLESALE CORPORATION, employer; COSTCO WHOLESALE CORPORATION, insurer / respondents; Case No. 199922593; dated and filed in the office of the Alaska Workers' Compensation Board in Anchorage, Alaska, this day of May, 2001.

______Shirley A. DeBose, Clerk

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