EUGENE C. STEIK, 
Employee, 
Applicant
v. 
POOL ARCTIC ALASKA DRILLING,
Employer,
and 
INSURANCE CO OF STATE PA,
Insurer,
Defendants.

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INTERLOCUTORY
DECISION AND ORDER
AWCB Case No. 199805033
AWCB Decision No. 00-0010 
Filed in Anchorage, Alaska
on January 21, 2000.

We heard the employer’s request that surveillance videotapes be provided to the Second Independent Medical Evaluation (SIME) physician and that the employee sign a release for his 1997 tax return at Anchorage, Alaska on January 12, 2000. The employee represented himself. Attorney Robert L. Griffin represented the defendants. We closed the record at the conclusion of the hearing.

1. Should the SIME physician be provided copies of surveillance videotapes?
2. Should the employee be compelled to sign a release for his 1997 tax return?

The employee sustained a work-related injury to his right knee on March 21, 1998, when two doors on a blowout preventer jammed his knee. The employee collected unemployment throughout the summer of 1998 and then requested temporary total disability (TTD) benefits. TTD benefits were paid from September 20, 1998 through January 11, 1999.¹ On January 20, 1999, the employer controverted the employee’s claim when the Employer Medical Evaluation (EME) physician, Ramon Bagby, M.D., found the employee medically stable and able to return to work with no restrictions.² The employer then paid TTD benefits from February 11, 1999 through August 31, 1999³ after the employee underwent knee surgery.⁴

Timothy Powers, M.D., the employee’s treating physician, examined the employee on April 6, 1999. Dr. Powers determined that the employee may have a permanent partial impairment (PPI), he was not medically stable and he could not return to his previous level of activity on the platform, as he could not manage the stairs or kneeling.⁵

On May 11, 1999, Dr. Bagby examined the employee again. Dr. Bagby concluded the employee had not yet recovered from his work-related injury of March 21, 1998 and was not medically stable.⁶ In an affidavit dated August 23, 1999, Dr. Bagby stated he based his May 1999 opinions on the employee’s report of continued pain and an inability to bend his knee.⁷

At his August 13, 1999 deposition, the employee testified, in part, as follows:

1. And that was you would hike and catch salmon and do subsistence fishing?

1. Right.

1. And have you not been able to do that since this injury?

1. No. My knee kind of wants to bend sideways and it kind of goes out when that happens. I can’t get down on it, you know, like I need to get down on my knees to dig clams. And I can’t -- if I get down on it, then I have to crawl all the way back up the beach because I can’t get back up very well.⁸

The employee went on to testify at his deposition, in part, as follows:

1. You mentioned clams.

1. Yeah, I can’t get down on my knee to dig, and that’s – I’ve dug clams commercially when I was really young, and I used to be a pretty good clam digger. I got as much as ten boxes , which is 25 gallon cans, in one tide. You know, commercially. I could stay down on my knees and dig, and now it doesn’t work that way because you got to keep getting up.

1. Have you been able to clam dig since this injury?

1. I haven’t been.

1. Have not been?

Thereafter, on August 31, 1999, the employer controverted the employee’s claim based upon the opinions expressed by Dr. Bagby in his August 23, 1999 affidavit.¹⁰ In his affidavit, Dr. Bagby stated after he determined in May of 1999 that the employee was not medically stable and had not yet recovered from the March 1998 injury, he reviewed three surveillance videotapes. According to Dr. Bagby, a surveillance videotape dated April 17, 1999 shows the employee digging clams and in no way displaying visible evidence of impairment, disability or restriction. Dr. Bagby also stated a videotape dated April 18, 1999 shows the employee walking on uneven ground and getting in and out of the back of a pickup truck with no evidence of impairment or restriction. Finally, according to Dr. Bagby’s affidavit, an August 17, 1999 videotape demonstrates the employee hauling a line on a beach and moving two large pieces of driftwood.¹¹

In his affidavit, Dr. Bagby concluded the employee was medically stable as of April 17, 1999, had no need for continuing medical treatment, could return to full duty work as a roustabout and had sustained no PPI as a result of the March 21, 1998 work-related injury. In addition, Dr. Bagby noted he based his opinions on the employee’s medical records, his own examinations and the surveillance videotapes.¹²

After the employer controverted the employee’s claim, the employee filed a Workers’ Compensation Claim dated October 21, 1999, claiming TTD, temporary permanent disability (TPD), PPI and reemployment benefits.¹³

At a November 22, 1999 prehearing conference, the parties agreed there were medical disputes warranting an SIME, and the employer requested that the surveillance videotapes be provided to the SIME physician. In an SIME form dated December 3, 1999, the parties agreed the medical disputes resulted from differing medical opinions expressed in Dr. Powers’ April 6, 1999 report and in Dr. Bagby’s August 23, 1999 affidavit.

