Burke v. Houston Nana, L.L.C.

• Decision Date: 08 January 2010
• Docket Number: No. S-12346.,S-12346.
• Citation: 222 P.3d 851
• Parties: Rory F. BURKE, Appellant, v. HOUSTON NANA, L.L.C., Lumberman's Mutual Casualty Co., and the Alaska Workers' Compensation Board, Appellees.
• Court: Alaska Supreme Court

222 P.3d 851

Rory F. BURKE, Appellant, v. HOUSTON NANA, L.L.C., Lumberman's Mutual Casualty Co., and the Alaska Workers' Compensation Board, Appellees.

No. S-12346.

Supreme Court of Alaska.

January 8, 2010.

William J. Soule, Law Office of William J. Soule, Anchorage, for Appellant.

Patricia L. Zobel, DeLisio Moran Geraghty & Zobel, PC, Anchorage, for Appellees.

Before: FABE, Chief Justice, MATTHEWS, Eastaugh, and CARPENETI, Justices.

OPINION

CARPENETI, Justice.

I. INTRODUCTION

An employee was injured three times over the span of five months while working as a pipe fitter for his employer. The employee fell twice, injuring his lumbar and cervical spine and his hip, and also complained of sharp pain in his right hand that doctors attributed to his work. After he was laid off from his Alaska job, the employee returned to his home in California, where he began chiropractic treatment for his spinal injuries. His employer initially paid benefits without an award; it filed a notice of controversion after its experts reported that the employee was medically stable and no longer in need of treatment. The Alaska Workers' Compensation Board held a hearing on the employee's claim for medical and disability benefits and decided that the employee was entitled to limited chiropractic benefits, denied the rest of his claims, and awarded him limited attorney's fees. The employee, through his attorney, also requested a reemployment eligibility evaluation. The Reemployment Benefits Administrator (RBA) determined that the employee was eligible for an evaluation. The employer appealed the RBA's decision to the board; the board found that the employee had filed his request too late and denied it.

The employee appealed both decisions to the superior court. The superior court affirmed the board's decisions in most respects. We reverse the board's denial of temporary total disability benefits, its denial of reimbursement for travel costs, and its reversal of the RBA's decision, and affirm the board's decisions on all remaining issues.

II. FACTS AND PROCEEDINGS

Rory Burke was employed as a pipe fitter on the Alaska pipeline for many years, working about half the year in Alaska and spending the rest of the year at his home in California. Burke worked for Houston NANA, L.L.C.¹ off and on for two years. In June 2001 he fell when he stepped in a hole that was covered with wood chips while he was carrying an eighty-pound load down a hill near Glenallen. He strained his hip and shoulder but did not take time off work or file a report of occupational injury form.² In mid-August he again injured himself when he stepped into a hole created when a large rock was moved. Finally, during the night of October 16, severe cramping and numbness in his right hand woke him up. He attributed the hand pain to work he had been doing, lifting a heavy beam and bolting heavy Teflon pads in place and operating an impact gun. He went to an urgent care clinic in Fairbanks on October 25, 2001, complaining of neck pain for the previous three months and cramping in his right hand. The doctor at the clinic diagnosed right epicondylitis³ and cervical neck strain, wrote that the conditions were work-related, and limited Burke to lifting no more than forty pounds. Burke signed a report of occupational injury on October 30, 2001. He was laid off work the same day as part of a reduction in force. Burke returned to California in early November. Houston NANA paid workers' compensation benefits without an award effective November 19, 2001.

On November 19, 2001, Burke saw Dr. Joel Taatjes, a chiropractor in Petaluma, California, for treatment related to his work injuries. At that time, Dr. Taatjes completed a California workers' compensation form entitled "Doctor's First Report of Occupational Injury." Dr. Taatjes's report estimated that Burke's treatment would require approximately thirty visits over a twelve- to sixteen-week period, or between two to three visits per week. However, Burke received almost daily treatments from Dr. Taatjes for about three weeks and then treatments two or three times a week for another thirty weeks or so. During the course of his treatment of Burke, Dr. Taatjes sent Houston NANA progress reports on forms from the State of California Division of Workers' Compensation. Each form included a place for the doctor to detail the treatment plan, including the methods, frequency, and duration of planned treatments. Dr. Taatjes described the therapy he was conducting, but did not specify the number or duration of treatments. He simply indicated "decreasing frequency as the patient's status improves."

