BRUCE W. WILLIAMS, 
Employee, 
Applicant
v. 
KNIK SWEEPING CO.,
Employer,
and 
PROVIDENCE WASHINGTON-AK,
Insurer,
Defendants.

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INTERLOCUTORY
DECISION AND ORDER
AWCB Case No. 199218904
AWCB Decision No. 00-0059
Filed with AWCB Anchorage, Alaska 
on March 31, 2000

We heard the employer's petition for an order compelling the employee to attend an employer’s independent medical examination (EIME) and for an order suspending compensation in Anchorage, Alaska, on March 21, 2000. Attorney Charles Coe represented the employee; and attorney Patricia Zobel represented the employer and insurer (henceforth "employer"). We closed the record at the conclusion of the hearing.

1. May the employer choose Douglas Smith, M.D., as a change of employer’s independent medical examiner (EIME) under AS 23.30.095(e)?

2. Shall we order the employee to attend an EIME examination under AS 23.30.095(e)?

3. Shall we order the suspension of the employee’s compensation under AS 23.30.095(e) for unreasonable refusal to attend an examination with the employer’s EIME physician?

4. Is the employee entitled to statutory minimum attorney fees and costs under AS 23.30.145 for defending himself against the employer’s petition?

The employee injured his left knee in a traffic accident while driving a street sweeper for the employer on August 21, 1992. The employer accepted the claim and provided medical benefits, reemployment benefits, and a variety of compensation benefits. Since March 23, 1998, the employer has provided permanent total disability (PTD) benefits. This has been a contentious claim, and we issued two decision and orders (D&Os). In AWCB Decision No. 98-0314 (December 11, 1998), we ordered the employee to sign certain medical releases. In AWCB Decision No. 98-0297 (December 1, 1998), we ruled on numerous disputes, including disputes over controversions and payment of medical bills. The history of this case is more fully detailed in the "Summary of the Evidence " section of our December 1, 1998 decision, and we here incorporate that discussion by reference.

The employee initially treated with orthopedic surgeon Robert Gieringer, M.D., who performed a patellectomy and reconstruction surgery on January 20, 1994. The employee subsequently changed his treating physician to Woody Waldroup, D.C.. In a letter on May 25, 1994, Dr. Waldroup referred the employee to orthopedic surgeon Timothy Mar, M.D., who on June 13, 1994, recommended arthrodesis knee surgery.

The employer requested the employee to be examined by orthopedic surgeon David McGuire, M.D., for a second opinion on the surgery. The employee agreed, but was actually examined by orthopedic surgeon Joseph Shields, M.D., who was serving in locum tenens for Dr. McGuire, on August 23, 1994. Dr. Shields recommended against surgery.

In a letter dated October 10, 1994, Dr. Waldroup recommended against further chiropractic treatment, and referred the employee to orthopedic surgeon John Frost, M.D. In a note, on or about October 19, 1994, Dr. Waldroup referred him to orthopedic surgeon Michael Newman, M.D. In Dr. Newman’s office, the employee was seen be Ross Brudenell, M.D. In his October 24, 1994 report, Dr. Brudenell referred the employee to pain management specialists, Robert Swift, M.D., and Leon Chandler, M.D.

On October 28, 1994, Dr. Swift began to treat the employee, providing Percodan. On December 15, 1994, Dr. Swift provided a lumbar sympathetic nerve block. The employer’s EIME, Dr. Shields, reviewed the employee’s medical records on January 26, 1995, and again recommended against surgery. Dr. Shields died in an airplane crash on September 20, 1996.

On referral from Dr. Newman, the employee then saw Bret Mason, M.D., who in his March 15, 1995 report recommended an arthroscopic evaluation of the right knee. In his April 18, 1995 report, Dr. Mason referred the employee for treatment with Dr. McGuire. In a letter dated May 25, 1995, the employee’s attorney memorialized the parties’ agreement to designate Dr. McGuire as his treating physician. On May 9, 1995, Dr. McGuire performed a partial medial meniscectomy, and removed the wire from the employee’s earlier patellectomy. Dr. McGuire prescribed three months of physical therapy, and in a letter dated September 28, 1995 referred him to continued treatment with Dr. Chandler for pain control.

