ALASKA WORKERS' COMPENSATION BOARD

P.O. Box 25512 Juneau, Alaska 99802-5512

 

 

 

 
LISA A. COFIELD, 
Employee, 
Applicant
v. 
ANCHORAGE, MUNICIPALITY OF,
Employer,
and 
ANCHORAGE, MUNICIPALITY OF,
Insurer,
Defendant(s).
 
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FINAL
DECISION AND ORDER
AWCB Case No(s). 199807702
AWCB Decision No. 00-0027
Filed with AWCB at Anchorage, Alaska
on February 11, 2000

We heard the employee’s claims for benefits on November 2, 1999, at Anchorage, Alaska. Attorney Charles Coe represents the employee. Attorney Trena Heikes represents the employer. Due to time constraints, one deposition and the parties’ closing arguments were submitted on the written record. We closed the record on January 25, 2000, when we first met after the deposition and closing briefs were filed.

ISSUES

    1. Whether the employee is entitled temporary total disability (TTD) benefits from August 1, 1998, continuing.

    2. Whether the employee is entitled to permanent partial impairment benefits (PPI).

    3. Whether the employee is entitled to past and future medical treatment, including transportation costs.

    4. Whether the employee is entitled to a penalty.

    5. Whether the employee is entitled to attorney’s fees and costs.

SUMMARY OF THE EVIDENCE

The employee began working for the employer as a Senior Office Assistant on January 15, 1998. The employee’s supervisor, Penny Herndon testified at the November 3, 1999 hearing. The employee testified that her duties included filing deeds of trusts into 8 ½ x 5 inch binders (approximately 80% of the time), and answering the telephone, as well as other various office tasks. Ms. Herndon corroborated this testimony, and demonstrated the filing procedures at the November, 1999 hearing with actual binders. Ms. Herndon also testified that the employee’s probationary period with the Municipality ended on April 15, 1998. In her April 21, 1998 report of occupational injury or illness, the employee reported that she suffered a "neck and upper back strain" from "constant, repetitious movement of neck and right arm." The employee listed the date of injury as April 16, 1998.

At the request of the Board, Douglas Smith, M.D., examined the employee on February 24, 1999, for a second independent medical evaluation (SIME). Dr. Smith’s March 29, 1999 report, contained an appendix, which summarized the employee's cervical medical history. We found Dr. Smith’s summary accurately summarizes the employee’s cervical medical history and incorporate the following herein:

05/27/93 Dr. Adams, orthopedic surgeon in Spokane, notes posterior neck pain the last couple of years, worsened recently. He diagnoses "neck pain by history. "

12/13/96 Family practitioner Zeranski. He notes pain in the neck and both shoulders and diagnoses "arthraigias."

03/03/97 Dr. Zeranski notes clicking and grinding of her neck and continued pain in the trapezius.

04/04/97 Orthopedic surgeon Adams recommends an MRI. Symptoms at that time were in the neck and right and left trapezius and a feeling that her shoulders are heavy.

04/22/97 MRI interpreted by radiologist Handy. He noted mild neural foraminal narrowing on the left at C3-4 and on the right at C4-5. He felt it was due to uncovertebral spondylosis. He found no herniation or stenosis.

05/05/97 Dr. Zeranski refers her to the chiropractor.

05/19/97 Chiropractor Shirley notes mechanical neck and upper back pain. He feels there may be articular dysfunction and muscle spasm and spondylosis. He thinks it may be related at that time to her sitting posture and recommends some ergonomic changes.

07/06/98 Chiropractor Shirley discharges her. It was noted that she had been treated for four weeks with manipulations and also ergonomic suggestions. Then she had quit her job. He felt she was close to maximum improvement in terms of manipulation but was considering recommendation for massage. He diagnosed "chronic myofasciitis." He also noted she had legal issues with her employer.

01/98 Apparent date of beginning employment with Municipality of Anchorage.

On April 16, 1998, the employee presented to Stan R. Throckmorton, D.C., with complaints of neck and upper back pain. Dr. Throckmorton’s April 16, 1998 chartnote reflects that the employee reported "repetitious work – computer, phone, flipping through pages at work aggravates [her pain]."

Dr. Throckmorton’s office provided "off-work" slips on April 16, 1998, April 20, 1998, April 22, 1998, and April 29, 1998. In his May 4, 1998 "return to work" slip, Dr. Throckmorton remarked: "OK to work – no restrictions. If filing at work aggravates condition, we may have to consider working ½ days for two weeks." In his May 5, 1998 "off-work" slip, Dr. Throckmorton remarked: "Work is aggravating injury. In light of no light duty position availability patient is authorized off work during this period. Please note I will return patient to work when she is medically stable."

In his May 7, 1998 physician’s report, Dr. Throckmorton commented:

Lisa’s mechanism of injury on 4-16-98 was repetitive strain as I said in box #14 in that report. What I think I failed to clarify was this: This injury occurred the (sic) result of repetitive filing of papers in a seated position at a table which is what her job has her do. What I understand through history is the movement of her right shoulder in a constant repetitive flexion/extension position while slightly abducted led to her symptoms and hence her injury. The injury is not traumatic but is insidious in nature which is quite clear in the history notes taken at this office on 4-16-98.

At the request of the employer, Richard Peterson, D.C., examined the employee on May 15, 1998. In his report of that same day, Dr. Peterson summarized:

Ms. Cofield attributes her complaints to sitting at a table working with a spiral notebook and papers. She thumbs through the notebook looking for papers that are out of date and pulls the old pages and inserts new pages their up-to-date. She states she says that while she is doing this activity she has to constantly watch the counter to see if some individual comes in, and if so, she has to go to the counter and wait on them. If the telephone rings, she has to place the telephone between her shoulder and left ear and talk while she looks up information on a computer. She then relays the information, if she is able to obtain it from her database, by phone, to the party requesting the information. She says "that is my job, repetitive, doing this activity constantly."

Records to reflect that Ms. Cofield commenced working for the Municipality of Anchorage on January 15th, 1998. She had been working for the facility for approximately to seven weeks when she found her work activity caused her to begin experiencing symptoms. She noticed that by Wednesday of each week she was in considerable pain. Over the weekend she would get a little bit better but when she returned to work the pain would gradually increase. She was taking Aleve to relieve her pain, but eventually Aleve did not result in any relief.

