JAY R. SCOTT, 
Employee, 
Applicant
v. 
KAKE TRIBAL LOGGING & TIMBER,
Employer,
and 
ALASKA TIMBER INSURANCE,
Insurer,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

INTERLOCUTORY
DECISION AND ORDER
AWCB Case No. 199006133
AWCB Decision No. 00-0007
Filed with AWCB Fairbanks, Alaska
on January 14, 2000

We heard the employee's petition to exclude a witness at Juneau, Alaska, on December 7, 1999. Attorney Tom Batchler represented the employee. Attorney Richard Wagg represented the employer. We closed the record at the time of our deliberations on December 7, 1999.

Shall we bar the employer and its insurer from calling second independent medical evaluation (SIME) physician Douglas Smith, M.D., as a witness at hearing in this claim?

The employee petitioned the Board for an order barring the employer and its insurer from calling Dr. Smith as a witness at hearing in this claim. The employee alleges the employer and its insurer contravened the provisions of 8 AAC 45.092, asserting they improperly attempted to influence the testimony Dr. Smith. The employee contends 8 AAC 45.092(k) specifically provides that when such communication occurs, "the Board may not admit the evidence obtained by the communication at a hearing and may not consider it in connection with an agreed settlement." (Emphasis added.)

The dispute arises from two letters written by Mr. Wagg concerning Dr. Smith, dated September 10, 1999 and October 11, 1999. In the September 10, 1999 letter, addressed to Mr. Bachelor and the Board, Mr. Wagg wrote, in part,

This letter is to let you know that on September 9, I received a call from Dr. Smith, M. D., in reference to the deposition that we had originally scheduled in the Scott matter for September 8 . . . . The purpose of this letter is to let you know that I did speak with Dr. Smith and told him that the deposition had been canceled as a result of Mr. Bachelor's refusal to allow us to take the deposition.

The October 11, 1999 letter was addressed to Dr. Smith and reads, in part, as follows:

As you know, we had previously attempted to schedule your deposition in this matter following the SIME you performed in this claim. For your ease of reference, I am enclosing a copy of your November 14, 1998 SIME report. We had hoped to take your deposition on September 8, 1999, in reference to the examination you conducted of Mr. Scott. However, Mr. Scott's attorney refused to allow that, as the 30-day time period for taking your deposition, subsequent to receipt of your report, had elapsed. As a result of that refusal, I am forced to forward to you a subpoena requiring your telephonic attendance at the hearing scheduled in Juneau November 9, 1999. . . . I apologize for the inconvenience to your schedule that this undoubtedly will cause. However, it is unavoidable at this point given the position of Mr. Scott and his attorney.

I am also forwarding to you with this letter a copy of surveillance tapes taken of a Mr. Scott over a period of time. You will note that there is surveillance activity recorded on November 1 and 2, 1998 (which documents Mr. Scout’s trip from Juneau to Anchorage for your evaluation); and activities filmed on July 3 and 4, 1999. I would like you to review the surveillance tapes (preferably in their entirety). I would like you to pay particular attention to the activities demonstrated on November 2, 1998 (and in particular, the extensive sitting ability demonstrated) and also the activities demonstrated on July 3 and 4, 1999. I believe that you will note that Mr. Scott demonstrates a significantly greater capacity for sitting and lifting than he represented to you he is capable of. In the understandable event that you do not wish to review all of the tapes, I would like you to at least view Tape 3, which has most of Mr. Scott's return plane ride to Juneau, plus his activities at the airport and store on July 3 and 4. For your convenience, we have cued the tape to show approximately the last 15 minutes of his flight from Anchorage. You will note that even when the plane has landed, he does not immediately get out of his seat. I will represent to you that the portion you view of Tape 3 is representative of the sitting he demonstrated on his trip to Anchorage to be evaluated by yourself.

