ALASKA WORKERS' COMPENSATION BOARD
P.O. Box 25512 Juneau, Alaska 99802-5512
JOHNNIE BUSTAMANTE, ) ) Employee, ) Applicant, ) FINAL ) DECISION AND ORDER v. ) ) AWCB CASE Nos. 9725755M SPACE MARK, INC., ) 9729659 ) Employer, ) AWCB Decision No. 00-0057 ) Anchorage, Alaska and ) On March 28, 2000. ) AMERICAN HOME ASSURANCE, ) ) Insurer, ) ) and ) ) OUNALASHKA CORPORATION, ) Employer, ) ) and ) ) RELIANCE INSURANCE, ) ) Insurer, ) Defendants. ) _________________________________
We heard the employee's claim for benefits and Space Mark’s petition and the employee’s cross-petition for reimbursement under AS 23.30.250(b) at Anchorage, Alaska on October 22, 1999. Attorney Robert Rehbock represents the employee. Attorney Robin Gabbert represents Space Mark, and its carrier (Space Mark). Attorney Theresa Hennemann represents Ounalashka Corporation and its carrier (Ounalashka). At the conclusion of the October 19, 1999 hearing the parties agreed to keep the record open for additional evidence and briefing. The final briefing was due on February 18, 2000. We closed the record on February 22, 2000, when we first met after the Briefing was filed.
ISSUES
1. Whether the employee suffered a compensable, work-related injury while working for either or both employers.
2. Whether to order reimbursement under AS 23.30.250.
SUMMARY OF THE EVIDENCE
We incorporate by reference the facts as detailed in our three previous decisions: Bustamante v. Space Mark, et. al., AWCB Decision No. 99-0029 (February 8, 1999) (Bustamante I); AWCB Decision No. 99-0062 (March 19, 1999) (Bustamante II); and AWCB Decision No. 99-0246 (December 3, 1999) (Bustamante III). As discussed more fully in our earlier decisions, the employee worked for both employers in 1997. The employee claims an injury from overuse of his hands while working on computers. Both employers have controverted all benefits.
The employee began working for Space Mark on February 26, 1997. He was hired as a "project engineer" at Adak, Alaska. Prior to being hired, the employee had a pre-employment physical by a Dr. Bloom in Colorado. He testified that he began having problems with painful hands around April 15, 1997. At the October 19, 1999 hearing, the employee introduced into evidence (Hearing Exhibit 1) a prescription bottle dated April 22, 1997 for "Tylenol 3" he received from the Nurse at Adak. After seeking additional medical attention in Anchorage, the employee returned to work at Space Mark on September 30, 1997 in a "light duty" capacity. (The employee’s medical care is summarized more fully below).
In his deposition, and at the October 1999 hearing, the employee described his work duties. He testified that his first few weeks were spent in training. His work responsibilities included starting a database relating to the decommissioned naval base at Adak. His duties included filing, data input, and manipulating the blue-prints or drawings of the structures on the Island. When he was in his office, he would type three to four hours per day, although when he first started he testified he would type 10 to 12 hours per day. Approximately 50% of his time after April, 1997 was spent in the office; the remaining time he would be overseeing other "field" aspects of the project.
The employee also testified regarding the recreational fishing activities he enjoyed in his off hours. He stated that if he was not working, he was fishing. He had a small gill net operation that he would set with a zodiak boat he purchased with another person. He gill netted in late April and early May, and later after he had been returned to work on light duty status after June 30, 1997. He would often fish with a fishing pole. He testified that his girlfriend would clean all his fish. He also testified that at one point he had caught a 100+ pound halibut. He testified that he believes that fishing at a remote site, such as Adak, is an employer sanctioned activity.
The employee testified that his hand and upper extremity pain progressively got worse while he worked for Space Mark, but it was a different type of pain than he ever previously experienced. Further, he stated that it became more difficult to perform his job tasks.
Rex Poe testified at his September 17, 1999 deposition. He began working for Space Mark on March 31, 1999 as a "production control clerk," although now he is an "engineering services supervisor." When he began in 1997, the employee was his supervisor.
Q. Do you have any idea why there was this change into positions there?
A. Management had lost confidence in him. And he was having a lot of trouble -- a lot of problems with maintenance control rovers and production control clerks.
Q. This change in job, would that be considered a demotion for Mr. Bustamante; do you know?
A. I guess so in that he lost all his people and he had working for him and he was more or less working by himself.
Q. And you know exactly when Mr. Bustamante started doing work on the special projects -- in the special projects position?
A. . . . July 10th, 1997. . . .
Q. Did you ever ask Mr. Bustamante what he did during the time he was working for special projects?
A. Yes, ma’am, when he decided he was leaving, he left here October 24, 1997, and I asked to have the meeting with him to find out what he was doing because I was taking over his responsibilities, and at that time he told me he had done nothing.
Q. So after he left, was there anything to take over from him?
A. No, ma’am, there was nothing to take over.
(Poe dep. at 7 - 9).
Mr. Poe also testified that he saw the employee on a daily basis and estimated the amount of time the employee would spend keyboarding or working on his computer as a "couple of hours a day." (Id. at 11). He also testified that when the employee came back from rotation in July he complained about pain in his hands, and began wearing wrist supports. (Id. at 14).
Stanley Syta, project engineer at Adak, was the employee’s supervisor at Space Mark. In his Sept. 17, 1999 deposition, Mr. Syta described the employees duties as follows:
John was supposed to be evaluating the facilities. He was suppose to go out and just check the condition of the facilities, and create a database that would have the condition of the facilities. Also, if there was something wrong with the facility that the Navy wanted prepared, constructed, what have you, John would be expected to do the design of that. There were a couple of occasions like that, where he looked at the roof and proposed reroofing or something. He might look into the materials aspect of it, get an estimate of materials and costs, and he might talk to vendors to see what kind of products they had to take care of something like that.
He also had the records section, which included library materials. It would be texts, the reference materials, the blueprint drawings, and those files that pertained to engineering, the engineering records. He was suppose to catalog those so we could get a database going.
(Id. at 7 - 8).
Mr. Syta also testified that Mr. Poe took over supervision of the security patrol "rovers" which had previously been the employee’s responsibility. According to Mr. Syta, the employee had difficulty scheduling the security rovers, which was causing "confusion and bickering" among the rovers. (Id. at 10). Mr. Syta estimated the employee’s time in the office, as opposed to the "field" as "50/50." (Id. at 17).
I would have to kind of speculate. When I’m saying John might have spent half of his time in the office, that would have been doing a collection of office things, in the other half would be out of the field. He would be driving. He did be looking. He might be recording something in a notebook.
(Id. at 27).
Mr. Syta testified that, on occasion, the employee would sign for some work to be performed that he did not have authority to sign for. (Id. at 44).
He testified the employee began complaining of hand pains in the summer of 1997. He believed the employee had indicated that he had problems with his hands in earlier years. Arrangements were made for the employee to seek medical attention in Anchorage, and when the employee returned he had a five pound lift restriction and wore wrist supports. (Id. at 45).
The employee left employment with Space Mark and began working for Ounalashka on October 30, 1997. He testified that his hand condition stayed the same and did not worsen or improve while he worked for Ounalashka. The employee has testified that he does not feel that Ounalashka is liable, but only filed against them to protect his rights. In an October 13, 1999 compromise and release agreement (C&R) the employee and Ounalashka attempted to dismiss the employee’s claims against Ounalashka only. In our October 13, 1999 letter, we rejected this C&R based on the employee’s waiver of medical and reemployment benefits, and the lack of Space Mark’s signature (we found Space Mark’s defenses to the case may affected if we released Ounalashka).
