UTI GABRIEL ARENYEKA v. OGDEN FACILITY MGMT.

ALASKA WORKERS' COMPENSATION BOARD

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

UTI GABRIEL ARENYEKA,
Employee,
Applicant,
v.
OGDEN FACILITY MGMT.,
Employer,
and
GAB ROBINS NORTH AMERICA, INC.,
Insurer,
Defendants. / )
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DECISION AND ORDER
AWCB Case No. 199628105
AWCB Decision No. 01-0189
Filed with AWCB Anchorage, Alaska
on September 27, 2001

On September 6, 2001 in Anchorage, Alaska we heard the employee’s claim for medical costs, interest, attorney’s fees and costs. The employee appeared telephonically represented by attorney Thomas L. Melaney. Attorney Robert L. Griffin represented the employer. We kept the record open to allow the employee to supplement his affidavit of attorney’s fees. We closed the record on September 18, 2001 when we next met after the affidavit was filed.

ISSUE

Whether the employee’s current medical needs are related to his December 31, 1996 work-related injury.

SUMMARY OF THE EVIDENCE

On January 31, 1996, Mr. Arenyeka was employed part-time by Ogden Facility Management at the Sullivan Arena as a janitor and member of the conversion crew. On that date, he reported he injured his neck and left shoulder and mid-back when he slipped and fell on ice and landed on his left hip. The employee sought treatment at Providence Hospital’s emergency room on January 2, 1997. The employee was diagnosed as having a contusion/strain to the left shoulder and neck and an old injury to the left shoulder. X-rays taken of the left shoulder and read by Maurice J. Coyle, M.D., revealed acromioclavicular joint deformity and other abnormal shadows which were identified as severely calcified ligaments. The employee was off of work for a few days and given Vicodin for pain.

On January 3, 1997, the employee sought treatment with Richard Ealum, D.C., of Downtown Chiropratic primarily for back and hip pain. Dr. Ealum noted that the employee told him that he had an old AC joint injury at age 32 or 34. Dr. Ealum diagnosed the employee with multiple contusions to the left shoulder and hip. The employee saw Dr. Ealum and received chiropractic adjustments. However, Dr. Ealum referred the employee to Robert Gieringer, M.D., as the employee continued to have left shoulder pain.

On January 24, 1997, the employee treated with Dr. Gieringer, M.D. The employee told Dr. Gieringer that he had a shoulder injury eight to ten years ago. In Dr. Gieringer’s medical report of same date, he diagnosed the employee with an old left shoulder injury which was probably an AC separation that had recovered and healed, and a rotator cuff tear secondary to his new injury. Dr. Gieringer recommended the employee have a magnetic resonance imaging (“MRI”) scan to check the condition of his rotator cuff. He also wrote that the employee has atrophy, plus pain and weakness of the rotator cuff, which should be repaired.

The MRI scan taken on January 29, 1997 read by Lawrence Wood, M.D., indicated that the employe suffered from a “[s]evere deformity of the distal clavicle in the acromion consistent with an old, healed fracture of the distal clavicle with dense calcification, presumably from an old disruption of the coracoclavicular ligament. Marked atrophy of both the supraspinatus and infraspinatus muscles may be due to nerve injury or nonuse. No definite evidence of impingement, tendinitis or rotator cuff tear.” (MRI Final Report dated January 29, 1997.) After the MRI scan was taken, the employee returned to Dr. Gieringer on February 5, 1997. Dr. Gieringer determined that the employee did not suffer from a rotator cuff tear and opined that his old injury may have caused a brachial plexus injury or a suprascapular nerve injury. He further opined that the employee’s December 31, 1996 injury may have caused the atrophy of his supraspinatus and infraspinatus muscles but did not think it could have happened within a period of a month. Dr. Gieringer recommended the employee submit to electrodiagnostic studies.

Subsequently, the employee visited J. Michael James, M.D., on February 11, 1997 for electrodiagnostic testing. Dr. James’ impression was that the employee’s atrophy and weakness of the left supraspinatus and infraspinatus was due to his original injury eight years ago. Dr. James could not find any evidence of recent cervical radiculopathy, brachial plexus injury, or peripheral nerve injury involving the employee’s left upper extremity. He went on to opine that the employee suffered from a soft tissue injury in his left neck and shoulder. (Dr. James’ letter to Dr. Gieringer dated February 11, 1997).

