On October 20, 1999, we heard Employee’s claim for temporary total disability (TTD) and a vocational rehabilitation evaluation (VRE) in Anchorage, Alaska. Attorney Joseph Kalamarides represents Employee. Attorney Robert McLaughlin represents Employer and its Insurer. We closed the record at the conclusion of the hearing.

1. Was the November 26, 1985 work injury a substantial factor in bringing about Employee’s current disability because the injury permanently aggravated, or accelerated the deterioration of, his pre-existing neck condition?
2. Is Employee’s disability claim, even if determined work-related, barred by AS 23.30.105?
3. Is Employee’s medical claim, even if determined work-related, barred by AS 23.30.095 or the doctrine of laches?
4. To what amount of attorney fees and legal costs is Employee entitled?

The following persons testified at hearing. Employee, Lester K. Bonner, testified in person at hearing, and by deposition on November 5, 1996 (Employee dep. I) and March 19, 1998. (Employee dep. II).

Employee presented the testimony of two treating physicians. Roy Matison White, M.D., Employee’s family physician, testified by phone at hearing, and by deposition taken June 26, 1997 (Dr. White dep. I) and March 20, 1998 (Dr. White dep. II). Christopher Scully, M.D., a rheumatologist who treated Employee for arthritis in his hands, testified by deposition on April 15, 1999 (Dr. Scully dep.). Additionally, the parties stipulated to a summary of the testimony James Pickney, Employee’s co-worker at the time of the November 1985 injury, would have provided at hearing had he been available.

Employer (through it various insurers) had three physicians conduct independent evaluations. Douglas Bald, M.D., an orthopedic surgeon, testified by deposition on December 4, 1998 (Dr. Bald dep.). Peter Mohai, M.D., a rheumatologist, testified by deposition on April 16, 1999 (Dr. Mohai dep.). Douglas G. Smith, M.D., an orthopedist, testified by deposition on September 20, 1999 (Dr. Smith dep.).

Employee was born January 25, 1939 and has lived in Alaska since 1972. (Employee dep. I at 4). Employee quit high school to join the Army in in 1956. (Id. at 6). There, he obtained his GED and learned skills similar to that of a telephone lineman. (Id.).

Employee has been a member of the IBEW (International Brotherhood of Electrical Workers) since 1962. (Id. at 9). At hearing, Employee said he received his journeyman’s ticket in 1967.

Employee testified he began working for Employer in January 1976. In 1978, Employee said he slipped on some transformer grease, hurting his low back, and was off work for about two weeks.

Employee testified he returned to work for Employer without incident until he was injured in 1979. The seat of a backhoe fell on his head with sufficient force to crack his hard hat. Employee said he missed about one year of work while recuperating from this accident. Employee experienced severe low back pain, with nerve root irritation, for which he treated with Harry Reese, M.D., an orthopedist. (Leon Wiltse, M.D., August 14, 1980 report).

After recuperating, Employee testified he took temporary contract jobs, including one with Employer, before returning to permanent full-time work with Employer in 1982. Employee testified that on November 26, 1985, a 40 foot utility ladder (extended to about 20 - 23 feet) fell over and hit him on the head. (Hearing Exhibits 1-3 are photographs of a ladder which, Employee testified, is similar to the one which fell on him).

The parties stipulated Employee’s former co-worker, James Pickney, was with him at the time of the accident, and would testify Employee temporarily lost consciousness after the ladder fell on his head. Employee was taken by ambulance to the emergency room of Alaska Regional Hospital (formerly Humana). X-rays of Employee’s cervical spine showed moderate to marked degenerative changes at C3-4, C4-5, and C5-6 with narrowing of the spaces and spur formations. (November 26, 1985 Faires, M.D., radiology report).

With regard to his immediate symptoms, Employee testified, at hearing, his neck "hurt like heck." He said he also noticed a "gravelly" sensation when turning his head. The first medically documented report of such sensation does not appear, however, until Employee treated with Morris Horning, M.D., on February 23, 1995. Employee had experienced spasms and kinks in his neck even before his injury. (Dr. Wiltse June 19, 1981 report).

Employee saw Dr. Reese for his neck, with whom he was already treating for low back pain. In his November 29, 1995 report, Dr. Reese notes Employee’s neck and upper back pain symptoms were mostly resolved, but Employee was having increasing low back and buttock pain. Dr. Reese prescribed medication for pain and swelling. Employee testified he returned to work about three weeks after the accident at a lighter duty position in one of the substations. (See also, Dr. Reese January 17, 1986 report).

