MARIE L. SIMMONDS, 
Employee, 
Applicant
v. 
SKW ESKIMOS INC.,
Employer,
and 
FREMONT INDEMNITY CO,
Insurer,
Defendants.

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DECISION AND ORDER
AWCB Case No. 198103026
AWCB Decision No. 00-0012
Filed with AWCB Fairbanks, Alaska
on January 21, 2000

We heard the employer’s petition to dismiss the employee's claim for workers’ compensation benefits at Fairbanks, Alaska on December 9, 1999. The employee represented herself. Attorney Deirdre Ford represented the employer and insurer ("employer"). We closed the record at the end of the hearing.

Whether the employee’ claim for workers’ compensation benefits is barred by the statute of limitations in AS 23.30.105, and whether the employee is able to establish that her current condition is substantially related to her work for the employer.

The employee began work for the employer as a laborer/expeditor on April 7, 1980, and on June 10, 1980, sustained a work-related back injury. A Notice of Injury was filed and the employee received medical treatment at the Alaska Native Medical Facility in Barrow, where she was diagnosed as having sprained her low back. The Physician’s Initial Report of Work Injury or Occupational Disease notes that she was moving 25 lb. boxes of sheer plates onto pallets when she developed severe back pain. The diagnosis was lumbar strain. Charles Mumford, M.D., at the Alaska Native Hospital, stated on June 10, 1980, that she would be released to return to work as of June 16, 1980. On June 17, 1980, she was seen again and was complaining of radiating pain. The next medical report is from July 19, 1990, after she had smashed her thumb at work. This medical report reflects no complaints of back pain. In a job application dated September 23, 1981, she stated that she last worked for the employer on October 6, 1980. She also indicated that she was looking for work as a driver/laborer/expediter, but that she was limited in lifting due to a back injury.

Both before and after the work for the employer, the employee had an extensive and wide ranging medical history, including numerous complaints of back problems. The first medical report referencing back problems is from November 15, 1960, when the employee was eleven years old. The report mentions, "complaints of sore back." On April 11, 1970, the employee was seen at the Barrow clinic complaining of back and left leg pain. A follow-up visit on September 28, 1970, again referenced back pain. In October, 1978, she was also complaining of right shoulder pain and on October 21, 1970 she was complaining of back ache and bronchitis. The employee continued to treat off and on for back pain throughout the 1970s.

On January 6, 1980, the employee was seen for spine and paraspinal pain in the lower lumbar with radiation into the groin, left buttocks and lateral aspect of left thigh. The diagnosis was back pain "probably disk herniation L4-L5 with L5 nerve root involvement." As noted above, the employee strained her low back on June 10, 1980 while working for the employer.

The next medical report involving back pain is for January 5, 1981. At that time the employee was seen at the Barrow Clinic where she reported that she had strained her back just after Christmas at the Eskimos games. The lumbar spine films, taken on January 12, 1981, showed no significant abnormalities. The employee was seen several times in January complaining of back problems, and on January 18, 1981 she was given a restriction from work for several days. It was noted that she might have a possible ruptured intervertebral disk and should avoid heavy lifting.

In February, 1981 she was again admitted to the hospital for chronic back strain and possible herniated nucleus pulposus. She was discharged on February 13, 1981. She was seen by an orthopedist who recommended exercises. She returned to the hospital on February 20, 1981 complaining she had no relief from the exercises. She was admitted again on March 12, 1981 and discharged on March 16, 1981, at which time the hospital noted that lumbar spine films obtained in January showed no significant pathology and that there was increased activity at home that had possibly aggravated her back condition.

On May 1, 1981, she was again admitted to the hospital with recurrent lumbar strain. It was noted that she had several previous hospitalizations for bed rest. She reported she had been doing well until she spent a lot of time on her feet kneading bread and felt that she exacerbated her back pain. The employee was also hospitalized in June for a ventral hernia. She was hospitalized in September for chest pains.

On September 2, 1986, the employee fell and sprained her right foot. In July 1987, the employee was seen at the Mayo Clinic in Rochester, Minnesota for various gynecological problems but with no mention of ongoing back problems.

On June 15, 1989, she was seen at the Barrow Clinic for medication for her lower back, which started bothering her a week previously when she was carrying water. On June 26, 1989, she indicated that she injured her back shoveling snow. On January 9, 1990, she was seen once more for low back pain, and stated she was a heavy equipment operator. On January 16, 1990, she indicated to the Barrow Hospital that she had a recurrence of back pain following cutting up a seal. She indicated that she had back pain since 1978-79. On March 22, 1990, Brian Tremble, M.D., diagnosed her as having lumbosacral myofascial pain syndrome, and he was unable to identify any motor deficits consistent with radiculopathy. An EMG of the right lower extremity on April 25, 1990, showed no evidence of radiculopathy with a normal study.