On January 22, 1996, Dr. McGuire recommended psychiatric support, and the employee eventually came under the care of psychiatrist Clive Shirey, M.D. In a letter to the employer on April 26, 1996, Dr. Chandler referred the employee to orthopedic surgeon Harold Dunn, M.D., at the University of Utah Hospital. Dr. Dunn performed arthroplasty surgery on March 5, 1997. Dr. Dunn referred the employee to John Speed, M.D., for rehabilitation, and Dr. Speed referred the employee to ear, nose, and throat (ENT) specialist Christopher Jones, M.D. for a sleep study. On March 24, 1997, Dr. Jones diagnosed the employee to be suffering sleep apnea, questioning whether his multiple medications contributed to the employee’s condition.

At Dr. Shirey’s referral, the employee was admitted to the Providence Alaska Medical Center for suicidal ideation on May 27, 1997, where he was treated by psychiatrist Greg McCarthy, M.D., and Dr. Shirey. At this time the employee was being prescribed Oxycontin, Effexor, Percodan, Flexeril, Klonopin, Feldene, and Zantac, and began to suffer gastrointestinal bleeding. Dr. Shirey referred the employee to Richard Buchanan, M.D. for treatment of the bleeding.

At the employer’s request, the employee was seen by ENT specialist Beth Baker, M.D., on July 9, 1997, to determine whether the sleep apnea was related to the employee’s 1992 knee injury. Dr. Baker determined the apnea was related to the employee’s medication use and weight gain, which were related to his injury. The employee returned to her for treatment and medical prescriptions for the condition on March 26, 1998, March 30, 1998, April 20, 1998, May 11, 1998, May 18, 1998, and May 28, 1998. On referral from Dr. Baker, the employee also sought treatment on June 1, 1998 from Donald Endres, M.D., who diagnosed a deviated nasal septum, which the employee claimed was related to his 1992 knee injury.

At the request of the employer, the employee was evaluated on July 7, 1998 by ENT specialist Jerome List, M.D., to determine whether the employee’s nasal condition was related to his work injury. In his July 14, 1998 report, Dr. List found the condition was not related to his work injury.

On October 14, 1999, the employee filed a Workers’ Compensation Claim form, claiming medical benefits for a back condition he claimed was related to his 1992 work injury. On the claim, the employee identified Dr. Chandler as his treating physician.

The employer requested the employee to attend an evaluation of his back condition with Douglas Smith, M.D., but the employee refused. The employer filed a petition on November 23, 1999, requesting an order to compel the employee to attend the EIME evaluation with Dr. Smith, and to sign a release for medical records, including psychiatric records. The employer’s petition also requested the suspension of the employee’s compensation for the period of his refusal to attend he EIME.

The employer filed a letter from Dr. List, dated March 10, 2000, in which the doctor indicated he had evaluated the employee only once, some time in the past, and only for his ENT condition. Because the employee’s records indicate he has been evaluated by numerous orthopedic surgeons, Dr. List indicated it would be unethical for him to attempt to make a specific referral outside of his field, and he refused to do so.

At the hearing on March 21, 2000, the employee’s wife, Barbara Williams, testified concerning her knowledge of the employee’s medical treatment and evaluation. She believed Drs. Shields, List, Baker, McGuire, Speed, and Jones were EIME physicians for the employer. The medical case manager for the employer, Carol Jacobsen, R.N., testified that to her knowledge only Drs. Shields, Baker, and List had been retained by the employer to perform EIME evaluations.