On 4/16/98 she sought care from Dr. Throckmorton, a chiropractic physician whose treatments have made her "a little better." During the past month since instituting care with Dr. Throckmorton she has been on and off work, and at this time she is no longer working. She describes the chiropractic care being adjustments and massage. The treatments make her feel better for an hour or two to possibly two days.

In his report at page 5, Dr. Peterson a diagnosed the employee as having "situational and postural stresses within the workforce, similar, to all individuals engaged in such activities and not associated per se with those individuals as injury." At p. 6, Dr. Peterson opined, "I do not believe there is any pre-existing condition which is retarding recovery; however, there does appear to be a past history of over-reaction to performing similar duties which may been accepted by the Workman’s (sic) compensation system of Washington as injury. According to Ms. Cofield, her condition never resolved from her previous work exposure." At p. 7, Dr. Peterson opined that he did not believe the employee needs to be "off work because there is no history of an injury with the Municipality of Anchorage."

In answering a question regarding the employee’s medical stability, Dr Peterson opined:

I am of the opinion that Ms. Cofield is medically stationary, and there is no permanent impairment. In fact, I do not find there is even a reasonable history of repetitive strain-type illness. Furthermore, the explanation of sprain to the cervical spine, as given in Dr. Throckmorton’s 4/30/98 physicians report, is absurd. To explain, sprain means that the ligaments of the cervical spine had to be stretched and their elasticity was exceeded. There’s no history in the records of a motor vehicle accident or blow to the head or other type of activity to explain how her ligament elasticity could have been exceeded which makes the diagnosis of cervical strain simply hyperbole.

(Id. at 8).

In his June 2, 1998 report, Dr. Throckmorton disagreed with each of Dr. Peterson’s opinions in his May 15, 1998 report. In his prognosis section, Dr. Throckmorton opined:

I believe Lisa cannot perform the job with the municipality that she was hired to do. I believe for fibromyositis and early degenerative arthritis in her cervical spine are the reasons for this. I have pulled her off work indefinitely as a result. I believe she can recover from this with prolonged physiotherapy directed primarily at the fibromyositis. I also think that nutritional analysis and support and lifestyle considerations would assist in her recovery. I will recommend a home cervical traction device and thoracic stretching directed at the injury site as a home exercise for her to do. I will recommend that she undergo a P.C.E (physical capacities evaluation) in the next 8 weeks. I’ll also recommend to be given 7-8 weeks of conservative care treatment to further reduce her symptoms and to help fully resolve this injury. I also welcome a 3rd medical opinion, should become necessary, for this patient. I also would like to see my office paid for the billings regarding this patients.

Subsequently, on June 9, 1998 and June 13, 1998, Dr. Peterson responded as follows:

I am in receipt of your June 4, 1998 letter, in which you requested a review of the copy of the MRI report of May 29, 1998, and Dr. Throckmorton's response of June 2, 1998 to my IME.

I find on page two, in the last paragraph under prognosis, Dr. Throckmorton wrote, "I believe she can recover from this with prolonged physiotherapy directed primarily at the fibromyositis." I find this diagnosis of fibromyositis by Dr. Throckmorton interesting.

Dr. Thomas Bohr, M.D., in Neurology, March, 1996; 46,593-597, wrote an editorial entitled, "Problems With Myofacial Pain Syndrome and Fibromyalgia Syndrome."

On the second page of his article Dr. Bohr wrote, "Currently certain rheumatologits are making dubious claims about 'posttraumatic fibromyalgia syndrome,' despite a thorough debunking by Weinberger in 1977. By 'heedless word-smithing,' the entity of 'traumatic fibromyositis' gets renamed by the noncritical and rises again. Sometimes a Phoenix should stay dead, despite resuscitation efforts by editors of second rate journals."

On the first page of Dr. Bohr's article, he wrote about this post-traumatic fibromyalgia syndrome and what he described as the milking of this "cash cow." Dr. Bohr goes on to explain the origins of myofacial pain syndrome and the non-reproducibility of trigger points. In other words, when different therapists examine the same patient, they are Unable to identify the same trigger points, thus, this is not an objective marker.

However, traumatic fibromyalgia or traumatic fibromyositis has a more generalized pain. It is found that these patients have a generalized decrease in pain threshold, or at least an increase in the ability to complain of pain, and even sites that are palpated are not considered to be the standard, and elicit more complaints in patients of fibromyalgia syndrome. Given these facts, Dr. Bohr notes, "it is no surprise that the diagnosis is quite fungible."

On page two, in the first paragraph, Dr. Throckmorton writes, "I think that the examiner has labeled this patient as to having psychosomatic overlay, implying that her complaints have no basis in fact, except for psychological factors, as was pointed out later in his report." Again, I refer to Dr. Bohr's article. On the third page of this article, he wrote regarding psychiatric aspects that, "Within the insular world of fibromyalgia syndrome, it is virtually taboo to insulate that psychiatric may play a role. Despite this patient's tendency to minimize or deny psychological symptoms, the evidence is overwhelming that the burden of psychiatric disease is higher in comparison with controlled subjects." Indeed, in this particular case, I do believe some psychological factors may be involved, which is noted by the literature to be not uncommon with patients diagnosed with fibromyositis.

In regards to the MRI finding, the osteophytic proliferation is definitely a preexisting condition, but it is not probable this is a condition from her previous work. if the history is correct, that there was a not a significant trauma.

In fact, an article in The Journal of Bone and Joint Surgery, September, 1990, by Scott Boden, M.D., Phillip McCowin, M.D., David Davis, M.D., Thomas Dena, M.D., Alexander Mark, M.D., and Sam Wiesel, M.D., from the Department of Orthopedic Surgery and Radiology of George Washington University Medical Center, entitled "Abnormal Magnetic Resonance Scans of the Cervical Spine in Asymptomatic Subjects" points out that scans in asymptomatic subjects can be interpreted as abnormal on MRI scans. They site "The scans were interpreted as demonstrating abnormality in 19% of the asymptomatic subjects: 14% of those who were less than 40-years-old, and 28% of those were older than 40-yearsold." It is for this reason that they suggested that clinical findings should be correlated with imaging study findings so that the false positive results from imaging studies are not construed as true anatomical false positive results.

