BETTY L. PETERSON, 
Employee, 
Applicant
v. 
ALASKA AIRLINES, INC.
(Self-insured) Employer,
Defendant.

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INTERLOCUTORY
DECISION AND ORDER
AWCB Case No. 199915184
AWCB Decision No. 00-0021 
Filed in Anchorage, Alaska 
on February 7, 2000.

We heard the employee's Petition for Protective Order regarding medical releases on December 8, 1999. Attorney Elise Rose represented the self-insured employer. K. Scott McEntire, a non-attorney representative, appeared on behalf of the employee. We heard this case as a two-member panel as authorized by AS 23.30.005(f). We left the record open to permit the parties to file medical summaries. We closed the record after receipt of the medical records when we next met, on January 6, 2000.

Whether the employee is required to sign the releases proffered by the employer.

On August 9, 1999, the employee completed a Report of Occupational Injury or Illness (ROI) alleging she "could not stop coughing while at work." (ROI, 8/9/99.) The report asserted her coughing caused her to "gag, vomit, & feel faint." (ROI, 8/9/99.) She identified "exhaust fumes & dust in [the] warehouse" as the cause of her coughing attacks. (ROI, 8/9/99.) In her Worker's Compensation Claim, Ms. Peterson requested payment of temporary total disability (TTD) benefits from August 13, 1999 and continuing to the present, as well as payment of medical costs. (Worker's Compensation Claim, dated 9/3/99.) She has not requested vocational rehabilitation. (Id.; Prehearing Conference Summary, dated 11/17/99.)

The employee reported to her physician that she had worked for Alaska Airlines from 1990 to 1996 at the ticket counter. (Dr. Baker's report of 8/13/99.) In November of 1996, she began working in the freight office of Alaska Airlines. (Id.) She worked without symptoms until May 20, 1999, when, while working in a small room, she experienced chest pain and "chest tightness all day while she was at work." (Id.) She was treated at the emergency room, given steroids, pain medications, and Proventil, which improved her symptoms markedly. (Id.) She had no further symptoms until July 1, 1999, when she was exposed to cleaning products in a small room at work. "The cleaning agent caused her to cough; the cough was so severe that she vomited and had dry heaves." (Id.) She was taken by ambulance to the emergency room. (Id.) She worked on and off after that date, having additional coughing attacks at various times. (Id.) She reported getting "panicked" in association with her coughing attacks. (Id.) She has not worked since August 4, 1999. (Dr. Baker's report of 12/09/99.)

In the assessment portion of her report, Dr. Baker indicated: "Cough - she has a prior history of wheezing with exercise and a history of recurrent bronchitis as a child; I suspect asthma. Her symptoms seem to be precipitated by something in the work place." Dr. Baker's plan was to conduct a methacholine challenge test "to confirm she does have reactive airway disease, rather than panic attacks as the cause for this." (Dr. Baker's report of 8/13/99.)

Dr. Baker performed a methacholine challenge test on the employee on August 27, 1999. (Pulmonary Function Test of 8/27/99.) The results of this test were negative; indicating the employee was "not demonstrating increased hyper-responsive airways." (Pulmonary Function Test of 8/27/99.) Dr. Baker surmised that test may have resulted in a false negative, with asthma being the underlying process rather than a cough due to exposure to irritants. (Dr. Baker's report of 11/12/99.) Dr. Baker performed a subsequent methacholine challenge test on December 9, 1999. The results of this test were also negative. (Pulmonary Function Test of 12/09/99.)

In her report of December 9, 1999, Dr. Baker noted that the employee has "no perioral or numbness to suggest that she has panic attacks. She does not fit the full-blown diagnostic criterion for panic attacks. She clearly describes that her panic attacks seem to be secondary to her physical symptoms." (Dr. Baker's report of 12/09/99.)

The employer controverted the claim, asserting 1) the employee is not disabled as a result of any work related condition; 2) the employee has been offered alternate employment but has declined it; and 3) the employee's pulmonary condition did not arise out of or in the course and scope of her employment, specifically the air conditions of the employee's job site. (Controversion Notice, dated 10/25/99.)

The employer sent the employee several releases of information along with a letter requesting that she sign and return the releases or contact the employer to discuss any problems she had with the releases. (Prehearing Conference Summary, dated 11/17/99.) The employee did not sign the releases or respond to the employer's letter until the November 17, 1999 prehearing. (Id.) At the prehearing, the employee submitted a petition for protective order under 8 AAC 45.095. The prehearing officer directed the employer to modify the releases to include a six-month time limit from the date of the employee's signature. (Id.) She found the psychological records were relevant in light of Dr. Baker's references to panic attacks. She limited the medical release to exclude drug and alcohol-related treatment and HIV/sexually transmitted disease testing and results. The employee refused to sign the releases as modified and requested a hearing before the board. (Id.)

