90-0112

ALASKA WORKERS' COMPENSATION BOARD

P.O. Box 25512 Juneau, Alaska 99802-5512

JOHN PIERCE, SR.,		)
				)
Employee,			)	DECISION AND ORDER
Applicant,			)	AWCB Case No 101756
				)	AWCB Decision No. 90-0112
v.				)
				)	Filed with AWCB Anchorage
SERVICE ELECTRIC,		)	May 23, 1990
				)
Employer,			)
				)
and				)
				)
INDUSTRIAL INDEMNITY COMPANY 	)
OF ALASKA,			)
				)
Insurer,			)
Defendants.			)
				)

This claim was initially heard at Anchorage, Alaska on April 5, 1989. Following that hearing we issued an interlocutory decision and order on April 24, 1989, requiring Employee to submit to an examination by a physician of our choice. (Pierce v. Service Electric, AWCB Decision No. 89-0094 (April 24, 1989)). We chose Walter Ling, M.D., to perform the examination. After receiving Dr. Ling's August 10, 1989, report, we held a posthearing conference on August 26, 1989. At the conference the parties had an opportunity to comment on the report, and we obtained stipulations about certain future activities on the claim. We issued our decision and order (D&O) on October 5, 1989. (Pierce v. Service Electric, AWCB Decision NO. 89-0269).

Employee, who is represented by attorney Michael Jensen, now seeks modification of our October 5, 1989, D&O. Defendants are represented by attorney Michael Budzinski.

ISSUE

Should we modify our October 5, 1989, D&O to require Defendants to pay for Tylenol #3 and Flexeril as well as award his attorney additional attorney's fees?

SUMMARY OF THE ARGUMENTS AND EVIDENCE

Under AS 23.30.130(a) Employee seeks modification of our October 5, 1989 D&O. In that D&O we found Employee's injury did not cause the need for his use of Tylenol #3 or Flexeril. we denied his request that Defendants pay for those prescriptions.

Employee relies upon the November 6, 1989, report of Morris Horning, M.D., to support his request for modification. Employee does not specifically state how we made a mistake of fact or the changed circumstances that would justify that modification. Instead, Employee's argument seems to be that we chose Dr. Horning to treat Employee and to assist him in reducing his dependency on Anaprox. Therefore, because Dr. Horning was selected by us to treat Employee and because Dr. Horning prescribed Tylenol #3 and Flexeril, those charges should be paid by Defendants.

Defendants did pay for the Tylenol #3 and the Flexeril prescriptions for about three months after our October 5, 1989 D&O. However, they are no longer paying for these prescriptions. They argue that Employee has not justified the modification of our D&O.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

AS 23.30.130(a) provides:

Upon its own initiative, or upon the application of any party in interest on the ground of a change in conditions, including, for the purposes of AS 23.30.175, a change in residence, or because of a mistake in the determination of a fact, the board may, before one year after the date of the last payment of compensation, whether or not a compensation order has been issued, or before one year after the rejection of a claim, review a compensation case in accordance with the procedure prescribed in respect of claims in AS 23.30.110. In accordance with AS 23.30.110 the board may issued a new compensation order which terminates, continues, reinstates, increases or decreases the compensation, or award compensation.

The Alaska Supreme Court discussed subsection 130(a) in Interior Paint 522 P.2d 161, 168 (Alaska 1974). Quoting from O'Keeffe v. Aerojet-General Shipyards, Inc., 404 U.S. 254, 256 (1971) the court stated: "The plain import of this amendment [adding "mistake in a determination of fact" as a ground for review] was to vest a deputy commissioner with broad discretion to correct mistakes of fact whether demonstrated by wholly new evidence, cumulative evidence, or merely further reflection on the evidence initially submitted."

The court went on to say:

The concept of mistake requires careful interpretation. It is clear that an allegation of mistake should not be allowed to become a back-door route to retrying a case because one party thinks he can make a better showing on the second attempt." 3 A. Larson, The Law of Workmen's Compensation Section 81.52 at 354.8 (1971). Id. at 169.

