LEON ROBINSON, 
Employee, 
Applicant
v. 
ANCHORAGE, MUNICIPALITY OF (PT),
Employer,
and 
ANCHORAGE, MUNICIPALITY OF,
Insurer,
Defendants.

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ERRATA SHEET
DECISION AND ORDER
AWCB Case Nos. 199221371, 199616470
AWCB Decision No. 00-0009 
Filed with AWCB Anchorage, Alaska
January 20, 2000

We issued a Decision and Order, AWCB Decision No. 00-0009, on this case on January 20, 2000. The decision contained a clerical error.

On page 20, the last sentence of the Decision presently reads:

To the extent the employee pursues additional compensation benefits the employee may be entitled to a credit, but we do not address this issue at this time.

The last sentence of the Decision on Page 20 should read:

To the extent the employee pursues additional compensation benefits the employer may be entitled to a credit, but we do not address this issue at this time.

Dated at Anchorage, Alaska this 28 day of January, 2000.

ALASKA WORKERS' COMPENSATION BOARD

WILLIAM P. WIELECHOWSKI,

Designated Chairman

I hereby certify that the foregoing is a full, true and correct copy of the Errata in the matter of LEON ROBINSON employee / applicant; v. ANCHORAGE, MUNICIPALITY OF (PT), employer; ANCHORAGE, MUNICIPALITY OF, insurer / defendants; Case Nos. 199221371, 199616470; dated and filed in the office of the Alaska Workers' Compensation Board in Anchorage, Alaska, this 28 day of January, 2000.

Debra C. Randall, Clerk

LEON ROBINSON, 
Employee, 
Applicant
v. 
ANCHORAGE, MUNICIPALITY OF (PT),
Employer,
and 
ANCHORAGE, MUNICIPALITY OF,
Insurer,
Defendants.

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FINAL
DECISION AND ORDER
AWCB Case Nos. 199221371, 199616470
AWCB Decision No. 00-0009
Filed with AWCB Anchorage, Alaska
on January , 2000

We heard the employee’s claims for additional temporary total disability (TTD) benefits, permanent partial impairment (PPI) benefits, medical and transportation costs, interest and attorney fees on December 2, 1999 in Anchorage Alaska. Attorney Charles W. Coe represented the employee. Attorney Trena L. Heikes represented the employer. We left the evidentiary record open, with the parties’ agreement, until December 9, 1999 to receive copies of disability checks paid to the employee. We closed the record on December 22, 1999, when we next met.

1. Is the employee entitled to additional benefits from his September 23, 1992 work accident?
2. Is the employee entitled to additional benefits from his August 6, 1996 work accident?

SUMMARY OF THE EVIDENCE

The employee filed two petitions seeking benefits from two work accidents that occurred while he was working for the employer as a bus driver. The employee injured his low back on September 23, 1992 when he slipped while exiting his bus. He did not fall, but caught himself and felt a "pop" in his lower back. He completed his shift and went home. Several hours later, the employee went to the emergency room at Providence Hospital complaining of left-sided back pain. (Providence Hospital Emergency Room 9/23/92 Note). X-rays revealed minimal hypertrophic changes. He was told to return if he developed pain in his leg or numbness in his buttock. Id. At the time of the employee’s accident, he was 49 years old, 5’ 9" and weighed approximately 287 pounds. (Richard M. Farleigh, M.D., P.C. 9/11/92 Chart Note).

He was referred to Declan Nolan, M.D. Dr. Nolan noted the employee had pain in his left leg but stated, "[t]here’s no weakness or numbness." The employee’s straight leg raising test was normal. Dr. Nolan’s impression was: "Acute lumbar sprain and facet pain. Doubt disc syndrome. No Radiculopathy." (Dr. Nolan 9/24/92 Report).

The employee saw Dr. Nolan again on September 29, 1992, after he had an acute exacerbation while standing up. Dr. Nolan noted:

Dr. Nolan released the employee to full duty without restrictions effective October 5, 1992. The employee testified he received no workers’ compensation benefits from this accident. However, the employer introduced evidence showing the employee did receive TTD benefits from 9/27/92 through 10/4/92. (Exhibit 1).