In Bustamante II we granted the employee’s request for a second independent medical evaluation (SIME). At the Board’s request the employee was evaluated by Lawrence S. Zivin, M.D. Dr. Zivin’s July 19, 1999 report accurately and adequately summarizes the employee’s pertinent and relevant medical records regarding his complaints of upper extremity pain. We incorporate the following summary of the employee’s medical care from Dr. Zivin’s report at 8 - 17:
REVIEW OF MEDICAL RECORDS: Medical data are available as far back as 1979. Pertinent neuro-orthopedic issues include low back strain, June 1982 incurred after Mr. Bustamante, then in the military, had slept overnight on a concrete slab. In 1983, again while in the service, Mr. Bustamante fell and struck his left elbow.
In the early 1990s Mr. Bustamante underwent lumbar laminectomy and disc removal at l-4-5.
In January 1994, shortness of breath, issues of possible cardiac complications of Mr. Bustamante's recognized hypertension (e.g. 176/103 on 1-31-94) also involved consideration of hyperventilation syndrome and anxiety. In November 1994 Mr. Bustamante was in a motor vehicle accident and had back and almost total body pain for which he was treated with muscle relaxants and Naprosyn. Back pain was later complicated, in 1995, by appearance of left leg pain and numbness. Also in 1995, there were occasional problems with respiratory symptoms. These continued into 1996 and in the earlier part of that year, there were also complaints of fatigue (not further explored) for which Ritalin (anti-depressant/cerebral energizer) was offered but refused by Mr. Bustamante. In 1996 Mr. Bustamante continued to see complaints of respiratory disturbance, chest pain, hypertension, and occasional low back pain as well as ongoing fatigue. Advancing weight (20 pounds between 1995 and 1996) was registered. There were repeated problems with excessive sweating, urinary frequency, low back pain with associated discomfort in walking but even lying down.
On 12-23-96 there was minor crush injury of the right middle finger.
On 1-6-97 Mr. Bustamante was complaining that his hands felt tired and puffy; there was a lump and tenderness at the right posterior lateral neck; blood pressure 160/110. A specific diagnosis relative to the hands was not made at the time.
On 2-14-97 prior to Mr. Bustamante's moving to Alaska, he had a physical examination which was generally negative in terms of review of systems and the examination as recorded is entirely unremarkable. Mr. Bustamante was using Hytrin 2 mg. twice daily for blood pressure control and was a pack a day smoker. Laboratory data including CBC and chemistry screen were normal.
On 6-30-97 Mr. Bustamante was complaining of soreness in the hands, shoulders, elbows, trouble making a fist - this had been going on for approximately three months. [It is difficult in this particular record to distinguish physical examination from report of symptoms.] Under any circumstances the hands were "stiff and right ring - trigger -some problem even holding a pen, at the shoulder there was crepitus. The 1992 L4 laminectomy is mentioned its brief review of hypertension treatment. Laboratory studies were revealed a sedimentation rate of 7; C reactive protein 7.6 (minor elevation); elevated cholesterol; total serum protein and glucose of 112. Uric acid is low at 2.6. By 8-25-97 Mr. Bustamante was using nighttime splints at both hands. [NOTE: None of the above information so far contains any data about specific development of symptoms, chronology, possible causative activities.] Studies had been done; lupus, arthritis, diabetes and MS were noted to have been "ruled out" (S. Schilling, N.P. on 822-97). Diagnosis was arthralgias and hypertension. Indocin was prescribed for complaints of swelling, tenderness and numbness in the fingers. [Specific findings on examination, to allow any type of diagnostic interpretation, are absent. Diagnosis of arthritis and peripheral neuropathy were injected into the record without any clear basis.] An examination on 9-4-97 describes both hands as being warm and pink with good capillary refill, increased sensation of pain in the palms. There was no edema. Pain "does not increase at night". Tinel's and Phalen's signs were negative. Mr. Bustamante was then seen by a rehabilitation physician, E. Meinhardt, M.D. on 9-22-97 who referred to the negative evaluation of Dr. Christensen (June 1997) which had 11 apparently ruled out ... underlying problems such as connective tissue disorder or multiple sclerosis". [I am unable to ascertain from this record any investigation into the issue of multiple sclerosis, which even by the nature of presentation and symptoms in Mr. Bustamante's hands would, at least to this neurologist, not even be a remote consideration.] Dr. Meinhardt describes "severe discomfort at the metacarpal phalangeal joints on the palmar surface ... denies numbness and tingling of the fingertips ... his job includes approximately four hours per day of computer work and the other time he is walking around examining different buildings". On examination the neck was entirely normal with good range of motion, negative Spurling's maneuvers. There was 5/5 strength with exception of hand grasp because of the appearance of "excruciating discomfort on the palmar surface at the MP joints. There is no referred pain with resisted supination, pronation, wrist extension or in flexion ... negative Finklestein's examination". There were also symmetrical normal reflexes and absent Tinel's signs at the wrists and elbows. Sensory examination revealed "diminished in all dermatomes tested throughout the right upper extremity, lot of callus on the fingertips on the right ... on the left side however the extensor examination is intact". [This sensory examination makes no neuro-anatomical sense.] Nerve conduction studies revealed normal distal sensory and motor latencies in both upper extremities, median and ulnar with normal EMG study of the intrinsic hand muscles. A diagnosis of "tendonitis of the wrist and hands" was made. Mr. Bustamante on 9-22-97 had normal x-rays of the wrists.
On 9-23-97 orthopedist Robert Lipke, M.D. provided a brief historical review and on this occasion found positive Tinel's and Phalen's signs with painful hands which were "not truly stiff and a have a secondary stiffness that can be overcome by active use". Vascularity was normal. Skin was normal. There was no evidence of sympathetic dystrophy. Sweat pattern was normal.' The impression was "tenclonitis is causing weakness and swelling in the hands". Mr. Bustamante's previously used indomethacin was discontinued and he was placed on Relafen and he was advised to continue protective splints at night time with ace wrap during the day. On 10-24-97 symptoms were refractory. He was advised by Dr. Lipke to "have to learn to live with the tendonitis and do the job and workstation adjustments". A physical therapy evaluation at Advanced Hand and Orthopedics basically indicated pain associated dysfunction. On 12-9-97 Dr. Lipke [no specific history or physical examination at this time] suggested paraffin baths and noted "perhaps this will obviate the need for surgery" [not explained].
On 1-29-98 Dr. Lipke indicated, in a response to Wilton Adjustment Service, the diagnosis was "tendonitis" and that Mr. Bustamante "thinks that it is [related to employment as engineer with Space Mark] and I have no reason to disagree with him". [There is nothing in Dr. Lipke's reports at this time which, in fact, detail any particular injury exposure or description of upper extremity usage which would substantiate the basis for his opinion. It should also be recalled that there hand symptoms even prior to Mr. Bustamante's going to Alaska.] On 2-20-98 Dr. Lipke noted "we are having difficulty equating his apparent symptoms and examination compared to his observed activities. He is quite active when observed using a telephone, filling out his paper work, etc. but tends not to use his hands and folds them across his chest during the examination. His apparent symptoms far outweigh the objective findings".
