GRACIELA F. LAU, 
Employee, 
Petitioner
v. 
CATERAIR INTERNATIONAL #616,
Employer,
and 
CNA INSURANCE COMPANY,
Insurer,
Respondants.

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INTERLOCUTORY
DECISION AND ORDER
AWCB Case No. 199213484
AWCB Decision No. 00-0055 
Filed in Anchorage, Alaska 
March 24, 2000.

On January 26, 2000, in Anchorage, Alaska, we heard the employee’s petition for a second independent medical evaluation (SIME). Attorney William J. Soule represented the employee. Attorney Constance E. Livsey represented the employer. We sat as a two-member panel as authorized by AS 23.30.005(f). At the parties’ request, we left the record open until March 1, 2000 so the deposition of Larry Levine, M.D., could be taken.

Shall we grant the employee’s petition for a second independent medical evaluation (SIME)?

This case has an extensive history, which has been outlined in Lau v. Caterair International, AWCB Decision Nos. 95-0053 (February 27, 1995), aff’d, 3AN-95-2620 CIV (Alaska Super. Ct. May 2, 1996) (Lau I), and 96-0262 (June 27, 1996) (Lau II). We hereby adopt the summaries and findings of fact of those decisions and incorporate them by reference into this Decision & Order.

Briefly, the employer hired the employee in 1987 as a food assembler. Her duties included placing food on trays as they passed by on a conveyor belt. The work involved repetitive lifting of objects weighing more than 20 pounds. In 1991, the employee began experiencing pain in her left shoulder. The employee sought numerous opinions through referrals from her treating doctors. Initially, the employee treated with Thomas Ligus, M.D. He referred the employee to Robin Robbins, D.C., then to Stephen S. Tower, M.D., on April 15, 1993. On September 2, 1993, Dr. Tower referred the employee to Shawn Hadley, M.D. Dr Hadley referred the employee to Kenneth Pervier, M.D., in March 1994. Dr. Pervier referred the employee to Robert Swift, M.D. Dr. Swift referred the employee to Linda Glick, OTR/L, CHT, for physical therapy. (See Lau I). On November 1, 1994, Glenn A. Ferris, M.D., examined the employee at the request of Dr. Swift. Dr. Ferris diagnosed fibromyalgia, and related the condition to the employee’s work. Id. at 7. In Lau I, the employer claimed Dr. Ferris was a change of physicians, but the board found "Employer has not produced substantial evidence Employee changed attending physicians.... Under the circumstances, we do not regard the one-time examination by Dr. Ferris as a self –referral." Id. at 14. The board panel found the employee was permanently and totally disabled as of August 1, 1994. (Lau I at 12).

In Lau II, we were asked to order a SIME. We agreed, and Edward M. Voke, M.D., examined the employee on August 19, 1996. Dr. Voke stated:

After an unsuccessful appeal by the employer, the board approved a compromise and release agreement on January 6, 1997 that settled all claims for benefits except future medical care.

In his report to Dr. Swift, Dr. Ferris stated, "I have referred [the employee] back to Dr. Swift for follow-up." (Dr. Ferris’ 11/1/94 Consultation Examination Report). However, on March 20, 1995, the employee treated with Dr. Ferris again (Dr. Ferris’ 3/20/95 Chart Note), and continued to treat with him for the next four years. In Lau II, the parties "agreed the employee’s attending physician is Glen A. Ferris, M.D." Lau II at 2. In late May 1999, Dr. Ferris died in a plane crash.

After Dr. Ferris’ death, his staff recommended the employee continue treatment with Dr. Levine, and the employee did. The employee contends this was a "substitution of physician." (Employee’s Hearing Testimony at 3-4). The employee saw Dr. Levine approximately three times. Id. at 7.