In February, March and May 1993 the employee was seen at Medical Park Family Care for a variety of health problems, but not for his back. (Employee’s Deposition, pp. 82-88). The next time the employee saw a doctor for his back was May 21, 1993, when he saw Dr. Nolan. Dr. Nolan treated the employee for, among other things, back spasms - which the employee testified he experienced since his teens when fatigued – and low back pain. (Id. at 87-88). Dr. Nolan noted:

Shortly thereafter, the employee embarked on an exercise regimen. He testified he was "feeling pretty good," doing sit-ups, walking up to six miles per day "with no problem" and had lost 37 pounds. (Employee’s Deposition, pp. 63 - 67).

The employee was then involved in an automobile accident on December 22, 1993. A car pulled in front of the employee and he struck the car at a speed of approximately 35-40 miles per hour. The employee’s car was totaled. He was treated at Providence Hospital in Anchorage, complaining of right foot pain and swelling, left lumbar sacral pain, left knee, right knee pain and right elbow pain. (Emergency Room 12/22/93 Report). A fracture of the right foot with a questionable fracture of the left tibial plateau and a paraspinal muscle strain (with pain primarily on the left) were diagnosed. Id.

The employee treated with Davis Peterson, M.D. Shortly after the car accident, the employee complained of back and hip spasms, which the employee felt were related to his foot fracture. (Dr. Peterson 1/4/94 Note). Because of his foot fracture, the employee began to walk with a limp. He was treated with a cast for approximately one month, physical therapy and a removable boot. He returned to work as a bus driver after approximately ten weeks. The employee was out of work from December 22, 1993 through March 2, 1994.¹

After cast immobilization Dr. Peterson recommended the use of arch supports, which bothered the employee’s feet immensely. Multiple attempts to modify the arch support on the right foot were made. The employee noted pain in his right thigh as well as occasional numbness. Dr. Peterson attributed the numbness and pain in the employee’s right leg to iliotibial band syndrome, which was caused by the employee’s altered gait. (Dr. Peterson Deposition, pp. 23-24).

The employee discontinued use of the arch supports because they caused back pain. (Dr. Peterson 5/23/94 Chart Note). On September 19, 1994, the employee reported right thigh numbness during rest. Previously, this numbness existed only during walking. (Nurse’s 9/19/94 Note). When evaluated by Dr. Peterson on October 4, 1994, the employee reported a recent twisting incident had aggravated his low back pain. Dr. Peterson diagnosed a lumbar sacral strain. (Dr. Peterson 10/4/94 Chart Note).

The employee's back, leg and thigh pain and numbness continued, leading Dr. Peterson to recommend EMG/NCV testing in March 1995. (Dr. Leland Jones, Medical Park Family Care 3/22/95 Chart Note; Dr. Peterson 3/28/95 Chart Note). EMG/NCV studies performed on the employee’s right leg by Robert Fu, M.D. on March 30, 1995 revealed right-sided radiculopathy. The employee reported to Dr. Fu that he had experienced intermittent thigh numbness whenever he walked any distance since being taken off crutches.

The employee scheduled an appointment for a MRI at Stanford University. (Dr. Peterson 3/28/95 Chart Note). The employee testified he went to Stanford because he was unable to have a MRI done in Alaska since there were no MRI machines large enough to accommodate him. A MRI was taken of the employee’s lumbar spine on May 2, 1995. Eric Trefelner, M.D., read the MRI and concluded: "In light of the patient’s clinical history of right radiculopathy taken in combination with the images there appears to be a small right parasagittal disc herniation at L5-S1." (Dr. Trefelner 5/2/95 MRI Interpretation). Glen O’Sullivan, M.D. of Stanford University concurred with this conclusion.