On 3-30-98 an independent medical examination was performed by John Ringman, M.D., neurologist, to whom Mr. Bustamante reported approximately four hours a day of computer work mixed with clerical duties such as filing plus field work By time of the independent medical examination Mr. Bustamante was now spending "about an hour a day on a computer ... the rest of his time is spent in meetings and in the field surveying". Historical description of pain or use of the hands with active use of the hands, palmar aspect as well as swelling was reported. There was no dorsal pain and it was not distributed in the radial or ulnar side of the hand. It was "sensation of pressure on his hands ... present in the fingers as well although less severe than in the palms". There were occasional sharp pains in the middle of the palms". Pain was noted to interrupt sleep. There was "numbness at his hands, which is constant and involves the entire palmar surface and extends up to the volar forearm ... this numbness is present on the back of his hands as well although to a lesser degree". There was also stiffness in the hands "worse on awaking in the morning ... relieved by putting his hands in warm water and in paraffin baths". The review of systems was negative for Raynaud's phenomenon, neck pain, radiation up or down the arm. Examination revealed, as already described by Dr. Lipke, Mr. Bustamante to keep his hands and elbows flexed and palms against his chest - he avoided moving his hands and fingers but had no apparent difficulty in obtaining a card from his bag. There were excellent pulses, no discoloration, edema or abnormal temperature in the hands. There was a Tinel's sign at the left wrist with radiation to the second and third fingers; Phalen's maneuver was negative. There was no joint swelling but diffuse tenderness on manipulation of the hands but not at the wrists. Maximum tenderness was greatest at the metacarpal phalangeal joints, left fourth and fifth particularly. There were no contractures. Neurological functions were normal except for limitation secondary to tenderness in the hands. Reflexes were normal. Sensation tests failed to reveal even a glove distribution disturbance in the hands; two point discrimination was normal. Cerebellar functions, gait, etc. were all normal. A new set of nerve conduction studies was obtained revealing normal motor and sensory median conduction bilaterally. Diagnosis was "bilateral palmar arthralgia, possibly secondary to tendonitis or arthritis. No evidence of carpal tunnel syndrome". It was noted that there were no objective findings on examination despite Mr. Bustamante's complaints of "serious impairment of function at work and in his activities of daily living". Dr. Ringman noted "the way the patient describes his work [at Space Mark] it is hard for me to imagine that his duties of working on a computer, filing and surveying contributed very much" and he speculated about whether fishing and repeating lightening of cigarettes might have been contributory. He recommended a repeat evaluation for connective tissue disease. On 4-6-98 serum calcium was 8.4; glucose 124 with an otherwise entirely normal chemistry screen.
On 4-6-98 there was an episode of epistaxis - at that time blood pressure was 160/88 and it is felt that the use of anti-inflammatory medications might have been contributory.
On 4-16-98 Mr. Bustamante was went through sleep study which diagnosed obstructive sleep apnea syndrome; therapeutic suggestions were made. On 4-17-98 Dr. Lipke reported a negative physical examination and normal three phase bone scan. He noted that "clinical complaints have far exceeded the physical findings. We have been unable to determine the actual cause for his hand pain". He advised Mr. Bustamante to continue his work and indicated that there was no reason for Mr. Bustamante to travel to Anchorage for continuing care. Laboratory tests on 4-17-98 revealed normal prothrombin time, PTT and CBC. On 5-5-98 Dr. Ringman issued a supplemental report indicating that Mr. Bustamante's problems fell "under the category of orthopedist and rheumatology" and not neurology where there was no evidence of carpal tunnel syndrome. He was unable to conclude that Mr. Bustamante's problems even were related to his work at Space Mark or that there was any evidence of sustained permanent impairment.
In May 1998, Mr. Bustamante was examined by a physician assistant who reviewed symptoms and examination and provided some suggestions for treatment: elevation, ice, variable degree of immobilization of the hands and acupuncture. On 5-15-98 Dr. Lipke indicated he was "withdrawing from professional attendance upon [Mr. Bustamante] because we have an inadequate doctor patient relationship" [not explained]. On 6-2-98 Dr. Ringman once again indicated that "Mr. Bustamante's condition is not neurologic and therefore I feel if further assessment by hand specialist [which he is seeing], an orthopedist or rheurnatologist may be beneficial". He added "I remain of the opinion that from a neurological perspective, Mr. Bustamante's condition is of a nonindustrial origin". On 6-6-98 Mr. Bustamante had been given prednisone 100 mg. the day previously and was already feeling improved; he was then placed on a tapering course of prednisone for the next nine days. He also underwent ultrasound treatments to both wrists concurrently.
On 6-11-98 Mr. Bustamante was seen by a physiatrist, Shawn Hadley, M.D. During the previous month there had been pain "extending to both elbows". At the elbow, the pain was at the medial epicondyle but the radiation itself was at the radial aspect of the forearm. Both extremities were equally effected. There was no tingling or numbness in the hands but rather a constant aching present constantly. Acupuncture had not helped. Marked disuse of hand function was described. Mr. Bustamante was working and had obtained a voice activated software program so he could do autocad work. There was a negative family history of arthritic and neurological disorders. Mr. Bustamante was drinking 20 to 24 cups of coffee per day, two alcoholic beverages per night for sleep and one pack of cigarettes per day. Blood pressure is 150/102. The elbows were flexed and hands held to the chest. Examination now revealed some tenderness at the cervical paraspinal and trapezius areas, tenderness with movement of the wrists without particular tenderness at the wrists when Mr. Bustamante was distracted. Range of motion of both upper extremities was normal. There was no swelling of the hands, which were warm and had normal sweat patterns. There were no joint deformities. There was giveway weakness in both upper extremities with normal findings at the shoulders. Sensory examination was "patchy" within two point discrimination at 5 mm. at the fingertips. Diagnosis was bilateral hand pain of uncertain etiology. ... my strong suspicion is that there are significant psychological factors effecting this individual's physical condition. ... some features of conversion type reaction". Rheurnatological evaluation was suggested as was an evaluation of chronic pain program at Virginia Mason Clinic in Seattle. A question of "excessive caffeine consumption" having adverse effect on pain problems was raised. [It should be noted in this office, 6-23-99, Mr. Bustamante, in filling out a questionnaire relative to habits, indicated he used two packs of cigarettes per day and did not indicate any type of caffeinated beverage usage.]
On 7-9-98 Michael Armstrong, M.D., rheurnatologist, reviewed Mr. Bustamante. Once again, a general examination was normal with exception of "slightly restricted dorsal flexion of the wrists, limited by pain, some tenderness at the extensor forearms. Triggering [not described] the left third finger with some swelling of the wrists, the MCP joints variably and puffiness of the fingers was noted. Conclusion was "pain and swelling of the hands with findings suggestive of inflammatory polyarthritis, despite normal laboratory findings". Therapeutic trial of prednisone was prescribed by 8-18-98 results were "not helpful"; Plaquenil, also for arthritis, had caused diarrhea. Laboratory tests of 7-10-98 revealed negative RA factor; sedimentation zero; ANA negative; glucose 99; CBC normal; T4 9.4; TSH .9; liver function normal; BUN 18; creatine .7; C reactive protein less than 5. On 7-20-98 there was intensified pain which was described as "excruciating and he can't work". Mr. Bustamante had apparently been working 16 seven days a week. Quite a bit of keyboard work. Feels he can't afford to stop working at this point with his coverage in question". A brief examination was performed and is insufficient to allow diagnostic clarity. Tinel's was "positive bilaterally". Finkelstein's test negative. Toradol and hydrocodone were prescribed. On 8-15-98 there were "fingers cramping - pain shooting from hands to elbows" for which Mr. Bustamante was seeking immediate pain relief.
