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Irvine v. Glacier General Construction8/6/1999
[No. 5151 - August 6, 1999]
I. INTRODUCTION
Thomas Irvine appeals the denial of his claim for reemployment benefits by the Alaska Workers' Compensation Board (Board), arguing that the Board erred in failing to credit the hearing testimony of his physician, Dr. Shirley Fraser, and in deferring instead to the findings of its Rehabilitation Benefits Administrator (RBA), who did not consider Dr. Fraser's opinion. We agree that under AS 23.30.041(e) the RBA had a duty to consider the views of Irvine's designated physician and that, absent such consideration, the Board erred in deferring to the RBA's findings. We nevertheless conclude that this error is harmless, because the record conclusively establishes that Irvine would not have prevailed even if the RBA had considered Dr. Fraser's opinions.
II. FACTS AND PROCEEDINGS
Thomas Irvine started to work for Glacier General Construction (Glacier Construction) in January 1994 as a construction estimator and superintendent. In the fall of that year, several accidents at Irvine's work site caused injuries to his lower back and aggravated pre-existing injuries in his back and neck. Initially, Irvine saw Drs. Michael James and Ed Voke regarding his lower back and Dr. Fraser only for his neck. Later, in January 1996, Irvine decided to seek treatment with Dr. Fraser for his lower back injuries as well, because he felt that Drs. James and Voke did not have as good an understanding of his problems.
Irvine applied to the Board for vocational rehabilitation benefits under AS 23.30.041(c). The RBA selected Elisa Conley of Northern Rehabilitation Services to perform an evaluation and to submit a recommendation concerning Irvine's eligibility to receive reemployment benefits.
Conley consulted with Drs. Voke and James; she also considered an independent medical evaluation prepared by Dr. Eric Carlsen. These doctors concurred that Irvine was ineligible for benefits because he could perform a number of jobs that were classified under the United States Department of Labor's "Selected Characteristics of Occupations Defined in the Dictionary of Occupational Titles" (SCODDOT) as equivalent to those jobs that he had held during the ten years preceding his 1994 injuries.
Though Irvine designated Dr. Fraser as a treating physician and specifically requested Conley to contact Dr. Fraser, Conley declined to do so, evidently because she considered Dr. Voke to be primarily in charge of treating Irvine's 1994 injuries.
Based on Irvine's work history and on the opinions of Drs. Voke, James, and Carlsen, Conley reported to the RBA that she had determined that Irvine was not eligible for vocational rehabilitation benefits. RBA designee Mickey Andrew accepted Conley's report and issued a formal decision denying Irvine's application for reemployment benefits.
Irvine appealed to the Board, contending that Conley should have based her evaluation exclusively on the opinion of the doctor he had designated as his treating physician -- Dr. Fraser. At a hearing on Irvine's appeal, the Board considered testimony from both Conley and Dr. Fraser. Conley testified consistently with her report and indicated that she did not believe it necessary for her to consult with Dr. Fraser. Dr. Fraser testified that as a result of his 1994 injuries, Irvine was totally disabled and was incapable of holding any gainful employment.
The Board concluded that Irvine had no right to dictate which physicians Conley was to rely upon to evaluate his benefits claim and that Conley had acted within her discretion in relying on the opinions of Drs. James, Voke, and Carlsen without seeking, much less
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