Epidural or nerve root blocks were recommended and performed. When examined by Dr. Peterson on June 1, 1995, the employee reported the lumbar epidural injection was ineffective. (Dr. Peterson 6/1/95 Chart Note). In September 1995, the employee complained of both left and right leg pain. Dr. Peterson therefore determined the employee had a "bilateral herniated nucleus pulposus at L5-S1" and recommended a bilateral microdiscectomy, which was undertaken in conjunction with an unrelated hernia repair on October 11, 1995. (Dr. Peterson 9/7/95 Chart Note; 10/11/95 Operative Report).²

The records indicate a description of immediate improvement in the post-op notes with substantial decreased pain in the legs. A note in November of 1995 described some back soreness with prolonged sitting. On January 26, 1996 Dr. Peterson noted the employee suffered "Residual back pain referable to L5-S1 degenerative disease with no overt radiculopathy today," and recommended starting the employee on a comprehensive back rehabilitation program aimed at increasing back strength and improving overall tone. (Dr. Peterson 1/26/96 Chart Note). Through 1996, the records indicate that he continued to suffer slight soreness in his back when he bent or stooped and there were still prescriptions for Oruvail and Darvocet for low back pain complaints. (See, e.g., Dr. Peterson 3/19/96 Report). The examinations through 1996 describe a smooth gait and ability to forward bend six inches from fingertips to floor.

On August 6, 1996, the employee claims he injured his back again while at work. He testified he sat down in his bus seat and the seat went back less then a foot, causing him pain in his lower back. This incident occurred at approximately 6:30 a.m. The employee continued working through his shift, until the afternoon (Employee’s deposition, pp. 99-100). The employee missed several days from work due to this accident. The wage loss information chart submitted by the employee reveals the employee was compensated for all lost time due to this injury through November 1996. (Employee’s 6/17/99 Notice of Intent to Rely).

The employee had a MRI done on November 21, 1996. Dr. Peterson read the MRI and reported:

On December 19, 1996 the employee presented himself to Dr. Peterson with a mildly antalgic gate, which Dr. Peterson stated was due to an "Exacerbation of right foot pain after stepping on a rock earlier today. He has noted increased swelling. He has a chronic Lisfranc injury with some degenerative changes as previously noted." (Dr. Peterson 12/19/96 Report).

Physical therapy records from August 1997 state the employee "does not like to do exercises. Neck and [lower back] range of motion is improving... Subjective complaints do not equate [to] objective ranges... Secondary gain issues may come into play." (8/7/97 Physical Therapy Records). Those records reveal continuing improvement with physical therapy and state "Objective [range of motion] is not proportionate to subjective complaints." (8/21/97 Physical Therapy Records).

The employee testified that now he notices his back symptoms as soon as he gets in his private car to travel anywhere and he cannot sit or stand for long periods of time. (Employee’s Deposition, p. 102). The employee also has had a myriad of other illnesses, unrelated to his work.

The employee retained attorney Charles W. Coe to represent him in his personal injury claim arising out of his auto accident. The employee filed a lawsuit in the Superior Court for the State of Alaska, Third Judicial District, Case No. 3AN-95-10606 CI on December 19, 1995. The employee claimed, inter alia, damages for injuries to his lower back. The employee also sought lost wages.

Mr. Coe sent a series of letters to the automobile accident defendant’s insurance company, State Farm, seeking to have State Farm compensate the employee for his back injury. Three of these letters were introduced into evidence. On July 11, 1995, Mr. Coe wrote:

On September 12, 1995, Mr. Coe wrote:

On October 6, 1995, Mr. Coe wrote:

The employee settled his third party automobile claim on March 7, 1996, receiving approximately $47,000 for his bodily injury claim in addition to payments for property damage (Exhibits 3-6); (Exhibit 11). On November 14, 1996, the employee filed claims for workers’ compensation benefits for his 1992 work injury.