The last Prehearing Conference Summary on this case, dated January 19, 2000, still listed as an issue the employer’s petition for an order compelling the employee to sign a medical release. Nevertheless, the parties elected not to argue that issue at the time of the March 21, 2000 hearing.

In its brief, and in the hearing, the employer argued its first EIME physician, Dr. Shields, had died. It pointed out the employee had formally selected its second EIME physician, Dr. McGuire, as a treating physician. It also pointed out the employee sought treatment with the employer’s EIME, Dr. Baker. Because of the loss of these three physicians, the employer argues Dr. List should be regarded as the employer’s first EIME doctor. The employer contends it should be permitted to select an orthopedic surgeon as its permissible change of physician under AS 23.30.095(e).

The employer requests we issue an order compelling the employee to attend an EIME examination by Dr. Smith. In the hearing, the employer withdrew its request an immediate order suspending the employee’s compensation, indicating the matter could wait until the status of Dr. Smith as an EIME physician is clarified.

The employer argues it has considerable difficulty assessing the reasonableness or necessity of the employee's treatment. It notes the employee suffered a knee injury, but has claimed treatment for gastrointestinal problems, psychiatric conditions, sleep apnea, sinus surgery, and back problems. In the alternative, it argues that even if it has exceeded its limit of choices of EIME physicians, it should be permitted to select an orthopedic EIME, based on the extremely complex medical history of this case.

At the hearing, the employee contended Drs. Newman, Shields, McGuire, Chandler, Jones, Baker, List, and Buchanon are all EIME choices by the employer. In his Answer to the employer’s petition to compel, the employee contended none of those doctors had a written referral from his treating physicians. He argues the employer has chosen many more physicians than permitted under AS 23.30.095(e), and that the employer is prohibited by the statute from designating Dr. Smith as an EIME examiner.

The employee recognizes Dr. List’s refusal to refer the employee to an orthopedic physician for an EIME puts the employer into an awkward position, but he also points out that no EIME physician has referred him to Dr. Smith for an examination. Consequently, he argues, he should not be ordered to attend the evaluation with Dr. Smith. He also contends that he should not forfeit benefits for refusing to attend an evaluation with an unauthorized EIME physician. The employee asserts he is willing to attend an orthopedic evaluation with a properly designated EIME physician. He claims continuing statutory minimum attorney fees and legal costs for defending against the employer’s petition.

I. EMPLOYER’S CHOICE OF PHYSICIAN

AS 23.30.095(e) provides, in part: "The employer may not make more than one change in the employer's choice of a physician or surgeon without the written consent of the employee. Referral to a specialist by the employer's physician is not considered a change in physicians."

The above quoted provision was added to the Alaska Workers' Compensation Act by Section 15 of Chapter 79 SLA 1988, effective 1 July 1988. A companion provision, codified at AS 23.30.095(a), similarly restricts the ability of employees to change physicians without the consent of the employer. AS 23.30.095(e) and AS 23.30.095(a) are unique provisions. As a presumable cost and time-saving measure, restrictions were placed on the parties’ ability to seek additional medical opinions. Each party is limited to obtaining the opinions of two physicians unless the other party consents to additional physicians rendering opinions or treatment.

We have found that if the limits in AS 23.30.095(a) and AS 23.30.095(e) on changing physicians is 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 physicians chosen in violation of AS 23.30.095(e). See, Sherrill v. Tri-Star Cutting, AWCB Decision No. 95-0118 (May 1, 1995).

We find the medical history of this case very complex and confusing. Although the employer attempted to refer the employee for an examination with Dr. McGuire, based on the medical records in this case we find the employee’s EIME examination was actually performed by Dr. Shields, and the employer continued to use Dr. Shields for that purpose. Accordingly, we find Dr. Shields was the employer’s first choice of examining physician. As a result of Dr. Shields’ untimely death in September of 1996, we find the employer’s choice of Dr. Baker was actually a "substitution" of examining physician, and not a free "choice" of physician for purposes of AS 23.30.095(e). See, e.g, Paluck v. Wise Enterprises, AWCB Decision No. 89-0341 (December 28, 1989) . Consequently, we find Dr. Baker was not a change of EIME physician under AS 23.30.095(e).