Our review of the medical record indicates Employee did not have further treatment of his neck until March 31, 1987 when he returned to Dr. Reese. In his report of the same date, Dr. Reese states: "Mr. Bonner is in for a couple of reasons. One is that he has developed pain in his upper extremities but, more importantly, the pain in his low back is significant with radicular pain into the right lower limb."

About this same time, Employee’s lighter duty job at the substation ended. He was assigned to line work which was more physically demanding, and dangerous, because it involved the use of "hot sticks" around other employees. Employee testified he took his name off the "call list" for emergency repairs during outages because of such danger.

Employee testified he was having "trouble turning his neck" and was suffering from a "throbbing" sensation. Employee also said he experienced "pain down his arm." Employee testified that while co-workers were aware of his neck problems, he did not complain to his doctors or supervisors because he wanted to continue working. Employee explained at hearing that he wanted to continue working for two reasons, one financial and the other collegial. (But see, Employee dep. I at 51).

Employee said he has treated with his family physician, Dr. Matison White, for neck and hand pain since April 1987, after Dr. Reese discontinued his practice in Alaska. In January 1996, Employee testified, Dr. White issued him a disability certificate from further electrician work. Employee testified his symptoms after the ladder incident were distinctly different from those following the backhoe incident. Employee testified he was able to work until increasing numbness in his hands prevented him from performing line work.

In addition to the above described work injuries, Employee testified he has also fractured his nose about three times in the course of his life. In 1997, he slipped and hit his head on a toilet. Not long after that incident, Employee treated with Dr. Chui who performed a minimally invasive disc surgery. Employee testified he noticed improvement in his symptoms about two months post-surgery and "significant" improvement within four to five months.

Dr. Matison White has had a general practice in Alaska since 1973, and has been Employee’s family physician since the late seventies (Dr. While dep. I at 6-7). Dr. White said Employee suffers from osteoarthritis and rheumatoid arthritis in his hands, feet and neck. (Id. at 8). Employee’s hands are primarily afflicted with rheumatoid arthritis (Id.). In his neck, however, Employee suffers mostly from a combination of oesteoarthritis and degenerative disc disease. (Id. 23).

Osteoarthritis is often caused from overuse, but can also result from a trauma, as can degenerative disc disease. (Id. 25-26; See also, Dr. White dep. II at 29).

(Id. at 26).

Dr. White testified that the primary reason Employee cannot work is because of the rheumatoid arthritis in hand. "[H]andling high voltage lines with a -- stick which requires quite a bit of strength and – and endurance . . . is pretty dangerous job . . . and [Employee] agrees that it’s probably not safe for him to do that work any longer." (Id. at 10; See also, Dr. White dep. II at 14). However, Dr. White also testified Employee’s "other problems would prevent him from working as a lineman" as well. (Id. at 11). Specifically, Dr. While testified the arthritis in his neck affects his ability to work because "it’s going to interfere with the strength in his arms, and the range of motion of his neck, the ability to turn his head, look up, look down." (Id. at 12).

Dr. White described Employee’s neck condition as follows: "Further narrowing of disk spaces and more evidence of degenerative changes, such as bone spurring, loss of the facet joints; and, in particular, this retrolisthesis and anterolisthesis is new; that’s the shifting of the vertebrae on top of each other." (Dr. White dep. II at 26). These conditions, Dr. White explained, will cause the following symptoms: "the nerve roots are at risk; so he can have nerve-root irritation or actual nerve function loss to the hands and arms. . . you have pain in the shoulder, neck, arm, even into the hand." (Id.). Dr. White testified that the pain in Employee’s hands is "[m]ost likely . . .coming from his neck." (Id. at 27). Dr. White testified that both of Employee’s conditions, osteoarthritis and degenerative disc disease, could have been started by the ladder
incident. (Id. at 30). "That would be a good way to get it [osteoarthritis]." (Id. at 32).

When asked how long after the trauma, he would expect the osteoarthritis to develop, Dr. White explained there were several factors, but generally, it was not "something you’d be able to see on an x-ray immediately . . . [or even after] six months." (Id.). Consistent with his hearing testimony, Dr. White estimated it would take about a "year, year and a half, two years, maybe" before the osteoarthritis would be symptomatic or observable on an x-ray. (Id.). Therefore, Dr. White explained, the degenerative processes and arthritis indicated by the x-rays at the time of the ladder incident was not caused by it. (Id. at 35). Dr. White said he was not comfortable comparing the radiology reports from 1985 to those in 1996 to determine whether there was an acceleration or aggravation of the pre-existing conditions. (Id. at 37, 40).

