KENNETH G. ODMAN, 
Employee, 
Applicant
v. 
K & L DISTRIBUTORS, INC.,
Employer,
and 
FREMONT INDEMNITY COMPANY,
Insurer,
Defendant(s).

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FINAL
DECISION AND ORDER
AWCB Case No. 199128506
AWCB Decision No. 00-0014 
Filed with AWCB Anchorage, Alaska
on January 26, 2000.

We heard Employee’s claim for additional benefits on November 17, 1999, in Anchorage, Alaska. Employee represents himself. Attorney Joseph Cooper represents Employer. We closed the record at the end of the hearing.

Employee filed Applications for Adjustment of Claim (AAC) on April 5, 1995, July 7, 1995, and July 24, 1995. He also amended his combined claims for continuing benefits on December 17, 1998. (June 16, 1999 Prehearing Conference Summary). For the purpose of this hearing, Employee requests benefits as follows:

1. Temporary Total Disability (TTD) from May 28, 1993, and continuing.
2. Additional PPI, based on a 13 percent whole person rating made by Larry Levine, M.D., for Employee’s shoulder (eight percent) and neck (five percent).
3. Continuing medical benefits for his neck and shoulder.
4. A determination of compensability for his left knee.¹
5. A modification (or redetermination) of the Board’s February 1994 Decision and Order affirming the RBA’s determination of ineligibility for benefits.
6. Penalties and interest on all unpaid benefits.

(Id.).

We incorporate by reference the evidence set forth in our prior decisions. In Odman v. K&L Distributors, Inc., AWCB Decision No. 94-0028 (February 18, 1994); Odman I), the Board affirmed the Reemployment Benefits Administrator’s (RBA) determination Employee was ineligible for reemployment benefits. Employee did not appeal the Board’s determination.

In Odman v. K&L Distributors, Inc., AWCB Decision No. 97-0220 (October 31, 1997); (Odman II), the Board ordered Employee to attend his deposition. Employee attended his deposition on January 20, 1998. (Employee dep.).

Finally, the Board ordered a Second Independent Medical Evaluation (SIME) in Odman v. K&L Distributors, Inc., AWCB Decision No. 98-0239 (September 16, 1998); (Odman III). The Board selected John Ballard, M.D., from Employee’s list of proposed physicians. Dr. Ballard’s SIME report is dated November 7, 1998.

The salient facts as related to Employee’s current claims are set forth as follows. On November 7, 1991, Employee fell in Employer’s parking lot. Employee continued to work for about three weeks before he sought medical treatment with Robert Gieringer, M.D., for left shoulder pain. According to Dr. Gieringer’s initial report, dated November 27, 1991, Employee broke his fall with his left arm in order to protect his left knee, which was had been injured before in several non-work related accidents. (See, Employee dep. at 44-48).

Employee continued to treat with Dr. Gieringer, undergoing arthroscopic shoulder surgery in September 1992. On January 20, 1993, Dr. Gieringer released Employee to light-duty work, following a short course of work therapy. In February 1993, Employee returned to work with Employer in a light duty position.

Dr. Voke performed an evaluation at the Employer’s request. (Dr. Voke January 30, 1993 report). Dr. Voke found Employee was medically stable, and released him for light duty work. (Id.). Dr. Voke reevaluated Employee in April 1993. (Dr. Voke April 17, 1993 report). Dr. Voke found Employee remained medically stable, and he would be able to return to full duty work in May of 1993. (Id.).

Employee sought emergency room treatment on May 29, 1993 for shoulder and neck pain. On July 19, 1993 Dr. Gieringer examined Employee for complaints of left scapula pain. In his report of the same date, Dr. Gieringer stated: "This really didn’t show much relating to the shoulder. His impingement signs were negative. ROM [Range of Motion] is good and he has a stable shoulder."

In his August 3, 1993 report, Dr. Voke released Employee to the following jobs without restrictions: Spray Painter (DOT Code: 741.684-026), Trackmobile Operator (DOT Code: 919.683-026), Driver (DOT Code: 919.683-014), Hostler (Dot Code: 909.663-0) Oiler (DOT Code: 699.687-0), Janitor (DOT Code: 382.664-0). Dr. Voke also approved Trailer Assembler I (DOT Code 806.381-05), with modifications. Employer paid temporary disability benefits through August 25, 1993. (December 21, 1995 Compensation report). Employee was also paid permanent partial impairment benefits based on a seven percent whole person rating made by Edward Voke, M.D., on December 12, 1995. (December 21, 1995 Compensation report).