I believe, the treating physician should make his diagnosis Prior to ordering an MRI study, and use the MRI study to confirm his opinion, rather than ordering an MRI and then stating whatever exists is related to some specific injury. Furthermore, I think it would be interesting to obtain previous imaging studies of this individual if such can be obtained.

Dr. Throckmorton also writes, in what appears to be his second paragraph on page one, that, "I was told by the patient the examination was so hurried, so insensitive and at best cursory that if proper time had been taken and orthopedic tests administered as taught at C.C.E. accredited schools a competent examination would have easily shown a basis for her cervical complaints. This was not done."

I find it interesting that Mrs. (sic) Cofield would have knowledge of orthopedic tests taught at C.C.E. accredited schools. In regards to how she was treated, Mrs. (sic) Cofield filled out a patient satisfactory survey, which indicated she checked "yes" that she had an exam like this before; she checked "yes" that enough time was spent, and she was not rushed; she checked "yes" that the manner in performing the exam was professional, and she checked "yes" that I treated her with respect, etc. In fact, she rated the exam overall as "good." Thus, Dr. Throckmorton should not be relying upon his patient to determine what is an insensitive, hurried, and at best cursory exam.

In the prognosis section of the report, Dr. Throckmorton issued the opinion, "I believe Lisa cannot perform the job with the municipality that she was hired to do. I believe her fibromyositis and early degenerative arthritis in her cervical spine are the reasons for this. I have pulled her off work indefinitely as a result."

Dr. Bohr points out in his article on fibrornyalgia syndrome, in the next to last paragraph, that, "Although some rheumatologists consider F.S. a harmless label, labeling may have negative consequences. This is particularly true of 'post traumatic F.S.,' a term even many F.S. rheumatologists advocates agree should be eliminated. Neurologists can do their part by supporting patients to stay at work and by discouraging illness behavior. Depression should be recognized and treated."

In this particular case, Dr. Throckmorton has put on this individual his defined diagnosis of fibromyositis and early degenerative arthritis as the reasons this individual will be off work indefinitely.

Dr. Throckmorton offers no evidence as to how he has determined that the fibromyositis exists. He simply states in his letter that he has noted a chronic, gradual onset of fibrosis, and appears to indicate this has been determined by noting tenderness to palpation. If this is so, I'm sure you are aware that a report of tenderness to palpation is a subjective response and not an objective finding.

Furthermore, with Dr. Throckmorton belief in the diagnosis of fibromyositis, he then has a problem about it probably being a preexisting condition. I believe it would be appropriate to obtain previous records and find out whether this claim to fibrous tissue existed prior to this individual even seeing Dr. Throckmorton.

Secondly, the time on my examination was May 15,1998, and the date of loss was April 16, 1998. The records indicate that Dr. Throckmorton commenced treatment on April 16, 1998; thus, Dr. Throckmorton only had one month for the fibrosis to develop, that he claims to exist. I would suggest you would obtain all records of Dr. Throckmorton so that it can be documented as to what date he first noticed this chronic, gradual onset of fibrosis in this individual's upper thoracic spine and by what method he determined this existed.

CONCLUSION:

Mrs. (sic) Cofield allegedly never recovered from her previous work exposure. I believe that it is reasonable to request previous records to determine what this individual never allegedly recovered from. As far as I can determine, I do not discern there is any significant preexisting condition which has retarded this individual's recovery.

As stated in my previous report, her past history appeared to me to be one of overreaction. Now it appears that she has performed similar duties for the Municipality of Anchorage, and, again, there is some sort of overreaction because her alleged work exposure to repetitive activity is insufficient for injury per se.

I find the proposed treatment and proposed physical capacities evaluation by Dr. Throckmorton to be unnecessary; in fact, there is no clinical condition cited by Dr. Throckmorton to even warrant having taken the MRI. In general, I find his report of June 2, 1998, to be hyperbole and obfuscation, which does not change my opinion.

(Peterson June 9, 1998 report).

Dr. Peterson responded as follows to the following questions from the employer: 4) "Do you feel Ms. Cofield’s current medical problems are related in any way to her employment with the Municipality?" 5) "In reviewing Ms. Cofield’s past symptoms to the ones she presented Dr. Throckmorton with; do you see any differences and/or changes? Please explain."

(4) I am of the opinion that Ms. Cofield's described work injury of sitting at a table thumbing through notebooks looking for papers, pulling out of date papers, inserting new papers, watching for customers, answering the phone while she looks up information in her computer, while working for a short time for the Municipality of Anchorage is not the etiology of her current complaints. Initial records of 5/12/97 of Steve Shirley, D.C. indicates that when she sought the care at that facility she had symptoms of sore, stiffness in the neck and shoulders, and the problem had been present for 3-4 years. Dr. Shirley's chart notes indicated that Ms. Cofield had received treatment in the past in which she would receive temporary relief for 2 days with chiropractic care and massage. Chart notes also indicated that she had less pain on the weekends and was worse with activities such as typing. There then follows treatment notes such as her being given a cervical pillow on the date of May 28, 1997. June 11, 1997 chart notes indicates that there is a discussion of her Workers Compensation potential. June 13, 1997 indicates there is a problem with her having some discrimination at work. In a chart note of 7/1/97 as previously reported, indicates treatment was terminated simply because she could not afford care, and she would reschedule when she was able to. Thus, Ms. Cofield's problem is a pre-existing problem on a symptomatic basis.

(5) No I do not see any significant differences. I note in the July 6, 1997 report by Steven Shirley, D.C. he wrote in the second paragraph "though she does not present with complains in a pattern similar to that of fibromyalgia, I feel she does have some chronic myofasciitis in this region, and recommended that she consider some additional muscle therapy". Thus again, I am wondering as to how Dr. Throckmorton was able to determine there was a gradual onset of fibromyositis as he states in his June 2, 1998 report, and apparently was not able to determine that this individual had a pre-existing myofascial pain syndrome based upon his concept of these disease/injury processes.

