ROBERT (MIKE) FERGUSON, 
Employee, 
Respondent,
v. 
CHUGIAK SENIOR CITIZENS INC.,
Employer,
and 
FREMONT INDEMNITY CO,
Insurer,
Petitioners.

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INTERLOCUTORY
DECISION AND ORDER
AWCB Case No. 199825153
AWCB Decision No. 99-0226
Filed with AWCB Anchorage, Alaska 
on November 9, 1999

We heard the employer’s petition for a second independent medical evaluation (SIME) on October 21, 1999 in Anchorage, Alaska. The employee was represented by non-attorney K. Scott McEntire. The employer was represented by attorney Patricia Shake. We closed the record at the conclusion of the hearing.

Should we order an SIME under AS 23.30.095(k)?

The employee slipped on an icy wooden deck while he was working as a bus driver for the employer on October 16, 1998. The employee claims he slipped while picking up a client at her home, fell hard onto his back and hit his head. He reported the accident to his employer on the day of the accident, filled out an accident report and returned to light duty.

The employee noticed increasing pains to his back, neck, head and right arm. He subsequently saw a neurologist, Mary Downs, M.D., and had EMG and MRI studies done. On March 2, 1999 Dr. Downs indicated that the employee had not improved, and "[w]e will restart physical therapy, concentrating on stretching, strengthening, massage, TENS, etc. and later should he have some improvement we may again try some gentle cervical traction." (Dr. Downs’ March 2, 1999 medical report).

The employee began treating with Allen T. Smith, M.D. at the Family Medicine Clinic at Alaska Native Medical Center. In a letter dated April 16, 1999, Dr. Smith stated that the employee’s pain "is worsened by frequent use of the arm and by jarring movements such as bouncing in a car or truck" and that transferring heavier patients "may cause him sharp pain in his upper right extremity." He recommended that "this type of activity be avoided until Mr. Ferguson’s level of pain diminishes." On May 11, 1999 Dr. Smith declared that the employee was medically stable, but could only return to work "with the limitations mentioned in 16 April letter." (Dr. Smith’s May 11, 1999 letter).

At the request of the employer, the employee was examined for an employer’s independent medical evaluation (EIME) by Shawn Hadley, M.D. on May 17, 1999. Dr. Hadley opined that the employee suffered a cervical strain as a result of his work accident with no clinical findings of a cervical radiculopathy. She stated the employee suffered right elbow pain and right carpal tunnel syndrome, which were incidental findings and not related to the work injury. Dr. Hadley recommended:

Dr. Hadley stated that no further diagnostic testing was indicated and that "after two weeks, I would anticipate that medically Mr. Ferguson could return to his work as a truck driver." She believed that the employee would be medically stable within a month and anticipated a 0% permanent impairment rating per the American Medical Association Guides, 4^th Edition at the conclusion of treatment. Id.

The employee was referred by Dr. Smith to see J. Michael James, M.D. for an examination. Dr. James, in his June 8, 1999 letter stated:

The second opinion requested by Dr. Smith is not in any of the records. There are no further reports from Dr. Smith releasing the employee for work, or indicating that he is medically stable.

The employer argued that the Board should order a SIME because there is a significant dispute between the employee’s treating physician, Dr. Allen Smith and the employer’s medical evaluator, Dr. Shawn Hadley, regarding causation, compensability, treatment and functional capacity. The employee argued that it is premature to order a SIME since the treating doctor has not determined the exact nature of the treatment the employee needs and the results of the referral by Dr. Smith to the neurologist are not yet known.

AS 23.30.135(a) provides, in part:

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 find the opinions of Dr. Smith and those of the employer’s medical examiner, Dr. Hadley, are in dispute concerning causation, medical stability, permanent impairment, physical capacity and the reasonableness and necessity of continued medical treatment regarding the employee’s back and neck injuries. We find that these disputes are significant and an SIME would assist the Board in resolving the dispute. We will exercise our discretion under AS 23.30.095(k) to order an SIME on these disputed issues. See also, 8 AAC 45.090(b).

The parties also dispute the employee’s claim concerning head and right arm injuries. However, it is unclear to us if the physicians’ opinions are in dispute on these injuries. The EIME contends that the employee’s right arm conditions are unrelated to his work accident. However, there is no record that the employee’s physician relates this condition to his work or asserts that the employee needs treatment for his arm. Additionally, the employee claims to have a work-related head injury, and did receive diagnostic tests for that injury. However, neither the EIME nor the employee’s physician have given an opinion regarding the causation, medical stability, permanent impairment, physical capacity and the reasonableness and necessity of continued medical treatment regarding the employee’s head injury.