Dr. White testified at hearing the ladder incident aggravated or accelerated the arthritis in Employee’s neck making it worse than it would have been had he not had the injury. Dr. White said that any type of blow to a spinal condition, especially if it is pre-existing, would make it worse. Dr. White testified Employee’s numb hands are indicative of a nerve root irritation. Even assuming Employee did not have rheumatoid arthritis in his hands, Dr. White did not think Employee was capable of working as a lineman.

When asked about the lack of medical documentation indicating Employee had symptoms between 1985 and 1987, Dr. White said it would not change his conclusions or opinions on causation. Based on his experiences, some patients do not have their neck injuries diagnosed because they fail to exhibit symptoms. At hearing, Dr. White described Employee as a "pretty tough hoozer" not likely to express a lot of pain symptoms. (See also, Dr. White dep. I at 15-16). Dr. White believes Employee is the type of person who will continue working even if he is hurting. (Dr. White dep. II at 28).

Christopher Scully, M.D., practices medicine in Reno, Nevada. His area of specialty is rheumatology. (Dr. Scully dep. at 5). Dr. Scully testified that rheumatoid arthritis is an autoimmune dysfunction disease. (Id. at 6). Employee originally treated with Dr. Scully on referral from another doctor while visiting relatives in Nevada. (Id. at 7). Employee saw Dr. Scully on November 10 and 14, 1994 and in 1997 on June 24 and September 22. (Id.).

At his first visit with Dr. Scully, Employee complained of intermittent bilateral swelling in his hands, which was affecting his ability to work. (Id. at 8-9). Although Dr. Scully was mostly concerned with Employee’s hands, he also did a general examination that included testing the range of motion in Employee’s neck. He found Employee’s range of motion was "adequate," although not necessarily good. (Id. at 11 and 14). In June 1997, Dr. Scully reviewed the 1987 x-rays of Employee’s neck, and performed a full musculoskeletal examination. (Id. at 15-16). Dr. Scully found decreased range of motion in all directions, and noted Employee had complaints related to his arms. (Id. at 16-17). When comparing the 1987 x-rays of Employee’s neck to those taken in 1997, Dr. Scully found "very severe changes." (Id. at 19). Dr. Scully diagnosed severe degenerative disc disease and osteoarthritis which he thought could be attributed to "wear and tear" or an "injury." (Id.). Dr. Scully described the phenomenon in Employee’s neck as follows:

(Id. at 19-20).

When asked whether the ladder incident affected osteoarthritis and degenerative disc disease in Employee’s neck, Dr. Scully testified:

(Id. at 21-22).

(Id. at 24).

(Id. at 64-65).

Dr. Scully testified that he could not quantify specifically the amount of deterioration which could be attributed to the ladder incident. (Id. at 26). However, Dr. Scully did not believe Employee’s routine work as a lineman was a contributing factor to the degeneration his neck condition. (Id. at 64).

In addition to Employee’s 1985 neck claim, he also filed claims against Employer for his hands in 1994 and 1995. Employer was insured by Reliance Insurance Company and Fremont Insurance Company during those claim periods, respectively. Employee and Employer, through its insurers, have resolved Employee’s 1994 and 1995 claims. While all of the claims were pending, however, Employer’s insurers requested independent evaluations by Drs. Bald, Smith and Mohai.

Dr. Bald testified he was asked to perform an evaluation at the request of Employer and Reliance and to limit his examination to Employee’s hand condition. (Dr. Bald December 4, 1998 dep. at 13). Dr. Bald is an orthopedic surgeon and a clinical professor of orthopedics at Portland State University’s Athletic Department. (Id. at 4). Dr. Bald evaluated Employee on August 31, 1998. (Id. at 7). The report of his evaluation is dated October 31, 1998, and was prepared in response to questions from Reliance attorney Randall Weddle. (Id. at 7-8; Attached as Exhibits 1 and 2).

At his deposition, Dr. Bald testified his report accurately summarized his findings from his examination, and he continued to hold such opinions to a reasonable degree of medical certainty. (Id.).

Dr. Bald testified Employee has rheumatoid arthritis in his hands which can be made symptomatic by work, but which is not caused or aggravated by it. (Id. at 36). The rheumatoid arthritis in Employee’s hands is a significant factor in his ability to function as a lineman. "I believe that he would still be working as a lineman if he did not have rheumatoid arthritis." (Id. at 13). Dr. Bald did qualify his answer, however, by stating he was only "talking about [Employee’s] hands" and assumed he did not have problems with his neck and back. (Id.).

(Id. at 13-14).