Furthermore, at the prehearing conference, the employee stated he would not sign a release for his 1997 tax return because it was a joint return with his ex-wife, and he did not want to release his wife’s records. The employee expressed concern that his ex-wife would retaliate by not allowing him to visit his children.

At his deposition, the employee testified, in part, as follows:

At the hearing and in a hearing brief, the employer argued the surveillance tapes should be provided to the SIME physician. The employer argued the videotapes constitute evidence of the employee’s physical capacities. Further, Dr. Bagby relied on them in forming his medical opinions. According to the employer, principles of fundamental fairness require that the SIME physician be provided the same materials that Dr. Bagby relied on. Moreover, failure to provide the surveillance videotapes to the SIME physician may result in the Board’s reliance on flawed medical conclusions.

The employer went on to argue the SIME physician can be shown and asked questions regarding the surveillance tapes at a deposition, even if he does not review them for the SIME. However, the employer asserted it would be grossly unfair to "sandbag" the SIME physician with surveillance tapes after he has already issued a report. Therefore, according to the employer, both fairness and expedition warrant providing the SIME physician with the videotapes at the outset.

Additionally, the employer contended the employee should be compelled to sign a release for his 1997 tax return. The employer argued the employee seeks reemployment benefits, and the employer is entitled to information concerning the employee’s job history and earnings in the year immediately preceding the injury. According to the employer, the employee testified at his deposition that he carved and sold ivory in 1997, and the 1997 tax return would show any proceeds he reported.

At the hearing, the employee argued the surveillance tapes should not be forwarded to the SIME physician. Referring to the activities captured on the surveillance videotapes, the employee contended he was only doing what his doctor instructed him to do. Moreover, the employee argued he was digging clams because he needed to eat, and he did not believe it was fair to videotape him under such circumstances. In addition, the employee again argued he would not sign a release for his 1997 tax return, which he filed jointly with his ex-wife.

At the hearing, Mr. Griffin offered to redact from the 1997 tax records information pertaining solely to the employee’s wife for the Board’s file.

AS 23.30.095(k) provides in pertinent part:

Our regulation 8 AAC 45.092 provides in pertinent part:

1. a party to make two copies of all medical records, including medical providers’ depositions, regarding the employee in the party’s possession...

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...

We find that while neither the above statute nor the above regulation specifically provides for forwarding surveillance tapes to an SIME physician, neither do they exclude such practice. Moreover, in Lindsay v. Gary King Sporting Goods, AWCB Decision No. 97-0256 (December 15, 1997), the Board determined that a copy of a videotape demonstrating the operation of a Winter Steiger machine, a snowboard sharpening machine, should be sent to the SIME physician. In the Lindsay case, the claimant alleged he injured his right shoulder while operating the Winter Steiger machine, and two of the physicians in the case had reviewed the videotape.¹⁵

Furthermore, in Bates v. Acme Fence Co., AWCB Decision No. 97-0236 (November 19, 1997), the Board postponed an SIME until a physician’s deposition was held. The Board found:

We take administrative notice that the general practice of the Workers’ Compensation Officer Board Designees is to consider surveillance tapes as litigation tools and not medical evidence. The Designees normally do not submit these tapes with the medical records to the SIME physician.¹⁶ Although, we find that while the surveillance videotapes may not constitute medical evidence per se, Dr. Bagby relied on them in reaching the medical opinions expressed in his August 23, 1999 affidavit.

