JILL R. SJOLIE, 
Employee, 
Applicant
v. 
PROVIDENCE EXTENDED CARE NTR; PROVIDENCE ALASKA MEDICAL CNTR,
Employer,
and 
SISTERS OF PROVIDENCE,
Insurer,
Defendants.

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FINAL
DECISION AND ORDER
AWCB Case Nos. 199826809,
199801090, 199903850, 199710650
AWCB Decision No.00-0051
Filed in Anchorage, Alaska
March 17, 2000.

We heard the employee’s claims for temporary total disability (TTD) benefits, temporary partial disability (TPD) benefits, permanent partial impairment (PPI) benefits, medical costs, penalties, interest and attorney’s fees and costs on February 10, 2000 in Anchorage, Alaska. Attorney Michael Jensen represented the employee. Attorney Constance Livsey represented the employer. We held the record open to receive a deposition transcript and closed the record when we next met on February 22, 2000.

Did the employee suffer a compensable on-the-job injury on May 28, 1997, as well as subsequent exacerbations, entitling her to the above benefits?

The employee alleged she sustained a neck injury while working for the employer as a charge nurse. The employee has worked for the employer as a charge nurse since 1994.

On June 9, 1989, the employee was treated at Medical Park Family Care, Inc. ("Medical Park") by Ilona Hodson, M.D. for acute muscle spasm in the neck. Dr. Hodson noted "hurt neck in A.M. – since radiating" and prescribed a cervical collar, physical therapy and medication.¹An x-ray of the cervical spine taken on June 9, 1989 revealed loss of normal lordotic curve with no bony abnormalities and well-maintained joint spaces. Charles Aarons, M.D., the employee’s treating physician, testified at his deposition that loss of lordotic curve is an indication of muscle spasm.² Thereafter, the employee returned to Medical Park on June 14, 1989 with complaints of sinus and facial pressure, and a chart note indicated the employee pulled a muscle in her neck 4 days prior. The employee was diagnosed with sinusitis. ³ At the hearing, the employee testified she recalled an occasion around 1989 when she slept wrong and was treated for neck muscle spasms.

On March 6, 1992, the employee first treated with Dr. Aarons at Medical Park for left anterior chest pain that radiated down her left arm. His diagnosis was questionable pericarditis and mitral valve prolapse.⁴ At the hearing, the employee testified she thought she was having a heart attack, and the March 1992 visit did not involve her neck.

Thereafter, on November 28, 1994, the employee returned to Dr. Aarons for complaints of left sternal neck soreness with numbness to the left arm. Dr. Aarons diagnosed neck spasm, noted the employee had a collar and pillow, and prescribed pain and muscle relaxation medication.⁵ Moreover, an x-ray of the cervical spine taken that same day showed mild degenerative changes and muscular tension. Dr. Aarons took the employee off work for 1-2 days until the neck spasm was better. At the hearing, the employee testified she had been working as a charge nurse for a few months when she went to Dr. Aarons in November of 1994. She further testified she associated her neck spasm with her work activities.

The employee went to see Dr. Aarons again on March 11, 1997 after falling on ice. The nurse’s note stated, "pain to left arm, lower back and left neck – radiating down." Dr. Aarons noted contusions and soreness mainly from the employee’s elbow to her shoulder and in her lower back.⁶ The employee testified at the hearing that she had no neck problems from the fall on the ice, only pain from her shoulder to her elbow.

On May 29, 1997, the employee was seen at employee health services. A Report of Injury dated June 2, 1997 stated the employee suffered a repetitive strain/neck injury on May 28, 1997 after using a chair other than her "ergo chair" for writing and computer work. The injury report went on to state, "hurt my neck – unable to move, 1 arm numb."⁷

On May 29, 1997, the employee went to the emergency room at Providence Hospital and was treated by Frank Moore, M.D. According to the employee, her supervisor directed her to go the emergency room. Dr. Moore noted the employee "had to sit at a table for a long period of time in something other than her standard chair, having to bending (sic) her neck. She developed increasing pain in her neck, especially on the left side. She says her left arm feels somewhat limp and numb." Dr. Moore went on to note, "She had a similar history in the past. Had not seen a doctor for this. She has no known history of neck trauma or whiplash-type injury. She apparently has had a history of having neck pain in the past but this seems to improve when she got a new chair for work." Dr. Moore diagnosed an acute wry neck with possible early radiculopathy and prescribed a Philadelphia collar and medication.⁸ In addition, Dr. Moore took the employee off work until June 2, 1997.