In his July 6, 1998 letter to the employer’s adjuster, Dr. Throckmorton wrote:

I have received copies of letters addressed to you dated both June 9th and 13th from Dr. Peterson. I have also received a copy of Lisa's termination action by her employer dated 6/24/98. 1 want to reiterate to you that despite the Municipalities action against Lisa with what appears to be your companies blessing, I feel that the position I have taken in regards to my being Lisa's primary treating physician has largely been ignored. As Lisa's primary treating physician as recognized by the State of Alaska physician licensure laws and as Lisa's primary treating physician as recognized under the State of Alaska Workers Compensation laws, how is it that she could be terminated by her employer under the category of job abandonment and or unauthorized /unreported absences in light of my authorizing her to be excused during this period? My updated physicians reports currently has her excused from her work with the Municipality due to her medical instability. In other words, the work she does aggravates her injury and until she is again stable or determined unstable I have authorized her off work until this can be accomplished. It is not my intent to cause harm to her employer or be a party to any kind of wrongdoing. My interest is in the well being of this patient I wish to point out to you that there still exists an obvious dispute between myself and your agent regarding Lisa's medical condition. I urge you to promote this dispute to the Workers Compensation Board as soon as possible as this injured worker is being further damaged by the actions that have been taken against her.

I wish to make the following points about Lisa's condition clear for the record. I believe she has fibromyositis which is chronic in nature and in my opinion has retarded her recovery time. I believe she has had this condition for a substantial period of time. I believe she had it prior to being hired by the Municipality. I believe this condition is chronic in nature and onset, and was not something she developed in a one month period of time as was suggested by Dr. Peterson. I believe your agent, Dr. Peterson, pretty much takes the position in his letters to you that fibromyositis is a very questionable diagnosis and at best is equivalent to" the milking of the cash cow" as quoted from his letter to you dated June 9, 1998 1 see that virtually every article he sited to draw his conclusion that no injury occurred therefore no treatment was necessary, was one sided and very biased in nature. I determined that Lisa had fibromyositis based upon palpatory findings while treating her. I also noted that under associated signs and symptoms of fibromyalgia as noted by Wolfe 1990, that Lisa's failure to recover quickly as was expected from such an apparently minor injury had a strong correlation to these associated signs and symptoms. The things Lisa also suffers from are: widespread pain, tenderness in I I or more out of 18 tender points, fatigue, morning stiffness, sleep disturbance, headache, paresthesias and anxiety. I find it interesting that Dr. Peterson takes such a narrow view of this condition and apparently ignores the fact that this condition is recognized as a diagnosible condition as defined by the American College of Rheumatologists. It is categorized and listed extensively in the International Classification of diseases (ICD) code book I have given Lisa the diagnosis of ICD-9 729. 1-fibromyalgia as one of her diagnosis. I find approximately 15 categories of various types of myositis, myofascitis, fibrositis, fibromyositis and fibromyalgia in the ICD code book. Is this all hyperbole as is suggested from your agent Dr. Peterson about my position in this case regarding fibromyalgia? I think the position of your doctor is questionable. I think that referencing journal articles dating back to 1977 that denounce fibromyalgia in light of current journal articles that support this diagnosible condition (and in light of the (ICD) code book that supports this as well), that this clearly demonstrates the unreasonable opinion your doctor has rendered. Unfortunately for Lisa, she was terminated based upon this opinion before a board could be convened to fairly determine who is telling the truth here.

Let me make clear that I disagree with all of Dr. Peterson’s conclusions. I have reviewed Lisa's records and it is documented from another physician that she has had a prior diagnosed condition of fibromyalgia. I believe this is pre-existing but none the less it is a condition that manifested while she was an employee with the municipality. I wish to make clear that the MRI done by me was done because of her incredibly slow response to treatment and to rule out HNP. Her pain in the cervicothoracic spine warranted this test I also wish to make clear that the diagnosis of fibromyositis was one I determined while treating Lisa and not one made at the onset of treatment.

I have asked Lisa to see Dr. Levine M.D. for a third opinion regarding her injury. She sees Dr. Levine the week of July 6, 1998. 1 believe that I am still the primary treating physician in spite of the controversion and the subsequent termination of this injured worker. I think that my credibility has been called into question in this case by Lisa's employer. The Municipality has sided with your doctor, has ignored any and all aspects of my findings and in my opinion has railroaded this patient without a fair medical hearing. I now again call upon all concerned to let Lisa's case be heard by the Workers Compensation Board so that this wrongdoing can be quickly corrected.

On July 7, 1998, Larry A. Levine, M.D., examined the employee on referral from Dr. Throckmorton. In his report of that same date, addressed to Dr. Throckmorton, Dr. Levine opined as follows in his "discussion" section:

Certainly the paramount issue appears to be some of the fibromyalgia or myofascial pain complaints. These appear to be long-standing but there seems to be a temporal related significant aggravation on April 16, 1998, per her report. Certainly this may represent more than just an exacerbation, given her level of pain complaints following this event.

As for the AMA Guides to Evaluation of Permanent Impairment there is typically not a rating for cumulative trauma disorder, since if the symptoms abate after withdrawal from the activity, there is not felt to be long-lasting residual and the impairment rating would be 0.0%. She is not being seen for rating at this time and none is offered, but this being said, I believe the Guides are just that, and they are guides to how we should evaluate the overall condition.

From my assessment, it is obvious that she has certain things going on such as the epicondylitis, de Quervain's tenosynovitis and fairly marked fibromyalgia and myofascial pain complaints. I believe a chronic pain setup would be reasonable for her overall situation. I believe she should be independent with therapy. She should take part in a weight loss program. She should look to self strategies for stress relief.

From a medication standpoint, she certainly might benefit from either the tricyclic antidepressants to be used for chronic pain, or Effexor, which has worked well for muscular pain complaints.

She does report some stress and depression, and this would probably be amenable to treatment as well.

She has gotten significant relief with chiropractic care and thus I believe it would be reasonable to continue. It would be expected that she could be weaned from passive modalities and put her in an active, independent program at some point. The medications might allow this to occur.