Based on Dr. Gieringer’s and Dr. James’ individual chart notes, the physicians decided that the employee was not a surgical candidate and should undergo a work hardening program. (Dr. James’ chart note and Dr. Gieringer’s chart note, both dated February 24, 1997.) The employee visited Dr. Gieringer on that same day and was told that Dr. James would continue to treatment him. On February 28, 1997, the employee was evaluated by Forooz Sakata, O.T.R., R.N., of B.E.A.R. Rehabilitation. Ms. Sakata recommended that the employee undergo a four to six week program to build endurance and improve left upper extremity mobility and strength. On April 15, 1997, the employee completed the work hardening program and was released to do medium to heavy work.

At the employer’s request, John Ballard, M.D., examined the employee on April 23, 1997. In his December 17, 1999 report, Dr. Ballard diagnosed the employee with a history of a previous traumatic acromioclavicular joint separation with calcification in his acromioclavicular joint and coracoclavicular ligaments, significant supraspinatus and infraspinatus atrophy with old injury of the left dorsoscapular nerve, and possible cubital tunnel nerve syndrome with ulnar nerve irritation on the left. Dr. Ballard opined that the employee’s atrophy was not acute and may still have a rotator cuff tear even though the MRI scan was normal. Dr. Ballard went on to write that he had a patient whose MRI was normal but in fact had a large irreparable rotator cuff tear and on that basis attributed the employee’s condition, in part, to his December 31, 1996 injury. He went on to write that the employee’s injury exacerbated or aggravated his pre-existing left shoulder condition. (Dr. Ballard’s April 23, 1997 medical evaluation report, pages 4-5.)

On May 15, 1997, the employee treated with Dr. James who noted that he returned to work as a cab driver without limitation, but still experienced shoulder pain. Dr. James diagnosed the employee with “tendinitis/casulitis of the left shoulder, pre-existing plexus injury versus dorsal scapular nerve injury to account for the patient’s weakness and atrophy of left shoulder musculature.” Dr. James also performed a permanent impairment rating on the employee. He found the employee suffered a 4% PPI but then discounted the rating by 60% due to the employee’s preexisting shoulder condition, leaving a residual impairment rating of 1.6%.

On August 6, 1997, the employee was seen by Douglas Smith, M.D., for a second independent medical evaluation (SIME). In his August 22, 1997 medical evaluation report, Dr. Smith diagnosed the employee with a sprain/strain with tendinitis and capsulitis of the left shoulder relative to the December 1996 injury, an AC separation with ligament calcification that pre-existed the December 1996 injury, and a left suprascapular nerve injury with paraspinatus and infraspinatus muscle atrophy that also pre-existed the December 1996 injury. Dr. Smith opined that the employee’s December 1996 injury aggravated, accelerated and combined with his pre-existing left shoulder condition to produce the need for medical treatment and most likely produced a permanent change in his overall shoulder condition. Dr. Smith also noted that he did not “feel that further specific treatment or diagnostic testing is needed on the left shoulder relative to the December 1996 industrial exposure.” (Dr. Smith’s August 22, 1997 medical report, pages 5-6.) Dr. Smith also provided the employee with a 3% whole person permanent impairment rating attributable to the December 1996 injury. On October 3, 1997, the Alaska Workers’ Compensation Board (“AWCB”) approved a compromise and release agreement (“C&R”) settling the employee’s claims for all benefits except future medical care.

On August 9, 1999, the employee visited Walter Sassard, M.D., in Houston, Texas, for left shoulder complaints. In his August 9, 1999 letter to the employer’s adjuster, Dr. Sassard wrote that the employee complained of diffuse pain in the left shoulder and scapular area. He also wrote that the employee worked as an ice cream truck driver. Dr. Sassard diagnosed the employee with “left shoulder pain with apparent pre-existent condition prior to injury of 12-13(sic)-96” based on the physical examination and review of the employee’s previous medical records. Dr. Sassard further opined that as a result of the pre-existing injury, the employee’s “shoulder dynamics were altered” and his complaints are due to ongoing irritation because of the calcifications from the pre-existing shoulder injury, but did not say that the December 31, 1996 injury also caused the employee’s current left shoulder pain. Dr. Sassard recommended partial acromionectomy and resection of the calcifications to improve the employee’s shoulder movement.