Regarding the cause of Employee’s neck condition, Dr. Bald testified:

(Id. at 20).

(Id. at 28).

. . . .

(Id. at 29).

Dr. Bald did not think Employee’s cervical arthritis contributes to the rheumatoid arthritis condition of his hand to such degree that it limits his ability to work as a lineman. (Id. at 33). Dr. Bald testified, however, that the purpose of his examination was limited to Employee’s hands and that he was "not very comfortable" offering opinions about Employee’s cervical condition. (Id. at 44).

(Id.).

(Id. at 45).

When rendering medical opinions, Dr. Bald testified he prefers to review and compare actual x-rays rather than radiologist reports. (Id. at 24). "Particularly if we’re going to talk about things like progression, that would be very, very helpful." (Id. at 42). Dr. Bald testified that "you would start to see some evidence" of degenerative changes from the 1985 ladder accident by 1987.

Dr. Peter Mohai, an internal medicine physician with a subspecialty in rheumatology, examined Employee at the request of Fremont Insurance Company (Employer’s carrier in 1995). (Dr. Mohai dep. at 4-5). Dr. Mohai prepared his December 12, 1996 report in response to Attorney Patricia Zobel’s questions. (Dr. Mohai dep. Exhibits 3 and 4). Dr. Mohai explained that he reviewed the actual imaging studies. (Id. at 41; Exhibit 4 at 15). With regard to the imaging studies, Dr. Mohai’s report states in pertinent part:

(Id.). In the discussion section of his report, Dr. Mohai stated:

(Id. at 17).

Dr. Mohai testified he treats both rheumatoid arthritis and osteoarthritis, although the primarily focus of his practice is for treatment of autoimmune conditions. (Id. at 20-21). Dr. Mohai explained his examination concentrated on Employee’s rheumatoid arthritis, particularly in the hands. (Id. at 33, 42). Nevertheless, Dr. Mohai offered the following opinion about Employee’s spine condition.

(Id. at 33-34).

When asked whether a trauma to the cervical spine could accelerate preexisting degenerative arthritis, Dr. Mohai said: "Well, for any one individual it might be hard to assess, but I would say that the consensus would be that that kind of injury could be additive to an already pre-existing degenerative arthritis. (Id. at 35). However, Dr. Mohai testified that such changes would probably not be revealed on an x-ray for about 18 months. (Id. at 36). Finally, Dr. Mohoi testified that because Employee did not have symptoms following the 1985 injury, this implies the injury was probably not significant. (Id. at 48-49, 51).

Employee was also examined by Douglas Smith, M.D., at the request of Employer’s insurer during the 1985 ladder incident. Dr. Smith is an orthopedist practicing in Anchorage, Alaska, and has been an independent medical evaluator for the Division of Workers’ Compensation, since 1990. (Dr. Smith dep., Exhibit 1). Dr. Smith initially performed a record review for the purpose of offering an opinion on the causal significance of the 1985 ladder incident on Employee’s current condition. (Id., Exhibit 2). His report is dated October 27, 1997.

Dr. Smith physically evaluated Employee on February 2, 1999 and his report is dated February 21, 1999. (Id., Exhibit 3). Dr. Smith’s February 1999 report states in pertinent part:

(Id. at 5-6, 8).

At his September 1999 deposition, Dr. Smith affirmed his opinion the 1985 ladder incident caused only a temporary aggravation, and was not a substantial factor in causing or permanently aggravating, Employee’s preexisting cervical spondylosis. (Id. at 16, 19, 20). However, Dr. Smith testified that he would reevaluate his opinion if there was "documentation [Employee] ha[d] continuing neck complaints during that period of a year and a half where there is gap there, [and] depending on the nature of the complaints and the treatment, then certainly I could reconsider that because that’s one of the factors in this case, . . . ." (Id. at 23). With regard to the significance of Employee’s neck condition as it relates to his ability to work, Dr. Smith testified:

(Id. at 30).

I. Was the November 1985 ladder incident a substantial factor in bringing about Employee’s current disability because the injury permanently aggravated, or accelerated the deterioration of, his pre-existing neck condition?

Employer argues it is not responsible for Employee’s current neck condition. Employer asserts Employee’s disability and need for medical treatment was caused by the natural progression of Employee’s pre-existing condition, Employee’s non-work related rheumatoid arthritis, and/or that the ladder incident was not a substantial factor in bringing about his current disabling condition and need for treatment. Employee argues his current neck condition is compensable because the ladder incident was a substantial factor in bringing about his current disability because it aggravated, accelerated, or combined with, Employee’s pre-existing condition which prevents him from working.

