ALASKA WORKERS' COMPENSATION BOARD
P.O. Box 25512 Juneau, Alaska 99802-5512
GORDON L. SMART, Employee, Applicant v. ALEUTIAN CONSTRUCTORS, Employer, and ALASKA NATIONAL INS. CO. - A, Insurer, Defendants. |
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DECISION AND ORDER AWCB Case No. 199222194 AWCB Decision No. 00-0034 Filed with AWCB Fairbanks, Alaska on February 28, 2000 |
We heard the employee’s claim for workers’ compensation benefits at Anchorage, Alaska, on January 4, 2000. Attorney Mike Jensen represents the employee. Attorney Robert McLaughlin represents the employer. We closed the record on January 27, 2000 when we met after receiving and reviewing written post hearing arguments.
ISSUES
A. Does the October 2, 1992 injury continue to be a substantial factor in the employee's condition?
B. Has the work the employee performed since 1993 been a substantial factor contributing to his current condition and need for treatment?
C. Is the employee entitled to temporary total disability (TTD) benefits from October 25, 1997 until medically stable?
D. Is the employee entitled to permanent partial impairment (PPI) benefits?
E. Is the employee entitled to medical benefits, including the cost of his February 25, 1998 surgery?
F. Is the employee entitled to interest and penalty payments?
FACTUAL HISTORY
The employee has worked as a heavy equipment operator for approximately 32 years. He became a Journeyman Operating Engineer and has been a member of Local 302 since approximately 1967.
The employee injured his low back on October 1, 1992 while working for the employer on the Aleutian Islands. He was moving the chute of a cement truck when the truck lurched forward causing the chute to pull away. The employee tried to steady the chute to prevent it from hitting other workers when the chute jerked back, hitting him in the low back, knocking him down.
The next day the employee was treated for back pain at the Branch Hospital in Adak. The hospital noted pain radiating into the left leg. His back pain persisted radiating down the left thigh to about the knee. He returned to Anchorage where he saw J.C. Cates, D.O. Dr. Cates treated him with osteopathic manipulations and referred him to Davis Peterson, M.D.
An MRI scan, without contrast, was taken on October 22, 1992. It was interpreted as showing mild central spinal stenosis at L3-4, and moderate stenosis at L4-5 with bilateral pars defect at L5-1. In his deposition, Dr. Cates described a pars defect as a fracture of the bony connection of one vertebra to the other. (Dr. Cates depo. p. 11.) "The majority, vast majority are caused by some micro insults, repetitive trauma." (Id. at 10.) Diffuse annular bulging was also noted at L5-S1. Drs. Cates and Peterson diagnosed lumbosacral strain.
The employee underwent physical therapy for three months. He was released to return to work on January 4, 1993 with weight lifting limitations of 25 pounds. On February 8, 1993 Dr. Cates increased the weight limitation to 30 pounds. By April 19, 1993 Dr. Cates noted the employee could weight lift up to 57 pounds and released him to regular work.
The insurer accepted the claim. It paid TTD benefits from October 2, 1992 until January 14, 1993 when the employee was first released for modified work of no more than 25 pounds lifting. Since his release he has worked for the following employers in the following jobs:
Martin Marietta Maintenance Mechanic
Tin City, AK 5/3/93-10/4/94
PMC/Frontec Station Mechanic
Aliktok, AK 11/3/94-1/4/95
Piquiniq Management Corp. Mechanic I
Shemai, AK 3/20/95-4/23/96
Johnson Excavating Backhoe Operator
Chugiak, AK 4/25/95-5/5/95
Nugget Construction Dozer Operator
Adak, AK 4/25/96-9/96
Price/Ahtna Loader and Backhoe Operator
Valdez, AK 5/29/97-6/3/97 and 7/1/97-9/29/97
DSS Const. Finish Roller Operator
Stockton, CA 10/18/97-11/1/97
The employee testified that in 32 years of working around and with heavy equipment he has been injured only a few times. The employee said he does not normally complain about aches and pains, but that since his 1992 injury working for the employer, his lower back has not been the same. He said he has suffered recurrent chronic intermittent bouts of pain with pain radiating to the leg. He took ibuprofen and kept working in pain. Occasionally, he would report his complaints to Dr. Cates. By late 1997, however, he could no longer keep working. On November 15, 1997 John Holmes, M.D., agreed the employee was no longer able to operate heavy equipment. The employee was referred to David Bybee, M.D., for a neurosurgical consultation.