The employee argues Drs. Newman, McGuire, Chandler, Jones, and Buchanon are all EIME choices by the employer. However, we find the documentary record contains written referrals to each of those physicians from the employee’s chosen or referred treating physicians. Accordingly, we find those physicians are all treating physicians by referral, and not EIME physicians.

The employer argues that the employee’s choice to seek treatment from Dr. Baker after her evaluation converted her to a treating physician, and she ceased to be an EIME choice for the employer. Consequently, the employer argues, Dr. List should be regarded as the employer’s initial choice of EIME, and the employer should now be able to change its physician, enabling it to choose an orthopedic doctor to evaluate the employee’s newly-claimed back injury.

We have long held that the employee’s decision to follow up with treatment from an employer’s physician after an EIME evaluation does not necessarily convert that EIME physician into a treating physician by the employee. Chaney v. Delta Shoprite AWCB Decision No. 96-0214 (May 30, 1996). The record is clear that the employer chose Dr. List as a second choice of EIME. Based on our rationale in Chaney, we decline to recharacterize Dr. Baker as the employee’s change of treating physician for purposes of AS 23.30.095(a). Accordingly, we find Dr. List is the employee’s second EIME physician for purposes of AS 23.30.095(e).

However, we also recognized that if an employee’s treating physician simply refuses to provide treatment, the employee may "substitute" a new treating physician, which will not be interpreted as a "change" of physician under AS 23.30.095(a). See Clymer v. Wilton Adjustment Services, AWCB Decision No. 95-0068 (March 10, 1995). Considering the unique facts in the case before us, we find that Dr. List has refused to render certain fundamental medical services to the employer. Under the rationale of Clymer, we find that the employer may "substitute" another EIME physician for Dr. List. We conclude that this "substitute" physician will be the employer’s second choice of EIME physician under AS 23.30.095(e).

Although it appears the employer intends Dr. Smith to be its second choice of EIME physician, we defer to the employer to make that choice explicit. We direct the employer to indicate in writing to us, and to the employee, within ten days of the filing of this decision and order, whether or not it wishes to designate Dr. Smith as its second choice of EIME physician.

II. ORDER TO ATTEND AN EIME EVALUATION

AS 23.30.095(e) provides, in part:

Regarding the medical evaluation and discovery process generally, we recognize that the Alaska Supreme Court encourages "liberal and wide-ranging discovery under the Rules of Civil Procedure." Schwab V. Hooper Electric, AWCB Decision No. 87-0322 at 4, n.2 (December 11, 1987); citing to United Services Automobile Association v. Werley, 526 P.2d 28, 31 (Alaska 1974); see also, Venables v. Alaska Builders Cache, AWCB Decision No. 94-0115 (May 12, 1994).

Only after it is shown that informal means of developing medical evidence have failed, "we will consider the relevance of the requested information and the method of discovery to be authorized." Brinkley v. Kiewit-Groves, AWCB No. 86-0179 at 5 (July 22, 1986). If an employee unreasonably refuses to attend an EIME, we find AS 23.30.095(e) and AS 23.30.135 grant us broad discretionary authority to make orders which will assure that parties obtain the relevant evidence necessary to litigate or resolve their claims. See, e.g., Bathony v. State of Alaska, D.E.C., AWCB Decision No. 98-0053 (March 18, 1998). In extreme case, we have determined we the authority to dismiss claims if an employee willfully obstructs the development of evidence. Sullivan v. Casa Valdez Restaurant, AWCB Decision No. 98-0296 (November 30, 1998); McCarrol v. Catholic Public Social Services, AWCB No. 97-0001 (January 6, 1997); Maine v, Hoffman / Vranckaert, J.V., AWCB No. 97-0241 (November 28, 1997).