The Medical Evaluators

Thad C. Stanford, M.D., J.D. examined the employee on behalf of the employer on February 22, 1997. He stated:

On April 1, 1997, Dr. Peterson wrote:

Bryan H. Laycoe, M.D., a Board Certified orthopedic surgeon examined the employee on behalf of the employer on October 31, 1997. He issued a lengthy report, stating in part:

The employee petitioned the Board for a Second Independent Medical Evaluation (SIME) and on March 19, 1998 the Board ordered the employee to be evaluated by Douglas G. Smith, M.D., an orthopedic consultant. Dr. Smith examined the employee on May 22, 1998. He was sent the employee’s voluminous set of medical records and was asked a series of questions. He replied as follows:

The employee argues the September 1992 and August 1996 work accidents were substantial factors in causing the employee’s back conditions. The employee argues the 1992 accident triggered a weakness in the employee’s back that gradually developed over time. The employee contends he is entitled to PPI benefits based on a permanent partial impairment of 13.5%, unpaid prescription costs, travel costs and TTD benefits for temporary exacerbations caused by his accidents.

The employer argues the employee filed his 1992 claim four years after the date of the injury, and it is thus barred by AS 23.30.105. The employer argues the employee’s work accidents caused minor injuries, which quickly resolved. The employer argues there is no medical evidence showing that either of the employee’s accidents was a substantial factor in his disc herniation and subsequent need for treatment and additional benefits. The employer argues it has paid all benefits due the employee.

A. The Employee’s 1992 Claim is not Barred by AS 23.30.105

The employee did not file his Petition for Workers’ Compensation Benefits until November 14, 1996, more than four years after his accident occurred on September 23, 1992. The employer argues we should dismiss the employee’s claim under AS 23.30.105. That statute states:

1. 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 the employee’s disability and its relation to the employment and after disablement. However, the maximum time for filing the claim in any event other than arising out of an occupational disease shall be four years from the date of injury, and the right to compensation for death is barred unless a claim therefor is filed within one year after the death, except that if payment of compensation has been made without an award on account of the injury or death, a claim may be filed within two years after the date of the last payment of benefits under AS 23.30.180, 23.30.185, 23.30.190, or 23.30.215. It is additionally provided that, in any case of latent defects pertinent to and causing compensable disability, the injured employee has full right to claim as shall be determined by the board, time limitations notwithstanding.

The Alaska Supreme Court has held that an injury is latent so long as the claimant does not know, and in the exercise of reasonable diligence (taking into account his education, intelligence and experience) would not have come to know, the nature of his disability and its relation to his employment. W.R. Grasle Co. v. Alaska Workmen’s Comp. Bd., 517 P.2d 999 (Alaska 1974). In the instant matter, the employee argued he suffered an injury that progressed over the years, ultimately causing the need for surgery and medical treatment years later. We find this case involves complex issues of medical causation. We find the employee did not know, and in the exercise of reasonable diligence would not have known, the true nature of this disability without the assistance of a physician. The employee was first notified he had a herniated disc in May 1995. Discussions regarding causation issues arose some time after this. He filed his Workers’ Compensation claim in November 1996, within two years from the date his condition was diagnosed. We find he timely filed his claim within two years from the date he knew he had a condition that might be related to his work accident.

B. Presumption Analysis

AS 23.30.120(a) provides in pertinent part: "In a 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 (1) the claim comes within the provisions of the chapter . . . ." The Alaska Supreme Court held "the text of AS 23.30.120(a)(1) indicates that the presumption of compensability is applicable to any claim for compensation under the workers' compensation statute." Meek v. Unocal Corp., 914 P.2d 1276, 1279 (Alaska 1996), (quoting Municipality of Anchorage v. Carter, 818 P.2d 661, 665 (Alaska 1991)). The evidence necessary to raise the presumption of compensability varies depending on the type of claim. "[I]n claims based on highly technical medical considerations, medical evidence is often necessary in order to make that connection." Burgess Construction Co. v. Smallwood, 623 P.2d 316 (Alaska 1981). In less complex cases, lay evidence may be sufficiently probative to establish causation. VECO, Inc. v. Wolfer, 693 P.2d 865, 871 (Alaska 1985). The employee need only adduce "some" "minimal" relevant evidence Cheeks v. Wismer & Becker/G.S. Atkinson, J.V., 742 P.2d 239, 244 (Alaska 1987) establishing a "preliminary link" between the injury claimed and employment, Burgess Construction, 623 P.2d 312, 316 (Alaska 1981), or between a work-related injury and the existence of disability. Wein Air Alaska v. Kramer, 807 P.2d at 473-74 (Alaska 1991).