At the hearing, the employee testified her neck problems started from the time she began working for the employer, and her condition was "pushed over the edge" on May 28, 1997. She testified the arm numbness she experienced on May 28, 1997 was very different from any numbness she felt previously. The employee further testified she knew she had a herniation on May 28, 1997 because she could not move her head, which felt as if it was going to blow. The employee admitted on cross-examination that she had been taking medication for migraines for years, including in May of 1997.

After treating in the emergency room, the employee went to Dr. Aarons on June 2, 1997. Dr. Aarons noted:

The employee returned to Dr. Aarons on June 9, 1997. Dr. Aarons determined the employee could have a degenerating disc, even though the x-ray was normal, because the employee had numbness and tingling in the left arm. On June 12, 1997, Dr. Aarons ordered an MRI and continued the employee off work until June 20, 1997 for worsening neck pain.¹⁰ An MRI report of the employee’s cervical spine dated June 16, 1997 showed a disk protrusion at C5-6 abutting the nerve roots, left greater than right, and a prominent bulge at C6-7. Dr. Aarons prescribed a trial of cervical traction and physical therapy to treat the acute cervical disks on June 17, 1997. The employee testified the cervical traction increased her pain, but she did not think it made her condition worse.

Physical therapy notes dated June 24, 1997 stated the employee was scheduled to see Davis Peterson, M.D. in mid-July and was going to consult with Larry Levine, M.D.. Thereafter, the employee went to see Lawrence Dempsey, M.D. on June 20, 1997. Dr. Dempsey diagnosed cervical radiculopathy due to root compression and cervical myelopathy due to compression, and he reported:

On July 3, 1997, Dr. Levine performed an electrodiagnostic evaluation and consultation. Dr. Levine found the electrodiagnostic testing normal with no evidence of radiculopathy, and he determined his findings were consistent with fibromyalgia.¹²

On July 7, 1997, Dr. Dempsey performed a cervical diskectomy and fusion at C5-6 and C6-7. The employee testified she did not know the results of Dr. Levine’s electrodiagnostic testing prior to the surgery, but Dr. Dempsey advised her she needed the surgery. The employee testified her symptoms of pain motivated her to seek treatment of a specialist and to have surgery. After the surgery, Dr. Dempsey took the employee off work for 8 weeks. An x-ray of the cervical taken on August 18, 1997 showed the bone grafts seated in the disk spaces at the C5-6 and C6-7 levels.

On January 6, 1999, the employee filed a worker’s compensation claim with the Board claiming she sustained disc herniations at C5-6 and C6-7 on May 28, 1997.¹³ The employee has reported three other injuries and filed three more claims since the surgery in July 1997, and she testified she related these injuries to her neck condition.¹⁴ The employee reported an injury on January 16, 1998 stating she was sitting all day doing a chart review and sustained a sprain/strain of her neck. The report of injury indicates no time loss, and the employee testified she did not miss any work from that alleged injury.

In October of 1998, Dr. Dempsey referred the employee to Dr. Gieringer for left shoulder pain and numbness. Dr. Gieringer diagnosed possible silent subluxations or occult instability, possible thoracic outlet syndrome and possible residual nerve pain post-op cervical fusion.¹⁵ An x-ray of the left shoulder was unremarkable.

On December 31, 1998, the employee reported another sprain/strain of the neck/back. The employee stated she had neck and back pain with muscle spasms and a headache after team leading at work. The employee went to see Dr. Aarons on December 31, 1998, and he noted the employee had an extremely stiff neck.¹⁶

The employee reported another injury stating on January 23, 1999 she was doing extensive paperwork with her head down and after 8 hours of muscle spasms, she was unable to move her neck. Dr. Aarons treated the employee on January 26, 1999 and stated the employee improved the previous month with medication, but her neck began to bother her again at work.¹⁷

The employer controverted the May 28, 1997 claim on the basis the injury did not arise out of the course and scope of employment and that the need for surgery resulted from a pre-existing cervical spine condition. The employer also controverted the three subsequent claims on the basis there was no separate injury, but rather an episode of increased symptomatology following the July 1997 surgery.¹⁸

On February 19, 1999, Dr. Aarons treated the employed and reported:

On February 25, 1999, Harold Cable, M.D. performed a fluoroscopic examination and reported "slight but definite motion occurring C5-6. This is presumptive evidence of an insufficient fusion at these levels and may well relate to the patient’s current pain syndrome." Thereafter, a follow-up x-ray of the cervical spine on March 2, 1999 showed no motion at the fusion levels, and a follow-up fluoroscopy reported no evidence of instability.²¹