An MRI has taken on December 5, 1997. It confirmed a protrusion at the L5-S1 that was central and to the left side. According to Dr. Bybee, this was consistent with the left leg pain the employee had experienced since his October 1, 1992 injury.
A January 12, 1998 myelogram confirmed a broad-based protrusion at L5-S1 which significantly narrowed the canal. A January 12, 1998 lumbar CT scan documented a significant broad based protrusion at L5-S1. On January 20, 1998 nerve conduction testing showed significant peripheral neuropathy and an EMG demonstrating chronic denervation.
Based on this evaluation and testing, Dr. Bybee diagnosed left lumbar radiculopathy and recommended surgery. On February 25, 1998 Dr. Bybee performed a hemilaminectomy at L5 with a foraminotomy of the left L5 nerve root.
The employee wrote to the adjuster on December 16, 1997 requesting that his compensation claim be reopened. It was denied. He filed a Workers’ Compensation Claim form on June 14, 1998. The insurer filed an answer on June 30, 1998. It denied all benefits including medical treatment. A formal controversion was filed on August 21, 1998.
The employee contends the October 2, 1992 injury remains a substantial factor in his condition and disability. In part, the employee relies on the medical opinion of John Holmes, M.D., who stated in a March 25, 1998 letter concerning the employee’s condition:
I feel this is a normal progression that can occur after an initial injury such as the injury [the employee] sustained in 1992.
Based on the history of his injury and the recurring low back pain episodes that followed the initial injury leading to the more significant recent recurrence, I feel the initial injury in 1992 lead to this progression of symptoms and findings, along with the changes on the repeat MRI scan in 1998. I, therefore, feel his problem is work related, and that he should be entitled to continuing medical treatment and compensation benefits.
Similarly, the employee’s treating neurosurgeon, Dr. Bybee, reviewed the employee's history, his evaluation, his testing and surgery and stated in an April 27, 1999 letter:
Therefore it is my opinion that this injury of 1992 reasonably did play a major role in initiating Mr. Smart's ongoing chronic low back pain complaints and very likely will necessitate a lumbar spinal fusion operation.
Additionally, Dr. Cates, who had been the employee's family physician, testified:
A. No.
(Dr. Cates depo. p. 36-37.)
Dr. Cates gave the opinion: "I think this patient as an operating engineer suffered probably multiple little incidents of work related injuries, micro trauma to the disc, that probably resulted in his having to have surgery, if the surgery is warranted." (Id. at 30-31.)
Dr. Cates confirmed that the employee had low back pain at least once after his release in 1993. The pain and/or the taking of ibuprofen was noted in his reports of August 11, 1993, July 2, 1996, December 16, 1996 and June 9, 1997. (Id. at 34-35.)
Dr. Peterson performed an evaluation of the employee at the referral of Dr. Cates on November 24, 1992 and December 15, 1992. He has not seen him since. (Dr. Peterson depo. p. 32.) Dr. Peterson confirmed that the MRI and x-ray studies that he had available to him are not what he would have preferred. (Id. at 31.) Based on his two visits with the employee, Dr. Peterson testified:
Q. Based on what you know about how the injury occurred and what you observed when you saw Mr. Smart in 1992, your feeling is that that injury was probably not a substantial factor in bringing about the problems that resulted in surgery; however, if he had continued back pain and leg pain after you saw him in 1992, if that continued up until the time he had surgery then it is more likely that it was a substantial factor in contributing to the problem that resulted in surgery?
A. In general, I think that more or less reiterates what I said.
(Id. at 27.)