In March 1994, Adrian Ryan, M.D., evaluated Employee for subjective complaints. Dr. Ryan’s March 3, 1994 report suggested Employee might benefit from an exercise program developed by a rehabilitation physician, but that surgical intervention was not needed.

Morris Horning, M.D., a rehabilitation physician, evaluated Employee for an exercise program on April 4, 1994. In addition to an exercise program, Dr. Horning prescribed Flexeril. In his May 12, 1994 report, Dr. Horning released Employee from further therapy. In his August 31, 1994 report, Dr. Horning stated: "there is little more we can do for him medically."

Employee was next seen by Larry Levine, M.D., Dr. Horning's partner, for further evaluation. In his April 17, 1996 report, Dr. Levine noticed Employee had a contusion (bruise) on his left knee. This was the first medically documented complaint of left knee pain since the November 1991 accident.

In his October 15, 1996 report, Dr. Levine released Employee for work and indicated a PPI evaluation needed to be scheduled. On November 19, 1996, Employee had surgery on his left knee at the Alaska Native Medical Center. (Operative report).

On February 12, 1997, Dr. Levine referred Employee to Glenn Ferris, M.D., for evaluation. Dr. Ferris’ March 6, 1997 report indicates Employee may have hadfindings consistent with thoracic outlet syndrome. Dr. Ferris’ March 7, 1997 operative report indicates he performed a C-7 nerve root block. On March 10, 1997, Dr. Ferris returned medical supervision of Employee’s back care to the Dr. Levine.

On his own initiative, Employee went to Dr. Voke complaining of shoulder, neck, and knee pain. Dr. Voke’s March 25, 1997 report indicates Employee’s condition knee is not related to the November 1991 accident. However, Dr. Voke thought adhesive capsulitis and cervical strain might explain Employee’s ongoing complaints of shoulder and neck pain. Nevertheless, Dr. Voke did not think surgery would be useful, and referred Employee back to Dr. Levine for further care.

Dr. Ferris continued to perform cervical nerve blocks throughout the spring and summer of 1997. (Dr. Ferris reports dated May 13, 1997, July 11, 1997, July 25, 1997, August 1, 1997, August 8, 1997). Employee also continued to treat with Dr. Levine who encouraged Employee to undertake active vocational goals. (Dr. Levine June 16, 1997 and February 3, 1998 reports).

Shawn Hadley evaluated Employee at Employer’s request. Her April 1, 1998 report states Employee has "chronic pain syndrome with symptom magnification," neck pain from spondylosis and degenerative disc disease with nonsignificant disc protrusion to the right at C5-C6, left knee pain with degenerative joint disease, and alcoholism. Of these conditions, Dr. Hadley said, only Employee’s left shoulder pain is work-related. Dr. Hadley reviewed job descriptions for several jobs (identified by a reemployment counselor as being within Employee’s vocational skill capabilities) and stated: "It is my opinion [Employee] has been able to perform these activities since May 1993."

Employee continued to treat with Dr. Levine. (Dr. Levine August 19, 1997, October 20, 1997, March 11, 1998, June 18, 1998 reports). On June 25, 1998, Dr. Levine performed a PPI rating of Employee’s neck and shoulder and determined Employee had a 13 percent whole person rating.

A Second Independent Medical Evaluation (SIME) was conducted by Dr. Ballard based on the disputes between Employer’s physicians, Drs. Hadley and Voke, and Employee’s physician, Dr. Levine. The disputes centered on Employee’s physical ability to return to work in various light duty jobs, the compensability of his knee condition, and the degree of his whole person rating.

Dr. Ballard’s November 7, 1998 SIME report states Employee’s work related shoulder condition became medically stable in January 1993. Dr. Ballard assessed a four percent whole person impairment for Employee’s shoulder. Dr. Ballard’s report also states the November accident caused only a temporary aggravation to Employee’s neck, which resolved without any permanent impairment. Based on the lack of medical documentation for knee pain since recovering from the November 1991 accident, Dr. Ballard did not believe Employee’s left knee condition was work-related. Finally, Dr. Ballard concluded Employee was capable of physically working in all the jobs reviewed and approved by Dr. Hadley without limitations or restrictions.