The application of the presumption involves a three-step analysis. Louisiana Pacific Corp. v. Koons, 816 P.2d 1379, 1381 (Alaska 1991). First, the employee must establish a "preliminary link" between the disability and his or her employment. Id. Second, once the preliminary link is established, "it is the employer's burden to overcome the presumption by coming forward with substantial evidence that the injury was not work related." Id. (quoting Burgess Construction v. Smallwood, 623 P.2d 312, 316 (Alaska 1981)). To overcome the presumption of compensability, the employer must present substantial evidence that the injury was not work-related. Id.; Miller v. ITT Arctic Services, 577 P.2d 1044, 1046 (Alaska 1978). Because the presumption shifts only the burden of production to the employer, and not the burden of proof, we examine the employer’s evidence in isolation. Veco, Inc. v. Wolfer, 693 P.2d 865, 869 (Alaska 1985).

In Grainger v. Alaska Workers' Compen. Bd., 805 P.2d 976, 977 (Alaska 1991), the Court explained two possible ways to overcome the presumption: (1) produce substantial evidence which provides an alternative explanation which, if accepted, would exclude work-related factors as a substantial cause of the disability; or (2) directly eliminate any reasonable possibility that the employment was a factor in the disability. "Substantial evidence" is the amount of relevant evidence a reasonable mind might accept as adequate to support a conclusion. Miller v. ITT Arctic Servs., 577 P.2d 1044 (Alaska 1978). We defer questions of credibility and the weight to give the employer's evidence until after we have decided whether the employer has produced a sufficient quantum of evidence to rebut the presumption that the employee's injury entitles him to compensation benefits. (Norcon, Inc. v. Alaska Workers’ Comp. Bd., 880 P.2d 1051 (Alaska 1994).

The third step of the presumption analysis provides that, if the employer produces substantial evidence that the injury is not work-related, the presumption drops out, and the employee must prove all elements of his case by a preponderance of the evidence. Koons, 816 P.2d 1381. The party with the burden of proving asserted facts by a preponderance of the evidence, must "induce a belief" in the mind of the trier of fact that the asserted facts are probably true. Saxton v. Harris, 395 P.2d 71, 72 (Alaska 1964). A longstanding principle in Alaska workers' compensation law is that inconclusive or doubtful medical testimony must be resolved in the employee's favor. Beauchamp v. Employers Liab. Assurance Corp., 477 P.2d 993 (Alaska 1970).

C. September 1992 Work Injury

We find the employee’s 1992 accident claim involves multiple potential causes including the employee’s obesity and pre-existing degenerative disc disease, as well as intervening causative factors. This claim is "based on highly technical medical considerations" and thus medical evidence is necessary to establish the preliminary link between the work accident and the employee’s claims. Burgess Construction Co. v. Smallwood, 623 P.2d 316 (Alaska 1981).

The employee’s treating physician testified at deposition that he believed the employee's injury was "multifactorial" and the September 1992 work accident probably "contributed to some degree." (Dr. Peterson Deposition, pp. 29-30). We find Dr. Peterson’s testimony is sufficient evidence to establish a "preliminary link" between the work accident and the employee’s injury. Following the Court's rationale in Meek, we therefore apply the presumption of compensability from AS 23.30.120(a)(1) to the benefits he claims.

The employee having established a presumption of compensability, the burden shifts to the employer to rebut this presumption with substantial evidence. Dr. Laycoe reported the employee’s 1992 work accident was not a substantial factor in the employee’s complaints after May 1993, herniation and need for surgery. Dr. Laycoe determined the employee’s need for medical care relevant to the 1992 work injury ended in the spring of 1993. He determined the employee’s work accident caused a lumbar strain, which resolved, leaving no permanent residuals. He offered an alternative theory that the employee’s ultimate condition was caused by degenerative changes in the employee’s lumbar spine. (Dr. Laycoe’s 2/22/97 Report).