At the time of Dr. Peterson's August 26, 1999 deposition the parties were unaware of the missing medical reports of Dr. Cates later discovered during Dr. Cates September 21, 1999 deposition. Given that these missing reports arguably confirm the employee's continuing complaints of low back pain after 1993, the employee contends they would have effected Dr. Peterson's testimony. Dr. Peterson testified:
Q. Can an individual who has been hurt or had an injury similar to Mr. Smart continue to have chronic intermittent bouts of pain following such an injury?
A. It's possible. If the injury was sufficient to destabilize or alter an otherwise fairly static situation in a pars, it's possible that it could be a triggering event that could result in destablization or progression. But, again, it's always hard to sort out how much is natural history of the disease and how much is referable to trauma depending on how high the energy of the trauma is to the spine. So it's a difficult and controversial area to comment on.
Q. If Mr. Smart continued to have chronic intermittent bouts of pain since 92, would this be consistent with a spondylithic defect in his spine?
A. Yes, it's not uncommon for individuals with this to have back pain intermittently and sometimes chronically.
Q. Can an injury make symptomatic a prior spondoylsis or spondolisthesis condition?
A. Can it make an asymptomatic one symptomatic?
Q. Yes.
A. Yes, it can.
(Id. at 33-34.)
Dr. Peterson confirmed that he had not reviewed any medical reports since December 15, 1992 and any predication of the employee's recovery from the injury would be simply a predication and as such speculative. (Id. at 32.) Dr. Peterson could not rule out the 1992 work related injury as a substantial factor in the employee's continuing disability. (Id. at 35.)
Gerald Keane, M.D., was retained by the employer to perform an independent medical evaluation (EIME) on February 16, 1999. In sum, Dr. Keane does not believe the October 1, 1992 injury was a substantial factor in the employee's current condition and need for the February 25, 1998 surgery. He attributes the employee's condition and need for treatment to "cumulative trauma." (Dr. Keane report p. 4.) He believes the employee’s subsequent work in California "finally tipped him over the edge." (Id. at 4.)
At the time of his report Dr. Keane believed that the employee had no medical care for his low back in the four years between 1993 and 1997. He based his opinion on the assumption that there had been no treatment for "well over four years." (Id. at 4.) After Dr. Cates' missing reports were discovered and discussed at hearing, however, Dr. Keane did not alter his opinion. He continues to believe the employee’s condition was not substantially caused by his work for the employer.
Nevertheless, Dr. Keane does believe the injury was likely a factor in his current condition and need for surgery. Dr. Keane stated:
I believe the subsequent accumulative trauma on his spine from doing such work gradually spread out over that period of time followed by the last series of events when he began working in California are far more responsible than the October 1, 1992 event alone.
(Id. at 4.)
Douglas Smith, M.D., performed a Second Independent Medical Evaluation (SIME) on September 9, 1999. In his September 30, 1999 report, based on the records provided to him at that time, Dr. Smith concluded the employee suffered a lumbosacral sprain, as a result of the October 1992 injury. "The notes indicate that he had been rehabilitated and was functioning well by April of 1993, in my opinion." (Dr. Smith September 30, 1999 report, p. 5.)
Initially, Dr. Smith did not review the missing reports of Dr. Cates. Therefore, Dr. Smith stated that the April 19, 1993 report is the last reference to back problems by Dr. Cates. Dr. Smith concluded that the L5-S1 disc protrusion, which was demonstrated on the December 19, 1997 MRI, was not related to the October 1992 exposure. He stated that it was not present on the earlier 1992 MRI according to the radiologist's report. However, he confirmed that the MRI, and X-ray films were not available for his review at the time of his report. (Id. at 4.)
Following Dr. Cates deposition, the additional medical records provided by Dr. Cates were forwarded to Dr. Smith for his review. The missing 1992 MRI films were also made available to Dr. Smith.