Dr. Horning's November 6, 1989, report recites Employee's history and also lists Employee's medications at that time as "Anaprox, 3 to 5 per day. Flexeril - none in several months . . . . Tylenol #3, 3 to 5 per week."¹ Dr. Horning's plan was to attempt to

reassure Mr. Pierce that we will not ‘cold turkey’ his medication. I am hoping to allay his anxiety because without doing so will surely produce failure. I agree with the thrust of Dr. Ling's comments about medication usage . . . . I would be more tolerant, however, of customary dosages of the same medication, even on a long term basis . . . . With this in mind, I don't actually find Mr. Pierce's present medications to be extraordinarily out of line although I would like to see him reduce his medications . . . . Our goal will be: Tylenol #3, 3/Wk (down from 5/wk), 20 ordered.

We chose not to review all of the record, but we do review some of the facts from our first D&O. We note that we required the parties to submit copies of all medical records to us so we could provide Dr. Ling, our choice of doctor to perform an evaluation, with the records. Pierce, AWCB No. 89-0094 at 5 - 6. Besides the medical reports submitted by the parties, we provided Dr. Ling with copies of additional reports that were in our file. Dr. Ling reviewed these records and provided a detailed report of his evaluation. In his report he stated in part:

What I find troublesome and difficult to justify is the continuation of maintenance treatment on a large amount of medications in the ensuing years without much in the way of addressing Mr. Pierce's psychosocial situation or making attempts to reduce his medications when he was able to achieve some further degree of social stabilization. . . . . .

. . . .

[A]s I have already alluded to earlier, I simply see no justification for the chronic high dose use of Anaprox for Mr. Pierce's condition. . . .

. . . .

Turning to the question of Flexeril . . . . the PDR . . . . states that "Flexeril should be used only for short periods (up to 2 or 3 weeks) because adequate evidence of effectiveness for more prolonged use is not available and because muscle spasm associated with acute painful musculoskeletal conditions is generally of short duration . . . ." I think the evidence is clear that there simply is no justification for prescribing the large amount of Flexeril that was given to Mr. Pierce month after month. . . .

As for the use of a small amount of Tylenol with codeine, . . . an anti-depressant, . . . has a place in management of chronic pain but, here again, I think the need for the continuation of such medication on a longterm basis needs to be periodically assessed . . . .

[T]he predominant evidence from the medical records suggest that the medication used in Mr. Pierce's management for the past several years has largely been inappropriate.

(Ling August 10, 1989 report, at 10 - 14.)

In response to our question regarding the relationship between Employee's condition and his treatment, Dr. Ling stated:

I think I will answer this question with a qualified , "yes" . . . . because I do not believe that during the period in question Mr. Pierce had significant clinical findings to require the type of treatment being rendered to him. . . . If anything, I think his continued need for medication was a complication of the treatment rendered to him during the period from 1982 through 1988 and, indeed, as far as I can tell, the best and probably the only reason to continue Mr. Pierce on his course of treatment in 1988 was the fact that he had been treated for an accepted industrially related condition with a large amount of medication and that no attempt had been made to taper him off his medications . . . . it would not be reasonable to simply stop his treatment at that time even though clinically I do not see sufficient justification in terms of his objective clinical findings to keep on such a medical regimen.

(Id. at 14 - 15).

In response to Defendants' question on causation, Dr. Ling stated:

I think the answer to this question [whether the 1981 injury is a substantial causal factor in Employee's post-July 1, 1988 complaints] would be a qualified "yes" since the medical records would indicate that there was no significant change in his clinical manifestations from 1982 to 1988. (Id. at 16).

Responding to Defendants' question on whether the use of Tylenol #3 and Flexeril were causally related to the 1981 injury, Dr. Ling responded, "No, I do not believe that such short term intermittent need for either Tylenol or Flexeril . . . could be causally related to his injury of October 1981." (Id. at 17).