On May 18, 1999, Dr. Peterson evaluated the employee for chronic neck pain. The employee reported dramatic improvement with pain since she began taking Neurontin with no radiating arm pain, weakness or numbness, but with persistent neck stiffness and fatigue. The employee further reported working at a computer terminal with a good ergonomic station. Dr. Peterson reviewed the x-rays and found there was a solid fusion. He was not convinced of Dr. Cable’s finding of motion. Dr. Peterson diagnosed marked residual neck stiffness from the fusion, chronic neck pain that is responsive to Neurontin and mild residual C7 radiculopathy. Dr. Peterson recommended a physical therapy program to regain motion.²²

The employee sought medical treatment again in October of 1999 for neck pain with numbness and tingling down the right arm.²³ At the hearing, the employee testified that since the surgery, the numbness and tingling has improved in the last year with Neurontin and other medications. The employee testified she had no exacerbations in the 6 weeks prior to the hearing.

A great deal of evidence was presented in this case regarding the ergonomics and the ergonomic changes to the employee’s work station. At the hearing, the employee testified her duties as charge nurse include a great deal of paperwork, such as extensive minimum data set (MDS) forms and computer work. The employee testified the MDS paperwork is very intense work, and she hand writes them, though others fill them out on the computer.

Anne Hildebrand, R.N., the employee’s co-worker, testified at the hearing. Ms. Hildebrand testified she works at Providence Extended Care (PEC) with the employee one day per week. In addition, Ms. Hildebrand testified the area in which she and the employee work, North 1, is the only unit which caters to Medicare patients. According to Ms. Hildebrand every patient on North 1 requires MDS paperwork, though Medicare patients require additional and extensive MDS work. She further testified the employer will not get paid if certain MDS forms are not completed in a timely manner. Thus, there is a pressure from the employer to get the forms completed timely. Ms. Hildebrand testified an easy MDS would take 8 hours, whereas a difficult MDS might take 3 days. At the hearing, the employee’s counsel presented as an exhibit a Visual Date Organizer which depicted the MDS deadlines.

At the hearing, the employee testified she worked with a keyboard in her lap and then at a computer desk fit to Ms. Hildebrand’s proportions, when she first began working for the employer as a charge nurse. The employee stated the computer desk was too low, so she would sit with her head bent down while working.

On September 18, 1996, Physical Therapist Michelle Caylor performed an ergonomic evaluation of the workstations used by the employee and Ms. Hildebrand. According to the evaluation, the workstations lacked adjustability for multiple users and lacked adjustable keyboards. In addition, Ms. Caylor stated the desks and the computers were not properly positioned. Ms. Caylor recommended chair adjustments, changing job tasks every 45-50 minutes, stretching exercises and furniture rearrangement, as well as some equipment purchases.²⁴

At the hearing, the employee stated she made adjustments per Ms. Caylor’s recommendations by stacking phone books to place her computer monitor at the proper height. The employee also testified it was awhile before new equipment was provided per the recommendations. However, the employee admitted on cross-examination she had a new chair and an adjustable keyboard before May of 1997.

In addition, Situs, Inc. performed a follow-up ergonomic evaluation on December 16, 1997. The evaluator determined the employee’s fully adjustable chair was too low, though her desk height was acceptable. Situs recommended the employee raise her chair height and adjust her keyboard to limit the "head forward" position. Situs also recommended the employee stretch or walk every 30 minutes to reduce the muscle tension created by static posturing. A follow-up evaluation on February 5, 1998 determined the December 16, 1997 recommendations were completed in an acceptable manner and noted the employee had a new chair that she reclined.²⁵

Situs, Inc. also performed an occupational therapy evaluation on April 16, 1998 and determined the employee’s computer and typing hours must be reduced. Situs further recommended the employee type the reports she was writing, as writing is more stressful to her neck than typing. The report indicated the employee was not a touch typist and did not believe she could acquire those skills, as she has tried on several occasions. At the hearing, the employee testified it was not feasible to reduce her typing hours due to the workload. The report also suggested the employee rotate job duties, find another job or use a "speech to text" program.²⁶he hearing, the employee testified the employer hired a third person approximately one year ago to assist Ms. Hildebrand and her with the workload. The employee testified the ergonomic modifications to her workstation after the fusion surgery helped, but the damage was already done. The employee also stated the employer recently modified her job to keep her away from her desk more, which has helped her immensely, though she still has to do MDS reports.

Veronica Allmares, the employer’s nurse manager of employee health services, testified at the hearing. Ms. Allmares testified ergonomic assessments were done as a result of complaints. Ms. Allmares testified ergonomic assessments are designed to fit the job to the worker. Specifically, the assessments are intended to reduce injuries and make the worker more comfortable. Ms. Allmares attributed the delay in getting equipment per the 1996 ergonomic evaluation to Alaska’s geographic isolation and the need to have the equipment shipped here.

