GLORIA SEE, 
Employee, 
Applicant
v. 
CAMPBELL HOUSE RESTAURANT,
Employer,
And 
CIGNA PROPERTY & CASUALTY,
Insurer,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

INTERLOCUTORY
DECISION AND ORDER
AWCB Case No. 199627138
AWCB Decision No. 99-0237
Filed with AWCB Fairbanks, Alaska
on November 22 , 1999

We heard the employer’s request for an order allowing inclusion of a letter from John Joosse, M.D., in the second independent medical evaluation (SIME) medical records to be reviewed by Douglas Smith, M.D., at Fairbanks, Alaska on October 28, 1999. Paralegal Pete Stepovich of the Stepovich Law Office represents the employee. Attorney Tasha Porcello represents the employer. We closed the record at the end of the hearing and orally announced our decision.

1. Shall we order inclusion of the September 30, 1999 by John Joosse, M.D., in the second independent medical evaluation (SIME) medical records to be reviewed by Douglas Smith, M.D.?

2. Shall we reconsider the oral order, memorialized below, issued at hearing?

The employee objects to introduction of a letter by Dr. Joosse, dated September 30, 1999, on the grounds the letter "does not comport with the timetables set by the Board." The employer counters it did not have the letter when the binders were due. The employee also objects on the grounds that the medical report was not served and filed in conformity with 8 AAC 45.092(h)(4). The employer contends this procedural defect should be excused.

The employee claims to have injured her back on November 25, 1996 while working for the employer. Dr. Joosse treated the employee for the condition from December 1996 to December 1997. Thereafter, the employee changed treating physicians to Robert Dingeman, M.D., who treated her until November, 1998 when she moved to Arizona and came under the care of Michael Winer, M.D. On February 25, 1999, the employer sent the employee to Zoran Maric, M.D., for an employer-sponsored independent medical evaluation (EIME).

A medical dispute arose concerning "medical stability, treatment and work restrictions." On July 30, 1999, the parties agreed to our selection of an orthopedist to perform a second independent medical evaluation (SIME). The parties also agreed to file binders containing the medical reports and provide to the board up to seven questions by August 21, 1999, to be considered for possible inclusion in the letter to the SIME physician. After informally agreeing to extend the time for such submissions, on September 23, 1999, we received the binders and the employee’s proposed questions, but we have received no questions from the employer. Instead, on September 24, 1999, the employer wrote Dr. Joosse a letter seeking his opinions concerning the issues to be presented to the SIME physician. Dr. Joosse’s response is provided in a letter addressed to the employer’s counsel, dated September 30, 1999. According to the employer, the letter was received by the employer on October 6, 1999. It was then forwarded to our office by facsimile on October 7, 1999.

Meanwhile, on or about September 28, 1999, we selected Douglas Smith, M.D., to perform the SIME and mailed our questions to him on October 1, 1999. The employer now asks us to provide Dr. Smith with Dr. Joosse’s letter for his consideration in drafting the answers to the questions we presented. (Dr. Smith has not yet completed his evaluation of the employee. Although Dr. Smith examined her on October 6, 1999, he requested that a physical capacities evaluation be performed. The physical capacities evaluation was scheduled for October 29, 1999.) In our oral decision, we declined to forward Dr. Joosse’s letter to Dr. Smith.

In issuing our oral decision we stated the employer could not be allowed to generate new documents for consideration by the SIME physician unless they could be considered "rebuttal" evidence to counter a recently provided medical report. Upon reviewing the record, we concluded Dr. Joosse’s letter was cumulative and should not be submitted as rebuttal evidence.

The employer contends this determination was erroneous for two reasons. First, the employer asserts, there is nothing in the Administrative Procedures Act or in the Alaska Workers' Compensation Act which limits evidence presented to the SIME physician to evidence in existence at the time the SIME process is started, nor is there any procedure which limits evidence presented by an employer to "new evidence." More importantly, the employer contends, Dr. Joosse's letter is "rebuttal" evidence to the June 11, 1999 report of Dr. Winer that the employee's work injury resulted in a permanent aggravation of her preexisting degenerative spondylolisthesis. Dr. Winer's June 11, 1999 report is the most recently prepared report submitted to the SIME physician, with the exception of the pending PCE.

The employer contends consideration of Dr. Joosse’s letter is important to "rebut" the false impressions created by the employee who told Dr. Winer she had never had back symptoms prior to her work injury. The employer states this assertion was proven wrong by the August, 1995 medical records of Frank Spaulding, D.C. Counsel for the employer did not have actual proof of the prior back symptoms until she received Dr. Spaulding's records on September 12, 1999. She stated that within a "short time" (September 24, 1999) after receiving Dr. Spaulding's records, Counsel provided them to Dr. Joosse, along with the other medical records and the letter concerning the current disputes, and requested his opinion on these SIME issues.

The employer also states it agreed to the SIME process, only with the understanding that it would be able to supplement the existing medical records with additional medical records as they became available. (See prehearing conference summary report dated 7/30/99.) The employer concedes that it can utilize the provisions of 8 AAC 45.092(j)(2) to communicate with Dr. Smith, after his SIME opinion has been sent to the parties. Nevertheless, the employer insists that once a physician has reviewed records and reached an opinion, the physician will not change his or her opinion as easily as the physician might have with the benefit of the medical record at the time of preparing the initial opinion. Therefore, the employer reasons, the employer may be irreparably harmed by this exclusion.

Concerning the technical defect associated with the filing, the employer asserts we should accept the filing and forward the document to Dr. Smith. The employer cites as justification for such waiver that Dr. Joosse’s letter was bate stamped and filed within the time periods set forth in 8 AAC 45.092 and 8 AAC 45.052 (d), there was no prejudice to the employee, and the opinions expressed by Dr. Joosse are relevant to the questions posed by the board to Dr. Smith.