On 8-17-98 Mr. Bustamante was seen by hand surgeon Peter Nathan, M.D. to whom the symptoms were described as pain in the palm of the hand. What has happened lately is that it is like somebody pinching the ends of your fingers and it shoots up my arms, up to my elbows - I get like little cramps "He says the fingers do not fall asleep but 'I do get a trigger finger, (left fourth and right fourth) ... all of them get tingly; that just started recently ... last two weeks or so. These three (long, ring and little bilaterally) are worse. ... Sometimes I feel like somebody just stuck a needle right through here (left wrist). I've had that since I started seeing Dr. Lipke. It's this part (heel of both hands). It's daily. It's getting more frequent. I wish they would go numb sometimes, but no". The worst complaint was "the sharp cramp-like feelings". Mr. Bustamante reported smoking one pack of cigarettes per day, ten cups of coffee per day, two shots of vodka at night. Examination was "limited to both upper extremities". There was excellent range of motion of the shoulder, no atrophy in the arms or forearms. Full mobility at both elbows. Tinel's tests were positive at both elbows and wrists. Skin was pale into the splints. Wrist motion was full bilaterally. There were no ganglia. Palpation of the first dorsal compartment was not painful. Finklestein's test negative. Left hand revealed active use with normal thenar and hypothenar musculature and normal thumb mobility. There was no impairment of the superficial edema or of the left hand and the extensors were normal. The intrinsics were normal. There was "triggering" left third and fourth digits with discomfort at the volar aspect of the MP joints, third and fourth fingers, two point discrimination was 5 mm. at the left hand. At the right hand there was also active use with normal mobility of the fingers, full flexors and extensors, normal intrinsics and only slight discomfort of the MP joints, fourth digit without triggering. Two point discrimination was 5 mm. There was no numbness with full flexion of the elbows and Phalen's test was likewise without production of numbness. Nerve conduction studies of 8-17-98 were reported to show minimal slowing of sensory fibers in the mid palms, median nerve bilaterally. There was slowing of motor fibers over both u1nar nerves at the elbows with no slowing of the sensory fibers of the u1nar nerve at the wrist. Dr. Nathan's hand therapist reviewed Mr. Bustamante's work history and also conducted a separate examination. Phalen's test was negative bilaterally. There was Tinel's sign bilaterally at the wrists and in contrast to Dr. Nathan found that elbow flexion and forearm pronation produced tingling in the u1nar three digits and cramping in the thenar muscles. Like Dr. Nathan, however, Mr. Meadows found Tinel's phenomenon present at both cubital fossa. Mr. Bustamante was noted to be an active daily fisherman until June 1997. Dr. Nathan also reviewed Mr. Bustamante's records and noted there were a number of personal nonwork factors placing Mr. Bustamante at high risk for developing carpal tunnel syndrome: morbid obesity and smoking. He also noted high caffeine intake, use of alcohol and some discrepancies in history. Dr. Nathan concluded that "ulnar nerve slowing accounts for the majority of his numbness, tingling and pain which Mr. Bustamante states is radiated as far as shoulders and into his hands. In giving his history, he states the symptoms in the long, ring and little fingers are the most significant, which is consistent with an ulnar neuropathy. [Absent from this appraisal is any appreciation of the intense intra-hand complaints at the MP joints and wrist areas plus the absence of any type of even remotely ulnar configuration, prior to just shortly before Mr. Bustamante was seen by Dr. Nathan. In my opinion, there is no way that ulnar neuropathy or median neuropathy could explain Mr. Bustamante's syndrome in any meaningful dimension merely to rely upon nerve conduction studies as an index of nerve entrapment, particularly in a complex, puzzling and diagnostically unsatisfying circumstance such as Mr. Bustamante's, has little if any merit. Note as well, the absence of confirmatory EMG study in the hand or any other muscular distribution in the arms to confirm or correlate with symptoms, and also note, prior negative studies.] Dr. Nathan, along with Dr. Ringman and others, were unable to associate Mr. Bustamante's occupation at Space Mark with the- development of symptoms and also noted that there were hand symptoms in January 1997 prior to Mr. Bustamante's employment at Space Mark. Dr. Nathan was also unable to rule out triggering of the digits to the work place but felt that "tightness of the anatomic compartment, including the cubital tunnel at the elbow, carpal tunnel at the wrist and flexor tendon sheaths and Al pulleys in the palm and digits could account for a structural etiologic basis for the development of u1nar neuropathy, median neuropathy and trigger digits Dr. Nathan concluded that he was unable to find anything in Mr. Bustamante's job description as project engineer which would relate to development of neuropathies at the upper extremities, triggering the digits. He further noted, that Mr. Bustamante's "symptoms have outweighed the objective findings even considering the presence of u1nar nerve pathology, which was not identified earlier". Dr. Nathan recommended surgical decompression of the right ulnar nerve at the elbow followed by postoperative rehabilitation. If there was a good result on the right, he suggested left release as well and subsequently surgical release of the trigger digits. He did not recommend carpal tunnel decompressions based upon the "minimal" slowing of median nerves at the wrists, although he felt that some consideration might be given to carpal tunnel release in the future. Psychological issues, raised at times in the chart, were not felt to be impacting Dr. Nathan's evaluation.
On 9-2-98 Mr. Bustamante reported to the physician's assistant that "they physician evaluated him in Portland recommended severing the nerves to his hands to alleviate pain says 'I wouldn't go for that"'. Mr. Bustamante was given Toradol injection as well as 20 Vicodin tablets. Dr. Meinhardt was also given the same report by Mr. Bustamante on 9-14-98 - "recommended transecting appropriate nerves to relieve the pain. John thinks this pretty drastic and I am in agreement, certainly without attempted nerve blocks first". [Obviously, this misinterpretation literally of outlandish proportions - transections of nerve for pain relief - begs reality testing, and its acceptance is a concept by Mr. Bustamante, the physician's assistant and Dr. Meinhardt is somewhat baffling.]
On 9-23-98 Mr. Bustamante was in emergency room having had a near "syncopal episode" - dizzy, diaphoretic, blood pressure systolic 100, complaining of left arm and neck discomfort. Because of left arm, nitroglycerin was given, despite Mr. Bustamante's low blood pressure, in attempt to see if left arm pain was cardiogenic in nature. Hypotension (80 systolic) was reversed with intravenous fluids. Mr. Bustamante was then admitted for observation and was discharged the following day with diagnosis of atypical chest pain, chronic obstructive pulmonary disease and mild functional aerobic impairment by exercise tolerance testing". The record of hospitalization itself provides no clarifying data relative to the hand problem.
Records from Anchorage Veteran's Administration began in late September at which time "vet sees his main problem as disability caused by his wrists and has been unable as yet to obtain workman's comp since he lost his job over inability to do his work.
On 10-13-98 Dr. Meinhardt recommended evaluation by another hand surgeon, Dr. Mason, relative to the opinions of Dr. Nathan. On 10-14-98 Rheurnatologist Armstrong, concurred with Dr. Nathan's report.
On 10-14-98 Mr. Bustamante had a certificate of eligibility for vocational rehabilitation services based upon chronic hand complaints, severe obesity and "personality disorder: to the assessment identified the following medical/functional limitations opposed by this disabling condition: likely to experience interpersonal conflicts, limited insight, rigid ideas, poor listener, distortion of interpersonal communication, passive aggressive style of interaction, difficulty with authority figures, may experience hopelessness, helplessness and reflexively assume role as the victim, probably symptom amplification. It was noted that Mr. Bustamante was "fired from his last job because of interpersonal conflicts and his inability to complete the essential functions of his job".
On 10-16-98 Shawn Hadley, M.D. did not feel the complaints were consistent with ulnar neuropathy and again indicated concern about conversion type features. Questions were raised relative to Dr. Nathan's credentials and performing electrodiagnostic studies and Dr. Hadley also noted that dorsal u1nar cutaneous sensory study and needle EMG studies "would be considered important to support the diagnosis of an ulnar neuropathy".