I hope this information is of some help. Should you require any other information please do not hesitate to contact me. I believe her primary physician can make recommends (sic) for the initiation of the medications as described. Typically I would start with Elavil 10 mg p.o. q h.s. on a scheduled basis, increasing every 5 days to a goal of 50 mg q h.s. This often works to help re-establish the sleep cycle, which she complains is disrupted. It also helps interrupt the chronic pain cycle. I typically state that it takes about 6 to 8 weeks before someone notices a change with this.

If this does not work I would try Effexor. There are other options, but I think one of the above options would be very helpful and may provide significant relief.

At the employee’s request, Dr. Peterson responded to Dr. Throckmorton’s July 6, 1998 report. In his July 13, 1998 letter to the employer’s adjuster, Dr. Peterson further explained and supported his earlier reports, and challenged Dr. Throckmorton’s opinions. Dr. Peterson concluded:

In conclusion, there is controversy whether fibromyalgia even exists and in those who believe in its existence, there is even controversy as to whether it is work-related.

Dr. Throckmorton claims of Mrs. (sic) Cofield's symptoms manifesting while she was an employee of the Municipality of Anchorage, does not in any way relate to the activities of Mrs. (sic) Cofield having sat at a table working with spiral notebooks and papers, thumbing through notebooks looking for papers, inserting pages of papers, watching the counter, answering the phone, looking up information in her computer, or relaying this information on to other individuals. Previous records document her- symptoms have manifested prior to her working for the Municipality of Anchorage. Thus, if Dr. Throckmorton wishes to treat Mrs. (sic) Cofield for his diagnosis of fibromyalgia, so be it, but in this examiner's opinion, it has no relationship whatsoever to the work that she performed for the Municipality of Anchorage.

Observing the obvious disputes between the employee’s and employer’s physicians, the Board ordered a second independent medical evaluation (SIME) on December 18, 1998 with Dr. Smith. The Board also ordered a physical capacities evaluation (PCE) be conducted by Joann Seethaler, L.P.T. Dr. Smith evaluated the employee on February 24, 1999. In his March 29, 1999 report, Dr. Smith responded to the Board’s questions as follows:

QUESTION #1: What is the medical cause for each complaint or symptom?

ANSWER: Her current symptomatology is widespread and includes systemic things as well as local things.

Systemic things such as fatigue, pain, and sleeplessness could be related to the diagnosis of fibromyalgia which was made by Dr. Levine in July of 1998.

Concerning her pain in her neck and shoulder and down her back, this probably also has a combination of factors.

She does have a congenital anomaly in the cervical area which may have resulted in some cervical spondylosis or degenerative changes in the neck. These changes were apparent on x-ray as early as 1993.1 and probably actually antedated that, according to the history.

In addition to the mechanical or structural changes in her neck, she has had an established diagnosis of chronic neck pain with soft tissue components going back at least as far as chiropractor Shirley in July of 1997. These diagnoses have various names. They may mean the same thing. I do not profess to be an expert in this area and would rely more upon the information provided from the various people in the records.

In summary then, she seems to have systemic complaints which may be related to the syndrome of fibromyalgia. She has more localized neck and shoulder complaints which may be related to a combination of the underlying mechanical degenerative changes and some superimposed soft tissue chronic pain problems. The chronic pain problems may also have associated psychological components.

QUESTION #2: Which complaints or symptoms are or are not related to the 4-16-98 injury and what is the basis for your opinion?

ANSWER: I am not aware of any particular injury that occurred on 4-16-98. That was the date she reported to the chiropractor.

Possibly the injury that you are referring to was her industrial exposure which historically occurred between January of 1998 and early May of 1998, when she was employed by the municipality.

Even if that is the case, it would be my opinion that it is not probable that any of the above-noted diagnoses are related to that industrial exposure. I have stated that I f eel the above-noted diagnoses are responsible for her current complaints or symptoms. Therefore, the linkage between the industrial exposure and her current problems is not probable, in my opinion.

More specifically, the mechanical and x-ray findings antedate by years the industrial exposure.

The soft tissue pain syndrome also historically goes back far beyond the industrial exposure with the Municipality of Anchorage.

As will be noted below, it is conceivable that her work with the municipality could have aggravated or caused a flare up of the underlying condition. This was referred to in Dr. Levine's July 7, 1998 report as "cumulative trauma difficulty." He inferred, and I would concur with the concept, that once the cumulative trauma insult is removed in this type of disorder, impairment is not expected to result from the exposure.

QUESTION #3: Did the 4-16-98 injury aggravate, accelerate, or combine with a pre-existing condition to produce the need for medical treatment or the disability?

ANSWER: Probably.

Subquestion a. If so, did the aggravation, acceleration or combining with a pre-existing condition produce a temporary or permanent change in the pre-existing condition?

ANSWER: It would be my opinion that the change produced by the aggravation would be expected to be temporary in nature rather than permanent.

. . .

Subquestion c. If not, do you have an alternate cause for the current condition?

ANSWER: I think that the aggravation of the work exposure was most probably a temporary aggravation of the underlying degenerative changes and the preexistent soft tissue chronic pain syndrome.

Therefore, the alternate cause for the current condition is preexisting conditions that antedated the industrial exposure.

QUESTION #4: In your opinion, has the treatment Ms. Cofield received for her work injury been reasonable and necessary? What specific additional treatment, if any is indicated/recommended? Is the need for the treatment you recommend due to Ms. Cofield's injury with the Municipality of Anchorage?

ANSWER: It would seem to me that when her symptomatology increased in April of 1998, that treatment would have been reasonable to decrease her symptomatology prior to her discontinuing that type of work.

Further efforts to define the problem and outline treatment recommendations would seem reasonable up to the period of July of 1998.

I am not aware of particular treatment that she has received after that period of time as the records of chiropractic manipulation seem to stop in early August of 1998.

Treatment after the July 1998 time frame or early August, in my opinion, would most likely be palliative and related to the preexistent conditions.

In terms of specific additional treatment, it is noted that Dr. Levine in July of 1998, felt that "a chronic pain set up would be reasonable for her overall situation." By that I think he may be referring to a multidisciplinary program, but I have no way of knowing that for sure. Apparently, his goal was to make her independent with therapy as well as helping her with weight loss and stretch release program. He also felt antidepressants might be useful. It would seem to me that these recommendations from Dr. Levine would be relative to treating her basic underlying conditions ad not specifically treating the temporary aggravation from the industrial exposure earlier in the year.