Houston NANA arranged for a panel of doctors to conduct an independent medical evaluation (IME) on March 19, 2002. The panel consisted of a chiropractor, Dr. Willat, and an orthopedic surgeon, Dr. Ramsey. Both doctors examined Burke and reviewed his medical records. Both agreed that Burke was medically stable, at least with respect to his spinal injuries. Dr. Ramsey diagnosed Burke with mild right carpal tunnel syndrome and indicated that Burke's work had caused his neck, back, and carpal tunnel problems on a more-probable-than-not basis. In Dr. Ramsey's opinion, Burke had a slight permanent partial impairment but could return to his work as a pipe fitter as long as he was not required to use vibrating equipment on a sustained basis because of the carpal tunnel problems. Dr. Ramsey rated Burke as having a two percent whole person permanent impairment as a result of the carpal tunnel syndrome. Dr. Ramsey thought that Burke might need future medical care for his carpal tunnel syndrome, although he did not see a need for immediate medical care. Both Drs. Ramsey and Willat felt that further passive chiropractic treatments like the ones Burke was receiving from Dr. Taatjes were not necessary.

After the IME reports noted that Burke might have carpal tunnel syndrome, Dr. Taatjes referred Burke to a neurosurgeon, Dr. Guy Corkill. Dr. Taatjes evidently believed that the hand complaints were related to Burke's neck injuries and wanted Dr. Corkill to identify the reason for the continuing pain. Dr. Corkill examined Burke on May 28, 2002, diagnosed cervical disk disease, and referred Burke to Dr. Marcia Luisi, a specialist in physical medicine and rehabilitation, for electrodiagnostic studies. Dr. Luisi examined Burke on June 18, 2002, and performed nerve conduction studies to determine the cause of his right hand complaints. Dr. Luisi concluded that Burke had moderate right carpal tunnel syndrome and that the electrodiagnostic studies showed no indication of cervical radiculopathy. Following Dr. Luisi's report, Dr. Corkill recommended that Burke get a wrist splint. On August 23, 2002, Dr. Corkill advised Burke to have surgery for his carpal tunnel syndrome. Dr. James Glynn, an orthopedic surgeon, evaluated Burke on October 2, 2002, and recommended right carpal tunnel release. Burke had the surgery on November 18, 2002.

Dr. Taatjes referred Burke to Dr. Don Davis, a chiropractic neurologist, for a "permanent and stationary evaluation" on September 19, 2002. Based on his examination of Burke and his review of the medical records, Dr. Davis believed that Burke was permanent and stationary, except for his right hand. He stated that in his opinion, Burke's chiropractic treatment up to that time had been appropriate and should continue on an "exacerbation basis." Dr. Davis did not feel that Burke could return to his work as a pipe fitter, noting restrictions on his ability to bend, lift, carry, push, pull, and squat. Dr. Taatjes adopted the report as his own.

Houston NANA filed a notice of controversion on May 3, 2002, based on the IME reports. It controverted temporary total disability (TTD) benefits after May 1, 2002, and all further chiropractic care and physical therapy. The controversion noted that the IME doctors had determined that Burke was medically stable as of March 19, 2002; it also stated that medical care for Burke's right carpal tunnel condition "as outlined in Dr. Ramsey's EME report" would be covered. A copy of the controversion notice was sent to Dr. Taatjes.

Burke filed a workers' compensation claim on June 26, 2002. In his claim, he requested TTD benefits from May 2, 2002 through medical stability, permanent partial impairment benefits, medical costs related to Dr Taatjes's care, transportation costs, penalties, interest, and attorney's fees. Houston NANA filed its answer to the claim on July 15, 2002.

Burke requested that the Alaska Workers' Compensation Board (the board) order a second independent medical evaluation (SIME) to address issues of treatment, functional capacity, and medical stability. Houston NANA agreed that an SIME was appropriate in Burke's case, so the board ordered one. Two SIME physicians evaluated Burke: Dr. Marvin Bloom, an orthopedic surgeon, and Dr. Scott Calzaretta, a chiropractor. Dr. Bloom stated that Burke would not improve further without cervical fusion surgery and that even with neck surgery, Burke would likely not be able to return to his former work as a pipe fitter. Dr. Bloom did not feel that further chiropractic treatment was indicated; he believed that Burke was medically stable as of December 2002. Dr. Bloom rated Burke as having an eight percent whole person impairment related to his spinal injuries. He did not specifically discuss the carpal tunnel syndrome in the conclusions in his report.

Dr. Calzaretta thought that limited chiropractic treatment was still appropriate in Burke's case but that the frequency of treatment needed to be decreased to one to two times a month rather than two to three times a week. Dr. Calzaretta agreed with Dr. Willat that Burke was medically stable with respect to his spinal injuries as of March 19, 2002. Dr. Calzaretta felt that Burke could return to work as a pipe fitter as long as he was "precluded from repetitive pneumatic activity with his right hand." H...