The hearing originally scheduled in May 1999 was cancelled so Employee could file additional medical evidence. (June 16, 1999 PHC Summary). The reports filed by Employee, via his June 7, 1999 medical summary, are of Candace Klawson, D.O., and the chart notes/reports of diagnostic testing, and physical therapy, she ordered. The Board forwarded these records to Dr. Ballard for his review and opinions. In his supplemental report, dated July 2, 1999, Dr. Ballard affirmed the opinions outlined in his original November and December 1999 reports. Dr. Ballard said the new evidence did not change his opinions.

The following people testified at hearing on Employee’s behalf. Dan Weaver testified by telephone. He is a physical therapist who worked with Employee at the Alaska Native Medical Center, on referral from Dr. Klawson, for about six weeks, three times per week. Weaver testified the purpose of the therapy was to improve the strength and range of motion in Employee’s shoulder.

Weaver testified that very little progress was made because of Employee’s "subjective" complaints of "pain and grinding" as reported by Employee. Weaver testified he did not independently hear "grinding" sounds. Weaver testified, based on his chart notes, that the exercises caused subjective complaints of pain and aggravation of Employee’s symptoms.

Weaver testified the maximum free weight Employee was able to lift during the shoulder exercises was three pounds. Weaver testified this limitation is not indicative Employee’s physical capacities.

Cal Stroble, a retired Teamster’s union dispatcher, testified by phone. Stroble said his testimony was based on union records of Employee’s work history. Employee has been a member in good standing with the Teamsters since 1976. Employee began working for Employer in 1986.

Employee testified in person. After falling, Employee said he continued to work three weeks until his shoulder pain became disabling. Employee testified his knee conditionwas also work related, and became so painful he also sought medical treatment for it.

After Employee returned to work at a light duty job with Employer in February 1993, he noticed ongoing neck and shoulder pain. Employee said, Employer wanted him to file a "second" report of injury, which he refused to do. Employee testified he was wrongly terminated from work with Employer.

On cross-examination, Employee admitted he was not fired from Employer because he refused to report an injury. On questioning from the Board, Employee explained he did not want to file a second injury for two reasons. First, he said it was because his neck problems were from the November 1991 injury, not from the light duty work he returned to following his recuperation. On further questioning, however, Employee also explained that his compensation rate would have been significantly less, if he had filed for his neck discomfort as a separate injury in 1993.

Referring to the Board’s summary of evidence in its 1994 Decision and Order, Employee relies heavily on Dr. Gieringer’s reports his neck condition may be the most severely limiting condition from which he suffers. Employee also referred us to the summary of his own testimony his neck condition was the most painful. Employee testified at this hearing his neck remains disabling.

Because of ongoing physical problems, Employee testified he became very depressed. Employee testified, and the medical records confirm, Dr. Levine referred him to a physician for treatment of his mental condition. Employee testified Employer controverted this treatment just as they did treatment for his knee.

Employee testified he does not have the physical abilities to be a trucker, painter or industrial cleaner. Moreover, Employee said he is a high school drop out and lacks the skills necessary to do more sedentary work. On cross examination, Employee admitted he has a GED.

Employee testified he has applied for only one job in 1999 and no jobs between 1993 and 1998. Employee did not believe he was qualified physically to work from 1993 through 1998. Employee testified, on cross-examination, that in 1994 or 1995 he attempted to get assistance through the Division of Vocational Rehabilitation, but was advised he could not qualify until there was a final determination on his workers’ compensation claim.

Employee also called JoAnn Seethaler, a physical therapist, at the November 1999 hearing. Seethaler testified she conducted a professionally accepted battery of standardized functional capacities tests to assess of Employee’s physical abilities. Seethaler testified Employee’s right upper extremity has greater function than the left.

Seethalter testified that while her assessment results were valid, Employee’s behavior during the course of the testing suggested symptom magnification. For example, Employee’s right upper extremity testing did not show consistent effort. Seethaler recommended Employee be retrained into sedentary employment, following a course of strengthening therapy.

The parties also agreed to stipulate to an Offer of Proof regarding the anticipated testimony of Dr. Klawson, because she was not available. The parties agreed Dr. Klawson would testify consistent with her reports. Dr. Klawson would also testify that Employee needs vocational rehabilitation; physical therapy does not help; and Employee’s neck is more problematic than his shoulder. Based on such stipulation, Employer did not call Dr. Ballard.

Dennis Johnson, a vocational counselor, testified on Employer’s behalf at the November 1999 hearing. Johnson has been a counselor for about 24 years, has a Master’s degree in counseling. Moreover, Johnson is on the Board’s list of certified reemployment specialists qualified to perform eligibility evaluations.