At the hearing, co-workers of the employee testified regarding their complaints of neck pain. Ms. Hildebrand testified she filed two injury reports for neck pain in 1992 and 1994, and she associates her neck pain with work. Ms. Hildebrand further stated her neck has improved with the ergonomic changes to her workstation in that it now takes towards the end of the day or the week to feel pain. On cross-examination, Ms. Hildebrand admitted she has not sought medical treatment for her neck pain, which she treats with over-the-counter medication. She further testified she has not lost significant time for her neck condition and has not been diagnosed with any disc herniation.

Carmen Jones, a resource nurse, testified she works at the same facility as the employee at the admissions desk. Ms. Jones testified she inputs charting on the computer but is often up and down the halls. Ms. Jones also testified she has filled out MDS forms at co-workers’ workstations, including the employee’s. According to Ms. Jones, she sustained a work-related neck injury approximately one year ago after working at another’s workstation. On cross-examination, Ms. Jones admitted she had neck problems after working at another person’s workstation which was not set up for her. She further admitted the workstation in question was not the employee’s. Ms. Jones testified she lost one day of work related to the neck injury, did not sustain any disc herniations and did not undergo surgery.

Joy Adams, a respiratory care therapist, testified she often works in the same facility as the employee, though her job requires less paperwork than the employee. Ms. Adams testified she underwent a spinal fusion and diskectomy at C6-7 in 1994 and has worked at the employee’s workstation since then. According to Ms. Adams, prior to the ergonomic upgrades, she experienced neck pain at the employee’s and other’s workstations because her neck was pulled in an incorrect position. Ms. Adams testified since the ergonomic changes, she still experiences neck problems and thought she injured another disc. On cross-examination, Ms. Adams testified she has never held the position of charge nurse, and she stated the employee’s and other’s workstations were not set up for her when she used them. Ms. Adams also admitted on cross-examination that the 1994 fusion surgery resulted from a slip and fall and that recent diagnostic studies did not indicate additional disc damage or the need for surgery.

In addition to medical records submitted in this matter, several medical opinions were presented as evidence. In a letter to the employee’s counsel dated April 13, 1998, Dr. Aarons stated:

Thereafter, on May 18, 1998, Dr. Aarons again wrote to the employee’s counsel and stated:

At his deposition on February 9, 2000, Dr. Aarons testified he is a family practice physician, who has treated the employee since 1992.²⁸ At his deposition, Dr. Aarons testified, in part, as follows:

1. Is it still your opinion that it is reasonable to say that the working pushed her over the edge as far as the disks herniating, but his was not the sole cause of the disk problems?

1. ...If a peron has healthy disks, it takes a fair amount of force and energy to disrupt the annulus fibrosis to the point where the nucleus pulposus can squirt out and go wherever it wants to go. There are in many, many people, the annulus fibrosis degenerates with age, and it doesn’t take much age – in other words, this can occur in the 30’s and even in the 20’s – and then a relatively minor trauma like just turning one’s head 90 degrees, or in the case of the back, bending over to tie one’s shoelaces, can cause the annulus fibrosis to give out completely and the nucleus pulposus to squirt out.

Dr. Aarons went on to testify at his deposition as follows:

1. In that regard, do you believe that the work was, and the fact of working at that work station, was a substantial factor in causing any preexisting degenerative condition to become symptomatic?

1. Yes.

1. Is it your opinion that as a result of these symptoms, she was motivated to seek the treatment from you as well as Dr. Dempsey?

1. Yes. That’s why she came. Her neck hurt.

1. Was the work, in your opinion, a substantial factor in causing the need for the July 7, ’97 diskectomy and fusion?

1. Well, as I just affirmed, the work was a substantial cause of the disk herniation, so indirectly it was a substantial cause of needing the surgery.

Dr. Aarons further testified he took the employee off work and also placed the employee on a modified work schedule at different period after the surgery. Dr. Aarons testified at his deposition as follows:

1. Was the work still a substantial factor in her need -- in your decision to restrict her from work or limit the hours that she would be working, as shown in these exhibits?

1. I’m thinking about what this question means. Yes. It appeared that work – there was a very strong temporal correlation between returning to work and exacerbations of the neck pain problem.³⁰

On cross-examination, Dr. Aarons testified as follows regarding his April 13, 1998 letter to the employee’s counsel:

1. The last two sentences of that paragraph read, I do not think, however, that the desk duties could have possibly caused the disk herniation, I think that is probably impossible to determine to any good degree of probability. Is that still your opinion, doctor?