On August 10, 1999, the employer arranged for an independent medical examination (EIME) with Shawn Hadley, M.D. Dr. Hadley opined:

Dr. Levine initially prescribed the same medications Dr. Ferris had been using, including OxyContin. However, on August 16, 1999 Dr. Levine had a "care conference" with his staff and wrote:

On August 27, 1999, Dr. Levine wrote:

Dr. Levine testified he had a discussion with the employee on August 27, 1999 where he stated he was going to wean the employee off opioids. (Dr. Levine Dep. at 22-23). Dr. Levine testified the employee was taking opioids and that patients on long-term opioids develop a tolerance of opioids as their bodies get used to the medication. (Id. at 13-14). He prescribed Vioxx, but at his August 17, 1999 visit he stopped that because the employee was complaining of gastrointestinal upset and "I said I was not going to start any other medications at that point and wanted to see how she was doing off of it." Id. at 20. Dr. Levine testified he had the employee sign a "medication management agreement" on August 5, 1999. Id. at 10-11. He testified:

He testified his nurse discussed with the employee his decision to wean the employee off the opioids on September 28, 1999. At that time, he wrote the employer’s insurance adjuster:

On September 28, 1999, Dr. Levine wrote his last prescription for OxyContin and wrote on the prescription: "* Note Last refill – Dr. Levine wants you weaned off – no rechecks needed per Dr. Levine." (9/28/99 Prescription Note).

A nurse’s note from that same day states "Ms. Lau – notified this is last refill. Dr. Levine weaning Rx – did not understand why.— Copy of 8/16/99 notes given to pt." (Nurse’s 9/28/99 Chart Note).

The employee testified Dr. Levine’s nurse told her that she could not come back for any more visits and could not come back for any additional prescriptions. (Employee’s Hearing Testimony at 6). The employee testified that she asked the nurse if she could talk to Dr. Levine about why he would not treat her and the nurse stated that Dr. Levine was "busy" and he could not talk to her. Id. at 7.

On September 30, 1999 the employee returned to Dr. Levine’s. His nurse wrote a note to Dr. Levine:

Dr. Levine testified what he was saying to the employee was:

The employee did not return to Dr. Levine, and instead sought treatment from Samuel Schurig, M.D., who began writing her prescriptions for Zoloft and OxyContin. The employee claims Dr. Levine’s actions constituted a "refusal to provide services" under 8 AAC 45.082 (c) (4) (B), and she was thus permitted to substitute physicians. She requests that we order a SIME, claiming a medical dispute exists between Dr. Schurig, who is now her attending physician, and Dr. Hadley, the EIME.

The employer claims that Dr. Levine never refused treatment, he merely thought weaning the employee off her medications was the best treatment for her. The employer argues the employee has previously changed physicians multiple times, and the employee was obliged to obtain the employer’s written permission before seeing Dr. Schurig. Since the employee failed to obtain the employer’s consent, Dr. Schurig’s opinions that the employee needs continued medications must be disregarded, since he was not an authorized physician. The employer argues there is no dispute between the employee’s attending physician, Dr. Levine and the EIME, Dr. Hadley, and therefore the board should reject the employee’s request for a SIME.

The employee claims that Dr. Levine refused to continue treatment and she thus appropriately substituted physicians. We disagree. 8 AAC 45.082 (c) (4) (B) states that when a physician refuses to provide services to an employee "the first physician providing services to the employee thereafter is a substitution of physicians and not a change of attending physicians." An employee is only permitted to change physicians one time without the written consent of the employer. AS 23.30.095 (a) states, in pertinent part:

We find the employee’s initial attending physician was Dr. Ligus. We find the employee changed her attending physician to Dr. Ferris. The parties previously acknowledged and recognized this "change" in Lau II. We find this change of attending physicians was permitted by AS 23.30.095 (a). We find the employee’s "substitution" of physicians to Dr. Levine after Dr. Ferris died was also permissible. 8 AAC 45.082 (c) (4) (B).

The next issue is the seminal issue for this hearing: was Dr. Schurig a change or substitution of physicians for purposes of .095 (a)? We have addressed this issue previously. In Bloom v. Tekton, Inc., AWCB Decision No. 98-0039 (March 5, 1998) aff'd, 3AN-98-04760 Civil (Alaska Super. Ct., February 11, 1999), argued before the Supreme Court, January 13, 2000, S-09019, the employee’s physician found that further treatment was not medically necessary. The board found that, because the employee’s doctor "found no medical reason to treat the employee, he was correct in not referring him to yet another physician. We find the employee asked for a professional medical opinion from [his physician] and he got it." Id. The board then concluded the employee was not entitled to another change of physicians under AS 23.30.095 (a).