I. EVIDENCE TO BE INCLUDED WITH SIME RECORDS

AS 44.62.460(d) suggests the board is required to admit all relevant evidence if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs. The only exception to admission of such relevant evidence is "irrelevant and unduly repetitious" evidence. Similarly, 8 AAC 45.120(e) states, in part:

Any relevant evidence is admissible if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of such evidence over objection in civil actions. . . . Irrelevant or unduly repetitious evidence may be excluded on those grounds.

See, also, Duby v. Jason Enterprises, AWCB No. 98-0006 (November 15, 1998) (medical records relating to employee's psychological and drug/alcohol abuse should be submitted to the SIME physician); Registe v. University of Alaska, AWCB No. 96-0455, (November 29, 1996) (report and rating by non treating physician which was alleged to be a litigation tool should be submitted to the SIME physician even though it cannot be considered in determining whether there is an SIME dispute); Rhodes Johnson v. MOA/APD, AWCB No. 99-0204 (October 6, 1999), (An SIME is appropriate if the opinion of the SIME physician would assist the board in resolving a significant dispute; the SIME should be scheduled after the parties have obtained all relevant medical records); Rayburn v. Alyeska Pipeline Services, AWCB No. 95-0292 (November 2, 1995), (employer who sent physician/attorney to present EIME report to treating physician in an attempt to convince treating physician to change his opinion did not attempt to improperly influence medical opinions of treating physician).

We also note that in Irving v. Glacier General Construction, ___P.2d___, Sup. Ct. No. S-8347, (August 6, 1999), the Alaska Supreme Court found it was reversible error for the board to adopt a decision of the rehabilitation benefits administrator (RBA) when the RBA failed to consider the opinion of the treating physician. The employer argues it may be reversible error for the board to adopt the opinion of an SIME physician if the board excludes an opinion of a treating physician concerning issues in dispute.

In this case, however, Dr. Joosse had not been the employee’s treating physician since 1997. Moreover, his opinion was solicited contrary to the terms of the July 30, 1999 prehearing conference summary. Specifically, the terms agreed upon at the prehearing conference were "to supplement the records upon receipt of any outstanding medical records." In this case, the employer undertook to generate new medical records, and not to simply provide "outstanding" medical records.

Concerning the employer’s assertion that Dr. Joosse’s letter provided "rebuttal" information, concerning history of back problems, we find this information was cumulative. We find Dr. Spalding’s records speak for themselves. If the employer had wished to hi-light this history, it should have proposed a question for us to consider for presentation to the SIME physician, rather than attempt to use this back-door route to bring the information forward.

In sum, we hereby affirm our oral decision that inclusion of Dr. Joosse’s letter in the SIME record to be considered by Dr. Smith is inappropriate. Accordingly, we find the employer’s petition for such inclusion must be denied.

II. RECONSIDERATION

The employer contends we should reconsider our oral decision and, presumably, this written decision denying the request for Dr. Joosse’s letter to be included with the medical records presented to Dr. Smith. As an administrative agency, we are permitted to reconsider a previously issued decision, in accordance with AS 44.62.540, which reads as follows:

Reconsideration. (a) The agency may order a reconsideration of all or part of the case on its own motion or on petition of a party. The power to order a reconsideration expires 30 days after the delivery or mailing of a decision to the respondent. If no action is taken on a petition within the time allowed for ordering reconsideration, the petition is considered denied.

(b) The case may be reconsidered by the agency on all the pertinent parts of the record and the additional evidence and argument that are permitted, or may be assigned to a hearing officer. A reconsideration assigned to a hearing officer is subject to the procedure provided in AS 44.62.500. If oral evidence is introduced before the agency, an agency member may not vote unless that member has heard the evidence.

For the reasons stated above, however, our review of the record convinces us we did not make a mistake in issuing our oral, or this written, decision. Additionally, we wish to respond to the employer’s request that the Chief of Adjudications order a stay of our decision, pending reconsideration. According to AS 44.62.540(b), if oral evidence was presented at a hearing, only the members of the panel present are allowed to vote on a request for reconsideration. In this case, only oral argument, but not oral evidence, was presented at hearing. Nevertheless, AS 23.30.005(g) permits only one panel to hear a case. After consulting with the Chief of Adjudications, who did not participate in hearing the arguments, we find it remains appropriate for the panel members actually hearing the case to decide this reconsideration request. Therefore, we also find the employer’s request for reconsideration by the Chief of Adjudications must be denied.

1. The employer’s request for inclusion of the letter, dated September 30, 1999, from Dr. Joosse in the SIME record to be considered by Dr. Smith is denied and dismissed.

2. The employer's petition for reconsideration is denied and dismissed.

Dated at Fairbanks, Alaska this 22^nd day of November, 1999.

ALASKA WORKERS' COMPENSATION BOARD

/s/ Fred G. Brown
Fred Brown, Designated Chairman

/s/ Dorothy Bradshaw
Dorothy Bradshaw, Member

This compensation order is a final decision. It becomes effective when filed in the office of the Board unless proceedings to appeal it are instituted.

Proceedings to appeal must be instituted in Superior Court within 30 days of the filing of this decision and be brought by a party in interest against the Board and all other parties to the proceedings before the Board, as provided in the Rules of Appellate Procedure of the State of Alaska.

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 GLORIA SEE employee / applicant v. CAMPBELL HOUSE RESTAURANT, employer; CIGNA PROPERTY & CASUALTY, insurer / defendants; Case No. 199627138; dated and filed in the office of the Alaska Workers' Compensation Board in Fairbanks, Alaska, this 22^nd day of November, 1999.

Lora Eddy, Clerk

SNO