1. Cause? I don’t know when this disk herniated. It might have herniated a day before she had the MRI. It probably herniated before that. It’s possible that the repetitive motions in work wore out the annulus fibrosis. It’s very possible that repetitive motions at work were the straw that broke the camel’s back, in terms of tearing the last fibers holding the annulus fibrosis together. The ultimate cause of the disk herniation is degeneration of the annulus fibrosis from a combination of hereditary factors, age, and occupational factors. In other words, repetitive microtraumas.

1. You indicated that it was possible that repetitive motions wore out the annulus fibrosis. In this case, do you believe it is probable?

1. I don’t know. It’s possible. Are you asking me for a percentage probability?

1. To a reasonable degree of medical certainty, is it probable?

1. What does that mean? That’s not a medical term; that’s a legal term.

1. Absolutely. Generally understood to mean greater than 50 percent.

1. Greater than 50 percent likelihood. Well, a person spends 25 percent of their time at work. They spend 33 percent of their time sleeping. Therefore, they spend 42 percent of their time doing activities of daily living. They do the same thing over and over again at work sometimes. They don’t do the same thing over and over again with activities of daily living. I think there’s probably about a – there’s probably about a 50 percent probability that work was at least the proximate cause of the annulus fibrosis giving out.³¹

On April 9, 1999 William Mayhall, M.D., an orthopedic surgeon, examined the employee for an employer independent medical examination (EIME). Dr. Mayhall reported,

Dr. Mayhall further stated, "I do not believe her work is a substantial factor. I believe it is a material or contributing factor in that it made the symptoms worse."³³ At his deposition on February 2, 2000, Dr. Mayhall testified he was in basic agreement with Dr. Aarons’ April 13, 1998 letter, except that he felt he could identify the cause of the discs herniating as degenerative change over time.³⁴

1. Then in response to my question 3, I asked you if you felt the work injury was a substantial factor in bringing about the cervical degenerative condition. You said no in the report and have answered that question again already together that it didn’t bring about the need for surgery, but you say in your answer that you do believe work made the symptoms worse. Is that essentially your agreement with Dr. Aarons, that yes, the work activities could have brought about an episode of symptoms?

1. Well, yeah, he said it exacerbated the symptoms, and I said yeah, it could have increased the symptoms. I think we’re saying the same thing. I think what we’re saying is that’s a nonspecific condition. The looking up or looking down, whether you’re at a computer at home or a computer at work, her work makes no difference because it doesn’t have anything to do with the ideology, the underlying major cause of this problem which is cervical disc degeneration.

On cross-examination, Dr. Mayhall testified as follows:

1. Can disc degeneration be aggravated or accelerated by trauma?

1. By trauma it can when you’re talking about something that tears and rips tissue, say something like a flexion-extension injury in an automobile accident, but I think we’re going back to the literature search with the articles that say they can’t correlate an increased number of cervical disc disease in people who work with computers versus noncomputer workers, indicating that one can’t specifically call that a traumatic event that causes degenerative disc disease.³⁶

At his deposition, Dr. Mayhall agreed that people with pre-existing degenerative disc disease, including the employee, are more predisposed to a precipitating event causing a herniation. However, Dr. Mayhall testified when a person herniates a disc while immobile or sitting, it is a nonspecific event.³⁷

Dr. Mayhall went on to testify on cross-examination:

1. Can you rule out the effect of the 1997 injury and her work as a substantial factor in her need for the 1997 surgery?

1. I was going to preface that and say I don’t think that I consider it an injury, but if we consider it a space in time, no, I think I’ve already said that I don’t think that’s a substantial factor. I think it might have – looking down or sitting down and looking down could have increased symptoms of a disease she already had, but it is not to me a substantial factor in causing a disc protrusion, herniation or radiculopathy. It represents symptoms.

1. But her symptoms were the motivating factor in her seeking treatment; is that correct?

1. I think so. I think that’s probably why we all seek treatment, is a combination of discomfort and things that aren’t working well, so I would agree with that.

1. And you agree with Dr. Aarons that the symptoms were likely caused by the –

1. No. Caused by the looking down or the work station? No. The symptoms were caused by cervical disc degeneration and accumulative effect of wear and tear in her cervical spine, which is a natural progressive degenerative change.³⁸

On October 9, 1999, Douglas Smith, M.D. evaluated the employee for a second independent medical evaluation (SIME). Dr. Smith concluded:

Finally, at the hearing, Scott Haldeman, M.D., a neurologist, testified he reviewed medical records, a job description, a report of injury and ergonomic evaluations in this matter. Dr. Haldeman testified there is no known relationship between static posturing, such as working with the head in a bent position, and degenerative disc disease or disc herniation. According to Dr. Haldeman, studies do not correlate degenerative changes with symptoms of neck pain. However, Dr. Haldeman testified there is a strong correlation between static posturing and neck pain or tension neck syndrome, characterized by stiffness, tenderness and soreness. According to Dr. Haldeman, the employee displayed the classic pattern of tension neck syndrome. Dr. Haldeman also testified that studies have linked disc herniations to trauma and repetitive motions associated with truck driving and working with heavy machinery.