In Thornton v. Alaska Workmens’ Compensation Board, 411 P.2d 209, 210 (Alaska 1966) and United Asphalt Paving v. Smith, 660 P.2d 445, 447 (Alaska 1983), the Alaska Supreme Court held a pre-existing condition does not bar a claim for benefits if the work permanently aggravated, or accelerated the deterioration of, the condition. Therefore, the ladder incident would be considered a substantial factor if Employee can prove that his disability and need for treatment "would not have happened ‘but for’ the [incident] and that the [incident] was so important in bringing about the [disabling condition] that reasonable [people] would regard it as a cause and attach responsibility to it." State v. Abbott, 498 P.2d 712, 717 (Alaska 1972); Fairbanks North Star Borough v. Rogers & Babler, 757 P.2d 528 (Alaska 1987). Furthermore, in the case of a pre-existing condition, the Alaska Supreme Court has held that an aggravation or acceleration (and presumably a combination) must be presumed under AS 23.30.120. Burgess Construction Company v. Smallwood, 623 P.2d 312, 315 (Alaska 1981).

AS 23.30.120(a) provides: "In proceeding for the enforcement of a claim for compensation under this chapter it is presumed, in the absence of substantial evidence to the contrary, that the claim comes within the provisions of this chapter." Additionally, once an employee is determined disabled, the law also presumes that the employee remains disabled and in need of treatment until the employer produces substantial evidence to the contrary. Olson v. AIC/Martin, J.V., 818 P.2d 661, 665 (Alaska 1991); Municipality of Anchorage v. Carter, 818 P.2d 661, 665 (Alaska 1991).

Application of the presumption is a three-step process. Gillispie v. B&B Foodland, 881 P.2d 1106, 1109 (Alaska 1994). First, the Employee must establish a "preliminary link" between the disability and his work. When determining whether the presumption has attached, the employee’s credibility is not considered. Resler v. Universal Services, Inc., 778 P.2d 1146, 1149 (Alaska 1989). Also, in highly technical medical cases, an employee must establish a preliminary link between the disabling condition and the employment, with medical evidence in order to attach the presumption of compensability under AS 23.30.120(a). Burgess Construction Company, supra. at 316; Veco v. Wolfer, 693 P.2d 865, 871 (Alaska 1985).

If the employee attaches the presumption, the employer must come forward with substantial evidence to overcome it. Id. at 869; Miller v. ITT Arctic Services, 577 P.2d 1044, 1046 (Alaska 1978). Substantial evidence is "such relevant evidence as a reasonable mind might accept to support a conclusion. Id. at 1066 (citing Thornton, supra. at 210); Grainger v. Alaska Workers’ Compensation Bd., 805 P.2d 976, 977 n.1 (Alaska 1991).

There are two ways to rebut the presumption. The employer can either: 1) produce affirmative evidence the disabling condition and need for treatment is not work-related or, 2) eliminate all reasonable possibilities the disability and need for treatment was work-related. Fireman’s Fund American Insurance Co. v. Gomes, 544 P.2d 1013, 1016 (Alaska 1976). An employer may rebut the presumption by presenting expert opinion evidence the work was probably not a cause of the disability or need for treatment. Big K Grocery v. Gibson, 836 P.2d 941, 942 (Alaska 1992). The same standard used to determine whether medical evidence is necessary to establish the preliminary link is also used to determine whether medical evidence is necessary to overcome the presumption. Veco, supra. at 871. Medical evidence is not substantial if it simply points to other possible causes without ruling out the work as cause. Childs v. Copper Valley Elec. Ass’n., 860 P.2d 1184, 1189 (Alaska 1993). Additionally, because the presumption only shifts the burden of production, not persuasion, the evidence used to rebut presumption is examined by itself. Veco at 869. Consequently, the weight to accord the testimony of witnesses occurs only after there has been a determination the presumption has been overcome. Norcon Inc. v. Alaska Workers’ Compensation Bd., 880 P.2d 1051 (Alaska 1994).

If the employer rebuts the presumption, the employee must then prove all the elements of his claim by a preponderance of the evidence in the record as a whole. Id. at 870. "Where one has the burden of proving asserted facts by a preponderance of the evidence, he must induce a belief in the minds of the [triers of fact] that the asserted facts are probably true." Saxton v. Harris, 395 P.2d 71, 72 (Alaska 1964).