I am also forwarding for your review a job description containing the essential job functions were a position in titled, "accounting clerk" with the Alaska Commission on Postsecondary Education. This job description is significantly more detailed then the DOT description previously submitted to you. In reviewing your SIME report, it appears to me that you have indicated Mr. Scott would not be able to perform the sedentary requirements of a data entry clerk. As I read the report, it appears to me that you base that primarily upon Mr. Scott's self -- described limitations which limited his sitting to 15 -- 20 minutes, standing 10 minutes, walking 10 -- 15 minutes, and lifting 10 pounds, and on the PCE. which was done in December of 1996 prior to his most recent surgery. Certainly, if Mr. Scott's limitations are as he represented to you in your November 1998 evaluation, then he likely would be unable to work. However, we believe that the surveillance films document significantly greater capacities to sit, lift, and walk than he represented to you. We would like your opinion as to his ability to perform the accounting clerk position based upon the capacities demonstrated in the surveillance tapes, as opposed to those which he stated to you in examination. (Emphasis supplied.)

The letter also notes that the investigator’s reports documenting the surveillance activities undertaken was enclosed. The employee states he received the surveillance tapes later and under separate cover. The employee states he has never received the investigator’s reports.

AS 23.30.095 (k) states:

(k) 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. The cost of an examination and medical report shall be paid by the employer. The report of an independent medical examiner shall be furnished to the board and to the parties within 14 days after the examination is concluded. A person may not seek damages from an independent medical examiner caused by the rendering of an opinion or providing testimony under this subsection, except in the event of fraud or gross incompetence.

Our regulation 8 AAC 45.092 states, in part::

(i) . . . An examiner’s report must be received by the board within 21 days after the evaluation ended. If an examiner’s report is not timely received by the board, a party may file a petition asking that another physician be selected to serve as an independent medical examiner. The board or its designee will, in its discretion, select another physician to serve as an independent medical examiner, and will make the selection in accordance with this section. Until the parties receive the second independent medical examiner’s written report, communications by and with the second independent medical examiner are limited, as follows:

2. the employee and the examiner may communicate as necessary to complete the examination;
3. the examiner’s communications with a physician who has examined, treated, or evaluated the employee must be in writing, and a copy of the written communication must be sent to the board and the parties; the examiner must request the physician report in writing and request that the physician not communicate in any other manner with the examiner about the employee’s condition, treatment or claim.

(j).After a party receives an examiner’s report, communication with the examiner is limited as follows and must be in accord with this subsection. If a party wants the opportunity to:

1. submit interrogatories or depose the examiner, the party must

1. file with the board and serve upon the examiner and all parties, within 30 days after receiving the examiner’s report, a notice of scheduling a deposition or copies of the interrogatories; if notice or the interrogatories are not served in accordance with this paragraph, the party waives the right to question the examiner unless the opposing party gives timely notice of scheduling a deposition or serves interrogatories; and
2. initially pay the examiner’s charges to respond to the interrogatories or for being deposed; after a hearing and in accordance with AS 23.30.145 or AS 23.30.155(d), the charges may be awarded as costs to the prevailing party;

1. communicate with the examiner regarding the evaluation or report, the party must communicate in writing, serve the other parties with a copy of the written communication at the same time the communication is sent or personally delivered to the examiner, and file a copy of the written communication with the board; or
2. question the examiner at a hearing, the party must initially pay the examiner’s fee for testifying; after a hearing and in accordance with AS 23.30.145 or AS 23.30.155(d), the board will, in its discretion, award the examiner’s fee as costs to the prevailing party.

(k).If a party’s communication with an examiner is not in accordance with (j) of this section, the board may not admit the evidence obtained by the communication at a hearing and may not consider it in connection with an agreed settlement.