On 10-20-98 a brief report by Brett Mason, M.D. describes symptoms and physical examination which, for example, describe "on pin wheel testing he states it feels just like dragging a pencil up and down his arms with numbness over the volar pads of all of his digits and over the radial and dorsal areas of his forearms. He has good sensation with pin wheel testing in and around the medial epicondyle bilaterally. He has a negative Tinel's at the u1nar nerve bilaterally and negative Tinel's at the wrist and at the median nerve bilaterally. He also has a negative Phalen's test. He has hyper hydrosis of all his fingertips. He has difficulty making a fist as though his hands were just completely stiff and painful. This ache and pain involves both flexor and extensor compartments to bilateral elbows". X-rays of the elbows, arms, forearms and wrists were felt to reveal a 11 u1nar minus variance of the wrist". Diagnosis was "rule out sympathetic dystrophy. Dr. Mason noted "either there is extreme symptom magnification or the patient may respond favorably to a trial of sympathetic nerve block. I think this may be the next step to rule in or rule out organic pathology. My recommendation would be referral to pain management for trial stellate ganglion block". [Up to this point and including Dr. Mason's observations there appears to be nothing in Mr. Bustamante's long history to suggest disorder of the autonomic nerve supply to the hands, which may be part of the presumed basis for so called "reflex sympathetic dystrophy". This is a diagnosis which is not uncommonly raised as an "explanation" for all sorts of ill described symptom complexes involving aches and pains, and for which there are no objective manifestations or explanations. The term is so loosely used, often, that even though it has no real meaning, just the application of the terminology seems to convey some stamp of approval and/or acceptance upon symptoms.] The Veteran's Administration records are for the most part extremely brief and nonenlightening from a neurodiagnostic point of view. Of note, however, is a positive ANA study, 1:80, on 10-28-98. A nucleolar pattern. Additional laboratory results of the same date are unrevealing (including a total chemistry screen repeat and CBC. sedimentation rate 2; RPR negative).
On 11-18-98 Dr. Nathan indicated in response to Dr. Hadley's observations, that he did not believe that needle EMG examination or assessment of the u1nar dorsal cutaneous branch would provide any diagnostic benefit and he continued to feel that the u1nar nerves at the elbows were correlated with Mr. Bustamante's symptom complex.
Mental health intake 12-4-98 indicated Mr. Bustamante was living with his girlfriend of six years, smoking two packs of cigarettes per day, consuming two drinks a day. There is also a brief work and educational history and a curious note that Mr. Bustamante had "applied for professorship - Class of 70". With training and four years of architecture school at University of Texas Austin, experience as a draftsman and assignment 25 years previously in the Air Force as supply clerk. Reference is also made to family relationships, ongoing in late 1998 - daughter, grandchild. The social worker refers to Mr. Bustamante's being "single-minded" and also having conflict with his girlfriend.
Psychiatric evaluation on 12-21-98 by W.W. Winn, M.D. performed a psychiatric evaluation and noted that the 9-24-98 hospitalization had occurred in the situation that Mr. Bustamante "feeling stressed out" because of personal reverses, reduction in use of the hands had been made necessary by his symptoms. Although Mr. Bustamante had done four years of college level course work in various aspects of architecture he has not received terminal degree certification or diploma. He had a variable employment experience. There had been a single marriage with three children with loss of contact. Health history was also reviewed. Psychological testing revealed moderate elevation of Song depression scale and there was some evidence of over response to somatically weighted questions. There was no agitation, retardation, hallucinosis although Mr. Bustamante was noted to assume a "victim posture" and to have rapid and direct responses. He was noted to have a "number of overt pain behaviors such as grimacing". He was estimated to have average intelligence and well developed vocabulary. "Insight into his emotional needs and interpersonal friendships is only fair at best due to a general lack of psychological sophistication and tendency towards distortion and interpersonal communication". Diagnoses were probable background personality disorder with situational issues relative to pain, relocation, unemployment, financial problems. He was not felt to have classic anxiety disorder and was noted to have been "frightened with his circumstances as he approached homelessness". It was also noted that he was drinking a significant amount of alcohol on an ongoing basis, but I am unable to identify any adverse consequences or sequelae, therefore it is difficult to put forward a chemical dependency designation. He does have physical symptoms that are greater than those supported by objective medical evidence and I would view him as using a significant amount of somatization as well as possible symptom amplification. It was noted to have taken "aggressive attempts to obtain benefit assistance or even be taken care of' in reference to his contacts with workers compensation, vocational rehabilitation, Social Security, VA, etc.
Further records from the Anchorage VA are relatively stenographic and talk about symptoms but very little in the way of objective examination was performed. On 1-4-99 it was noted that "when stopping the prednisone and NSAID, didn't make any difference". On 1-13-99 Mr. Bustamante reported "there is stress on me, on my finances, on my relationship" (girlfriend Ginger). On 1-15-99 Mr. Bustamante's hands were noted to "smell strongly of cigarettes". X-rays of the hands and wrists, 2-17-99 are reported as normal. Plain cervical spine x-rays 2-25-99 revealed some narrowing at C5-6 disc space with 2 to 3 mm. of anterolisthesis at C6.
On 3-12-99 Mr. Bustamante was seen by Dr. Paton, who found Tinel's signs right ulnar nerve, approximate ulnar groove, and noted the C5-6 degenerative changes on x-rays. He ordered a cervical spine MRI scan and advised discontinuation of smoking and dietary counseling as well as B12 and folate levels. Sedimentation rate 3; CBC normal.
After Dr. Zivin issued his July 19, 1999 report, John Matthew Ringman, M.D., and Peter A. Nathan, M.D., testified via deposition. Each doctor was an employer’s physician, whose earlier written reports are summarized above by Dr. Zivin. In his August 27, 1999 deposition at 16 and 18, Dr. Ringman testified that from a neurological perspective, the employee is not disabled from work, and he has no neurological diagnosis regarding either employer. Dr. Ringman agreed that "repetitive activities such as keyboarding can aggravate or cause upper extremity tendonitis." (Id. at 21 –22).
In his September 7, 1999 deposition, Dr. Nathan testified consistent with his earlier written reports. At page 22 – 24, Dr. Nathan answered: "Q. [D]o you have an opinion as to what role, if any, Mr. Bustamante’s work at Space Mark played in the development of his ulnar Neuropathy? A. I believe it’s most improbable that his work at Space Mark play any role in his development of ulnar neuropathy at the elbows." (Emphasis added). Regarding the pre-existing nature of the employee’s hand problems, Dr. Nathan testified at page 26 – 28:
Q. Were there other reasons that you had from your evaluation, testing, review of the records that would indicate to you or be the basis for your opinion that Mr. -- that the u1nar neuropathy pre-existed the employment of Mr. Bustamante at Space Mark?
A. Well, we do know that way back -- the medical is from 1987 or somewhere way back. 1986. I'm not sure if it's `86 or '88. There is a medical report called medical certificate from the Veterans Administration and that states that there is tingling in the hands. So it says specifically "tingling in the hands under physical conditions and I'll repeat, I'll quote what it says, "35 year old white male with recent diagnosis of hypertension." Started on some drug I'm not sure. "Presents with history of tingling in hands and cramping of thighs." And it goes on for other things.
And then there is another report dated January 31, 1994 which speaks of, "Slight parathesia of hands. Symptoms started here when patient moved here in November '93." So there were two chart notes that predated employment which speak of symptoms parathesia or change of sensation in the upper extremities.
And there is another report dated January 6 '97. There is a longhand note. Let's see, it says, "Hands appear puffy as well." Also some note here of fluid retention, and that would certainly explain puffiness and fluid retention and puffiness would explain or could be the basis for the tingling or altered sensation in the fingers. So I do know that there is something prior to employment.
