JOHN A. MCFARLIN v. WAL-MART

ALASKA WORKERS' COMPENSATION BOARD

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

JOHN A. MCFARLIN
Employee,
Petitioner,
v.
WAL-MART,
Employer,
and
AMERICAN HOME ASSURANCE CO.,
Insurer,
Respondants. / )
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DECISION AND ORDER
AWCB Case No. 200211864
AWCB Decision No. 03-0284
Filed with AWCB Anchorage, Alaska
on December 2, 2003

We heard the employee’s August 22, 2003 Petition for Review of the Reemployment Benefits Administrator (“RBA”) Designee’s June 12, 2002 determination finding the employee not eligible for reemployment benefits at Anchorage, Alaska, on November 4, 2003. Attorney William M. Erwin represented the employee. Attorney Colby Smith represented the employer. We closed the record at the hearing’s conclusion.

ISSUES

1. Whether the employee’s Petition for Review of the RBA Designee’s June 12, 2002 Decision is timely.

2. Whether the RBA Designee abused her discretion finding the employee not eligible for reemployment benefits.

SUMMARY OF THE EVIDENCE

On July 12, 2002, while working as a Night Stocker for the employer, the employee experience pain in his right elbow while pulling a pallet. (May 13, 2002 Workers’ Compensation Claim). The employee continued to work, but he experienced progressively worse pain.

The employee presented himself at the Valley Hospital on July 13, 2002, where he was evaluated by Roger Swingle, M.D., an emergency room physician, who diagnosed lateral epicondylitis of the right elbow. The employee was given pain medicines and followup was arranged for him. Julee Holater, M.D., a radiologist, interpreted the x-rays taken on July 13, 2002, as “normal right elbow”.(July 13, 2002 Dr. Swingle Chart Notes).

The employee was seen in followup by Thomas Cross, PA-C, on July 20, 2002. Mr. Cross diagnosed a medial and lateral right elbow epicondylitis and gave him splints. Mr. Cross’ note makes reference that the employee was advised against performing lifting, pushing, or pulling activities.(July 20, 2002 Mr. Cross Chart Notes).

The employee was next seen on July 31, 2002, by Scott Peterson, PA-C, who diagnosed right lateral epicondylitis. Mr. Peterson recommended physical therapy and continued light duty. (July 31, 2002 Mr. Peterson Chart Note). On September 8, 2002, the employee's saw Kevin DelDuca, M.D., who diagnosed right lateral epicondylitis and recommended continued light duty.(September 8, 2002 Dr. DelDuca Chart Note).

The employee saw Mark Clyde, M.D., on September 12, 2002. Dr. Clyde administered an injection to the lateral epicondyle. The employee indicated that he did not receive any substantial relief from the injection. The employee was next seen on September 19, 2002, by William Vaughn Gardner, M.D., who recommended therapy and light duty working and expected gradual improvement. (September 19, 2002 Dr. Gardner Chart Note).

The employee was seen again by Dr. Clyde on October 14, 2002. At that time the employee complained of persistent pain in the elbow, both medially and laterally. Therapy with iontophoresis was recommended. (October 14, 2002 Dr. Clyde Chart Notes). The employee returned to work, but claims that light duty was not available and that he performed regular duty working until the end of October.

The employee sought medical attention from Michael McNamara, M.D., a hand surgeon, on October 31, 2002. Dr. McNamara diagnosed bilateral elbow pain with tendinosis of unclear etiology. Lab tests were recommended to rule out thyroid disease, diabetes, and hepatitis. A note was given for returning to light duty working and the potential for job retraining was also raised at that time. (October 31, 2002 Dr. McNamara Chart Notes). Dr. McNamara wrote a letter to the claims manager on November 5, 2002, reiterating this.

On December 19, 2002, the employee filed a Workers’ Compensation Claim seeking a compensation rate adjustment. On December 23 2002, at the request of the employer, the employee saw Loren J. Jensen, M.D., for an Independent Medical Evaluation (“IME”). Dr. Jensen found the employee did not meet the specific diagnostic criteria for either lateral or medial epicondylitis but might have had lateral epicondylitis, which had resolved. Dr. Jensen stated the employee’s right lateral elbow pain appeared to be related to his work activity but was unable to relate his right-sided medial elbow pain or left elbow pain to work-place activity. He found the employee to be medically stable and capable of light duty work. Dr. Jensen recommended against surgical treatment. (December 23 2002 Dr. Jensen IME).

On February 13, 2003, the employee again saw Dr. McNamara, who opined the employee should only be doing light duty work with “no lifting, pushing, pulling”. (February 13, 2003 Dr. McNamara Work Status Report). On March 4, 2003, the Board heard the employee’s Request to Continue Hearing on Petition for Compensation Rate Adjustment on the written record. The Board granted the employee’s request to continue the hearing on March 5, 2003.

On April 15, 2003, the Board heard the employee’s Petition for Compensation Rate Adjustment. At that time, the employee requested the Board dismiss his Petition and the employer agreed.

On April 17, 2003, Joella Beard, M.D., the employee’s treating physician, opined that the employee was 0 percent whole person impaired as a result of his work injury. Dr. Beard indicated the employee’s left arm might have a 1 percent PPI rating but that it was not work related. (April 17, 2003 Dr. Beard Evaluation Letter to Dr. McNamara). The employer controverted reemployment benefits based on Dr. Beard’s opinion pursuant to AS 23.30.041(f)(3).

On April 23, 2003, pursuant to the parties’ request, the Board issued AWCB Decision No. 03-0088, dismissing the employee’s Petition for Compensation Rate Adjustment.