We find Employee has attached the presumption the 1985 ladder incident was a substantial factor in bringing about his current neck condition, and that such condition is disabling. We make this finding based on the reports and testimony of Dr. White. Specifically, Dr. White testified the ladder incident aggravated or accelerated the preexisting condition in Employee’s neck, making it worse than it would have been had he not suffered the injury. Additionally, Dr. White testified, at his deposition and at hearing, that Employee’s neck condition prevents him from working as a lineman, even though Employee’s rheumatoid arthritis is also disabling.

We find Dr. Scully’s testimony corroborates Dr. White’s opinion the ladder incident accelerated or aggravated Employee’s pre-existing neck condition. Furthermore, we find that while Dr. Bald admitted he limited his examination predominantly to Employee’s hands, he nevertheless believed Employee’s current neck condition is related to the ladder incident, and that it is causing numbness in Employee’s hands.

We find the reports and testimony of Drs. Mohai and Smith also corroborate Dr. White’s opinion Employee’s neck condition prevents him from working as a lineman. Specifically, Dr. Mohai’s report states: [Employee’s] "most limiting problems have been advanced degenerative arthritis in the cervical and lumbosacral spine . . . [and] he should not pursue medium or heavy work activities [or] the work activities of a lineman." Although Dr. Smith did not think Employee’s neck condition was caused or aggravated by the ladder incident, he nevertheless believes it "severely limit[s] his activities" and the rheumatoid arthritis is "only a secondary factor of some importance."

We find Employer has rebutted the presumption with substantial evidence the 1985 ladder incident was not a substantial factor in bringing about Employee’s current neck condition, or that it is a substantial factor in his disability. We make this finding based on the combined testimony of Drs. Mohai and Smith. Both believe the lack of medically documented symptoms and treatment for about eighteen months following the ladder incident indicate it was a relatively minor injury. Accordingly, Dr. Smith testified, the ladder incident only temporarily aggravated Employee’s pre-existing condition, and did not cause any permanent aggravation. We find Employer has also rebutted the presumption Employee’s neck condition, even if work-related, is a substantial factor in his current disability. We make this finding based on Dr. White’s testimony that the primary reason Employee can not work is because of the rheumatoid arthritis in his hands.

Reviewing the record as whole, we find Employee has proved the 1985 ladder incident was a substantial factor in bringing about his current neck condition, and that it is disabling, by a preponderance of the evidence. We make this finding based on several factors.

First, having observed Employee’s demeanor during the course of his testimony at hearing, we agree with Dr. White that Employee is a "pretty tough hoozer" and not someone given to complaining about his aches and pains unless it affects his ability to work. We find, based on our review of Dr. Reese’s records in 1985, that the central focus of Employee’s treatment was for chronic low back pain with radicular symptoms, for which he had previously been disabled. Consequently, we do not find it unusual that Employee did not seek additional treatment for his neck until 1987 when, as Dr. Reese’s March 31, 1987 report states: "he . . . developed pain in his upper extremities." (Emphasis added).

Radicular symptoms, as every physician testified, are indicative of nerve root irritation, which is a serious medical problem. Even at that time, however, Employee’s main reason for seeking treatment with Dr. Reese was "significant" low back pain and "radicular pain into the right lower extremity." Second, we find, based on the stipulated testimony of James Pickney, the blow to Employee’s head with the ladder was of sufficient force to render him unconscious.

Third, based on the testimony of Drs. White, Scully and Bald, we find the delayed onset of radicular symptoms in Employee’s upper extremities from the trauma for about eighteen months is consistent with the type of injury Employee sustained. For these reasons, we give less weight to the opinions of Drs. Smith and Mohai. Their opinions are based on their premise the 1985 trauma was probably not significant enough to accelerate or aggravate Employee’s neck condition because Employee’s immediate neck pain resolved within about a month, and Employee did not seek treatment related to his neck for almost eighteen months. Consequently, we find the trauma was a substantial factor in bringing about Employee’s current neck condition because the trauma, more probably than not, aggravated or accelerated the pre-existing degenerative disc disease and arthritis in his neck.

We also find a by a preponderance of the evidence that Employee’s work-related neck condition is a substantial factor in his current disability. We base our findings on the testimony of Dr. Bald who said Employee’s "neck is causing his complaints of numbness in his hands . . ., is clearly the result of cervical radiculopathy rather than anything specifically related to his hands" such as the rheumatoid arthritis in his hands from which he also suffers. Additionally, we find Dr. Bald’s position is corroborated by Drs. Smith and White. Both testified Employee’s neck problems severely limit his activities, and would make it difficult for Employee to work or handle dangerous equipment, even if Employee did not also suffer from rheumatoid arthritis in his hands or low back problems.