Q. Okay. Now, in some information that Mr. Bustamante filed with the board prior to being represented by Mr. Rehbock, he indicated that he thought some of those pre-existing findings might be due to his hypertension medication. Which if I'm correct at those times was Lasix and Hytrin. Can you speak to that issue whether those would cause either puffiness of the hands or numbness or tingling?
A. I'm not aware of Lasix causing any puffiness of the hands and therefore -- excuse me -- puffiness of the hands. Lasix is a diuretic. It causes fluid to come out of the extremities. It's given to individuals with heart disease. And Hytrin reduces the blood pressure and I'm not aware that it causes any puffiness in the extremities. In fact, should just do the opposite really.
Q. Okay. To your knowledge would either of those two medications typically cause tingling in the hands?
A. Not that I'm aware of. And in fact I'm looking at the P.D.R.1 now itself and it does not list for Hytrin, for instance, any alteration of sensation.
At page 38, Dr. Nathan explained why, in his opinion, surgery is not an appropriate option for the employee:
Because I have the benefit of additional examination such as by Doctor Turco. I have the benefit of my own additional examination. And I believe that the symptoms that this gentleman presents with are so enormous that they are not consistent with any organic findings, or not consistent with any organic findings but in the main not consistent with limited organic findings of a u1nar neuropathy at the elbow and or triggering of some digits in either hand. And the symptoms are inconsistent with the physical examination which clearly show, and I wish to emphasize, that clearly show active use of the hands by the presence of normal skin, light callosities, no evidence of atrophy, no disease process in the hands, and no disuse phenomena, disuse phenomena in the hands.
At page 43, the following exchange occurred:
Q. Now, over the course of time, Doctor Nathan, a number of physicians have examined Mr. Bustamante and evaluated his condition and a number of them have reported or assessed that his physical symptoms are greater than those which can be supported by objective medical evidence. Would you concur with that assessment?
A. I would absolutely concur with that, ma'am. That's probably the most significant statement we can say about him.
Dr. Nathan testified that similarly, the employee’s work with Ounalashka was not a substantial factor or cause of the employee’s condition. Neither did the employee’s work with Ounalashka aggravate, accelerate or change his condition. (Id. at 45 - 46).
In his July 8, 1999 report, Dr. Zivin concluded as follows in his SIME report:
1. Diagnostic considerations are given above. Inasmuch as there is no diagnosis, but only aches and pains in the hands, there is also no way to establish a medical cause for each complaint or symptom. This is a man with symptoms only and without any type of objective criteria for making a reasonable diagnosis. It is of note that Mr. Bustamante began having complaints prior to his employment with Space Mark.
2. I am unable to assign to activity of "repetitive keyboard motion" any of Mr. Bustamante's complaints. The level and intensity of complaints, continuing far beyond, in time and in alleged character of the work exposure; plus the fact that not only has there been no resolution but worsening of symptoms and spread to parts of the arms other than the original focus at the metacarpal phalangeal joints, does not allow me to recognize any causative factor or relationship to the keyboarding work.
3 A. Preexisting condition, aches and pains in the hands is documented in the record as being present prior to February 1997. There was no diagnosis then and there is, as already indicated, no diagnosis at the present time. In the absence of diagnosis, the patho-physiological mechanism, or any findings to establish a diagnosis or such mechanism, then it is clearly impossible to assign in terms of aggravation, acceleration or combining with preexisting condition to Mr. Bustamante's circumstances.
3B. There is no evidence of any specific injury as being a substantial factor in aggravation acceleration or combing with preexisting condition. The only thing that is present is preexisting complaint and ongoing and gradually magnifying complaints. The complaints themselves do not establish the presence of a medical diagnosis.
3C. As indicated in the body of report above, arthralgias are encountered in a variety of rheurnatological and endocrinological disorders; the latter have not been a matter of focus by Mr. Bustamante's treating internist - this may or may not prove to be fruitful. Otherwise it very difficult to consider alternate causes for a condition which itself has after two years or more defied definition and objectification.
4. As previously noted, it is possible that clue to Mr. Bustamante's complaints may be subject to endocrinological evaluation - for example, occasional patients with Cushings disease, acromegaly, diabetes mellitus, or occasionally those with hernatological disorders, may harbor considerable aches and pains in the joints. These, of course, would not be related in any fashion to Mr. Bustamante's work place activities. Occasionally, rheurnatological disorders, may defy identification by tests such as rheumatoid factor, ANA, etc. for months to years, only to become positive at later dates. There are also some disorders which associate with abnormalities of lipid metabolism which may in rather unusual circumstances (rare) associate with distal extremity pain; these individuals almost always have ancillary and clearly defined neurological abnormalities.
At the request of the employer, Ronald Turco, M.D., performed a psychiatric evaluation on June 23 and 24, 1999. In his June 24, 1999 and July 30, 1999 reports, Dr. Turco diagnosed the employee as having a "conversion disorder" unrelated to his work. In his July 30, 1999 report, Dr. Turco opined: "Overall this man presents with a number of unusual characteristics that are likely attributed to unconscious psychological issues some of which are associated with secondary gains including the need for attention, the need to feel important and a desire for financial compensation."
Dr. Turco also testified at the October 19, 1999 hearing consistent with his earlier written reports. He further explained the employee’s hysterical conversion disorder diagnosis, and with a reasonable degree of medical certainty, that Space Mark was not a substantial factor in causing the disorder. He recognizes the employee believes that Space Mark is the cause of his disorder, but that does not mean that Space Mark is any actual cause of his problems. Dr. Turco further testified regarding what he believes are some factors that contribute to the employee’s problem; self-esteem deficits, including questions of competency; a need for attention; desire to be taken care of; and secondary or financial gain.
After the October 19, 1999 hearing, the Veteran’s Administration (VA), after considerable efforts by Space Mark, finally released medical and psychiatric records regarding the employee’s care at the VA. These records reveal the employee received in-patient and out-patient psychiatric care through the VA.
The employer requested Dr. Turco to comment further on these new records. In his December 14, 1999 letter to Space Mark, Dr. Turco states:
As you know, I performed a psychiatric examination on John Bustamante on June 22, 1999. 1 also administered an MMPI 11 on June 22 and 23, 1999 and I provided a report of June 24, 1999,
I noted that Mr. Bustamante has suffered from a conversion disorder which I attribute to unconscious psychological causes. Please note that I also participated in a telephonic hearing with regard to Mr. Bustamante, at which time I was examined and cross-examined with regard to my opinions. I have also reviewed additional records that you have provided. These recently arrived records include Veteran's Administration reports regarding the treatment of Mr. Bustamante, as well as income tax and financial records.
Mr. Bustamante has had two psychiatric hospital admissions in 1974. One of them lasted from June 20, 1974 through July 19, 1974, and the second from July 31, 1974 through September 13, 1974. His first admission followed a suicide attempt and his second concerned the fact that he became impulsive and out of control and decided to overdose once again. There is also an issue noted that he apparently "coldly calculated" the accidental death of his wife in a dispassionate manner. What is interesting about these records is that Mr. Bustamante throughout tends to evidence the defense mechanisms of repression and denial which are characteristic of individuals who have a conversion disorder. These are basically hysterical defense mechanisms. Mr. Bustamante was also noted to be depressed. He is noted to be an individual with poor insight and "covered up his underlying depression with a rather jovial affect." This is also consistent with an individual who would later experience a conversion disorder. He has been noted to be a patient with an unrealistic appraisal and judgement. Dr. Styles, one of the physicians, diagnosed him as having pseudoneurotic schizophrenia and he was treated with an antipsychotic medication, Trilafon.
