MIKE A. FOUND, 
Employee, 
Applicant
v. 
ALASKA QUALITY INSULATORS INC,
Employer,
and 
FREMONT INDEMNITY CO,
Insurer,
Defendants.

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FINAL
DECISION AND ORDER
AWCB Case No. 199920239
AWCB Decision No. 00-0045
Filed with AWCB Fairbanks, Alaska
on March 10, 2000

We heard the employee's claim for medical benefits in Fairbanks, Alaska on March 2, 2000. The employee represented himself. Adjuster Sherrie Arbuckle appeared by teleconference, representing the employer and insurer (employer). We closed the record at the conclusion of the hearing.

Is the employee entitled to medical benefits under AS 23.30.095(a)?

The employee choked while eating his lunch on September 2, 1999, went to the Fairbanks Memorial Hospital, and underwent anesthesia and surgery to remove a piece of meat lodged deep in his esophagus. The employee testified at the hearing that he had been working at a construction site for the employer on that day, installing insulation. On his lunch break he went to the Panda Garden Chinese restaurant, purchased some take-away food, and ate it while sitting on the tailgate of his truck, outside of the fenced construction site. He testified he was not paid during his lunch break, and no supervisors or fellow-workers requested him to get Chinese food for them. He testified the medical bills totaled approximately $5,000.00, and that he missed approximately two days of work as a result of the choking incident.

The employee testified he believed this incident was not work-related, and that he had submitted his medical bills to his general health care insurer, Humana. However, he testified, the Humana adjuster denied his claim on the basis that it was a work injury, covered by workers’ compensation insurance.

The employee filed a Workers’ Compensation Claim on January 4, 2000. The employer denied this claim in an Answer filed on January 27, 2000, asserting the injury did not arise out of the course and scope of his work. By stipulation of the parties, we set this claim for a hearing on March 2, 2000.

At the hearing the employee argued that one of the two insurers should pay these medical bills. The employee requests us to determine whether this was a compensable injury under the Alaska Workers’ Compensation Act.

The employer argued this injury occurred on the employee’s personal time, not on the work site, and that it did not occur in the course and scope of his employment. It requests that we dismiss the employee’s claim.

The Alaska Workers’ Compensation Act defines compensable "injury" and "arising out of and in the course of employment." AS 23.30.395(17) provides, in part: "injury" means accidental injury . . . arising out of and in the course of employment. . . ."

Also, under the Act, "injury" includes aggravations or accelerations of pre-existing conditions. See Burgess Construction v. Smallwood, 623 P.2d 312, 316 (Alaska 1981); Thornton v. Alaska Workmen's Compensation Board, 411 P.2d 209, 210 (Alaska 1966). Liability is imposed on the employer "wherever employment is established as a causal factor in the disability." Smallwood, 623 P.2d at 317 (quoting Ketchikan Gateway Borough v. Saling, 604 P.2d 590, 597-98 (Alaska 1979). A causal factor is a legal cause if "'it is a substantial factor in bringing about the harm' or disability at issue." Id. We conclude the employee's claim is compensable only if his work was a substantial cause or aggravation of his need for medical treatment.

In this case, the employee is claiming only medical benefits. AS 23.30.095(a) provides, in part: "The employer shall furnish medical, surgical, and other attendance of treatment, nurse and hospital service, medicine, crutches, and apparatus for the period which the nature of the injury or the process of recovery requires . . . ." The Act also provides a "presumption of compensability" of claims for benefits. AS 23.30.120 provides, in part: "PRESUMPTIONS. (a) 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. . . ."

The statutory presumption of compensability at AS 23.30.120(a) applies to claims for continuing medical benefits. Municipality of Anchorage v. Carter, 818 P.2. 661, 665 (Alaska 1991). Treatment must be reasonable and necessary to be payable under subsection 95(a). See Weinberger v. Matanuska-Susitna School District, AWCB No. 810201 (July 15, 1981), aff'd 3AN-81-5623 (Alaska Superior Court June 30, 1982), aff'd Ireland Chiropractic Clinic v. Matanuska-Susitna School District, memorandum opinion and judgment, Op. No. 7033 (Alaska S. Ct. June 1, 1983).

The evidence necessary to raise the presumption of compensability varies depending on the type of claim. "[I]n claims based on highly technical medical considerations, medical evidence is often necessary in order to make that connection." Smallwood, 623 P.2d at 316. In less complex cases, lay evidence may be sufficiently probative to establish causation. Veco, Inc. v. Wolfer, 693 P.2d 865, 871 (Alaska 1985). This case involves a choking incident. We find the cause of this condition is not medically complex, and we may rely on the employee’s testimony concerning its connection to the employee's work. Id

Based on our review of the hearing record, we find no direct medical evidence regarding the causation of the choking incident, other than the employee’s testimony. That testimony indicated the employee was engaged in eating a personal lunch, on personal time, off the work site. The employee specifically denied any connection between the choking incident and his work. In the absence of any evidence linking the cause of the choking to his work, we must conclude the presumption of compensability has not been raised, and the employee's claim must be dismissed.

We additionally note, even if we could find some evidence to link the employee's condition to his work, the preponderance of the evidence shows the employee’s medical problem to have arisen from a personal activity, away from the employer-provided facilities.

This would rebut and overcome the presumption. Kessick v. Alyeska Pipeline Serv. Co., 617 P.2d 755, 757 (Alaska 1980). We would find the preponderance of the shows the injury did not rise in the course and scope of the work, and that the medical treatment is not due under AS 23.30.095(a). Saxton v. Harris, 395 P.2d 71, 72 (Alaska 1964). Vetter v. Alaska Workers' Compensation Board, 524 P.2d 264, 266, 267 (Alaska 1974).

The employee was not injured in the course and scope of his employment, and his claim for medical benefits under AS 23.30.095(a) is denied and dismissed.

Dated at Fairbanks, Alaska this 10^th day of March , 2000.

ALASKA WORKERS' COMPENSATION BOARD

/s/ William Walters
William Walters,
Designated Chairman

/s/ John Guichici
John Guichici, Member

/s/ Dorothy Bradshaw
Dorothy Bradshaw, Member

This compensation order is a final decision. It becomes effective when filed in the office of the Board unless proceedings to appeal it are instituted. Proceedings to appeal must be instituted in Superior Court within 30 days of the filing of this decision and be brought by a party in interest against the Board and all other parties to the proceedings before the Board, as provided in the Rules of Appellate Procedure of the State of Alaska.

A party may ask the Board to reconsider this decision by filing a petition for reconsideration under AS 44.62.540 and in accordance with 8 AAC 45.050. The petition requesting reconsideration must be filed with the Board within 15 days after delivery or mailing of this decision.

Within one year after the rejection of a claim or within one year after the last payment of benefits under AS 23.30.180, 23.30.185, 23.30.190, 23.30.200 or 23.30.215 a party may ask the Board to modify this decision under AS 23.30.130 by filing a petition in accordance with 8 AAC 45.150 and 8 AAC 45.050.

I hereby certify that the foregoing is a full, true and correct copy of the Final Decision and Order in the matter of MIKE A. FOUND employee / applicant v. ALASKA QUALITY INSULATORS INC, employer; FREMONT INDEMNITY CO, insurer / defendants; Case No. 199920239; dated and filed in the office of the Alaska Workers' Compensation Board in Fairbanks, Alaska, this 10^th day of March, 2000.

Lora J. Eddy, Clerk

SNO