In affirming the board’s decision, the Superior Court noted:

The board has consistently held against excessive changes in physicians. In Anderson v. Federal Express, AWCB Decision No. 98-0104 (April 24, 1998), the board stated:

We find that Dr. Levine, like the physician in Bloom, did not "refuse to provide services to the employee." 8 AAC 45.082 (c) (4) (B). We find the employee sought a medical opinion from Dr. Levine, and his opinion was that she was not benefiting from her continued opioid medications. We find that Dr. Levine’s prescribed treatment was to wean the employee off opioids. Based on the totality of the circumstances, we find Dr. Levine provided competent medical services to the employee. We find Dr. Levine to be a credible witness. We find that Dr. Levine’s staff explained to the employee that she was to be weaned off her medications. We therefore conclude that her visits to Dr. Schurig constituted a "change" of physicians under .095 (a) rather than a "substitution." We find the employer has expressly denied permission for the employee to change physicians to Dr. Schurig. Since the employee has already changed physicians once, and she did not receive the employer’s written consent to change physicians again, this change was impermissible under .095 (a).

We find that Dr. Levine did not terminate his relationship with the employee. He expressly informed the employee that no rechecks were needed. We find that Dr. Levine discussed with the employee weaning her off opioids at least one month before doing so. (Dr. Levine Dep. at 22-23). We find that, although the employee speaks English as a second language, she understands English. She testified without the assistance of an interpreter and understood what she was being asked. While the employee may not have agreed with Dr. Levine’s treatment, this did not provide sufficient grounds for her to again change physicians. Anderson v. Federal Express, AWCB Decision No. 98-0104 (April 24, 1998). We conclude that Dr. Schurig was not an appropriately recognized attending physician.

II. SHALL WE ORDER A SIME?

The legislature has granted us the authority to order a SIME to assist us in our decision-making process. AS 23.30.095 (k) provides, in pertinent part:

We first consider the criteria under which we review requests for SIME evaluations, specifically:

1. Is there a medical dispute between the employee’s attending

1. Is the dispute significant; and
2. Would an SIME physician’s opinion assist the Board in resolving the dispute? ¹

We have found that if the limits in AS 23.30.095(a) and AS 23.30.095(e) regarding changing physicians are to have any meaning, there must be some penalty imposed when an employer fails to obtain an employee’s consent, or visa versa. To hold otherwise would render the limit meaningless, and would permit parties to "doctor shop" without concern for the clear prohibition of that course of action. Accordingly, we refuse to recognize the reports of EIME or treating physicians chosen in violation of AS 23.30.095 (a) and (e). See, Anderson v. Federal Express, AWCB Decision No. 98-0104 (April 24, 1998); Jaouhar v. Marnco, Inc., AWCB Decision No. 98-0166 (June 24, 1998); Sherrill v. Tri-Star Cutting, AWCB Decision No. 95-0118 (May 1, 1995).

As stated above, we find the employee’s attending physician is Dr. Levine. We find the employee saw Dr. Schurig in violation of AS 23.30.095 (a). Accordingly, we conclude Dr. Schurig’s opinions must be excluded from the record.

We find there is no medical dispute between the employee’s attending physician and the EIME. AS 23.30.095 (k). We find that Dr. Levine expressly agreed with the findings of the EIME, Dr. Hadley and the previous SIME, Dr. Voke. Since there is no medical dispute, we will not exercise our discretion and order a SIME. We further find that we would not be assisted by a SIME’s opinion. Accordingly, the employee’s petition for a SIME is denied.

The employee’s petition for a second independent medical evaluation is denied and dismissed.

Dated at Anchorage, Alaska this 24^th day of March, 2000.

ALASKA WORKERS' COMPENSATION BOARD

/s/ William Wielechowski
William P. Wielechowski,
Designated Chairman

/s/ Marc D. Stemp
Marc Stemp, 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 GRACIELA F. LAU employee / petitioner; v. CATERAIR INTERNATIONAL #616, employer; CNA INSURANCE COMPANY, insurer / respondents; Case No. 199213484; dated and filed in the office of the Alaska Workers' Compensation Board in Anchorage, Alaska, this 24^th day of March, 2000.

Debra C. Randall, Clerk