In summary, we conclude Employee has proven his claim the 1985 ladder incident was a substantial factor in bringing about his current neck condition and that such condition is a substantial factor in his current disability. Accordingly, unless we determine Employee’s time loss claim is barred by AS 23.30.105, we will order Employer to pay Employee temporary total disability benefits pursuant to AS 23.30.185, in effect at the time of the 1985 injury, from January 16, 1996, to the present and continuing, until Employee reaches vocational stability.

II. Is Employee’s claim for disability benefits barred by AS 23.30.105?

AS 23.30.105 (a), as written in 1985, stated:

A "claim" is a written application for benefits, not a general right to compensation. Jonathon v. Doyon Drilling Inc., 890 P.2d 1121, 1124 (Alaska 1995). The purpose of AS 23.30.105 is to protect an employer from claims too old to be adequately investigated and defended. Morrison-Knudsen Co. v. Vereen, 414 P.2d 536 (Alaska 1966). Professor Larson’s treatise offers a similar policy rationale for barring the unlimited review of claims in perpetuity: "Any attempt to reopen a case based on an injury ten or fifteen years old must necessarily encounter awkward problems of proof, because of the long delay and the difficulty of determining the relationship between some ancient injury and a present aggravated disability." 2B A. Larson, The Law of Workmen’s Compensation, Sec. 81.10 (1994). We have also recognized such evidentiary problems as a reason for time barring claims. See, Pride v. Swank Construction, AWCB Decision No. 93-0277 (October 29, 1993). We find the problems identified by Professor Larson and our Supreme court exist in the case before us.

Nevertheless, we conclude Employee’s claim is not barred, because we find Employee suffered from a "latent" defect. In Grasle Co. v. Alaska Workmen’s Compensation Bd., 517 P.2d 999, 1001-2 (Alaska 1974) the court stated:

A claim is considered timely filed when a reasonably prudent person would recognize the nature, the seriousness and the probable compensable nature (work-relatedness) of the injury or disease. Thus, an employee is not required to file a claim for every ache and pain which might be related to the work injury. Fox v. Alascom, Inc., 789 P.2d 1154, 1158 (Alaska 1989). Similarly, in Dafermo v. Municipality of Anchorage, 941 P.2d 114 (Alaska 1997), the Alaska Supreme Court found Dafermo’s eye condition, caused by his use of computers, was a latent injury because it was not accurately diagnosed, and its relation to Dafermo’s work was not determined, until years after he left employment with the Municipality. Id. at 119.

Finally, in Aleck v. Delvo Plastics, 972 P.2d 988 (Alaska 1999), the Alaska Supreme Court reversed the Board’s decision to bar Aleck’s claim under AS 23.30.105 because she waited almost a decade to file a claim after noticing increased symptoms, and obtaining a medical revision of her permanent disability schedule. The Board also expressed its concern that problems of proof were rampant in the claim, because Aleck also suffered from a pre-existing condition. The Supreme court stated:

Id. at 10.

We find Employee’s situation is not dissimilar to Aleck’s. Like Aleck, Employee suffers from several different medical problems, which made it difficult for both Employee and the physicians in his claim to determine which particular physical ailment was responsible for his inability to work. He has rheumatoid arthritis in his hands, degenerative disc disease and osteoarthritis in his neck and low back. He also suffers from arthritis in his elbows and feet. We find Employee sought medical care when these problems arose, and when they became disabling. Although the Employee noticed upper extremity pain as early as 1987, he continued to work at a less dangerous and physically demanding job in a substation. It was until Employee was assigned to the more demanding and dangerous line work that his physical conditions, including numbness in his hands and inability to turn his neck, became so problematic that he decided to retire with Dr. White’s encouragement. Therefore, we find Employee knew of the seriously disabling nature of his condition and its relationship to the 1985 ladder incident in January 1996. Accordingly, we find based on our review of the record, Employee’s July 1, 1996 Application for Adjustment of claim for his disability is not time barred by AS 23.30.105.

III. Is Employee’s medical claim, even if determined work-related, nevertheless barred by AS 23.30.095 or the doctrine of laches or because the treatment was unreasonable?

Employee also requests an award for the reimbursement of medical benefits paid by the Alaska Electrical Health & Welfare Fund. (See, September 30, 1999 Notice of Filing). As we understand Employer’s argument, it denied coverage for neck treatment because it claimed Employee’s neck condition, and need for medical treatment, was not work-related. For the same reasons, expressed above, we conclude Employee’s need for treatment is work-related and therefore compensable, assuming it is not time barred¹or unreasonable. Because the parties did not argue these issues, we do not render a decision on them. Instead we retain jurisdiction to resolve these questions if they are raised.