At the December 8, 1999 hearing, the employee stated, through her representative, that she would only be willing to sign releases that are limited to the job related injury and its symptoms, going back two years from the date of injury. She argued that releases seeking information for longer than two years or for information related to anything other than her injury or its symptoms are prohibited by her Constitutional right to privacy. She argued that she should not be required to release psychological reports because they are irrelevant to her injury or claim.

The employer argued that Dr. Baker's references to panic attacks establish a sufficient nexus between the employee's cough and the request for psychological records. The employee's representative responded by saying that there could be no nexus when the diagnosis of the employee's cough is incomplete.

The releases proffered by the employer and which are in dispute include: 1) a medical release of all information including mental/psychological records going back ten years from the date of injury and excluding drug and alcohol-related treatment and HIV/sexually transmitted disease testing and results; 2) an employment record release for all job search, employment, and unemployment records going back ten years from the date of injury: 3) a union record release for information regarding the employee's union membership, benefits or pensions as well as medical records; and 4) a Social Security Administration release requesting identifying information; monthly social security benefit amount; monthly supplemental security income payment amount; information about benefits/payments from ____ to present (date not specified); information about Medicare claims/coverage from _____ to present (date not specified); medical records; psychological, psychiatric, or counseling records; and any decisions, findings or opinions contained in the file. With the exception of the Social Security release, all of the releases proffered by the employer indicated an expiration date six months from the date of the employee's signature. At the hearing, the employer stated it had no objection to the addition of a six-month expiration date on the Social Security release as well.

At the hearing, the employer's attorney noted her concern that even if the Board required the employee to sign the employer's proffered releases, the information requested in the releases would not be produced. She based her concern upon a phone message she received from a Mr. Welch, indicating that he would not release any information regarding Ms. Peterson that was not directly related to the occupational injury. The employer requested that the Board address this concern in its decision.

"The central question in most workers' compensation proceedings is the cause, nature, and/or extent of Employee's injury. In the typical case, medical records and doctors' reports are the most relevant and probative evidence on these issues." Granus v. Fells, AWCB Decision No. 99-0016, p. 5 (January 20, 1999)

To ensure the Board and parties have ready access to such relevant evidence, the legislature abrogated the physician-patient privilege as to "facts relative to the injury or claim' in a workers' compensation proceeding." AS 23.30.095(e).¹ Moreover, the legislature provided employers with a simple mechanism for securing relevant medical evidence through AS 23.30.107(a), which provides, "Upon request, an employee shall provide written authority to the employer, carrier, rehabilitation specialist, or reemployment benefits administrator to obtain medical and rehabilitation information relative to the employee's injury."

Information is discoverable under the Act, if it is "relative" to the employee's injury or claim. "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).

The nature of the injury, the benefits sought, the defenses raised, the evidence thus far developed, and the specific disputed issues in the case determine the range of "relevant evidence" in a given case. Bodeman v. Birchwood Saloon and Dawg House Cafe, AWCB Decision No. 99- 0065 (March 30, 1999).

The employee has made a claim for temporary total disability. The Alaska Workers' Compensation Act defines "disability" as "incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment." AS 23.30.395(10). The Act provides for benefits at 80 percent of the employee's spendable weekly wage while the disability is "total in character but temporary in quality," AS 23.30.185. It is well established under Alaska law that an employee has a responsibility to mitigate the damages caused by the injury. Bignell v. Wise Mechanical Contractors, 651 P.2d 1163, 1168 (Alaska 1982; Phillips Petroleum Co. v. Alaska Industrial Board, 17 Alaska 658, 663 (D. Alaska 1958). In Vetter v. Alaska Workmen's Compensation Board, 524 P.2d 264, 266 (Alaska 1974), the Alaska Supreme Court stated:

In the present case, the employee is requesting temporary total disability as a result of coughing attacks she attributes to her employment. He employer disputes her claim. Thus, the nature, cause, and compensability of the employee's injury are at issue. Although her physician's most recent report discounts the possibility that her cough is caused by panic attacks, the issue of the relationship between the employee's pulmonary condition and possible panic attacks is clearly raised by the physician's reports. The issue is particularly relevant where, as here, the employee's condition has not been diagnosed. We therefore find the employer's request for psychological records is relative to the employee's injury or claim and discoverable. We further find that because the employee "has a prior history of wheezing with exercise and a history of recurrent bronchitis as a child," medical records dating back ten years are appropriate under the facts of this case.

We acknowledge that in most contested cases, records relating to the part of the body the employee alleges was injured for the two years prior to the date of the injury are usually sufficient to produce the relevant evidence needed by the employer to defend the claim. Granus, at 10; Smith, at 4 (citing Arctic Motor Freight, Inc. v. Stover, 571 P.2d 1006 (Alaska 1977) and Russell v. University of Alaska, 3AN-88-10313.) However, because the employee's pulmonary condition has been noted since childhood and is undiagnosed, we find that more extensive discovery is required by the facts of this case than is needed in a relatively simple case of objective physical injury. See Caress v. Norcon, Inc., AWCB Decision No. 99-0163 (August 2, 1999) at 5. Because the employee has a long history of pulmonary illness, her current condition is undiagnosed, and there is mention in her medical reports of the possibility of panic attacks as the cause of her condition, we find that psychological records going back ten years from the date of the injury are relative to the employee's injury or claim and are discoverable.