Dr. Stanford affied an alternative theory that the employee’s back pain and herniation were the product of "the December 1993 automobile accident which caused an antalgic gate and his pre-existing obesity." (Dr. Stanford’s 10/28/97 Affidavit). Finally, the Board’s SIME, Dr. Smith stated the employee had some transient symptoms caused by the September 1992 work accident, which rapidly cleared. He determined the employee’s need for medical care ended in May 1993. He directly eliminated the employee’s 1992 work accident as a causative factor in the employee’s subsequent need for medical treatment and opined that the employee’s symptomatology was due to the December 1993 motor vehicle accident. We find the employer has offered substantial evidence rebutting the presumption. See Safeway v. Mackey, 965 P.2d 22, 27-28 (Alaska 1998); Grainger v. Alaska Workers' Compensation Board, 805 P.2d 976, 977 (Alaska 1991).

The employee must prove his claim for additional benefits by a preponderance of the evidence. Meek, 914 P.2d at 1280. We find the employee has failed to meet his burden of proof. We find the employee sustained a lumbar strain on September 23, 1992. He was out of work until October 5, 1992, at which time he was returned to work by his treating doctor without restrictions. We find the employer compensated him for this lost time. Dr. Smith noted the employer suffered no permanent impairment as a result of this accident. (Dr. Smith Report). We find he suffered no permanent impairment because of this accident, nor did he, as a result of this accident suffer any time loss other then his initial time loss.

We find he suffered left-sided leg pain after the 1992 accident, which rapidly resolved and did not appear for three years. We agree with the SIME and find the reappearance of this left-sided radicular pain in 1995 was too remote to have been related to his September 1992 accident. We agree with the SIME and Dr. Laycoe and find the employee’s need for medical care ended after May 1993. The overwhelming medical testimony indicates the employee’s later herniated disc and subsequent complaints were not caused by his 1992 accident. There was no medical testimony that the September 1992 work accident was a substantial factor in causing the employee’s later back problems, and there is a multitude of medical evidence indicating it was not. The employee’s treating doctor, Dr. Peterson, further agreed there was no medical evidence demonstrating the deterioration of the employee’s back condition following the September 1992 work accident until after the December 1993 automobile accident. (Dr. Peterson Deposition, p. 62).

The emergency room and the employee’s initial treating physician, Dr. Nolan, instructed the employee in September 1992 to return if he got worse or developed any leg symptoms. He did not return until May 1993, and at that time still did not complain of any numbness or weakness. Dr. Nolan repeatedly advised the employee to lose weight, insisting the employee’s complaints would "be best served by continuing a consistent exercise program" (Dr. Nolan’s 5/21/93 Report). We note that in September 1992 the employee’s weight was approximately 290 pounds and had been steadily increasing up to that point (See Richard M. Farleigh, M.D. Notes: 8/26/92 "Weight is 286, up 1 pound;" 9/11/92 "Weight is 287 lbs, up another pound"). As the employee’s weight decreased in 1993 through exercise, so did his subjective back complaints. The employee testified repeatedly at deposition he was feeling "pretty good" before the December 1993 automobile accident, walking upto 6 miles per day for exercise and had lost 37 pounds. Additionally, other then his initial time loss, the employee suffered no lost time from work due to his accident of September 1992.

The employee and his attorney made representations in the employee’s third party lawsuit regarding the employee’s medical condition. The employee completed a disability application form for the employer on October 10, 1995, just prior to his back surgery. In that form he specifically claimed his back surgery was caused by the December 1993 automobile accident and was not work-related. His physician concurred with that and stated the employee’s injury date was December 22, 1993 – the date of the employee’s automobile accident. (Exhibit 13).