At Attorney Cooper’s request, Johnson evaluated Employee by administering a battery of stamdardized vocational tests. Based on his assessment of Employee’s vocation skills, and his understanding of Employee’s physical abilities from review medical records, Johnson testified that Employee is capable of performing several jobs (as defined under their respective DOT Codes) without the need for further training. Johnson testified he reviewed Employee’s deposition, and determined he met the specific vocational preparation levels for the following jobs: Inventory Clerk, Cashier, Cashier-Check, Hotel Clerk, Telephone Solicitor, Salesclerk, Bartender, General Clerk.

Johnson testified these positions are readily continuously available in the job market, and have been since 1993. Johnson based his opinion on statistical evidence, and his own labor market surveys.

Based on his review of Employee’s medical reports from Drs. Levine, Horning, Hadley and Ballard, Johnson testified Employee is able to perform these jobs. Additionally, he sought, and got, Dr. Hadley and Dr. Ballard’s approval of these jobs for Employee. Johnson testified he did not seek approval of these positions from any of Employee’s physicians.

Johnson testified the vocational goal Employee ultimately identified as one for which he would prefer training was "professional photographer." Specifically, Employee wants to be retrained as a real estate photographer because it would allow him to work outside an office setting. Johnson said he identified schools in the Seattle, Washington area where such training could be obtained, and recommended Employee seek assistance from DVR or the Native corporation he belongs to as a shareholder.

We first consider whether Employee is entitled to additional TTD. Employee argues his neck, shoulder and knee conditions are work related, and that he remains medically unstable, particularly with regard to his neck. Employer does not dispute the work-relatedness of Employee’s neck and shoulder conditions, but asserts Employee has been medically stable since the spring of 1993. Employer argues Employee’s knee condition is not work related.

We agree with Employer. We conclude Employee’s knee condition is not work related. We also conclude Employee has been medically stable from his shoulder and neck conditions since January 1993, as fully explained below.

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 was a substantial factor that permanently aggravated, or accelerated the deterioration of, the employee’s preexisting condition. The 1991 work incident would be considered a substantial factor in bringing about Employee’s current knee condition if it "would not have happened ‘but for’ the [1991 accident], and the [1991 accident] was so important in bringing about the current 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 1991 incident was a substantial factor in bringing about his current knee condition. We make this finding based on Employee’s own testimony, and the initial medical reports that Employee’s knee was sore after the accident.

We find Employer has rebutted the presumption Employee’s knee condition is related to the 1991 accident with substantial evidence of an affirmative nature. Specifically, we find the reports of Drs. Voke, Hadley and Ballard that Employee’s knee condition is not related to the 1991 accident substantial evidence. These physicians believe the dearth of medically documented complaints of pain for four years since the accident makes it improbable the 1991 accident was a substantial factor in bringing about Employee’s complaints of pain in 1996.

Reviewing the record as a whole, we conclude Employee has not proven his knee condition, and need for treatment, is work-related by a preponderance of the evidence. We come to this conclusion, in part, because we give greater weight to the objective medical findings by the evaluating phsycians, Drs. Voke, Hadley and Ballard, rather than Employee’s treating physicians. The evaluating physicians, particularly the SIME physician, Dr. Ballard, are not as likely to take Employee’s representations at face value, but instead rendered their opinions based on objective criteria.

We find this is important because we do not find Employee is credible. AS 23.30.122. We base this finding on a combination of factors. We find Employee has shown a tendency to symptom magnify during physical therapy sessions and functional capacity evaluations. We base this finding on the testimony of physical therapists Weaver and Seethaler. Additionally, we base our finding on our own observations at hearing. We were particularly disturbed by Employee’s evasiveness when responding to Attorney Cooper’s questions about his efforts to find work in the last seven years, and Board Member Ulmer’s questions about his reason for not filing a second report of injury.

Accordingly, we give greater weight to the opinions of Drs. Hadley, Voke and Ballard than we do to the opinions of Drs. Gieringer, Horning, Levine, Ferris, or Klawson. We find, based on Dr. Levine’s April 17, 1996 report, that Employee had a bruise on his knee when he complained of pain for the first time since recovering from the accident. Based on this finding, we conclude it is far more likely Employee’s knee complaints resulted from a non-work injury. Consequently, reviewing the record as a whole we conclude Employee has not sustained his burden of proof and we will deny and dismiss Employee’s claim for benefits related to his left knee.