AS 23.30.145 (a) provides that legal services rendered in respect to a claim, which has been controverted, must be approved by the Board and may not be less than 25 per cent on the first $1,000 awarded and 10 percent on all sums awarded in excess of $1,000. Section 145(a) also provides that the Board may direct that fees be paid by the employer or carrier in addition to compensation which was controverted and awarded.

AS 23.30.145(b) additionally provides that if an employer resists the payment compensation and the claimant has employed an attorney in successful prosecution of the claim, the Board shall make an award to cover the costs of the proceedings. Among the costs which the Board may order is a reasonable attorney fee, which shall be paid in addition to the compensation awarded.

We find Employer controverted, and otherwise resisted, the payment of disability and medical benefits. Based on our findings and conclusions above, we find Employee retained Attorney Kalamarides and that he successfully prosecuted Employee’s claims. Attorney Kalamarides advises that he rendered legal services as set forth in his Affidavit of attorney fees and costs dated October 15, 1999. According to his Affidavit, total costs for postage, copies, messenger services, faxes and court reporter fees amounted to $1,367.86.

No claims for additional legal costs have been made, although the parties agree the cost bill record would be left open to allow for Dr. White’s hearing testimony charges.

Based on his Affidavit, we find Attorney Kalamarides charges $250.00 per hour for his services, and $100.00 per hour for paralegal services. Accordingly, Attorney Kalamarides asks for a total of $18,747.86 in attorney fees, paralegal services and legal costs. Additionally, Attorney Kalamarides asks the Board to award him a fee for the time spent attending the hearing, 4.0 hours. In summary, Employee asks the Board to award a total of $19,747.86 in attorney fees and costs.

Applying the criteria set forth in our regulation, 8 AAC 45.180(d)(2), we consider Attorney Kalamarides’ affidavit. We find the hours he and his paralegal worked to obtain the controverted benefits Employee sought is reasonably commensurate with the nature, length and complexity of the litigation, in addition to the value of the benefits Employee sought and received. Specifically, the depositions of five physicians were taken, including Dr. White’s who testified by deposition twice and a third time at the hearing. We find this was a medically complex case and also presents a serious legal question about whether Employee’s claim might alternatively be barred by Section 105. We also find Attorney Kalamarides’ hourly rate (and that of his paralegal) is appropriate given the following factors: 1) his extensive experience representing injured workers, 2) the contingent nature of workers’ compensation cases generally, 3) the medically complex and vigorously defended claims asserted in this particular case, and 4) the very competent, and well experienced defense attorneys against whom Attorney Kalamarides prevailed in this particular case.

Applying our regulation, 8 AAC 45.180(f), we consider Attorney Kalamarides’ affidavit with regard to the legal costs incurred. We find the amounts expended are reasonable given the extensive medical discovery necessary in the claim. Accordingly, we will award a total of $19,747.86 in attorney fees and costs, at this time. We retain jurisdiction to consider the cost bill for Dr. White’s hearing testimony, if the parties are unable to resolve this issue informally.

1. Employer shall pay Employee temporary total disability benefits pursuant to AS 23.30.185, in effect at the time of the 1985 injury, from January 16, 1996, to the present and continuing, until Employee reaches vocational stability.
2. Employee’s request for a vocational evaluation by the Workers’ Compensation Board, Division of Reemployment Benefits Administrator (RBA), or his designee, is granted. Employee shall make his request for such evaluation within 30 days of this decision.
3. Medical benefits paid by the Alaska Electrical Health & Welfare Fund for treatment of his work-related neck condition are compensable, in accordance with this decision.
4. Employer shall pay Employee’s attorney fees and legal costs in the amount of $19,747.86.

Dated at Anchorage, Alaska this 13^th day of January, 2000.

ALASKA WORKERS' COMPENSATION BOARD

/s/ Rhonda L. Reinhold
Rhonda L. Reinhold, Chairperson

/s/ Philip E. Ulmer
Philip E. Ulmer, Member

/s/ Andrew J. Piekarski
Andrew J. Piekarski, 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.

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 Final Decision and Order in the matter of LESTER K. BONNER employee / applicant; v. CHUGACH ELECTRIC ASSOCIATION INC, employer and NATIONWIDE MUTUAL INS CO, insurer/ defendants; Case No. 198529179, dated and filed in the office of the Alaska Workers' Compensation Board in Anchorage, Alaska, this 13^th day of January , 2000.

Brady D. Jackson, III, Clerk