I also note that this man's income tax return, rather than providing information with regard to his testimony and his deposition that he earned $40,000 in 1966 from his business, but rather that he earned $5,107 that year and no business income or loss was filed. His 1995 tax returns indicate that he had a loss of $2507 from a business called "The Residential Design," That business reported absolutely no income.
Given the fact that Mr. Bustamante's design and consulting firm was much less successful than he indicated or that he testified to, it is important from a psychiatric perspective to recognize that this man certainly has experienced failures and a degree of inferiority., This has an influence with regard to the development of his later conversion disorder. That is to say, he basically has converted the psychological distress of this experience, as well as the issues of low self-esteem to physical symptoms.
Mr. Bustamante has also been diagnosed as having depression with suicidal ideation and pseudoneurotic schizophrenia. These conditions are significant in the development of Mr. Bustamante's conversion disorder because they indicate significant psychiatric disturbance; that is to Bay, predisposing factors to the development of a conversion disorder. The Trilafon with which he was treated is a major psychotropic medication and used for individuals who are psychotic. Mr. Bustamante certainly has evidenced a degree of psychosis, thought, and mood disorder and the possibilities of an on-going schizophrenia.
These records substantiate and add additional information to bolster my opinion that Mr. Bustamante's employment with SpaceMark and his work activities were not a substantial factor in contributing to his conversion disorder. (Emphasis in original).
The records clearly indicate significant pre-existing psychiatric disturbance with later business failures that certainly would lead to the development of a conversion disorder.
The employee apparently changed tactics from what was argued at the October 19,1999 hearing. In his final brief, filed on January 27, 2000, the employee argued: "The defendants have presented that the physical injury was only temporary. If that is so, it nonetheless has been the trigger for the still active hysterical conversion. Though not the cause of Mr. Bustamante’s hysterical conversion, the work injury is a substantial factor at law." He asserts there was no prior debility and "but for" his employment at Space Mark, he would not have the present conversion disorder. The employee has filed a "cross-petition" for reimbursement under AS 23.30.250. In his June 1, 1999 "List of False & Misleading Statements," the employee detailed the following:
1. The reported injury of September 25, 1997 was not submitted to the Alaska Workers' Compensation Board by the Employer/Carrier until January 16, 1998;
2. On January 29, 1998, Dr. Lipke addressed Wilton Adjustment Service that the claimant had work related tendonitis. The doctor incorrectly asserts that the claimant raised work relation. In fact, the doctor volunteered that the work was the cause;
3. On February 24, 1998, Wilton Adjustment wrote to Dr. Ringman advising of Dr. Lipke's findings. The letter mis-states the findings and ascribes diagnosis to Dr. Mienhart. Dr. Lipke was responsible for the diagnoses of this patient;
4. On March 9, 1998, Wilton Adjustment addressed the claimant and encouraged the retention of Dr. Lipke for further care. They are now in the defense denying that they encouraged choice of Dr. Lipke and are asserting instead that they had no role in retention of physician. There are also several subsequent correspondences between the physician and the claimant and Wilton which similarly imply that Wilton Adjustment Services is encouraging the retention of Dr. Lipke; See 5/15/98 letter - Gabbert to claimant, 4M98 letter Wilton to Lipke;
5. On March 30, 1998, Dr. Ringman recommended that continued medical care was indicated for continued pain. Inspite (sic) of this, on April 14, 1998, Wilton Adjustment by controversion notice told the Board that the IME physician had indicated that the claimant as of February 1, 1997 required no further medical care or treatment;
6. On April 21, 1998, Wilton Adjustment wrote to Dr. Christiansen wanting to determine whether Mr. Bustamante had pre-existing conditions. They concealed that they had already inquired with Dr. Ringman and Dr. Lipke and were informed that there were no preexisting conditions. They failed to tell Dr. Christiansen of Dr. Lipke's findings. The context of this correspondence suggests and it is believed that is an attempt to manufacture a question of preexisting condition when the party knew there was no basis for such claim;
7. On March 15, 1998, Ms. Gabbert wrote to the claimant requesting medical records and releases and in the course of this misrepresented the opinion of Dr. Lipke. She sought to discourage the use of Toradol medication as a narcotic drug. The Toradol shots were according to Dr. Lipke and contrary to the assertions and implications of Ms. Gabbert's letter, a non-narcotic treatment that was appropriate for use during work. Ms. Gabbert also represented the state of the law guiding the remote site doctrine in this same correspondence. She asserted that valid law and doctrine had been superseded by legislation;
8. On May 28, 1998, Wilton Adjustment wrote to Dr. Ringman indicating their desire to refer to Dr. Silver, an orthopedist. The letter establishes again that Wilton Adjustment knew that there assertion and controversion that no further medical care was indicated was contrary to their IME physician's opinion. In this correspondence, they are indeed asking the IME physician to further expand upon his opinion by specifying the identity of the individuals who should provide the further treatment. It is on that basis that the claimant believes it was a misrepresentation to the Board to assert that there was no need for further medical care stated by their independent medical evaluator;
9. On June 2, 1998, Dr. Ringman issues a supplemental report based upon that 5/28 inquiry. He states the continued care by hand specialist is appropriate. This demonstrates that the Carrier failed to provide current information to the IME physician that Dr. Lipke had discharged the patient and would not provide care. Also, this report was withheld or at least was not furnished to the claimant, in spite of his request and persistent requests to Gabbert, Wilton and Dr. Ringman until January 1999;
10. On September 9, 1998, Dr. Nathen references in his report that he has reviewed the claimant's job description. Contrary to the assertion, the claimant never had a job description. On further inquiry the claimant has learned that the description presented was for a non-applicable and non-current job. The job description did not accurately or completely describe the actual job;
11. On November 23, 1998, Ms. Gabbert addressed attorney, Erwin, again regarding the SCDOT description as the employment of the claimant. She asserted the description as the employment of the claimant. There are similarities between the jobs, but the job that the claimant performed was known to Gabbert and Wilton to include components of security and a twenty-four hour standby. The typical duties of a project engineer were also included, but were not the exclusive or primary duties of this employment.
12. On December 7, 1998, Wilton Adjustment addressed the claimant stating that they had reviewed medical records and learned that he had a pre-existing parasthgia of his hands as early as January 31, 1994. A review of medical records and evidence reveals that inspite (sic) of the assertion that there was a related and prior preexisting condition that the physicians had ascertained that the prior condition was a drug side effect for Hytnair and Lasix high blood pressure medication and that the condition had fully resolved by change of medication. The correspondence of Wilton is intended to mislead the claimant as to the basis of his own prior medical history.
Space Mark argues in its February 18, 2000 Supplemental (final) Brief that the employee has not attached the presumption of compensability. It asserts Dr. Lipke later recanted his opinion that: "The patient thinks that [his condition] is work related and I have no reason to disagree with him." Dr. Lipke later changed his diagnosis to "hand pain of unknown etiology." If the employee somehow attaches the presumption of compensability, Space Mark argues that the overwhelming preponderance of the evidence is that the employee did not suffer a work related injury, and that his conversion disorder is not compensable. Space Mark also argues that the employee’s claim is barred under AS 23.30.022 as he did not disclose aspects of his medical condition it specifically inquired about. In support of its section 250 petition for reimbursement, Space Mark details the following alleged false statements in its May 21, 1999 "List":
1. The employee provided false and misleading information in his deposition of 08/25/98, regarding the condition of his upper extremities. The employee testified that he had no problems whatsoever with his hands prior to going to work for Spacemark, Inc., and specifically testified that he had no problems with swelling, puffiness, numbness or tingling of his hands. (See Johnnie Bustamante's deposition at pages 73 and 74). Copy attached). Medical evidence from Penrose St. Francis Hospital dated 01/31/94, indicates employee had "slight paresthesias of his hands". (See attached report of 01/31/94). Additional medical documentation, from Dr. Bloom, dated 01/06/97 indicates the employee's hands felt "tired and puffy" and that his hands appeared puffy. (See attached report of 01/06/97). This medical visit occurred in the month just prior to the employee's employment with Spacemark, Inc. which began in February 1997.