The provisions of 8 AAC 45.092 were designed and intended to protect the objectivity and impartiality of an SIME physician. Subsection (i) severely limits any contact with the SIME physician prior to the examination of the employee and specifies the manner in which any contact must be made. Subsection (j) similarly defines and limits the contact which parties may have with the SIME physician after the examination has taken place. Subsection (j)(1) establishes a procedure to be followed if a party wants the opportunity to submit interrogatories or to depose the examiner and sets a 30-day time limit for following these procedures. Subsection (j)(1) also provides that if the notice of deposition or the interrogatories are not served within this time frame then ". . . the party waives the right to question the examiner . . . ." Subjection (j)(2) provides that if a party wishes to communicate with the examiner that this communication must be in writing, served on the other parties and filed with the Board.

Based on our review of the correspondence, we find both letters reflect an intent to suggest to Dr. Smith that he is being inconvenienced because of positions taken by the employee’s counsel, rather than because the employer failed to timely indicate they wished to depose Dr. Smith. Moreover, the second letter indicates several video surveillance tapes are accompanying the letter along with the investigator’s report, and then argues to Dr. Smith the employer’s opinions as to what these tapes show and the impact these tapes might have on Dr. Smith’s opinion. The letter then asks Dr. Smith questions in connection with these tapes and their impact on the examiner’s opinion.

We find there are several aspects of these letters which contravene the purpose and intent, as well as the letter, of 8 AAC 45.092. First, we find the letters reflect an attempt to undermine the neutrality and objectivity of the Board-appointed examiner. The second letter also fails to comply with 8 AAC 45.092(j), which requires that every communication must be in writing and the party sending it must, " . . . serve the other parties with a copy of the written communication at the same time the communication is sent or personally delivered . . .and file a copy . . . with the Board . . . ." (Emphasis added.). According to our records, we did not receive the investigator’s report, referred to in the October 11, 1999 letter to Dr. Smith, until December 6, 1999. The videotapes were first delivered to the Board with a certificate of service after the record had closed on December 13, 1999. The employee states he received the videotapes only some time after receiving the October 11, 1999 letter, and that he has never received a copy of the investigator’s report.

Further, we find the communications contained an impermissible series of questions posed to Dr. Smith. The employer acknowledged at hearing they were designed and intended to influence Dr. Smith, by having him focus on only certain specific points, and by asking him to formulate a response, with his attention thus focused. We find this line of questioning is particularly troubling because the videotapes may not accurately reflect the correct chronological sequence of events, they may have been either selectively taken or edited, so as to create a false and inaccurate impression. Moreover, there was no opportunity afforded to immediately correct the record, or to otherwise cross-examine or test the basis any opinion formulated.

In sum, we find the employee did not communicated with the Dr. Smith in accordance with 8 AAC 45.092(i). We also find the provisions of 8 AAC 45.092(k) are specific and mandatory: "If a party’s communication with an examiner is not in accordance with (j) of this section, the Board may not admit the evidence obtained by the communication at a hearing . . . (emphasis added)." Accordingly, we conclude the employee’s petition must be granted as to all evidence relating to the issues raised in the correspondence. The employer and its insurer are barred from calling Dr. Smith as a witness concerning his second independent evaluation report in this claim.

The employee’s petition to bar the employer and its insurer from calling Dr. Smith as a witness concerning his second independent evaluation report is GRANTED.

Dated at Fairbanks, Alaska this 14^th day of January, 2000.

ALASKA WORKERS' COMPENSATION BOARD

/s/ Fred Brown
Fred Brown, Designated Chairman

/s / James Williams
James Williams, Member

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

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.

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.

I hereby certify that the foregoing is a full, true and correct copy of the Interlocutory Decision and Order in the matter of JAY R. SCOTT employee / applicant; v. KAKE TRIBAL LOGGING & TIMBER, employer; ALASKA TIMBER INSURANCE, insurer / defendants; Case No. 199006133; dated and filed in the office of the Alaska Workers' Compensation Board in Fairbanks, Alaska, this day of January, 2000.

Lora Eddy, Clerk

SNO