On November 16, 1999 Dr. Smith stated that he reviewed the MRI and additional records but they did not change his conclusions. Contrary to his September 19, 1999 report Dr. Smith did confirm that the earlier 1992 MRI did not show good definition. (Dr. Smith November 16, 1999 report, p.1.) He stated that he reviewed the additional missing medical records and noted there was only "a single mention of low back pain" between August 1993 and September 1997. (Id. at 1.) Dr. Smith was not provided a copy of Dr. Cates deposition, which arguably noted four incidents of reported low back pain. (Dr. Cates depo. pp.34-35.).
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The Alaska Supreme Court has long recognized that employment which causes injury or which sufficiently aggravates, accelerates, or combines with a pre-existing condition to cause disability entitles an employee to compensation and benefits. Thornton v. Alaska Workmen's Compensation Board, 411 P.2d 209, 210 (Alaska 1966). Liability may be imposed on an employer, however, only if the employment injury aggravated, accelerated, or combined with the pre-existing condition and the aggravation, acceleration, or combination was a "substantial factor" contributing to the ultimate disability. United Asphalt Paving v. Smith, 660 P.2d 445, 447 (Alaska 1983).
A "substantial factor" is found where it is "shown both that the [disability] would not have happened 'but for' the [employment] and that the [employment] was so important in bringing about the [disability] that reasonable men would regard it as a cause and attach responsibility to it." State v. Abbott, 498 P.2d 712, 717 (Alaska 1972); Fairbanks North Star Borough v. Rogers & Babler, 757 P.2d 528 (Alaska 1987).
In analyzing a case involving a pre-existing condition, the Court held that an aggravation or acceleration must be presumed under AS 23.30.120. Burgess Construction Company v. Smallwood, 623 P.2d 312, 315 (Alaska 1981). AS 23.30.120(a) provides, in part, "In a proceeding for the enforcement of a claim for compensation under this chapter it is presumed, in the absence of substantial evidence to the contrary, that (1) the claim comes within the provisions of this chapter." Continuing disability and need for medical benefits must also be presumed. Olson v. AIC/Martin J.V., 818 P.2d 669, 672 (Alaska 1991); Municipality of Anchorage v. Carter, 818 P.2d 661, 665 (Alaska 1991).
Nevertheless, before the presumption attaches the employee must establish a preliminary link between the disability and the employment. "[I]n claims 'based on highly technical medical considerations' medical evidence is often necessary in order to make that connection." Id. at 316. "Two factors determine whether expert medical evidence is necessary in a given case: the probative value of the available lay evidence and the complexity of the medical facts involved." Veco, Inc. v. Wolfer, 693 P.2d 865, 871 (Alaska 1985). Once the employee makes a prima facie case of work-relatedness the presumption of compensability attaches and shifts the burden of production to the employer. Id. at 869.
To overcome the presumption of compensability, the employer must present substantial evidence the disability is not work-related. Miller v. ITT Arctic Services, 577 P.2d 1044, 1046 (Alaska 1978). The Court "has consistently defined 'substantial evidence' as 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion'" Miller, 577 P.2d at 1046 (quoting Thornton, 411 P.2d at 209, 210). In Fireman's Fund American Insurance Cos. v. Gomes, 544 P.2d 1013, 1016 (Alaska 1976), the Court explained two possible ways to overcome the presumption: 1) producing affirmative evidence the disability and need for medical treatment was not work-related or 2) eliminating all reasonable possibilities the disability and need for medical treatment was work-related. "For the purposes of overcoming the presumption of compensability medical testimony cannot constitute substantial evidence if it simply points to other possible causes of an employee's injury or disability, without ruling out work related causes." Tolbert v. Alascom, Inc., 973 P.2d 603 (Alaska 1999).
The same standards used to determine whether medical evidence is necessary to establish the preliminary link apply to determine whether medical evidence is necessary to overcome the presumption. Veco, 693 P.2d at 871. "Since the presumption shifts only the burden of production and not the burden of persuasion, the evidence tending to rebut the presumption should be examined by itself." Id. at 869.
If the employer produces substantial evidence that the disability was not work-related, the presumption drops out, and the employee must prove all the elements of his claim by a preponderance of the evidence. Id. at 870. "Where one has the burden of proving asserted facts by a preponderance of the evidence, he must induce a belief in the minds of [the triers of fact] that the asserted facts are probably true." Saxton v. Harris, 395 P.2d 71, 72 (Alaska 1964).
