DARETHA TOLBERT,		)
				)
				)	DECISION AND ORDER
Employee,			)	AWCB Case No. 8912206
Applicant,			)	AWCB Decision No. 90-0122
				)
v.				)	Filed with AWCB Anchorage
				)	June 11, 1990
ALASCOM, INC.,			)
(Self-insured),			)
				)
Employer,			)
Defendant.			)
				)

This matter originally came before us in Anchorage, Alaska on February 7, 1990. Attorney Michael J. Patterson represented the employee. Attorney Shelby L. Nuenke-Davison represented the employer. The record remained open, at the conclusion of the hearing, for additional briefing and documentation of attorney's fees.

The hearing had proceeded before a panel quorum consisting of the designated chairman and a labor representative member of the board. On May 9, 1990 we wrote the parties of the quorum's inability to reach consensus and our intention to seek the participation of industry representative member Richard L. Whitbeck, Sr.¹We received no objections to member Whitbeck's participation based upon his review of the hearing record. We closed the record on May 16, 1990 when we next met following the period given the parties to object to member Whitbeck's participation.

The parties submitted the briefs and documentation of attorney's fees we expected to admit when we left the record open for that limited purpose. The employer also submitted additional documentary evidence and a petition asking us to supplement the hearing record by admitting that evidence. The employee objected to consideration of the unexpected, additional evidence. For purposes of convenience and economy, we considered the petition prior to deliberations on the underlying claim.

We deny and dismiss the employer's petition. We do not admit or consider the additional evidence at this time.² In order to bring an end to the adjudicative process, and preclude an unfolding series of offers and counter offers of additional evidence after hearing, we decline to exercise our discretion to permit augmentation of the hearing record.

1. Whether the employee's claim is barred by AS 23.30.100 (notice of injury) or AS 23.30.105 (statute of limitations).

2. If not barred, whether the employee's carpal tunnel syndrome condition is compensable.

The employee testified she worked as an operator for the employer since April 1982. She believed that work caused her carpal tunnel syndrome. Her surgeon, Robert W. Lipke, M.D., first discussed the causal relationship between her work and her carpal tunnel syndrome with her in April 1989.

Dr. Lipke testified in his January 25, 1990 deposition that he first examined the employee on March 29, 1988. (Lipke dep. at 3). He recommended right wrist carpal tunnel release surgery at that time. (Id. at 5). He performed the surgery a year later on May 22, 1989 finding evidence of very severe carpal tunnel syndrome at that time. (Id. at 8). He believed he told the employee of the relationship of her work to her carpal tunnel syndrome on April 28, 1989. (Id. at 22).

Dr. Lipke stated repetitive work like that performed by the employee is known as a cause of carpal tunnel syndrome. (Id. at 9). He did not believe the employee's carpal tunnel syndrome was caused by automobile accidents she had in March 1982 and October 1983. The wrist trauma involved in those accidents, as he understood the descriptions given him, was not major. No fractures, pain and swelling, or acute numbness were described. (Id. at 29). Absent major trauma, he believed repetitive data entry work for the employer the more likely cause of the carpal tunnel syndrome. (Id. at 29). Even if the automobile accidents initiated carpal tunnel syndrome, he believed the employee's work thereafter aggravated her condition. (Id. at 35).

Dr. Lipke stated he is generally a "patient advocate," backing his patients and believing what they tell him. Carpal tunnel syndrome is normally caused by many repetitive incidents rather than a single episode. (Id. at 38) Carpal tunnel syndrome could be caused or aggravated by typing, trying to break a fall, or playing racquetball as the employee was alleged to have done. However, he still believed as a matter of reasonable medical possibility that the employee's carpal tunnel syndrome was caused by her work for the employer. (Id. at 42).

The employer relied on four depositions of the employee taken August 17, 1984, December 5, 1984, October 15, 1985, and December 15, 1989. The first three depositions were taken in the context of the employee's lawsuits concerning her 1982 and 1983 automobile accidents. In her December 15, 1989 deposition, the employee stated she experienced significant right hand pain in 1987. She testified she knew her employment was causing her right hand problems in 1987. (Tolbert dep. at 45). She did not recall Dr. Reese discussing with her the possibility her employment was aggravating her problems, however. (Id. at 46).

The employer also relied on the employee's earlier depositions to support its contention the carpal tunnel syndrome was not compensable and to impeach the employee's credibility. The employee testified her wrists "snapped" during the 1982 and 1983 automobile accidents. (Tolbert August 1984 dep. at 32, December 1984 dep. at 66-67, October 1985 dep. at 22).

The employee admitted she falsely claimed experience as an operator to obtain a job with the Anchorage Telephone Utility. (Tolbert October 1985 dep. at 81). In two letters, dated November 21, 1984 and December 19, 1984, (Exhibits 1 and 2) the office manager of John B. Lathan, M.D., stated Dr. Lathan would not treat the employee because she stole her medical records and threatened Dr. Lathan's life when returning the records. The employee explained she never threatened Dr. Lathan and took the records only because the office manager unreasonably denied her access to them. (Id. at 43, 44 and 51). The employee also admitted that she certified her physical ability to work to the Alaska Department of Labor, despite her inability to work at the time, in order to receive unemployment insurance benefits.