On cross-examination, Dr. Haldeman testified the employee’s work was a substantial factor in causing neck pain, and the neck pain caused her to seek treatment. Dr. Haldeman further testified on cross-examination that the studies he referenced do not take into account the employee’s unique nature and the employee’s unique work conditions.

At the hearing, the employee argued work was a substantial factor in causing her preexisting condition to become symptomatic and motivated her to seek treatment, thus making her claims compensable. The employee cited Hawkins v. Green Associated, 559 P 2d. 118 (Alaska 1977).

Alternatively, the employee argued the employee’s work condition was a substantial factor in aggravating her condition, thus making her claims compensable. According to the employee, Dr. Mayhall evidenced the aggravation through his analogies, and Dr. Smith found the employee’s work caused a permanent aggravation of her underlying condition. Moreover, the employee argued we should not rely on Dr. Haldeman because he did not treat the employee and was not a surgeon. Additionally, the employee argued Dr. Haldeman relied on statistics and ignored the unique facts of the employee’s condition.

The employer argued the employee’s work activities were not a substantial factor in causing the employee’s disks to herniate or in aggravating her pre-existing condition. As such, the employee’s surgery and related claims are not compensable.

The employer argued the employee’s medical history of degenerative disc disease, muscle spasm and radiculopathy started long before she began working for the employee. According to the employer, while work activities may have caused episodes of symptoms, it did not cause or aggravate her underlying condition, and therefore her claims are not compensable. The employer relied on Brewster v. Davison & Davison, AWCB Decision No. 97-0224 (November 6, 1997); aff’d 3 AN 82-2170 Civil (Alaska Superior Ct. 17 May 1999) and DeYounge v. Nana Marriott, 3 AN 98-04157 Civil (Alaska Superior Ct. 2 March 1999) in support of its distinction between symptoms and an aggravation of the underlying condition. The employer did not dispute that the employee’s work condition caused a stiff neck but denied it aggravated or caused her underlying condition.

The employer contended Dr. Smith’s report is so equivocal, he effectively neutralizes himself. Moreover, the employer argued Dr. Mayhall’s testimony does support the employer’s position. According to the employer, Dr. Mayhall testified unequivocally that work was not a substantial factor in causing the employee’s disc herniations or aggravating her pre-existing degenerative disc condition. The employer argued Dr. Mayhall’s analogies were merely meant to illustrate that something is always a precipitating event, i.e. something is always happening when a disc herniates, but the event is not necessarily a substantial factor.

Did the employee suffer a compensable injury?

In our analysis, we must first apply the presumption of compensability. 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."

The Alaska Supreme Court has held, "the text of AS 23.30.120(a)(1) indicates that the presumption of compensability is applicable to any claim for compensation under the workers’ compensation statute." Meek v. Unocal Corp., 914 P.2d 1276, 1279 (Alaska 1996), (quoting Municipality of Anchorage v. Carter, 818 P.2d 661, 665 (Alaska 1991)). A substantial aggravation of a pre-existing condition "imposes full liability on the employer at the time of the most recent injury that bears a causal relation to the disability." Ketchikan Gateway Borough v. Saling, 604 P.2d 590, 595 (Alaska 1979), citing to 9 A. Larson, The Law of Worker’s Compensation, §95.12 (1997). Moreover, in Peek v. SKW/Clinton, 855 P.2d 415, 416 (Alaska 1993), the Court stated:

An aggravation, acceleration or combination is a substantial factor in the disability if a reasonable person would regard it as a cause and attach responsibility to it. See, State v, Abbot, 498 P.2d 712 (Alaska 1971).

In Brewster v. Davison & Davison, AWCB Decision No. 97-0224 (November 6, 1997), a case similar to the instant case, the Board determined the employee’s alleged static neck positioning at work would not have aggravated her pre-existing cervical neck condition.³⁹ Dr. Haldeman testified in the Brewster case and concluded while the employee’s work may be a factor in causing her subjective symptoms to flare up, it is just as likely her neck, shoulder and arm pain resulted from the natural progression of her underlying cervical herniations and degenerative disc disease. Dr. Haldeman also referenced tension neck syndrome and testified,

As noted above, the Superior Court affirmed the Board’s decision in Brewster.