Furthermore, we find one of the purposes of an SIME under AS 23.30.095(k) is to assist the Board when medical disputes arise. We find the SIME form in this case illustrates that the medical disputes stem from the differing opinions expressed in Dr. Powers’ April 6, 1999 report and Dr. Bagby’s August 23, 1999 affidavit. Upon reviewing Dr. Bagby’s affidavit, we find his opinions regarding medical stability and physical restrictions changed after he reviewed the surveillance tapes. Therefore, the surveillance tapes themselves played a significant role in bringing about the medical disputes and the very need for an SIME in this matter. As such, we conclude the failure to include such videotape evidence with the SIME materials would provide little assistance to the Board, thus frustrating one of the purposes of AS 23.30.095(k).

Furthermore, the videotapes may be evidence of the employee’s physical capacities for the purposes of an SIME. As such, we find the failure to provide the SIME physician with the surveillance videotapes would place him in the position of issuing a report without evidence another physician relied on and may result in flawed medical conclusions. In conclusion, we find the SIME physician should be provided the surveillance videotapes for his evaluation.

AS 23.30.107 provides in pertinent part:

1. Upon request, the employee shall provide written authority to the employer...to obtain medical and rehabilitation information relative to the employee’s injury.

Our regulation 8 AAC 45.095 provides:

1. An employee who, having been served with a request for release of information, feels that the information requested is not relevant to the injury must, within 10 days after receipt of the request, petition for a prehearing under 8 AAC 45.065.
2. If after a prehearing the board determines that information sought from the employee is not relevant to the injury which is the subject of the claim, a protective order will be issued.
3. If after a prehearing an order to release information is issued and an employee refuses to sign a release, the board will, in its discretion, limit the issues at the hearing on the claim to the propriety of the employee’s refusal. If after the hearing the board finds that the employee’s refusal to sign the requested release was unreasonable, the board will, in its discretion, refuse to order or award compensation until the employee has signed the release.

We have construed our statutes to favor liberal discovery.¹⁷ AS 23.30.107(a) expressly requires employees to sign information releases. Moreover, we have long interpreted AS 23.30.005(h) to allow us to order a party to release and produce records "that relate to questions in dispute."¹⁸ Specifically, we have ordered claimants to sign a release for tax records, even when they contained information pertaining to a spouse.¹⁹

We find the employee has requested reemployment benefits. Accordingly, we find the employer is entitled to information pertaining to jobs held by the employee in 1997, the year preceding his injury. We find the employee testified he has carved and sold ivory. We, therefore, find the employer is entitled to know of any proceeds from the sale of ivory reported in the employee’s 1997 tax return. Thus, we find the employee’s 1997 tax return is related to a question in dispute, and he must sign a release for those records.

Nevertheless, we are cognizant of the employee’s concerns regarding the release of his ex-wife’s tax information, particularly in light of his fear that it will create friction with her and difficulties with his children. Therefore, the release should be redrafted and fashioned to indicate the information is sought solely for the purposes of the employee’s workers’ compensation claim. Further, when the employer receives the 1997 tax records, it will redact, in accordance with the employee’s agreement, any information pertaining exclusively to the employee’s ex-wife for the Board’s file.

1. Copies of the surveillance tapes shall be among the materials provided to the SIME physician.
2. The employer shall redraft its 1997 tax return release to indicate the information sought will be used solely for the purposes of the employee’s workers’ compensation claim.
3. The employee shall sign the employer’s redrafted 1997 tax return release within ten days after receipt of the form.
4. The employer shall redact any information in the employee’s 1997 tax records exclusively related to the employee’s ex-wife. The employer shall then forward to the employee copies of the complete tax return and the redacted version for his approval. Upon approval, the employer shall forward the redacted version to the Board for our file.

Dated at Anchorage, Alaska this day of January, 2000.

ALASKA WORKERS' COMPENSATION BOARD

/s/ Kathleen M. Snow
Kathleen M. Snow,
Designated Chairperson

/s/ Philip E. Ulmer
Philip E. Ulmer, Member

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 EUGENE C. STEIK employee/applicant v. POOL ARCTIC ALASKA DRILLING, employer; INSURANCE CO OF STATE PA, insurer/defendants; Case No. 199805033; dated and filed in the office of the Alaska Workers' Compensation Board in Anchorage, Alaska, this day of January, 2000.

Debra C. Randall, Clerk