The employer asserted AS 23.30.105(a) (statute of limitations) and AS 23.30.100(d) , (notice of injury) as bars to the employee's claim. AS 23.30.105(a) provides in part, "The right to compensation for disability under this chapter is barred unless a claim for it is filed within two years after the employee has knowledge of the nature of his disability and its relationship to his employment . . . ." AS 23.30.100(a) requires the employee to give notice of injury within 30 days of the date of injury. However, AS 23.30.100(d) (2) provides that failure to give notice does not bar a claim, "if the board excuses the failure on the ground that for some satisfactory reason notice could not be given."

Both AS 23.30.105(a) and AS 23.30.100 have been construed by our court. In Grasle Co. v. Alaska Workmen's Compensation Board, 512 P.2d 999, 1002 (Alaska 1974), the court held the statute of limitations does not begin to run until an injured employee knows, or in the exercise of reasonable diligence could be expected to know, the nature of the disability and its relation to employment. Similarly, the court has held that the 30-day notice period is suspended until the employee can reasonably be expected to realize the cause and nature of the injury. Alaska State Housing Authority v. Sullivan, 518 P.2d 759, 762 (Alaska 1974).

The key question, then, is when the employee could reasonably have been expected to have knowledge of the relationship of her carpal tunnel syndrome to her employment. There is no dispute the employee's physicians diagnosed bilateral carpal tunnel syndrome in 1983 and 1984. The employer, relying upon Dr. Reese's January 8, 1988 report, seeks to establish the employee's know-ledge as of that date. The employee testified at hearing that Dr. Lipke first discussed such a relationship with her in April 1989. Dr. Lipke's testimony established April 28, 1989 as the likely date of a discussion concerning the relationship of the carpal tunnel syndrome to the employee's work. However we note the employee also testified she knew in 1987 that her employment caused her hand problems.

Dr. Reese's January 8, 1988 report states in part:

A second report from Dr. Reese, dated January 22, 1988, noted, " [The employee] was in today so I can do a separate letter to the State Commission on Post-Secondary Education in her behalf . . . . The (employee] has chosen April as the month she would like her left ankle reconstructed. She is also interested in having her right carpal tunnel released . . . ."

Because Dr. Reese did not testify, we have (as the employee argues) no direct evidence the employee picked up the January 8, 1988 report as expected. The employee did not address that point in her testimony. Reading both reports together, though, we believe the employee's January 22, 1988 interest in obtaining release of her right carpal tunnel raises a reasonable inference that she indeed obtained the information from Dr. Reese linking repetitive typing (like the data entry work she performed as an operator for the employer) with aggravation of her carpal tunnel condition.

The employee's bilateral carpal tunnel syndrome was diagnosed by 1983 or 1984 at the latest. We have therefore closely examined the record for evidence supporting or contradicting the employee's testimony at hearing that she was not aware until April 1989 that the aggravation of her condition (upon which she bases her claim) was caused by her employment. We find she contradicted that testimony in her 1989 deposition in which she stated she believed her work aggravated her condition as early as 1987. We also consider Dr. Reese's notes implying he told the employee in January 1988 that repetitive activity like that she performed at work would certainly aggravate her carpal tunnel syndrome condition. We find the employee's admission, coupled with Dr. Reese's notes, persuasive evidence that she knew of the causal relationship between her work and the carpal tunnel syndrome aggravation upon which she bases her current claim no later than January 1988.

We find the employee's application for adjustment of claim, filed on September 7, 1989, timely under the two-year statute of limitations. AS 23.30.105(a). However, we find the thirty-day notice period under AS 23.30.100, suspended until January 22, 1988 in accord with Alaska State Housing Authority, ran on February 21, 988. In the absence of evidence to excuse the employee's continued failure to notify her employer after February 21, 1988, we find her May 25, 1989 notice of injury inexcusably late. We conclude, therefore, that her claim is barred by AS 23.30.100(a) and (d). Her claim is denied and dismissed. Because of that result, we do not address whether the employee's carpal tunnel syndrome would otherwise have been compensable.

The employee's claim for compensation and medical benefits, based on bilateral carpal tunnel syndrome, is denied and dismissed.

Dated at Anchorage, Alaska, this 11th day of June 1990.

ALASKA WORKERS' COMPENSATION BOARD

/s/ Paul F. Lisankie
Paul F. Lisankie, Designated Chairman

/s/ RL Whitbeck Sr.
Richard L. Whitbeck, Sr., Member

Board Member John H. Creed dissenting:

I disagree with the majority's conclusion that the employees claim is barred under AS 23.30.100. I would find her May 25, 1989 notice of injury timely. It was given to the employer within 30 days of Dr. Lipke's April 28, 1989 discussion of the likely causal relationship between the employee's work and her condition. I believe the employee's duty to notify the employer was tolled until she was explicitly told of the causal relationship between her condition and her work. I therefore disagree with the majority and would go on to consider the compensability of the carpal tunnel syndrome condition.

John H. Creed, Member

PFL:fm

If compensation is payable under terms of this decision, it is due on the date of issue and penalty of 25 percent will accrue if not paid within 14 days of the due date unless an interlocutory order staying payment is obtained in Superior Court.

APPEAL PROCEDURES

A compensation order may be appealed through proceedings in superior Court 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.

A compensation order becomes effective when filed in the office of the Board, and unless proceedings to appeal it are instituted, it becomes final on the 31st day after it is filed.

CERTIFICATION

I hereby certify that the foregoing is a full, true and correct copy of the Decision and Order in the matter of Daretha Tolbert, employee/applicant; V. Alascom, Inc., (Self-insured) employer defendant Case No. 8912206; dated and filed in the office of the Alaska Workers' Compensation Board in Anchorage, Alaska, this 11th day of June 1990.

Clerk