Finally, Dr. Ling closed his report by stating:

Clearly, Mr. Pierce does have a need for some continuation of care at this time. I see the major need, however, not in the continuation or maintenance of a large amount of medications. Rather I especially see a need for him to be tapered off the very high dose of Anaprox . . . .

(Id.).

Relying upon Dr. Ling's report, we believed Employee was entitled to medical assistance at Defendants' expense to taper off his medications, especially Anaprox. We expressed our expectation that Employee would be tapered off Anaprox while under the care of the physician we selected. We also expressed our concern that Employee seemed resistant to this idea, and that we were concerned his attitude would interfere with success.

We review five of our previous findings:

15. The more recent medical evaluation by Defendants' Anchorage panel of physicians reports a valid MMPI, psychological factors which are contributing to the persistence of his physical complaints, and a tendency to become addicted to medications.

16. For at least the three months before the Anchorage panel of physicians examined Employee, Dr. Kastella had been prescribing on a monthly basis 200 Anaprox, 120 Ludomil, 100 Flexeril and 20 Tylenol #3.

17. Employee testified that his prescription usage before and after the examination by the Anchorage panel of physicians was four to six Anaprox per day or 120 to 180 per month, four Ludomil per day or about 120 per month, an average of three to six Tylenol #3 per month, and a total of three Flexeril in the nine months before the examination.

18. Employee testified that before the examination by the Anchorage panel of physicians, each month he would throw away the unused portion of his prescriptions, and then had the new prescription filled. This means Employee was throwing away 14 Tylenol #3 per month and almost 100 Flexeril tablets per month.

. . . .

20. The Anchorage panel of physicians diagnosed chronic pain syndrome, overuse of prescription drugs and psychological factors affecting Employee's physical condition. They believed that Employee does not have a bona fide cervical spine problem requiring treatment. They recommended reduction in medication usage. They recommended substituting an over-the-counter medication for Anaprox. They stated the use of Flexeril and Tylenol #3 was not indicated. They felt Ludomil was appropriate for Employee's psychological problems, but the psychological problems were not the result of his injury.

(October 5, 1989 D&O at 6 - 7).

In our October 5, 1989 D&O we also stated:

Of all the physicians who have treated or examined Employee, we find Dr. Ling had access to the most accurate and complete information about Employee's medical and personal background. Therefore, we give his opinion the most weight and rely primarily upon it in making our decision.

Regarding causation, Dr. Ling concluded for medical reasons that Employee's continued use of certain medications is related to his 1981 industrial injury. Dr. Ling believes the initial use of certain medication by Dr. Kastella was justified for the management of Employee's chronic pain resulting from his 1981 injury, and other medications were justified occasionally on a short-term basis for managing flare-ups or aggravations. However, the medications continue to be prescribed beyond the appropriate time frames.

In addition, we find from Employee's testimony that he recognized some medications were not necessary. He testified that he threw away most of his Flexeril and Tylenol #3 prescriptions, but kept having the prescriptions refilled. Unfortunately, he did not communicate this to Dr. Kastella.

We find that Employee's Anaprox prescription was initially provided by Dr. Kastella for treatment of his industrial injury. We find that she continued to prescribe the same amount of Anaprox rather than attempt to reduce Employee's use. Both Defendants, panel of medical examiners and Dr. Ling concluded that Employee needs medical assistance in tapering off and eventually terminating his use of Anaprox. Because the initial prescription was for the 1981 injury, and because Employee has reached the point where he cannot reduce and terminate its use completely without medical assistance, we conclude the prescription for Anaprox is compensable.

Dr. Ling, Defendant's panel of doctors and Dr. Kastella all agreed that a generic brand anti-inflammatory could be substituted for Anaprox. Because we are changing Employee's treating physician and the new physician is to oversee the reduction and termination of Anaprox, we will leave it to that physician's discretion whether to substitute a generic brand anti-inflammatory for Anaprox.