Considering the statutory provisions and case law discussed above, we find the law is clear that medical evaluations should occur readily in the discovery process, preferably voluntarily, but by our orders if necessary. We find the employer has a continuing statutory right to obtain EIME evaluations under AS 23.30.095(e).

In this case, we have directed the employer to clarify its designation of its EIME physician. We also note the employee has indicated he will voluntarily attend an evaluation with a properly designated EIME physician. Accordingly, we will exercise our discretion to permit the parties to voluntarily arrange an EIME evaluation for the employee. We direct the parties to schedule the EIME evaluation, and to notify us of the scheduled date within 21 days of the filing of this decision and order. We retain jurisdiction under AS 23.30.095(e) to resolve any disputes that may arise.

III. SUSPENSION OF THE EMPLOYEE’S BENEFITS

AS 23.30.095(e) provides, in part:

We find the employer has waived its petition for an order to suspending benefits pending the employee’s refusal to attend an EIME evaluation. Accordingly, for purposes of this decision and order, we will dismiss the sanction issue from the employer’s petition.

IV. ATTORNEY FEES AND LEGAL COSTS

AS 23.30.145 provides, in part:

We find the claim was controverted, and resisted by the employer's petition to suspend compensation. Wien Air Alaska v. Arant, 592 P.2d 352 (Alaska 1979). The employee seeks an award of continuing statutory minimum attorney fees and legal costs under AS 23.30.145. We find the employee retained an attorney, and incurred legal costs, but the employee was only partially successful in the defense against the employer’s petition. The employee specifically requests "continuing" statutory attorney fees under AS 23.30.145(a), i.e. roughly ten percent of all future compensation paid to the employee. As the employee is receiving PTD benefits, this would reflect a very substantial fee over time, an amount which we find clearly inappropriate for compensating his attorney for this relatively minor procedural dispute.

We conclude the employee is entitled to reasonable attorney fees and costs only for prevailing on the issue of the suspension of his benefits under AS 23.30.095(e). We will award reasonable attorney fees and legal costs under AS 23.30.145(b) for the employee’s successful defense against the suspension of his compensation. We direct the parties to attempt to resolve the amount of attorney fees and legal costs due. We direct the parties to notify us if this matter is not resolved within 21 days following the issuance of this decision and order. We will retain jurisdiction under AS 23.30.130 to resolve any disputes which may arise over this issue.

1. The employer is entitled to designate an EIME physician under AS 23.30.095(e), in lieu of Dr. List. We direct the employer to indicate in writing to us and to the employee, within ten days of the filing of this decision and order, whether or not it wishes to designate Dr. Smith as its second choice of EIME physician.

2. The employer has a continuing statutory right to obtain EIME evaluations under AS 23.30.095(e). We direct the parties to schedule an EIME evaluation, and to notify us of the scheduled date within 21 days of the filing of this decision and order. We retain jurisdiction under AS 23.30.095(e) to resolve any disputes that may arise.

3. We award reasonable attorney fees and legal costs under AS 23.30.145(b) for the employee’s successful defense against the suspension of his compensation under AS 23.30.095(e). We direct the parties to resolve the amount of attorney fees and legal costs due; and to notify us if this matter is not resolved within 21 days following the issuance of this decision and order. We retain jurisdiction under AS 23.30.130 to resolve any disputes which may arise over this issue.

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

ALASKA WORKERS' COMPENSATION BOARD

/s/ William Walters
William Walters,
Designated Chairman

/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 BRUCE W. WILLIAMS employee / respondent v. KNIK SWEEPING CO, employer; PROVIDENCE WASHINGTON-AK, insurer / petitioners; Case No. 199218904; dated and filed in the office of the Alaska Workers' Compensation Board in Anchorage, Alaska, this day of March, 2000.

Shirley A. DeBose, Clerk

SNO