Moreover, in Ritter v. Cimarron Holdings, AWCB Decision No. 94-0269 (October 24, 1994), the employee claimed a twisting incident at work was a substantial factor in aggravating, accelerating or combining with his underlying cervical condition, resulting in a cervical laminectomy. The Board determined the symptomology experienced by the employee as a result of the twisting incident "did not indicate and aggravation of his pre-existing condition, but merely a ‘phenomenon’ accompanying or evidencing the underlying pathology." Id. at 14. The Alaska Supreme Court upheld the Board’s decision, after it had been reversed by the Superior Court.⁴⁰

Applying the presumption of compensability is a three-step process. Louisiana Pacific Corp. v. Koons, 816 P.2d 1379 (Alaska 1991). In the first step, generally, "AS 23.30.120(a)(1) creates the presumption of compensable disability once the employee has established a preliminary link between employment and the injury." Wien Air Alaska v. Kramer 807 P.2d 471, 474 (Alaska 1991). "[I]n claims based on highly technical medical considerations, medical evidence is often necessary in order to make that connection." Burgess Construction Co. v. Smallwood, 623 P.2d 316 (Alaska 1981).

We find the employee has pre-existing degenerative disc disease. We further find the employee underwent fusion surgery in July of 1997 for disc herniations at C5-6 and C6-7. We find the employee established a preliminary link between her injury and her employment. We find Dr. Aarons’ opinion that the employee’s work conditions "pushed her over the edge" in terms of the discs herniating is substantial evidence she suffered a compensable injury. We further find Dr. Smith’s opinion that the employee sustained a permanent aggravation of her pre-existing condition related to work is also substantial evidence she suffered a compensable injury. Therefore, we conclude the presumption of compensability attaches to the employee’s claims, and the burden of production shifts to the employer.

In the second step, we must determine whether the employer has met its burden of producing contrary evidence. Carter, 818 P.2d at 665. To rebut the presumption, the employer must produce "substantial evidence" that either (1) provides an alternative explanation which, if accepted, would exclude work-related factors as a substantial cause of disability; or (2) directly eliminates any reasonable possibility that the employment was a factor in the disability. Grainger v. Alaska Workers’ Compensation Board, 805 P.2d 976, 977 (Alaska 1991). "Substantial evidence" is the amount of relevant evidence a reasonable mind might accept as adequate to support a conclusion. Miller v. ITT Arctic Services, 577 P.2d 1044, 1046 (quoting Thornton v. Alaska Workmen’s Compensation Board, 411 P.2d 209, 210 (Alaska 1966). Because the presumption only shifts the burden of production to the employer and not the burden of proof, we examine the employer’s evidence in isolation. Veco, Inc. v. Wolfer, 693 P.2d 865, 871 (Alaska 1985). If the employer produces substantial evidence rebutting the presumption of compensability, the presumption drops out, and we move to the third step. Id at 870.

We find the employer presented substantial evidence to overcome the presumption of compensability. Dr. Mayhall testified the employee’s work activities were not a substantial factor in causing the disc herniations. Moreover, Dr. Mayhall testified degenerative change over time was the cause of the disc herniations, on a probable basis. Additionally, Dr. Haldeman testified there is no known correlation between static posturing and disc degeneration or disc herniation. We find Dr. Mayhall’s opinions provide affirmative evidence rebutting the presumption of compensability. We also find Dr. Haldeman’s opinion provides affirmative evidence rebutting the presumption of compensability.

In the third step, the employee bears the burden of proving all the elements of the claim by a preponderance of the evidence. Id. The party with the burden of proving asserted facts by a preponderance of the evidence must "induce a belief in the mind 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 has failed to meet its burden. The employee claims her work conditions, specifically, working with her head constantly bent down, aggravated her pre-existing degenerative disc disease and caused her disc herniations and subsequent exacerbations. However, we are persuaded the preponderance of the evidence demonstrates the employee’s work activities were not a substantial factor in aggravating her pre-existing degenerative condition or causing her disc herniations and exacerbations.

A review of the medical opinions reveals that every physician who offered an opinion regarding causality in this case has, at one time, stated that the employee’s work activities did not cause her disc herniations. Dr. Mayhall stated several times that the employee’s work was not a substantial factor. Dr. Haldeman testified there is no known relationship between static neck posturing and degenerative disc disease or disc herniation.