Regarding the prescriptions for Tylenol #3 and Flexeril, Dr. Ling stated he did not think Employee's intermittent use of these drugs was related to the residual chronic pain from the 1981 injury. At page 17 of his report, Dr. Ling stated,

such intermittent needs for medications are likely to be precipitated by intercurrent factors which would be indeed the precipitant and responsible factor for his need of short term use of medication. The residual effects of his 1981 injury . . is the background stage behind which other precipitant would play to bring about such exacerbations.

Therefore, we conclude that Employee's need to use Tylenol #3 and Flexeril is not causally related to the 1981 injury. We deny his request for payment of these prescriptions.

(October 5, 1989 D&O at 7 - 9).

Although Dr. Horning's November 6, 1989, report indicates that he would be more tolerant of lower dosages of medication on a long-term basis than Dr. Ling would be, Dr. Horning has never disagreed with Dr. Ling's opinion about the causal relationship²between the injury and the need for Tylenol #3 and Flexeril. We find nothing in Dr. Horning's report that indicates we made a mistake of fact or that there has been a change of condition justifying modification under AS 23.30.130.

We selected Dr. Horning to assist Employee in reducing his dependency on prescription medications, namely Anaprox. The mere fact that Dr. Horning is prescribing Tylenol #3 and Flexeril does not make the use or the need for these prescription causally to the compensable condition. It is no different than if Employee were to break his arm, and Dr. Horning wrote a prescription for a sling for the broken arm. Dr. Horning's mere writing of a prescription for a condition, does not make it the Defendants' responsibility for payment.

We find Employee has not presented evidence which would justify modifying our October 5, 1989 D&O. Employee's request is denied and dismissed.

ORDER

We deny and dismiss Employee's request that we modify our October 5, 1989, decision and order.

DATED at Anchorage, Alaska this 23rd day of May, 1990.

ALASKA WORKERS' COMPENSATION BOARD

/s/ Rebecca Ostrom
Rebecca Ostrom, Designated Chairman

/s/ Darrell Smith
Darrell Smith, Member

/s/ Richard Whitbeck
Richard Whitbeck, Member

RJO:rjo

If compensation is payable under the terms of this decision, it is due on the date of issue and penalty of 20 percent will accrue if not paid within 14 days of the due date unless an interlocutory injunction staying payment is obtained in Superior Court.

CERTIFICATION

I hereby certify that the foregoing is a full, true and correct copy of the Decision and Order in the matter of John Pierce, Sr., employee/applicant, v. Service Electric, employer, and Industrial indemnity Company of Alaska, insurer/defendants; Case No. 8101756; dated and filed in the office of the Alaska Workers' Compensation Board in Anchorage, Alaska, this 23rd day of May, 1990.

Clerk

^{1We are concerned because we note that Employee apparently represented to Dr. Horning that he was taking three to five Tylenol #3 when he started seeing Dr. Horning. Therefore, Dr. Horning set the goal at a reduction to three Tylenol #3 a week. Thus, Employee's use of Tylenol #3 now exceeds his use at the time of our October 5, 1989 hearing. Of course, our concern is irrelevant in view of the fact that we have found the need for Tylenol #3 is not related to the injury.
^{2At the recent hearing, Employee argued that Dr. Ling's opinion is not reliable because Dr. Ling had not personally seen Employee. At the previous post-hearing conference, Employee lamented the fact that Dr. Ling did not have accurate information about his employment history. We found that, contrary to Employee's assertion, Dr. Ling correctly summarized the records. We again note that it appears that Dr. Ling has had access to all the available medical records. Dr. Horning indicated Employee's attorney had provided him with some records, but we have no evidence that this was the complete set to which Dr. Ling had access. Because the issue is the causal connection between the injuries in the early 1980's and the need now for Tylenol #3 and Flexeril to treat those injuries, we believe the causation determination lends itself very well to being made on the basis of medical records and an in-person examination is not necessary.
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