On May 6, 2003, Dr. Beard issued a letter to the employer indicating that she had not had the opportunity to review all of the employee’s medical records at the time of the permanent partial impairment rating. (May 6, 2003 Dr. Beard Letter). Dr. Beard noted she needed the opportunity to review all newly available information to determine the employee’s medical status and did not want the parties to rely yet on the April 17, 2003 PPI rating.

On May 7, 2003, the employer controverted reemployment benefits. On May 13, 2002 the employee filed a Workers’ Compensation Claim seeking reemployment benefits, TTD benefits, PTD benefits and attorney’s fees.

On May 16, 2003, Dr. Beard reevaluated the employee and opined that he had the ability to return to work in a light duty position with no lifting more than 10 pounds or pushing/pulling more than 16 pounds. Dr. Beard approved the employee retuning to work as a Parts Salesperson and as an Information Clerk. (May 16, 2002, Dr. Beard Letter to Virginia Sampson).

On May 20, 2003, in response to a letter from the employer, Dr. Beard reaffirmed her prior determination that the employee did not incur a permanent partial impairment as a result of the July 12, 2002 injury and that he had reached medical stability. (Dr. Beard May 20, 2003 Letter).

On May 28, 2003, the Rehabilitation Specialist assigned to the employee issued a final report. (May 28, 2003 Virginia Sampson Reemployment Benefits Eligibility Evaluation Addendum). She opined that Dr. Beard approved the employee’s return to work as a Parts Salesperson, a job he held in the last ten years. She also concluded that one of the employer’s job offers for alternate employment to the employee, as an Information Clerk, was also approved by Dr. Beard. She also found that Dr. Beard indicated that the employee had not incurred a PPI from his July 12, 2002 injury. Thus, the Rehabilitation Specialist concluded that the employee was not eligible for reemployment benefits because he had been approved to return to one of his jobs that he had held in the last ten years, he had been approved to take one of the offers of alternative employment, and Dr. Beard concluded the employee did not incur a PPI.

On June 12, 2003, the Reemployment Benefits Administrator Designee found the employee not eligible for reemployment benefits for the following reasons:

The evaluating rehabilitation specialist’s recommendations. Virginia Sampson reports that Dr. Beard has indicated that your predicted permanent physical capacities aren't as great as those required of the parts salesman, a job you held in the 10 years prior to your injury and for which the specific vocational preparation (svp) level is met. The labor market survey conducted by Ms. Sampson demonstrates that reasonable vacancies are available for that occupation. Your employer offered alternative employment and Dr. Beard indicated that your predicted permanent physical capacities aren't as great as those required of an information clerk. The labor market survey demonstrated that this job exists with other employers although I discounted the survey information regarding receptionists because that occupation generally requires keyboarding skills. The job offer with the wage was not enclosed with Ms. Sampson's report so it is not known if the wage meets 75 percent of your wage at injury. However your ability to return to work at a parts salesman, alone, results in your being found not eligible.

(June 12, 2003 Reemployment Benefits Administrator Designee’s decision).

On July 21, 2003, the employer controverted TTD benefits from June 17, 2003 ongoing. On August 22, 2003, the employee filed an Amended Workers’ Compensation Claim for injuries to the right and left elbows on July 12, 2002 and seeking TTD benefits, PPI benefits, medical costs, reemployment benefits, interest and attorney’s fees. On September 16, 2003, the employer controverted the employee’s August 22, 2003 claim, specifying denying medical costs concerning the left elbow.

At the November 4, 2003 hearing, the employee testified that he injured his back and right arm while working for the employer on July 12, 2002. He testified he returned to work and injured his right arm about two weeks later, but he filed no report for his right arm injury. The employee argued that the Board should reverse or “hold in abeyance” the RBA Designee’s denial of the employee’s claim for reemployment benefits. The employee argued that he has a 1 percent PPI rating, he does not know how to be an Information Clerk, that a Parts Salesperson requires lifting more than 16 pounds (which he cannot do), and that a close reading of the medical records indicates Dr. McNamara “anticipated” a PPI rating. When asked what evidence he was basing his appeal on the employee stated he was relying on Dr. Beard’s April 17, 2003 letter and an August 11, 2003 medical record that indicated the employee needs arm surgery. Neither the Board nor the employer had been furnished a copy of that record and the employer objected to its admission as evidence. The employer did not submit the discussed medical record as an exibit and the Board is still not in possession of this discussed record.

Rehabilitation Specialist Virginia Sampson testified for the employer at the hearing. Ms. Sampson testified that, in finding the employee ineligible for reemployment benefits, she relied on Dr. Beard’s opinion that the employee had no PPI, could work as a Parts Salesperson, (a job he had within the last 10 years) and could work as an Information Clerk (a job he had been offered by the employer). She testified that the Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles (“SCODOT”) job descriptions list both the Parts Salesperson and Information Clerk as light duty jobs. The employer argued that the RBA had substantial evidence to support her decision and did not abuse her discretion. The employer argued that the Dr. Beard 1 percent PPI rating, which the employee relies on, was equivocal, was for the left arm, was not work related, and was superceded by a subsequent written opinion by Dr. Beard. The employer also argued that the employee has produced no evidence of a change in circumstances that would justify a modification of the RBA Designee’s decision.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

I. IS THE EMPLOYEE’S REQUEST FOR REVIEW OF THE RBA DESIGNEE’S JUNE 12, 2003 DECISION TIMELY?

AS 23.30.041(d) provides that appeals of RBA determinations be made within 10 days. The Board finds the first document filed by the employee that can even be considered to represent an appeal is the August 22, 2003 Workers’ Compensation Claim, some 70 days after the RBA Designee’s June 12, 2003 decision. The employee filed no brief to explain any justification for this delay. At hearing, no new evidence was offered. The employee argued the Board has the discretion under AS 23.30.130(a) to consider his Appeal as a Request for Modification, which is timely for up to a year after a decision. 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.