AS 23.30.110(g) grants the Board the authority to order an employee to attend an examination with a physician of the Board’s choice. It states in part:

We believe the Board would be assisted by having the employee examined by a physician regarding the causation, medical stability, permanent impairment, physical capacity and the reasonableness and necessity of continued medical treatment of the employee’s head and right arm injuries. We will therefore exercise our discretion to have the employee examined concerning these issues by our SIME physician.

An SIME must be performed by a physician on our list, unless we find the physicians on our list are not impartial. 8 AAC 45.095(f). We find a medical doctor with a specialty in neurosurgery is best suited to perform the SIME and AS 23.30.110(g) evaluation. David K. Spindle, M.D., is a physician on our list who specializes in neurosurgery. According to our records, Dr. Spindle has not treated the employee. We therefore choose Dr. Spindle, pending his acceptance, to perform the SIME and 110 (g) evaluation, provided no subsequent conflicts are discovered.

1. An SIME shall be conducted by Dr. Spindle regarding the work-relatedness and causation of the employee's back, neck, head and right arm conditions, medical stability, permanent impairment, physical capacity, and the reasonableness and necessity of continued medical treatment.

2. The parties shall proceed under 8 AAC 45.092(h)as follows:

A. All filings regarding the SIME shall be directed to Workers' Compensation Officer Cathy Gaal's attention. Each party may submit up to five questions by November 30, 1999. These questions may be used in the letter to the SIME physician. The questions should relate to the issues currently in dispute under AS 23.30.095(k), listed in number 1 above.

If subsequent medical disputes arise prior to our contact with the SIME physician, the parties may request we address the additional issues. However, the parties must agree on these additional issues. The parties must list the additional medical dispute and specify the supporting medical opinion (including report date, page, and author). The parties must file the supporting medical reports, regardless of previous reports in the record. We will then consider whether to include these issues.

B. The employer shall prepare two copies of all medical records in its possession, put the copies in chronological order by date of treatment, with the oldest records on top, number the pages consecutively, put the copies in two binders, and serve the binders upon the employee with an affidavit verifying the binders contain copies of all the medical records in the employer's possession regarding the employee. This must be done by November 20, 1999.

C. The employee shall review the binders. If the binders are complete, the employee shall file the binders with us within 10 days of receipt, by November 30, 1999, together with an affidavit stating the binders contain copies of all the medical records in the employee's possession. If the binders are incomplete, the employee shall prepare three copies of the medical records, missing from the first set of binders. The employee shall place each set of copies in a separate binder as described above. The employee shall file two of the supplemental binders with us, the two sets of binders prepared by the employer, and an affidavit verifying the completeness of the medical records. The employee shall serve the third supplemental binder upon the employer, together with an affidavit stating it is identical to the binders filed with us. The employee shall serve the employer and file the binders by December 5, 1999.

D. If either party receives additional medical records or doctors' depositions after the binders have been prepared and filed with us, the party shall prepare three supplemental binders as described above with copies of the additional records and depositions. The party must file two of the supplemental binders with us within seven days after receiving the records or depositions. The party must serve one supplemental binder on the opposing party, together with an affidavit stating it is identical to the binders filed with us, within seven days after receipt.

E. The parties shall specifically identify the film studies which have been done, and which films the employee will hand carry to the SIME. The employee shall prepare the list, and serve it on the employer by November 20, 1999. The employer shall review the list for completeness. The employer shall file the list with us by November 30, 1999.

F. Other than the film studies which the employee hand carries to the SIME and the employee’s conversation with the SIME physician or the physician’s office about the examination, neither party shall contact the SIME physician, the physician’s office, or give the SIME physician anything else, until the SIME physician has submitted the SIME report to us.

G. If the employee finds it necessary to cancel or change the SIME appointment date or time, the employee shall immediately contact Workers' Compensation Officer Cathy Gaal and the physician’s office.

Dated at Anchorage, Alaska this 9 day of November, 1999.

ALASKA WORKERS' COMPENSATION BOARD

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

/s/ HM Lawlor
Harriet M. Lawlor, Member

/s/ Florence S. Rooney
Florence S. Rooney, 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 ROBERT (MIKE) FERGUSON employee / applicant v. CHUGIAK SENIOR CITIZENS INC., employer; FREMONT INDEMNITY CO, insurer / defendants; Case No. 199825153; dated and filed in the office of the Alaska Workers' Compensation Board in Anchorage, Alaska, this 9 day of November 1999.

Brady D. Jackson III, Clerk