QUESTION #5: Based upon the following Alaska Workers' Compensation Act definition, is Ms. Cofield medically stable? on what date was medical stability reached, or on what date do you predict medical stability? Medical stability means:

[T]he date after which further objectively measurable improvement from the effects of the compensable injury is not reasonably expected to result from additional medical care or treatment notwithstanding the possible need for additional medical care or the possibility of improvement or deterioration resulting from the passage of time; medical stability shall be presumed in the absence of objectively measurable improvement for a period of 45 days; this presumption may be rebutted by clear and convincing evidence.

ANSWER: Sometimes it is difficult to define stability relative to a chronic condition.

In this case, however, my best estimate would be in July of 1998. At that time a diagnosis had been established by Dr. Levine as well as treatment recommendations for the chronic underlying problem. At that point, she also was about two months after stopping her work, as nearly as I could tell.

I am unaware of the presence of any objectively measurable improvement for the prior 45 days before July of 1998. If so, it would also meet this criterion. It would seem likely that the aggravation from the industrial exposure should have been alleviated by two months of avoidance of that exposure.

In her PCE dated January 14, 1999, Ms. Seethaler estimated that the employee’s lifting capacities, as of January, 1999, "placed her in a sedentary position. This might be increased to a light work capacity if she were to complete a conditioning program. She states that she will be entering a water aerobics class at the university in two weeks." Ms. Seethaler commented that the employee was pleasant and cooperative, and gave a consistent effort. She opined the assessment was a valid representation of the employee’s capacities.

Dr. Throckmorton testified at the November 3, 1999 hearing regarding past and continuing chiropractic treatment he provides for the employee. He reiterated and confirmed his previous diagnoses and opinions at the hearing. He also testified that he does not believe the employee can return to her work at the Municipality. He testified that the employee suffers from fibromyalgia and a cervical strain/sprain related to her cumulative trauma of working for the employer. Dr. Throckmorton testified he referred the employee to Dr. Levine for her fibromyalogia treatment. He also testified that he referred the employee to David J. Mullholland, D.C., C.C.S.P., D.A.B.C.I., solely for the purpose of a PPI rating.1

Dr. Mulholland examined the employee on September 17th 1999. In his report of that same date, Dr. Mulholland states in pertinent part:

It appears that Ms. Cofield has experienced a 9% whole person impairment. In reviewing the packet of information provided to me, there appears to be quite a debate regarding the existence or applicability of fibromyalgia in this case. It is my opinion that this discussion is academic in this case. Fibromyalgia is not a ratable condition in the classic sense. For impairment rating purposes, would seldom use these diagnoses as a determining factor, but more often rate the effects of diagnosis. It is clear that an impairment causing event happened to Ms. Cofield on or about the six weeks proceeding 4/16/98. She was apparently able to do her job that the time for hiring, and continued to do her job until the onset of symptoms. That does not appear to be in dispute by any of the evaluators. . . .

While I believe Ms. Cofield has experienced a 9% whole person loss in this case, I think her disability from this particular line of work may be much greater. Also, it should be noted that records were provided regarding cervical spine MRI previous to this accident. That notwithstanding, her physical capacities were certainly great enough to do the type of work for what she was employed, so she therefore had no disability prior to this incident. Again that further solidifies my opinion that there was an impairment creating of and that happen on or about April 16, 1998. Of course, the pre-existence of this condition was taken into account in regards developing an impairment rating number.

Dr. Mulholland testified at the November 3, 1999 hearing regarding the employee’s PPI rating. He also testified that he disagrees with Dr. Peterson that the employee does not have a ratable impairment. Dr. Mulholland testified that his normal policy is to keep copies of patients medical records if provided. He testified that because the employee retrieved her records, he is not exactly sure which records he relied upon or reviewed, when he rated the employee’s impairment.

Michael S. Fisher, M.D., testified at the November 3, 1999 hearing that he began treating the employee’s fibromyalgia on April 6, 1999, on referral from Dr. Throckmorton. He testified his treatment plan for the employee includes: anti-depressants; muscle relaxors; non-opiate pain medications; physical therapy; and a nutritional approach. He testified that he has seen some "moderate objective improvement." He testified that fibromyalgia can be caused by physical injury, including cumulative trauma injuries. In his opinion, the employee is not stable and stationary regarding her fibromyalgia, and she is unable to return to work at the Municipality. On cross-examination, Dr. Fisher acknowledged that he does not know what the employee’s tasks were when she worked for the employer.

The employer’s expert, Dr. Peterson, also testified at the November 3, 1999 hearing, consistent with his previous medical reports. In addition, Dr. Peterson testified that the employee’s MRI’s taken before and after her work at the Municipality were "essentially identical." He stated that the MRI taken in 1998 "shows bone spurs which take a long time to form. [The bone spurs] definitely pre-existed her work." Dr. Peterson testified that the "mechanisms for an injury [at the Municipality] do not exist" and that the employee’s complaints are "severely out of proportion."

Regarding fibromyalgia, Dr. Peterson questioned the diagnosis; "Dr. Levine does not report any pain points, and you need 11 of 18 [for a diagnosis]." Dr. Peterson testified he agrees with "Dr. Caldwell’s" social security administration disability report citing the employee’s "significant magnification of symptoms." He also testified he agreed with Dr. Smith’s SIME report. Not including the hours he spent reviewing the employee’s records, Dr. Peterson testified he physically examined the employee for one hour on May 15, 1998.

The employee testified at the November 3, 1999 hearing. She described her work activities, and estimated she spent 80% of her time at the Municipality filing. She testified that in mid-February of 1998 she began noticing increased pain by Wednesday of each week; by Fridays, the pain was "excruciating."

The employee testified that prior to her employment with the Municipality, she had just moved from Spokane, Washington, to Anchorage. At her November 2, 1998 deposition, the employee testified regarding her previous work experience, and her numerous cervical/neck pain complaints dating from 1989 through her departure from Spokane in late, 1997. (Cofield dep. at 9 - 27). In June, 1997, the employee treated with Steven Shirley, D.C., in Spokane.