Subsequently, on September 9, 1999, Dr. Sassard wrote the adjuster to clarify his August 9, 1999 letter. Dr. Sassard acknowledged that the employee had a preexisting shoulder condition before his December 1996 injury. He clarified his opinion that the employee’s December 1996 injury aggravated the abnormal shoulder condition which in turn created an ongoing source of pain and other symptoms. Dr. Sassard treated the employee on November 2, 1999 and the next day wrote the adjuster, reiterating his previous opinion of the employee’s condition and recommended surgery of the left lateral clavicectomy and debridement of the AC joint. On November 16, 1999, the employee filed a claim seeking medical costs related to the proposed shoulder surgery, interest, and attorney’s fees and costs.

At the employer’s request, the employee was seen by Marcos V. Masson M.D., on March 6, 2000. Dr. Masson recommended that the employee undergo left distal clavicle and subacromial decompression surgery. However, Dr. Masson opined that the employee’s need for surgery was not related to his December 31, 1996 injury but to his preexisting shoulder condition. He further opined that the December 1996 injury was consistent with a sprain and strain tendinitis, and that subsequent activities of pushing and pulling heavy weights may have aggravated this chronic condition but not caused it. Later Dr. Masson was deposed on March 30, 2001. Dr. Masson stated that it was his opinion that the employee’s arthrosis was caused by the 1990 injury as evidenced by the x-rays taken in January 1997 that showed calcification and degeneration consistent with an old injury. (Dr. Masson’s March 30, 2001 deposition at 9, 10.)

The employee was evaluated by Ronald W. Lindsey, M.D., of Houston, Texas for another SIME on October 31, 2000. Dr. Lindsey diagnosed the employee with a diffuse left shoulder atrophy with non-specific discomfort about the supraspinatus and infraspinatus muscle as a result of a previously documented dorsal scapular nerve injury with recurrent left shoulder capsulitis. Dr. Lindsey attributed the employee’s current need for treatment to his preexisting shoulder condition and not the December 31, 1996 injury.

At the hearing, the employee testified that he previously injured his left shoulder in 1990, sought treatment, and that the injury had resolved without further need for medical care. He denied having any left shoulder pain prior to his December 31, 1996 work injury. The employee testified that in April 1997 Dr. James released him to return to work driving a taxi. The employee further testified that from May 1997 through September 1999 he did not seek medical care for his shoulder and instead took over-the-counter pain medication for his intermittent left shoulder pain which also travels up to his neck and head. The employee testified he currently works as a taxi driver and that he worked previously as a counselor and sales representative.

The employee contended he is entitled to medical care because a majority of the physicians have recommended surgery and that the need for medical care is causally related to his December 31, 1996 work injury. On the other hand, the employer argues that the employee only suffered a temporary aggravation of a pre-existing shoulder condition, and that the symptoms from his December 31, 1996 injury have resolved. They assert that the surgery the employee seeks is not related to the December 31, 1996 sprain/strain.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

"In a proceeding for the enforcement of a claim for compensation under this chapter it is presumed, in the absence of substantial evidence to the contrary, that the claim comes within the provisions of this chapter.” AS 23.30.120(a)(1). The presumption also applies to claims that the work aggravated, accelerated or combined with a preexisting condition to produce a disability or need for medical treatment. Burgess Construction Co. v. Smallwood, 623 P.2d 312, 315 (Alaska 1981). Furthermore, in claims based on highly technical medical considerations, medical evidence is needed to make the work connection. Id., 316. The presumption can also attach with a work-related aggravation/ acceleration context without a specific event. Providence Washington Ins. Co. v. Bonner, 680 P.2d 96 (Alaska 1984).