In August, 1990, Young Ha, M.D., of Fairbanks examined her for a Social Security benefits determination and noted the x-rays were unremarkable and that there was no diagnosis for her condition, no objection signs. She saw James Foelsch, M.D., who noted that the EMG was normal, with no evidence of denervation. She continued to treat off and on in 1990 for back pain along with numerous other symptoms and complaints. She also saw James M. Geraghty, M.D., at the Barrow Hospital on March 28, 1991, who diagnosed hyperventilation syndrome and conversion reaction.

The employee saw William Patton, M.D., on July 26, 1991, at the Barrow Hospital for an orthopedic evaluation. Upon physical examination, he concluded her hip motions were not "particularly" painful with flexion. On September 5, 1991, a cervical spine series showed slight narrowing of the C5-6 intervertebral disk with mild anterior lateral and posterior spurring. The impression was degenerative changes. The employee continued to seek back treatment off and on in 1992 and 1993.

On July 24, 1996, she saw Vernon Cates, M.D., and J.O. Cates, D.C., who took x-rays of the lumbar spine. These showed degenerative disk disease L4/5. The diagnosis was degenerative disk disease. On August 28, 1996, Dr. Cates diagnosed her as having Sjogren’s Syndrome, which is a rheumatoid arthritis.

On March 7, 1998, at the request of the employer, Edward M. Voke, M.D., performed an independent medical evaluation of the employee. He noted her lengthy and complex medical history. He noted that on January 6, 1980, she injured her lumbar spine hauling ice and that a diagnosis of a possible herniated disk was established. He noted the work injury on June 10, 1980, and then her ongoing back complaints. His diagnosis was degenerative arthritis, L4-5 with Grade I spondylolisthesis. He also noted severe degenerative disk disease at C5-6. He further stated that, based on the medical records, he did not believe she sustained an acute injury on June 10, 1980, but this incident was simply one of a multitude of injuries sustained and noted in her medical records. He further stated that the incident of June 10, 1980, was not a substantial factor in the development of her current disability. He noted that there was no evidence of a ruptured disk or herniated disk. He also noted that her work as a heavy equipment operator or taxi driver did not permanently aggravate her condition.

The employee testified that in the years after her work for the employer, she worked as a heavy equipment operator and drove a cab. She also testified she had been involved in at least one auto accident where she was hit while riding in a cab in Anchorage. She also stated that while working for various employers subsequent to this employer, including North Slope Borough, UIC and Arctic Cab Company, she had occasional problems with her back from lifting chains and bags while working. She also stated she had back complaints from getting bounced around or thrown off her snow machine.

Initially, the employee filed a Notice of Injury with an injury date of September 1, 1987, against the employer. After discovery, including the deposition of the employee, it was determined that she had actually worked for the employer in 1980 and had a work injury in June of 1980.

A Petition to Dismiss any claim for a 1987 injury while working for the employer was filed by the employer. At the prehearing on May 6, 1998, it was established there was no injury with the employer in 1987 and the claim number was corrected to reflect the actual date of injury of June 10, 1980.

The employer asserts the employee's claim is barred by AS 23.30.105(a) which states:

For purposes of the two-year statutes of limitations, the term "claim" means a "written application for benefits filed with the Board." Jonathan v. Doyon Drilling, Inc., 890 P.2d 1121 (Alaska 1995).

The employee worked for the employer in 1980. She did not file a claim for benefits until 1998. She has asserted that she had no other work injury and that her work for the employer must, therefore, be responsible for her current and ongoing back complaints. She asserted that her back pain did not resolve after the work injury. Nevertheless, she testified to significant lifting while working for various employers, including North Slope Borough and Arctic Cab Company, employers subsequent to her work for the employer. She testified that she filed the claim against the employer because that was where she had a job injury. She admitted that she had had pain and complaints while working for other employers, although she denied any other work injury.

The employer asserts that the employee was aware at least by 1990 of her ongoing back complaints. In 1990, she was requested Social Security disability benefits and was seen at the request of the Social Security Administration by Drs. Foelsch and Ha, in Fairbanks, Alaska. Nevertheless, these doctors were unable to diagnose or relate the employee’s condition to her injury. The employee testified the Social Security Administration ultimately denied her request. She filed another request for Social Security disability benefits in August 1996. The record reflects the employee may have been fully aware of her back problems by August 1996, but this is less than two years prior to the filing of her claim May 11, 1998. Therefore, we find the statute of limitations in AS 23.30.105 does not bar the employee’s claim.

Alternatively, the insurer contends it is not liable for the employee’s workers’ compensation benefits, because any disability or need for medical treatment resulted from a naturally occurring deterioration of the employee's pre-existing back condition. The Alaska Supreme Court has long recognized, though, that employment that sufficiently aggravates, accelerates, or combines with a pre-existing condition to cause disability entitles an employee to compensation and benefits. Thornton v. Alaska Workmen's Compensation Board, 411 P.2d 209, 210 (Alaska 1966). Liability may be imposed on an employer, however, only if the employment aggravated, accelerated, or combined with the pre-existing condition and the aggravation, acceleration, or combination was a "substantial factor" contributing to the ultimate disability. United Asphalt Paving v. Smith, 660 P.2d 445, 447 (Alaska 1983).