The employee testified she began attending the University of Alaska, Anchorage (UAA), beginning Fall Semester, 1998, applying in April, 1998. (Cofield dep. at 51). The employee’s UAA application is dated April 16, 1998. She stated she receives educational assistance from the Division of Vocational Rehabilitation and Alaska Student Loans.

She testified her application for social security benefits was denied, but became eligible for Medicare in February of 1999. She states she has not worked since she left the Municipality in April, 1998, except for a one-day trial return to work that May. She estimates the time Dr. Peterson examined her to be 20 minutes.

Ms. Herndon, the employee’s supervisor, testified she has worked for the employer for 25 years. She further explained and demonstrated the employee’s work duties and tasks. She testified, the employee never complained to anyone at work regarding any pain or similar symptoms/complaints. She testified the employee’s probationary period ended April 15, 1998. She reported her "injury" to Terry Lamberson (ph) on April 16, 1998. After she reported her injury, Ms. Herndon said she needed to contact the employee. She testified: "When I finally tracked her down, she said she was working day-care."2

In 1997 the employee treated with Dr. Shirley, on referral from Brain Zeranski, M.D (in Spokane). In his July 6, 1997 discharge report to Dr. Zeranski, Dr. Shirley summarized his treatment as follows:

Lisa was seen over a four week period in our clinic for complaints of chronic neck pain. The patient was treated in our clinic using a combination of spinal manipulation, therapeutic muscle stretching to the trapezius and deep paraspinal musculature as well as teaching the patient a home stretching and strengthening routine for the cervical and upper thoracic spine region. The patient was also given numerous ergonomic recommendations for adjusting her chair and she was in the process of getting a new workstation when apparently she left her job.

When last seen on 6/13/97 1 felt the patient was close to maximum improvement in terms of manipulative therapy. However I did suggest that she consider a course of deep therapeutic muscle massage for residual muscle spasm across the cervicothoracic region. Though she doesn't present with complaints in a pattern similar to that of fibromyalgia, I feel she does have some chronic myofascitis in this region and recommended she consider some additional muscle therapy.

No additional treatment is recommended at this time in our office. Overall her pain complaints improved from a 7/10 to a 2/10. However considering the patient apparently has some legal issues with her recent employer I would anticipate -this additional stress may cause some irritation. However we have developed a home therapy program for the patient which will hopefully allow her to get some relief through self care measures.

Thank you for the opportunity to work together with you on this interesting case.

Dr. Shirley elaborated more on his diagnosis and treatment of the employee at his November 23, 1999 deposition. Dr. Shirley also felt that the employee’s stress with dealing with legal issues involving a different employer in 1997 was causing some of her symptoms. (Dr. Shirley dep. at 39 - 40). Dr. Shirley testified that the employee prone to aggravate her condition, and would be more at risk to aggravate her condition than "other people with normal spines" (Id. at 58).

The employee argued her cumulative she endured at work for the Municipality aggravated, accelerated, and/or worsened her pre-existing condition. The employee asserts that her fibromyalgia diagnosis was triggered by the work at the Municipality. The employee requests we award medical, time loss, and permanent impairment benefits, in addition to attorney’s fees and costs.

In her May 25, 1999 letter to the employee’s counsel, the employer’s counsel wrote:

This is to advise you my client has decided to pay in accordance with our offer of April 20, 1999 all benefits which would be due your client based on Dr. Smith's opinion expressed in his SIME report. Therefore, we will pay the outstanding amount to Dr. Throckmorton through July 31, 1998 in the amount of $2,556.60. This represents the outstanding balance as of July 31, 1998 after deducting excessive treatment. In addition to this, the employer will pay $50.00 for Dr. Levine's letter and $304.00 for his office visit as well as the $246.00 balance for the MRI and $268.20 for the reading of the MRI. Finally, my client will pay an additional $2,918.52 in temporary total disability benefits for the period May 12, 1998 through July 31, 1998 in accordance with the opinion of the Board's physician, Dr. Smith. The total of all benefits to be paid is $6,343.32,

Minimum statutory attorney fees on the $6,343.32 are $784.33. My client has given me authority, however, to offer to pay $2,000.00 in costs and attorney's fees for your efforts through May 13, 1999, the date of your Affidavit of Attorney's Fees. If this amount is acceptable, please contact me no later than June 1, 1999 and I will prepare a stipulation for our signature and Board approval. If I do not hear from you by that date, I will assume the $2,000.00 is unacceptable and proceed accordingly.

Payment of the above pays your client all benefits I believe the Board might award based on Dr. Smith's report. Following payment of these monies, we plan to proceed to hearing.

The employer argues, the employee, at most, suffered a temporary aggravation of a well-documented pre-existing condition. As detailed in the letter quoted above, it has paid for all benefits and time-loss through July 31, 1998, including attorney’s fees which exceed the statutory minimum in AS 23.30.145(a). Based on its medical evidence and the SIME reports, the employer argues no additional benefits are due or owing the employee. The employer requests we deny and dismiss the employee’s claims for additional benefits.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

"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 the claim comes within the provisions of this chapter. AS 23.30.120(a)(1) The presumption also applies to claims that the work aggravated, accelerated or combined with a preexisting condition to produce a disability or need for medical treatment. Burgess Const. Co. v. Smallwood, 623 P.2d 312, 315 (Alaska 1981). Furthermore, in claims based on highly technical medical considerations, medical evidence is needed to make the work connection. Id., 316. The presumption-can also attach in an aggravation/ acceleration context without a specific event. Providence Washington Ins, Co. v. Bonner, 680 P.2d 96 (Alaska 1984).

Application of the presumption is a three-step process. Gillispie v. B & B Foodland, 881 P.2d 1106, 1109 (Alaska 1994). An employee must establish a "preliminary link" between the claimed conditions and his work. For the purpose of determining whether the preliminary link between work and the claimed conditions has been attached, we do not assess the credibility of witnesses. Resler v. Universal Services Inc., 778 P.2d 1146, 1148-49 (Alaska 1989) and Hoover v. Westbrook, AWCB Decision No. 97-0221 (November 3, 1997).

