COLEEN A. GRANUS,		)
				)
Employee,			)
 Applicant,			)	INTERLOCUTORY 
				)	DECISION AND ORDER
v.				)
				)	AWCB CASE No. 9509365
WILLIAM P. FELL, D.D.S.,	)
				)	AWCB Decision No.99-0232
Employer,			)
				)
and				)	Filed in Fairbanks, Alaska
				)	November 15, 1999
CNA INSURANCE COMPANY,		)
				)
Insurer,			)
 Defendants.			)
________________________________)

We heard the employee’s request for modification of our order for a follow-up, second independent medical evaluation (SIME) under AS 23.30.095(k) on the written record at Anchorage, Alaska on October 5, 1999. Attorney Robert Rehbock represents the employee. Attorney Constance Livsey represents the employer. We closed the record on October 19, 1999 after obtaining and reviewing the Curriculum Vitae of an employee-nominated physician.

Shall we modify our July 23, 1999 decision and order on this case, AWCB Decision No. 99-0156, under AS 23.30.130?

We incorporate by reference our prior decisions in Granus v. William Fell, D.D.S., AWCB Decision No. 96-0231 (June 11, 1996) (Granus I), AWCB Decision No. 99-0016 (January 20, 1999) (Granus II), and AWCB Decision No. 99-0156 (July 23, 1999) (Granus III). At the May 19, 1999, hearing the parties filed a joint request for a follow-up SIME form. The parties agree disputes exist under AS 23.30.095(k) regarding causation, compensability, and the recommended course of treatment (if any) for the employee's condition. The form indicates a physician with a specialty in psychiatry and/or psychology should be chosen to perform the SIME.

The employee, a dental assistant, claims she suffered a thumb-puncture on a sterile instrument on May 18, 1995. Based on recommendations from her physicians, who have diagnosed reflex sympathetic dystrophy (RSD), caused by the alleged puncture, the employee has received a wide range of treatments. The employer contends these treatments are neither reasonable nor necessary, or work-related.

In Granus I, we granted the parties' joint request for an SIME, and directed the parties to suggest names of physicians with a specialty in psychiatry. On November 13, 1996, the employee was evaluated by Wandal W. Winn, M.D., a Board certified psychiatrist and neurologist, at the request of the Board. In Granus II, we made several orders regarding discovery and releases.

On May 19, 1999, the employee nominated the following two doctors for our consideration: Richard Rauck, M.D., and Michael Stanton Hicks, M.D. In Granus III, we said the only information provided by the employee about Dr. Rauck is he is the "Director Pain Control Center, Bowman Gray School of Medicine" and his address in North Carolina. In Granus III, we said the only information provided by the employee about Dr. Hicks is that he is he is the "Director Pain Management Center, Cleveland Clinic Foundation" and his address in Ohio.

Unfortunately, at the time of our deliberations in Granus III, though our office did possess the Curriculum Vitae of Dr. Rauch, it was not contained in our file. According to his Curriculum Vitae, Dr. Rauck is an Associate Professor in the Department of Anesthesia at Bowman Gray School of Medicine in Winston–Salem, North Carolina. His professional interests include clinical research in postoperative pain, cancer pain, reflex symathetic dystrophy and intraspinal clonidine. He has published and made several presentations on the subject of reflex symathetic dystrophy.

At the May 19, 1999 hearing, the employer requested we select Dr. Winn to perform the follow-up SIME, and that psychiatry remains the appropriate area of specialty. Nonetheless, on June 15, 1999, the employer also nominated the following two doctors for our consideration: Neil L. Pitzer, M.D., and Raymond R. Gaeta, M.D. According to his Curriculum Vitae, Dr. Pitzer serves as the Associate Medical Director of the Center for Spine and Orthopedic Rehabilitation in Englewood Colorado, and an Assistant Clinical Professor of Rehabilitation Medicine and the University of Colorado Health Sciences Center in Denver. Dr. Pitzer's research interests include: Electrodiagnosis of Reflex Sympathetic Dystrophy; Magnetic Stimulation of the Phrenic Nerve; Electordiagnostic Parameters of Peripheral Nerve Regeneration; and Electrophysiologic Monitoring of Sympathetic Nerve Block. The employer also included an article by Dr. Pitzer, published in the Colorado Neurological Institute Review, Summer 1996, titled: "Reflex Sympathetic Dystrophy."