Under AS 23.30.225, an employer is entitled to a partial offset against any TTD liability for Social Security and some private pension benefits. Thus, any benefits received by the employee from Social Security or a private pension plan are at issue. Therefore, we find the requested information regarding pension and retirement records is relative to the employee's injury or claim and discoverable.

We also find that the information regarding benefits paid to the employee in the Social Security release is relative to the employee's injury or claim and discoverable. Although we would normally only require the employee to release records from the date of the injury forward, we are concerned that the Social Security Administration may have relevant psychological records in its possession that pre-date the employee's injury. We will therefore limit the information about benefits or payments from the date of injury to the present, but permit any psychological, psychiatric or counseling records to be released for the last ten years as discussed above.

The employer is also not liable for TTD in any week the employee collects unemployment benefits. AS 23.30.187. Thus, any unemployment benefits received by the employee during the time she claims disability benefits are at issue. We therefore find the requested unemployment information is relative to the employee's injury or claim and discoverable.

The employer has asserted that the employee is not disabled. This assertion is based, in part, on the representation that the employer has made modified alternative work available to the employee, but the employee has declined to accept the position. Thus, the employee's employment record is placed in issue even though she has not requested vocational rehabilitation benefits. We therefore find that the information requested in the employment release is relative to the employee's injury or claim and discoverable.

We note that psychological records are among the most sensitive types of records. Therefore, we direct the employer not to file records of the employee's mental health treatment unless or until it has determined the records contain evidence admissible at hearing, and then first to serve a copy of those records on the employee. Upon receipt of said records from the employer, the employee shall have 10 days to petition for a protective order under 8 AAC 45.095. If the employee fails to timely petition for a protective order, or the Board's designee determines that the records contain admissible evidence, the employer shall file these records "under seal," that is in an opaque sealed envelope marked "Confidential Medical Records To Be Opened Only by the Hearing Officer Assigned To This Case." If the employer determines these records do not contain admissible evidence, the employer shall serve all copies of these records on the employee.

The employer requested that we address her concern that the information requested in the releases of information would not be forthcoming regardless of whether the Board required the employee to sign said releases. We decline to address the issue at this time. We expect the parties to comply with the Board's orders and to cooperate in the discovery process. We further expect that no party will interfere with the other party's ability to obtain the information requested by the releases. We will, however, retain jurisdiction over the issue. In the event the parties find the information requested in the releases is not forthcoming, they may petition for a hearing before the board to address this concern.

Finally, we inform the employee that willful failure to comply with the Board's discovery orders may result in sanctions, including the exclusion of evidence at hearing or dismissal of her claims. 8 AAC 45.054(d), 45.095(c); Millard v. National Bank of Alaska, AWCB Decision No. 00-0006 (January 14, 2000); Sullivan v. Casa Valdez Restaurant, AWCB Decision No. 98-0296 (November 31, 1998); McCarroll v. Catholic Social Services, AWCB Decision No. 97-001 (January 6, 1997). Dismissal of employees claim may be ordered even where the employee's refusal to sign releases is based upon the advice of her representative. See Millard, at 4, n. 2.

1) The employee's Petition for Protective Order is granted in part and denied in part.

2) The employee is directed to sign and return the medical release (including release of psychological records) proffered by the employer within ten days of the filing of this decision.

3) The employee is directed to sign and return the employment record release proffered by the employer within ten days of the filing of this decision.

4) The employee is directed to sign and return the union record release proffered by the employer within ten days of the filing of this decision.

5) The employee is directed to sign and return the Social Security Administration release (including release of psychological records) proffered by the employer, but may limit the release of benefits information from the date of injury to the present. The employee may also limit the Social Security Administration release to expire six months from the date of the employee's signature.

6) We retain jurisdiction over the discovery issue. In the event a party finds the information requested in the releases is not forthcoming, the party may petition the Board for a hearing to resolve the issue.

Dated at Anchorage, Alaska this 7^th day of February, 2000.

ALASKA WORKERS' COMPENSATION BOARD

/s/ Jill E. Farrell
Jill E. Farrell,
Designated Chairman

/s/ John A. Abshire
John A. Abshire, 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 BETTY L. PETERSON employee / applicant; v. ALASKA AIRLINES, INC., employer and insurer / defendant; Case No. 199915184; dated and filed in the office of the Alaska Workers' Compensation Board in Anchorage, Alaska, this 7^th day of February, 2000.

Debra C. Randall, Clerk