The employer must then rebut the presumption by producing substantial evidence the conditions are not work-related. Miller v. ITT Arctic Services, 577 P.2d 1044, 1046 (Alaska 1978). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Grainger v. Alaska Workers' Compensation Bd., 805 P.2d 976, 977 n.1 (Alaska 1991). The Grainger court also explained that there are two possible ways to overcome the presumption: (1) produce substantial evidence which provides an alternative explanation which, if accepted, would exclude the work as the cause of the conditions; or (2) directly eliminate any reasonable possibility the work was a factor in causing the condition. The same standard used to determine whether medical evidence is necessary to establish the preliminary link is also necessary to overcome it. Veco. Inc. v. Wolfer, 693 P.2d 865, 871 (Alaska 1985). An employer may rebut the presumption of compensability by presenting expert medical opinion evidence the work was probably not a cause of the claimed condition. Big K Grocery v. Gibson, 836 P.2d 941, 942 (Alaska 1992). Evidence used to 'rebut the presumption is examined by itself to determine whether it is sufficient to rebut the presumption. Wolfer, at 869. Medical testimony cannot constitute substantial evidence if it simply points to other possible causes of Employee's claimed condition without ruling out its work relatedness. Childs v. Comer Valley Elec. Ass'n., 860 P.2d 1184, 1189 (Alaska 1993).

If the presumption is rebutted, Employee must then prove, by a preponderance of the evidence, his work was a substantial factor which brings about the condition or aggravates a preexisting ailment. Wolfer, 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). The claimed condition is then compensable if the work is a substantial factor in bringing it about. Burgess, 317. The work is a substantial factor if: (1) the condition would not have occurred at the time it did, in the way it did, or to the degree it did but for the work and (2) reasonable people regard the work as a cause of the condition and attach responsibility to it. Fairbanks North Star Borough v. Rogers & Babler, 747 P.2d 528, 533 (Alaska 1987).

We find the employee has attached the presumption with her testimony and the testimony of Drs. Throckmorton and Fisher that her 91 days working for the employer aggravated her cervical condition and/or triggered her fibromyalgia. We further find, based on Dr. Peterson’s reports, and Dr. Smith's SIME report, that the employer has rebutted the presumption of compensability that the employee's preexisting cervical condition, and/or triggering of any fibromyalgia diagnosis, was probably not aggravated permanently (or at all), accelerated, or worsened by her limited work for the employer.

Reviewing the record related to the employee’s complaints, we find she has not proved, by a preponderance of the evidence, that her condition was in any way permanently affected by her limited work for the employer. We do, however, find the employee may have temporarily aggravated a significant pre-existing condition. We base this on several factors. First, we find the employee has a very extensive and significant history of neck pain and attendant diagnoses prior to her brief employment with the employer. Next, we find the position to be very sedentary based on the testimony of the employee and Ms. Herndon. Furthermore, the employee only worked this sedentary position for 91 days (61 actual work days, not including holidays), which we find to be a very short period of time to acquire "cumulative trauma" from repetitive motions. Next, we find Dr. Throckmorton’s opinions may be influenced by financial motivations (See, Dr. Throckmorton, May 15, 1998 report, "I also would like to see my office paid for the billings regarding this patient."). Accordingly, we give his opinions less weight. Finally, we find the employee’s testimony regarding her day to day activities, including attending the University full time and caring for her child, incongruous with her claim of being unable to meet the physical demands of her job with the employer.

Simply put, and based on the evidence presented, we can not find that reasonable minds could conclude the employee’s myriad of complaints are related to her limited, very sedentary work for the employer. Based on Dr. Smith’s report, we find the employee, at most, suffered a temporary aggravation of a pre-existing condition. Dr. Smith opined the employee’s temporary aggravation should have alleviated by July of 1998. We find this to be more than reasonable. We conclude the employer is only liable, at most, for a temporary aggravation to the employee's pre-existing condition and complaints (regardless of diagnosis). As detailed in its May 25, 1999 letter, we find the employer has paid the employee’s medical and time loss benefits through July 31, 1998; we conclude no further medical or time-loss benefits are due for this temporary aggravation. As we find the employee’s work "injury" is temporary in nature, we find permanent impairment benefits can not be awarded under AS 23.30.190. We conclude the employee’s claims for additional TTD and PPI benefits are denied and dismissed. As we find the employee did not prevail on any of her claims for additional benefits, the other dependant claims are also denied and dismissed. The employee’s claims for attorney’s fees and costs, penalty, interest, and transportation expenses are denied and dismissed.

ORDER

The employee’s claims for additional benefits are denied and dismissed in accordance with this decision and order.

Dated at Anchorage, Alaska this 11, day of February, 2000.

ALASKA WORKERS' COMPENSATION BOARD

/s/ Darryl Jacquot
Darryl Jacquot,
Designated Chairman

/s/ Florence Rooney
Florence Rooney, Member

/s/ Valerie K. Baffone
Valerie Baffone, Member

APPEAL PROCEDURES

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 Alaska Rules of Appellate Procedure.

RECONSIDERATION

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.

MODIFICATION

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.

CERTIFICATION

I hereby certify that the foregoing is a full, true and correct copy of the Final Decision and Order in the matter of LISA A. COFIELD employee / applicant; v. MUNICIPALITY OF ANCHORAGE, (Self-Insured) / defendant; Case No. 199807702; dated and filed in the office of the Alaska Workers' Compensation Board in Anchorage, Alaska, this 11, day of February, 2000.

Brady D. Jackson, III, Clerk

1 The employer petitioned to strike both Drs. Throckmorton’s and Mulholland’s reports and testimony on October 29, 1999. The employer’s petition states: "Petition to Strike witnesses Chiropractor Throckmorton and Chiropractor Mulholland. Chiropractor Throckmorton was scheduled for a conference and called to cancel at employee’s request. Employer has been denied discovery by employee as she physically removed records relied upon by Chiropractor Mulholland. Chiropractor Mulholland not a lawful referral by attending." This petition was argued at the November 3, 1999 hearing during "preliminary matters." We denied the petition to strike the testimony and reports of Drs. Throckmorton and Mulholland. Nevertheless, we found the circumstances under which the employee retrieved her file from Dr. Mulholland suspect.

2 The employee stated she was babysitting.

SNO