For similar reasons, we also conclude Employee has not proven his claim for ongoing temporary disability related to his undisputed work-related neck and shoulder conditions. AS 23.30.185 states:

Similarly, Temporary Partial Disability (TPD) benefits may not be paid during any time occurring after medical stability. AS 23.30.200. AS 23.30. 395(21) defines medical stability as:

Therefore, we must determine whether Employee’s neck and/or shoulder conditions became medically unstable after August 25, 1993, the last day on which Employer paid temporary compensation. If we determine Employee’s neck or shoulder were medically unstable after August 1993, we must then decide whether Employee was nevertheless capable of working. In Summerville v. Denali Center, 811 P.2d 1047, 1051 (Alaska 1991), the Alaska Supreme Court stated: "An employee is not entitled to either temporary or permanent total disability benefits if there is regularly and continuously available work in the area suited to the claimant’s capabilities."

We find Employee has attached the presumption of ongoing disability. We find he has attached the presumption with his own testimony and the reports of the physicians who provided ongoing medical treatment for Employee’s complaints of neck and shoulder pain, Drs. Gieringer, Horning, Ferris, and Klawson. We also find Employer has rebutted the presumption Employee remained medically unstable with the reports of Drs. Hadley, Voke, and Ballard as well as, Dr. Gieringer.

Dr. Voke found Employee medically stable in January 1993 and able to return to light duty work in February 1993. Dr. Gieringer found Employee had a "stable shoulder" in July 1993. On August 3, 1993, Dr. Voke released Employee to several jobs, including Spray Painter, Trackmobile Operator, Driver, Hostler, Oiler, and Janitor. Dr. Hadley thought Employee had been medically stable, and able to perform the duties of the several sedentary jobs Dennis Johnson identified (as within Employee’s vocational skills without further training) since May 1993. Our SIME physician, Dr. Ballard, determined Employee’s shoulder had been stable since January 1993, and Employee neck was only temporarily aggravated by the accident. Dr. Ballard also released Employee to the same jobs Dr. Hadley identified as being within Employee’s capabilities.

Reviewing the record as a whole, including our assessment of the weight to be given the opinions of the physicians, we find Employee has not proven his claim for continuing temporary disability benefits by a preponderance of the evidence. We find Employee has not proven that he was not medically stable, or that he was incapable, because of his limited physical or vocational abilities, to work at jobs which were readily and continuously available. Accordingly, we will deny and dismiss Employee’s claim for additional temporary total disability.

Applying the presumption analysis set forth above with regard to Employee’s claim for TTD benefits, we next consider Employee’s claim for additional PPI benefits. Based on Dr. Levine’s 13 percent whole person rating for Employee’s neck and shoulder, we find Employee has attached the presumption his neck sustained a five percent whole person impairment, and his shoulder sustained a one percent impairment over the seven percent whole person rating Employer’s physician (Dr. Voke) assessed and Employer paid. Employee’s position his neck was permanently aggravated is further corroborated, circumstantially, by Dr. Ferris’ cervical nerve root block treatments.

Based on the reports of Drs. Voke and Hadley, we find Employer has rebutted, with substantial evidence, the presumption the 1991 accident was a substantial factor which permanently aggravated Employee’s neck to cause an impairment. We also find Dr. Hadley’s explanation convincing. She determined Employee’s cervical disc protrusion was to the right, yet inconsistent with this finding, Employee’s shoulder and arm complaints were to the left. Additionally, like Employee’s knee complaints, his complaints of neck pain did not emerge for a "considerable time post-injury." We find Dr. Ballard corroborates the opinions expressed by Drs. Voke and Hadley. Dr. Ballard’s SIME report states the 1991 injury caused, at most a temporary aggravation, which resolved without any permanent impairment.

Based on the reports of Drs. Voke, Hadley and Ballard, we also find Employer has rebutted the presumption Employee’s shoulder suffered more than the seven percent whole person impairment Dr. Voke assessed in December 1995. Dr. Ballard found only a four percent impairment. Dr. Hadley found Dr. Voke’s (April 1993) three percent rating was a proper assessment of Employee’s shoulder impairment.

Reviewing the record as a whole, we conclude Employee has not proven his current neck condition is related to the 1991 injury. We find the 1991 accident was a substantial factor which caused, at most, a temporary aggravation that did not result in any permanent impairment. We further find, based on the record as a whole, Employee has not proven by a preponderance of the evidence that he has more than a seven percent whole person permanent impairment related to his shoulder. Accordingly, we will deny and dismiss Employee’s claims for additional PPI.

Employee asserts a claim for continuing medical treatment for his neck and shoulder. AS 23.30.095 states, in pertinent part:

. . .