The employee submitted medical bills and travel expenses in his third party lawsuit, claiming his back injury was due to his automobile accident and specifically asserting his 1992 work accident produced merely a "muscle strain" and "he did not need surgery prior to this [automobile] incident." The employee now seeks to be reimbursed again for those same expenses in these workers’ compensation claims. We find that those representations, coupled with the employee’s contradictory testimony now that the December 1993 automobile accident "didn’t play any [part]" in employee’s subsequent back problems (Robinson Deposition, p. 114) seriously undermine the employee’s credibility. AS 23.30.122.

We agree with the SIME and conclude that the substantial evidence demonstrates the employee’s September 1992 injury was a strain that resolved. We find the employee’s need for medical care ended at the end of May 1993. We find his 1992 accident did not contribute to the employee’s later medical conditions, need for treatment or time off. We find the employee’s subsequent "herniation" and back complaints were caused by the December 1993 car accident, which caused the employee to walk with an antalgic gate and by his pre-existing disc degeneration. We conclude the employee has received all compensation benefits due and owing to him from the 1992 accident. The employee’s claim number 199221371 is denied and dismissed.

D. August 6, 1996 Claim

We find the employee’s 1996 accident claim, like his 1992 claim, involves multiple potential causative factors including the employee’s obesity and degenerative disc disease, as well as possible intervening causes. We find this claim is "based on highly technical medical considerations" and thus medical evidence is necessary to establish the preliminary link between the work accident and the employee’s claims. Burgess Construction Co. v. Smallwood, 623 P.2d 316 (Alaska 1981).

Dr. Peterson testified the August 1996 work accident was "probably more of a temporary exacerbation, as best as I can tell." (Dr. Peterson Deposition, p. 55). When asked if he could say the employee’s August 1996 injury was a substantial factor in the employee’s need for continuing medical treatment, Dr. Peterson testified at deposition that "I don’t think I can. But I can’t discount it." (Dr. Peterson Deposition, p. 57).

Dr. Smith opined in his report, "The 1996 aggravation after surgery had already been performed, could be, in my opinion, considered a factor relative to his current presentation." (Dr. Smith Report, p. 6). We find this doctor’s statement is sufficient to establish a "preliminary link" between the work accident and the employee’s injury. Following the Court's rationale in Meek, we therefore apply the presumption of compensability from AS 23.30.120(a)(1) to the benefits he claims.

The employee having established a presumption of compensability, the burden shifts to the employer to rebut this presumption with substantial evidence. Dr. Laycoe stated the employee’s August 1996 work accident was not a substantial factor in the employee’s current condition. Dr. Laycoe stated "the effects of the 1996 strain would have only lasted a period of weeks no greater than six to eight on a more probable than not basis." (Dr. Laycoe Report, p. 10). Dr. Smith stated the employee reached medical stability following this accident three months after it occurred. We find the employer has offered substantial evidence rebutting the presumption of compensability after November 6, 1996. See Safeway v. Mackey, 965 P.2d 22, 27-28 (Alaska 1998); Grainger v. Alaska Workers' Compensation Board, 805 P.2d 976, 977 (Alaska 1991).

The employee must prove his claim for additional benefits by a preponderance of the evidence. Meek, 914 P.2d at 1280. We find the employee is entitled to compensation benefits from August 6, 1996 through November 6, 1996. The records show the employee has received all workers’ compensation benefits due and owing for this period. Regarding the employee’s claim that he is entitled to additional benefits after November 6, 1996, we find he has failed to meet his burden of proof.

We find the employee suffered a lumbar strain in August 1996 that resolved in November 1996 and left no residuals. Dr. Laycoe stated the effects of this lumbar strain would have lasted no longer than six to eight weeks. This is consistent with the determination of Dr. Smith that the employee reached medical stability three months after the August 1996 accident. We find Dr. Smith’s opinion persuasive on this point and find the employee reached medical stability from this accident on November 6, 1996.