2. In his Petition of 02/08/99, the employee states that counsel "knowingly and maliciously" took the employee's deposition while he was taking the prescribed medications, Ultram and Vicodin. (See employee's petition of 02/08/99, numbers 3 and 4. Copy attached). At the very start of the employee's deposition, the employee was specifically asked, under oath, if he was under the influence of any kind of medication. His response was. "Under the influence, No. other than high blood pressure medication." Ultram and Vicodin are not prescribed as high blood pressure medications. When asked if he had any other medications within the last 12 hours, he replied, "No, I have not." (See Johnnie Bustamante's deposition at pages 4 and 5. Copy attached). Accordingly, the employee is being untruthful either in his petition or in his deposition.
Ounalashka argues, based on the employee’s own testimony, that his condition is not related to his employment with Ounalashka. It asserts that no medical or lay evidence has ever linked his condition to Ounalashka. It asserts, in fact, that all medical evidence specifically excludes it as a potential cause for the employee’s complaints.
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 an 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, the 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 his testimony and the initial testimony of Dr. Lipke. We note the attachment of the presumption is tenuous, at best, as Dr. Lipke later changed his opinion. Nonetheless, the Supreme Court has indicated that minimal evidence may attach the presumption. (See, Carlson v. Doyon Universial-Ogden, (Alaska Supreme Court Op. No. 5233, January 21, 2000)).
We further find, based on Drs. Nathan, Ringman, Lipke, Turco, and Dr. Zivin’s SIME report, that the employers have rebutted the presumption of compensability that the employee's reported pain or conversion disorder condition are work related.
Reviewing the record related to the employee’s complaints, we find he has not proved, by a preponderance of the evidence, that his condition was in any way permanently affected by his limited work for either employer. We base this on several factors. First, we find the employee has a history of previous pain reports and other complaints regarding his hands, including his pre-employment physical. Next, we find the employee only worked a very short time before his pain complaints emerged in April, 1997. Last, and most significantly, we find the vast medical record is barren as far as any medical evidence which would support a finding that the employee’s condition is in any way related to his work with either employer.
We disagree with the employee’s contention that because his conversion disorder was "triggered" by working for Space Mark, that his claim is compensable. We do find, as Dr. Turco has pointed out, that the employee may well believe his work at Space Mark triggered his mental disorder. We do agree with Dr. Turco that the employee’s conversion disorder (or any description of his hand pain of unknown etiology) is in no way related to either employer. We conclude the temporal nature of the emergence of the employee’s pre-existing, significant, psychological conversion disorder has no relation to any work performed at Space Mark or Ounalashka.
Even had we somehow found the employee’s conversion disorder (or any description of his hand pain of unknown etiology) was somehow triggered by work for Space Mark, we would find his claim barred under AS 23.30.022 which provides:
An employee who knowingly makes a false statement in writing as to the employee’s physical condition in response to a medical inquiry, or in a medical examination, after a conditional offer of employment may not receive benefits under this chapter if
(1) the employer relied upon the false representation and this reliance was a substantial factor in the hiring; and
(2) there was a causal connection between the false representation and the injury to the employee.
Space Mark requires potential employees to comply with the Navy’s medical requirements for service at Adak. One classification of people NOT suitable for deployment to Adak are: "Any history of psychosis, . . . schizophrenia, [or] schizoaffective disorder, . . . or any other illness requiring psychotropic medications."
Dr. Turco noted: "Dr. Styles, one of the physicians, diagnosed him as having pseudoneurotic schizophrenia and he was treated with an antipsychotic medication, Trilafon." The employee apparently did not disclose his previous psychiatric history to the employer in providing his medical history at his pre-employment physical. We find that the employee’s failure to disclose this fact is the equivalent of a false representation. Furthermore, we find that the employer relied on this omission when it hired the employee; we find the employer would not have deployed the employee to the remote Adak location had it knowledge of the employee’s psychiatric history. Last we find the employee’s vast psychiatric history is the cause of the development of his psychological conversion disorder.
Accordingly we conclude the employee was not injured in the course and scope of his employment and did not suffer a compensable, work-related injury. His claim for benefits is denied and dismissed.
AS 23.30.250, effective September 4, 1995, states in pertinent part:
(a) A person who (1) knowingly makes a false or misleading statement, representation, or submission related to a benefit under this chapter; (2) knowingly assists, abets, solicits, or conspires in making a false or misleading submission affecting the payment, coverage, or other benefit under this chapter; . . . . is civilly liable to a person adversely affected by the conduct, is guilty of theft by deception as defined in AS 11.46.180, and may be punished as provided by AS 11.46.120 -- 11.46.150.
(b) If the board, after a hearing, finds that a person has obtained compensation, medical treatment, or another benefit provided under this chapter by knowingly making a false or misleading statement or representation for the purpose of obtaining that benefit, the board shall order that person to make full reimbursement of the cost of all benefits obtained. Upon entry of an order authorized under this subsection, the board shall also order that person to pay all reasonable costs and attorney fees incurred by the employer and the employer's carrier in obtaining an order under this section and in defending any claim made for benefits under this chapter. If a person fails to comply with an order of the board requiring reimbursement of compensation and payment of costs and attorney fees, the employer may declare the person in default and proceed to collect any sum due as provided under AS 23.30.170(b) and (c).
We find, based on the employee’s psychiatric diagnoses, he did not "knowingly" make false or misleading statement. As we found earlier, the employee actually believes his condition is related to his work for Space Mark. We question whether his mental condition may affect his recollection of his medical or pharmacological history, or his ability to testify truthfully. Accordingly we conclude we can not find that he "knowingly" made false or misleading statements. The employer’s petition for reimbursement is denied and dismissed.
Having reviewed the employee’s alleged list of misstatements by Space Mark, we find Space Mark never "knowingly ma[de] a false or misleading statement, representation or submission." We find the employee’s interpretation that the "misstatements" were false, is erroneous. We find they may have mischaracterized a statement in summarizing this complicated claim, but nothing that qualifies for sanctioning under AS 23.30.250.
ORDER
1. The employee did not suffer a compensable injury in the course and scope of his employment with Space Mark or Ounalashka. The employee’s claims for benefits are denied and dismissed in accordance with this decision and order.
2. Space Mark’s and the employee’s petitions under AS 23.30.250 are both denied and dismissed.
Dated at Anchorage, Alaska this ___28_ of March, 2000.
ALASKA WORKERS' COMPENSATION BOARD
/s/ Darryl Jacquot
Darryl Jacquot,
Designated Chairman
/s/ S.T. Hagedorn
S. T. Hagedorn, Member
/s/ Andrew J. Piekarski
Andrew J. Piekarski, 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 Johnnie Bustamante, employee / applicant; v. Space Mark, employer; and American Home Assurance, insurer and Ounalashka; and Reliance Insurance, insurer / defendants; Case Nos. 9725755M and 9729659; dated and filed in the office of the Alaska Workers' Compensation Board in Anchorage, Alaska, this 28th day of March, 2000.
Brady D. Jackson III, Clerk
1
Physician’s Desk Reference.SNO