A "substantial factor" is found where it is "shown both that the [disability] would not have happened 'but for' the [employment] and that the [employment] was so important in bringing about the [disability] that reasonable men 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).

In analyzing a case involving a pre-existing condition, the Court held that an aggravation or acceleration (and presumably a combination as well) 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 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 this chapter." Continuing disability and need for medical benefits must also be presumed. Olson v. AIC/Martin J.V., 818 P.2d 669, 672 (Alaska 1991); Municipality of Anchorage v. Carter, 818 P.2d 661, 665 (Alaska 1991).

Nevertheless, before the presumption attaches the employee must establish a preliminary link between the disability and the employment. "[I]n claims 'based on highly technical medical considerations' medical evidence is often necessary in order to make that connection." Id. at 316. "Two factors determine whether expert medical evidence is necessary in a given case: the probative value of the available lay evidence and the complexity of the medical facts involved." Veco, Inc. v. Wolfer, 693 P.2d 865, 871 (Alaska 1985). Once the employee makes a prima facie case of work-relatedness the presumption of compensability attaches and shifts the burden of production to the employer. Id. at 869.

To overcome the presumption of compensability, the employer must present substantial evidence the disability is not work-related. Miller v. ITT Arctic Services, 577 P.2d 1044, 1046 (Alaska 1978). The Court "has consistently defined 'substantial evidence' as 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion'" Miller, 577 P.2d at 1046 (quoting Thornton, 411 P.2d at 209, 210). In Fireman's Fund American Insurance Cos. v. Gomes, 544 P.2d 1013, 1016 (Alaska 1976), the Court explained two possible ways to overcome the presumption: 1) producing affirmative evidence the disability and need for medical treatment was not work-related or 2) eliminating all reasonable possibilities the disability and need for medical treatment was work-related.

The same standards used to determine whether medical evidence is necessary to establish the preliminary link apply to determine whether medical evidence is necessary to overcome the presumption. Veco, 693 P.2d at 871. "Since the presumption shifts only the burden of production and not the burden of persuasion, the evidence tending to rebut the presumption should be examined by itself." Id. at 869.

If the employer produces substantial evidence that the disability was not work-related, the presumption drops out, and the employee must prove all the elements of his claim by a preponderance of the evidence. 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 the question involved here, whether the employee's back condition was the result of his work for the employer nineteen years ago, medically complex. Consequently, we conclude that medical evidence is necessary both to raise and rebut the presumption of compensability. The employee presents no medical evidence connecting her current condition to her work for the employer. The only medical reports from the 1980 injury indicated that it resolved shortly thereafter. Therefore, we find the employee’ claim must fail because she has not presented enough evidence to establish the preliminary link necessary to raise the presumption of compensability.

If the employee’s lay testimony is sufficient to raise the presumption of compensability, we find the employer’s independent medical evaluation by Dr. Voke is substantial evidence to overcome any presumption the employee’s current back problems are the result of her work for the employer in 1980. Dr. Voke stated, "[T]he incident of 6/10/80 is not a substantial factor in the development of her current disability." He further noted that she suffers from degenerative disk disease and that she has had multiple injuries both prior to and subsequent to her work for the employer. He further diagnosed her as having degenerative arthritis of the L4-5 and severe degenerative disk disease at C5-6. He found her present condition is degenerative arthritis involving the cervical spine and the lumbosacral area. He further noted that she did not sustain an acute injury on June 10, 1980; if anything, she sustained a lumbosacral strain, which was treated conservatively. She eventually became medically stable with no permanent structural change. Moreover, he noted that this incident was simply one of multitudes of injuries reflected in her medical records.

Therefore, the employee must prove the compesability of her claim by a preponderance of the evidence. We find the employee is unable to sustain her burden of proof. There is no medical report in the voluminous medical records that establish any link between the 1980 injury and the employee’s current condition. The only physician who has addressed this issue is Dr. Voke, who expressly stated that the 1980 injury could not be considered a substantial factor in her current condition. Thus, we find the employee is unable to prove by a preponderance of the evidence that she has a compensable claim against the employer.

In sum, we find the employee’s claim must be dismissed because she is unable to raise the presumption of compensability or prove her claim by a preponderance of the evidence. Accordingly, we conclude the employee’s claim must be denied and dismissed.

The employee’s claim for workers’ compensation benefits is denied and dismissed.

Dated at Fairbanks, Alaska this 21 day of January, 2000.

ALASKA WORKERS' COMPENSATION BOARD

/s/ Fred G. Brown
Fred Brown, Designated Chairman

/s/ John Giuchici
John Giuchici, Member

/s/ Dorothy Bradshaw
Dorothy Bradshaw, 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 Decision and Order in the matter of MARIE L. SIMMONDS employee / applicant; v. SKW ESKIMOS INC., employer; FREMONT INDEMNITY CO, insurer / defendants; Case No. 198103026; dated and filed in the office of the Alaska Workers' Compensation Board in Fairbanks, Alaska, this 21^st day of January, 2000.

Lora Eddy, Clerk

SNO