We find the employee established the preliminary link in this case, based on the testimony of the employee and the medical opinions of Drs. Holmes and Bybee, that the employee's condition is substantially caused by his October 1992 injury. To overcome the presumption, the employer relies upon the medical opinions of Drs. Smith and Keane that the employee’s condition was not substantially caused by his work for the employer. We find this is substantial evidence to rebut the presumption.
Based upon our conclusion the defendant has produced substantial evidence to overcome the presumption, we find the employee must prove his claim by a preponderance of the evidence. Based upon our review of the evidence, we find the employee cannot meet the burden of proof at this time.
We find by a preponderance of evidence that the employee’s low back problems are caused by the natural progression of congenital factors such as short pedicles and spondylosis (i.e., pars defects). As such, we find the employee’s work for the employer, including the October 1, 1992 incident, are not a substantial cause of his current condition.
We find the October 1992 injury was a minor aggravation of the employee’s condition. As Dr. Peterson testified, "I don't get the feeling that this was a high energy injury. It sounds like it was, you know, it was not a fall from a height or real high energy injury. (Peterson depo. at 26) Dr. Peterson concluded that, "My feeling is it probably was not a real major contributor to the progression of this, but I can’t totally exclude it." (Id.)
Dr. Cates testified that the only direct reference to low back pain during periods of April 1993 to November 1997, was in December 1996, relating to a lifting incident which brought on low back pain in late November 1996. There is no indication that this incident had any connection with the October 1992 injury.
Both Dr. Smith and Dr. Keane concluded that the employee temporarily injured his low back as a result of the October 1992 injury. They identified that injury as a lumbosacral strain. Both Drs. Smith and Keane stated that the October 1992 injury did not cause a permanent impairment of the employee’s low back.
Instead, Drs. Smith and Keane concluded the congenital defects in the employee's lumbar spine and the natural degenerative progression stemming from those conditions led to the development of his low back complaints in 1997. Based on this testimony and evidence, we find the employee’s low back difficulties are due to the natural progression of several congenital defects and are not the result of the October 1992 injury or the employee’s work for the employer. Accordingly, we conclude the employee’s claims against the employer must be denied at this time.
The employee asserts we are required to join additional employers, based upon our investigatory authority at AS 23.30.155(h), if subsequent work could have contributed to the employee's condition and disability, under the last injurious exposure rule. See Parrish v. City of Seward Hospital, AWCB No. 99-0240 (November 24, 1999). Based on the lack of available evidence against any particular subsequent Alaska employer, however, we decline to join any such employers at this time. Nevertheless, if the employee wishes to pursue claims against subsequent employers, he may do so. In the event evidence is presented to justify reassessment of our conclusion that work for the employer in this case is not a substantial factor in his current disability, we will reconsider our decision in light of any new evidence presented under AS 23.30.130 and 8 AAC 45.150.
ORDER
The employee’s claim for workers’ compensation benefits from the employer is denied and dismissed. We reserve jurisdiction to reconsider and modify the case, pursuant to AS 23.30.130 and 8 AAC 45.150, in light of any new evidence presented in pursuing other claims under the last injurious exposure rule.
Dated at Fairbanks, Alaska this 28th day of February, 2000.
ALASKA WORKERS' COMPENSATION BOARD
/s/ Fred G. Brown
Fred G. Brown, Designated Chairman
/s/ S.T. Hagedorn
S.T.Hagedorn, 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 Rules of Appellate Procedure of the State of Alaska.
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 Decision and Order in the matter of GORDON L. SMART employee / applicant; v. ALEUTIAN CONSTRUCTORS, employer; ALASKA NATIONAL INS. CO. - A, insurer / defendants; Case No. 199222194; dated and filed in the office of the Alaska Workers' Compensation Board in Fairbanks, Alaska, this 28th day of February, 2000.
Lora Eddy, Clerk
SNO