Furthermore, Dr. Aarons stated in his April 13, 1998 letter to the employee’s counsel, "I do not think, however, that the desk duties could have possibly caused the disc herniation." It should be noted we give less weight to Dr. Aarons’ May 18, 1998 opinion that working "pushed the employee over the edge as far as the disk(s) herniating," given Dr. Aarons’ clear indication the previous month that there was no causal link.

In addition, Dr. Smith concluded in his report, "I doubt if her activities as a charge nurse, which according to her involved some prolonged sitting and clerical functions, could be specifically implicated in terms of causing a cervical disc herniation." Dr. Smith’s report is interesting because he also found the most likely explanation is that the employee suffered a "permanent aggravation of a pre-existing condition" related to work. We agree with the employer and find Dr. Smith’s report is equivocal. Moreover, he does not explain how the employee’s pre-existing condition was permanently aggravated, if work activities could not be implicated in causing the disc herniations. Dr. Smith seems to rely solely on the chronological association between the employee’s nursing activities and her symptomology.

We find a careful review of the medical opinions offered in this case shows a remarkable amount of consistency. All of the doctors agree the employee’s work caused an increase in symptoms such as neck pain and stiffness. However, none of the doctors, except Dr. Aarons in a revised opinion, specifically links the employee’s work activities to the disc herniations.

Moreover, we find Dr, Aarons’ testimony regarding causation, aside from conflicting with his earlier opinion, is not persuasive. Dr. Aarons referred to the employee’s history of repetitive neck motions and a "scrunched up position."⁴¹ However, when testifying specifically regarding causation, Dr. Aarons stated, "It’s possible that the repetitive motions in work wore out the annulus fibrosis. It’s very possible that repetitive motions at work were the straw that broke the camel’s back, in terms of tearing the last fibers holding the annulus fibrosis together." We find the employee gave a history of work conditions consistent with static posturing, not repetitive motions. Moreover, even assuming the employee gave history of repetitive neck motions, at his deposition, Dr. Aarons could only commit to a 50% likelihood that repetitive motions caused the annulus fibrosis to give out.⁴²

Furthermore, Ms. Hildebrand, Ms. Jones and Ms. Adams all testified to neck pain and stiffness associated with work activities, but none of them testified to work-related disc degeneration or herniation.

Consequently, we find a preponderance of the evidence demonstrates while the employee’s work activities caused an increase in symptoms of pain and stiffness consistent with tension neck syndrome, work was not a substantial factor in aggravating her pre-existing degenerative disc disease or causing her disc herniations and subsequent exacerbations. As such, we find the employee’s claims for benefits related to her disc herniations are not compensable.

We note the employee attempted to file evidence with the Board after the hearing date. We find the record in this matter was held open specifically to receive Dr. Aarons’ deposition transcript. We further find upon receipt of Dr. Aarons’ deposition, the record in this case was "substantially complete" so as to warrant closure of the record. See, Piston and Rudder Inc. v. George Meyers and Alaska Workers’ Compensation Board, Case No. 1JU-99-636 Civil (Sup. Ct. 17 February 1999). Therefore, we will not consider the evidence, other than Dr. Aarons’s deposition transcript, filed with the Board after the hearing. We note, even assuming we considered the evidence filed with the Board after the hearing, the preponderance of the evidence would still favor the employer.

In addition, we are also not persuaded by the employee’s argument that even without a causal link between work and her injury, her claims are compensable pursuant to the Hawkins decision, as she was motivated to seek treatment and surgery due to work-related symptoms. Hawkins v. Green is distinguishable as it involved an on-the-job fall that the Board found aggravated the employee’s pre-existing spinal condition. 559 P.2d 118 (Alaska 1977). In the instant case, we find no such work-related aggravation. Consequently, the employee’s claims for TTD, TPD, PPI, medical costs, interest, penalties and attorney’s fees are denied and dismissed.

The employee’s claims for TTD, TPD, PPI, medical costs, interest, penalties and attorney’s fees are denied and dismissed.

Dated at Anchorage, Alaska this 17th day of March, 2000.

ALASKA WORKERS' COMPENSATION BOARD

/s/ Kathleen Snow
Kathleen Snow,
Designated Chairman

/s/ Andrew J. Piekarski
Andrew J. Piekarski, Member

/s/ S.T. Hagedorn
S.T. Hagedorn, 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 JILL R. SJOLIE employee/applicant; v. PROVIDENCE EXTENDED CARE CNTR; PROVIDENCE ALASKA MEDICAL CNTR, employer; SISTERS OF PROVIDENCE, insurer/defendant; Case Nos. 199826809, 199801090, 199903850, 199710650; dated and filed in the office of the Alaska Workers' Compensation Board in Anchorage, Alaska, this 17^th day of March, 2000.

Debra C. Randall