According to his Curriculum Vitae, Dr. Gaeta serves an Associate Professor of Anesthesia and Director of the Pain Management Service, Department of Anesthesia at Stanford Medical Center, Stanford, California. Dr. Gaeta's bibliography reflects a strong emphasis in published works in anesthesia issues.

In Granus III, we found, as we found in Granus I, there are medical disputes in this case regarding causation, compensability, and the recommended course of treatment (if any) for the employee's condition. We found Dr. Winn has performed an adequate psychiatric SIME which accurately and adequately answered our psychiatric questions. We found a follow-up SIME by a physician who specializes in RSD would significantly benefit the Board in making our decisions. Furthermore, we found the parties agree to our ordering an SIME. Based on the parties' agreement and our findings, we exercised our discretion under AS 23.30.095(k) to order an SIME.

In Granus III, we found the SIME must be performed by a physician on our list unless we find the physicians on our list are not impartial or lack the qualifications or experience to perform the examination. 8 AAC 45.092(f). We found our list did not contain the name of a physician who specializes in RSD. We found, according to his Curriculum Vitae, that Neil L. Pitzer, M.D., has specialized experience in RSD. Accordingly, we selected Dr. Pitzer to perform the SIME.

The employee seeks modification of Granus III, contending we did not adequately consider the Curriculum Vitae he provided associated with his nominated physicians. Accordingly, he asserts, we should reconsider and modify our selection to accommodate and choose one of his nominated physicians.

AS 23.30.130(a) provides:

The Alaska Supreme Court discussed subsection 130(a) in Interior Paint Company v. Rodgers, 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." We have also applied AS 23.30.130 to changes in condition affecting vocational status and reemployment benefit determinations. See Imhof v. Eagle River Refuse, AWCB Decision No. 94-0330 (December 29, 1994).

Our regulation at 8 AAC 45.150(e) requires specific facts, not just a general allegation, of a change of condition or mistake of fact to serve as a basis for modification. AS 23.30.135 provides us with general investigation powers, and responsibility, to best ascertain the rights of the parties. AS 23.30.110(g) specifically authorizes us to conduct medical investigations.

In this case, we failed to review the Curriculum Vitae of one of the employee’s nominated physicians because It was not in our file at the time of selection. According to a file clerk notation, the Curriculum Vitae of employee-nominated physician Richard Lee Rauch, M.D., was received by our office on June 28, 1999, but was not added to the file until August 9, 1999. Therefore, we have exercised our discretion to consider modification of our decision in Granus III to consider the Curriculum Vitae of Dr. Rauck.

AS 23.30.095(k) provides in pertinent part:

We find, as we found in Granus I and III, there are medical disputes in this case regarding causation, compensability, and the recommended course of treatment (if any) for the employee's condition. We reaffirm our finding the SIME must be performed by a physician on our list unless we find the physicians on our list are not impartial or lack the qualifications or experience to perform the examination. 8 AAC 45.092(f).

In Granus III, we found our list did not contain the name of a physician who specializes in RSD. However, the list was recently updated, and the new list happens to include the name of our previously selected physician Neil L. Pitzer, M.D. Given that the employee’s nominated physician, Dr. Rauck, is not on the list, and that there have been no allegations of partiality or lack of qualifications against Dr. Pitzer, we reaffirm our selection of Dr. Pitzer to perform the SIME in this case. Accordingly, we conclude the employee’s petition for modification must be denied.

1. The employee’s petition to modify AWCB Decision No. 98-0143 (June 8, 1998) under AS 23.30.130 is denied and dismissed. Our decision and order of June 8, 1998 is reaffirmed.

2. An SIME shall be conducted by Dr. Pitzer on the issues of whether the employee's condition is compensable, the cause of her condition, and the recommended course of treatment (if any) for the employee's condition.

Dated at Fairbanks, Alaska this 15th day of November, 1999.

ALASKA WORKERS' COMPENSATION BOARD

/s/ Fred Brown
Fred Brown,
Designated Chairman

/s/ S.T. Hagedorn
S. T. Hagedorn, 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 COLEEN A. GRANUS employee / applicant; v. FELL, WILLIAM P. DDS APC, employer; CNA INSURANCE COMPANY, insurer / defendants; Case No. 199509365; dated and filed in the office of the Alaska Workers' Compensation Board in Fairbanks, Alaska, this 15^th day of November, 1999.

Lora Eddy, Clerk

SNO