There is no objective medical evidence the employee suffered any permanent impairment due to this accident and there is no medical testimony that the employee’s 1996 work accident was a substantial factor in the employee’s need for medical treatment or additional benefits after November 6, 1996. MRI studies taken before and after the 1996 accident reveal no structural changes in the employee’s back other then those changes which would normally be expected following back surgery. (Dr. Smith Report, p. 6). Furthermore, Dr. Smith reported that neurological examinations of the employee revealed no structural changes in the employee’s back. Id. Dr. Smith also found the employee suffered a 10% whole person impairment, unrelated to the employee’s 1992 work accident and unchanged by the employee’s 1996 work accident. There is no evidence before us that he is entitled to any additional benefits from this accident.

Dr. Smith noted in his report that "whatever happened in August of 1996 is ongoing at this time in 1998 and probably would be considered a permanent change through combination or aggravation with the preexisting condition." (Dr. Smith Report, p. 7). Dr. Smith made this statement based on the employee’s subjective complaints, including the employee’s pain drawing, wherein the employee checked virtually every part of his body, including his feet, ankles, knees, head, neck, hands, fingers, arms, shoulders, legs and upper back as being in pain. We find there is no evidence that any of these conditions are related to the employee’s work accidents and, according to Dr. Smith there is no objective proof supporting the employee’s claim that his present lower back complaints are due to his August 1996 accident. This finding is supported by the employee’s own physical therapist, who warned of the employee’s potential malingering and reported the employee’s subjective complaints were not supported by the objective findings. While we find Dr. Smith to be credible and objective, we find the employee’s credibility is lacking, and therefore Dr. Smith’s determinations regarding this aspect of the employee’s claim – which were based on the employee’s subjective complaints -- are thus accorded little weight by us. We find the employee is eligible for benefits from the August 1996 accident through November 6, 1996. All benefits due and owing from the August 1996 accident have been paid to the employee. The employee has failed to meet his burden of proof that the August 1996 accident was responsible for any additional benefits he has not already received. His August 1996 claim is therefore denied and dismissed.

E. Occupational Aggravation of the Employee’s Injury

The employee made a reference in his Brief that the employee’s continued work for the employer aggravated his back and warranted an award of benefits. (Employee’s 11/30/99 Brief, p. 8). The employee never filed a claim seeking benefits for such an occupational aggravation and there was little argument or evidence presented regarding this allegation. It is not clear to us whether the employee is claiming cumulative trauma or rather alleging that specific incidents caused new claims for time loss and the need for further medical care. The employer appropriately relied on the employee’s claims in preparing its defenses and accordingly did not obtain a medical opinion regarding whether or not the employee’s work as a bus driver was a substantial factor aggravating his condition. The SIME did not fully address this issue either. We find the employee has not properly raised this claim. We find we do not have enough evidence to properly evaluate this allegation. Accordingly, we make no determinations regarding this contention. If the employee wishes to pursue this claim, he is instructed to file a Workers’ Compensation Claim form specifically raising this issue. We retain jurisdiction to consider this issue.

The Board also did not receive any evidence or argument regarding the appropriate credit the employer is due, if any, from the employee’s third party lawsuit. The employee apparently did not notify the employer of his third party lawsuit as required by AS 23.30.015(j). To the extent the employee pursues additional compensation benefits the employee may be entitled to a credit, but we do not address this issue at this time.

ORDER

Employee's claims for additional compensation benefits are denied and dismissed.

Dated at Anchorage, Alaska this day of January, 2000.

ALASKA WORKERS' COMPENSATION BOARD

/s/ William Wielechowski
William P. Wielechowski, Designated Chairman

/s/ Mark D. Stemp
Mark Stemp, 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 LEON ROBINSON employee / applicant; v. ANCHORAGE, MUNICIPALITY OF (PT), employer; ANCHORAGE, MUNICIPALITY OF, insurer / defendants; Case Nos. 199221371, 199616470; dated and filed in the office of the Alaska Workers' Compensation Board in Anchorage, Alaska, this day of January, 2000.

Debra C. Randall, Clerk

The employee later included this time loss in this worker’s compensation claim.