The Alaska Supreme Court and the Board have clearly stated their position on preserving the sanctity of medical benefits provided to injured workers. Weidner & Assc. V. Hibdon, Slip Op. 5189 (October 8, 1999); Egemo v. Egemo Construction, AWCB Decision No. 98-0116 (May 11, 1998). However, medical benefits must be reasonable and necessary to the process of the employee’s recovery (including recovery from periodic acute episodes of a chronic yet stable condition) to be payable under subsection 95(a). Municipality of Anchorage v. Carter, 818 P.2d 661 (Alaska 1991). Additionally, an employee may seek a pretreatment determination regarding the compensability of anticipated medical care. Summer v. Korobkin, 814P.2d 1369 (Alaska 1991); Rapp v. Area Realty, AWCB Decision No. 98-0251 (October 2, 1998); Hager v. Haskell Corp., AWCB Decision No. 99- 0128(June 11, 1999). Therefore, while the Board would be willing to make a determination of compensability regarding "continuing medical benefits," Employee has not directed the Board’s attention to the specific medical bills he claims have not been paid, or which he anticipates may be incurred. Employee did make a general allegation about the compensability of his treatment for depression and bills generated at the Alaska Native Medical Center. However, the issues were not fully developed or argued during the limited time we had available at hearing. Accordingly, we deny and dismiss Employee’s claim without prejudice, at this time, but will reserve jurisdiction to decide this matter if the parties are unable to resolve these issues informally.

Finally, we consider Employee’s request for reemployment benefits. The RBA found Employee ineligible for benefits on November 22, 1993. Employee, then represented by an attorney, sought Board review of the RBA’s determination. The Board affirmed the RBA on February 18, 1999. Odman I. Employee did not appeal. The Board’s decision became final March 20, 1994. Therefore, we consider Employee’s request for reemployment benefits to be a request for modification of our 1994 decision under AS 23.30.130.

Section 130 also has a limitations period. A decision denying benefits may not be challenged with a petition for modification based on a change in conditions or a mistake of fact if it is not filed within one year from the date of the decision. Employee alleges "new" medical evidence supports his position his physical abilities have deteriorated further than they were at the time of the Board’s February 1994 decision in Odman I. We conclude, however, we have no power to modify the Board’s decision, except by express statutory authority. Henry v. Sandstrom & Sons, AWCB Decision No. 99-0077 (April 9, 1999). Accordingly, our power to modify our February 18, 1994 decision affirming the RBA’s determination of ineligibility, ended on February 18, 1995.

Even if we had the power to consider Employee’s request for modification, we find the evidence does not support a change of conditions sufficient to re-try Employee’s claim for reemployment benefits. Interior Paint Co. v. Rogers, 522 P.2d 164 (Alaska 1974). As stated above, we find the Employee remains medically stable and able to return to work in at least sedentary positions. Moreover, Drs. Hadley, Voke and Gieringer all believe Employee is capable of medium duty work, and Dr. Ballard believes Employee could even "perform most of the tasks as a truck driver" if he was motivated to increase his endurance. Accordingly, we will deny and dismiss Employee’s claim for reemployment benefits.

We have not awarded any benefits. Accordingly, Employee’ claim for penalties and interest on all unpaid benefits is likewise denied and dismissed.

1. Employee’s claims for additional temporary disability benefits are denied and dismissed.
2. Employee’s claim for continuing medical benefits for treatment to his neck and shoulder is dismissed without prejudice.
3. Employee’s claim for benefits relating to his knee is denied and dismissed.
4. Employee’s claim for reemployment benefits is denied and dismissed.
5. Employee’s claim for additional permanent partial impairment benefits is denied and dismissed.
6. Employee’ claim for penalties and interest on all unpaid benefits is denied and dismissed.

Dated at Anchorage, Alaska this 26th day of January 2000.

ALASKA WORKERS' COMPENSATION BOARD

/s/ Rhonda L. Reinhold
Rhonda Reinhold, Designated Chairman

/s/ John A. Abshire
John A. Abshire, Member

/s/ Philip E. Ulmer
Philip E. Ulmer, 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 KENNETH G. ODMAN employee / applicant; v. K & L DISTRIBUTORS, INC., employer; FREMONT INDEMNITY COMPANY, insurer/ defendants; Case No. 199128506; dated and filed in the office of the Alaska Workers' Compensation Board in Anchorage, Alaska, this 26th day of January 2000.

Debra C. Randall, Clerk