FRANK ROETMAN,			)
				)
Employee,			)	DECISION AND ORDER
 Applicant,			)
				)	AWCB Case No. 8307603
v.				)
				)	AWCB Decision No. 90-0023
MORRISON-KNUDSEN CO., INC.,	)
				)	Filed with AWCB Anchorage
Employer,			)	February 8, 1990
				)
and				)
				)
AETNA CASUALTY & SURETY,	)
				)
Insurer,			)
 Defendants.			)
				)

We heard this claim for permanent partial disability (PPD) benefits on January 10, 1990. The employee was not present but was represented by attorney Joseph A. Kalamarides. The defendants were represented by attorney Patricia L. Zobel. The record closed at the conclusion of the hearing.

It is undisputed that Roetman was injured on November 26, 1983 while working for the employer. A crew cab struck the back of a bus that he was driving in Valdez, Alaska. Following the accident, the employee complained of pain in his neck radiating to the top of his right shoulder, pain in his upper head and lower neck and pain on all motions of his neck.

After receiving several treatments at the Valdez Medical Clinic, Roetman starting seeing Leland P. Olkjer, D.C., in Valdez for chiropractic and diathermy.

On March 5, 1984, the employee saw Morris R. Horning, M.D., and the doctor diagnosed "chronic neck pain, possibly due to musculoligamentous strain with secondary muscle contraction pain." Cervical traction was suggested along with various muscle relaxants and anti-inflammatories. on the same day, Roetman was seen by Edward Voke,M.D., who also gave as his impression a strain of the cervical spine.

On April 4, 1984, an EMG was performed which gave Dr. Horning the impression of a mild acute cervical radiculopathy at either C7 or CS root.

On June 28, 1984, at the suggestion of Dr. Horning, Roetman was examined by Louis L. Kralick, M.D., who felt that he was having continued complaints as a result of the 1983 accident and an automobile accident he was involved in April 1984. Continuing physical therapy and a possible cervical myelogram were -recommended.

On July 23, 1984, Dr. Voke wrote a letter to the employer's claims adjuster indicating that he did not feel that the employee had a permanent partial disability impairment, but felt that he needed further work up with regard to his condition. A cervical myelogram was performed on September 7, 1984, which showed no significant abnormalities.

In Dr. Horning's report of December 17, 1984, there was, for the first time, mention of numbness into the right arm extending to the little finger.

On April 10, 1985, Dr. Horning considered the possibility of the diagnosis of thoracic outlet syndrome. A further EMG study was performed which was compatible with right thoracic outlet syndrome. Roetman was referred to Michael Hein, M.D., for a second opinion.

Dr. Hein diagnosed a thoracic outlet syndrome and performed surgery on April 24, 1985. During the surgery, Dr. Hein found compression of the right subclavian artery, plus pinching of the brachial prexus as it went medially over the first rib edge. He also found pinching of the Tl and C8 nerve roots by abnormal fibers coming from underneath the first rib and wrapped around the nerve roots.

Dr. Horning reported on May 16, 1985, that the pain was nearly completely gone with good neck range of motion. The employee reported that he had no more headaches and he only had a slight numbness on the inside of the right upper arm and dryness of the hand, but no other problems.

In a follow-up visit by Dr. Hein on May 16, 1985, the doctor found that Roetman was having a excellent result from the surgery. His Jamar grip reading was 80 pounds on the right hand and 80 pounds on his left hand. There was full sensation, with no sensory deficit except in the right axilla (armpit). There was also good pulse with external rotation and abduction.

On July 10, 1985, Dr. Hein reported;

On August 21, 1985, Dr. Horning gave the employee a rating to his upper arm of 20 percent derived from 15 percent for a nerve injury requiring surgical decompression and 5 percent for the cervical radiculopathy. The physical restrictions included inability to lift heavy objects beyond 50 pounds occasionally and 30 pounds regularly. The doctor felt that he might have occasional symptoms with regard to thoracic outlet syndrome, but doubted if he would require medical attention for that condition. However, he felt that the cervical radiculopathy might: occasionally reoccur causing neck or back pain.

In deposition taken on July 9, 1986, Dr. Horning testified that he misspoke when he stated on August 21, 1985, that the rating was to the upper extremity and it should have been a whole body determination. (Dr. Horning depo. at 50). When asked whether the employee had any kind of residuals from the thoracic outlet syndrome, Dr. Horning stated:

(Id. at 16)

Dr. Horning testified as follows when asked about any disability rating:

(Id. at 17-18).

Dr. Horning was asked whether Roetman's nerve compression, as a result of the thoracic outlet syndrome, was a permanent problem or was it something that was corrected by surgery. Dr. Horning answered:

(Id. at 40-41).

Finally, Dr. Horning was asked whether there was any permanency or disability to the arm itself, any portion of the 20 percent and he answered that he would not rate it apart from the 20% whole man rating that he had already given. (Id. at 50).

On October 5, 1987, Roetman returned to Dr. Horning for a follow-up reporting that he was back working as a teamster at the Valdez terminal. The doctor noted that while his condition was stable he had occasional pain in the middle of the right forearm, a hollow feeling in the forearm and occasional throbbing in the right supraclavicular fossa. Notwithstanding these complaints, Dr. Horning felt that the employee was "doing well overall." In a report written at the conclusion of this visit, Dr. Horning stated:

In 1989, the employee saw Robert W. Lipke, and asked for a rating of the upper extremity based on the AMA Guidelines. In a letter to Roetman dated February 20, 1989, Dr. Lipke stated in part:

At the hearing, Roetman testified during direct examination that as a result of his injury and subsequent surgery, he has the following problems with his right arm: 1) numb sensation between his elbow and armpit; 2) occasional pain in his small finger, 3) hollow feeling in his forearm; 4) weakness in his arm which on occasion makes it necessary for him to ask someone to help him with his work; 5) cold whether necessitates wearing two pairs of gloves. On cross-examination, the employee acknowledged that since he recovered from surgery in 1985, he has not needed medical treatment for his arm and has continued doing his usual and customary work as a teamster at the Valdez terminal.

Since it is undisputed that the employee's injury arose out of and in the course of his employment and a period of disability resulted from that work-related injury, the fundamental dispute concerns the nature and extent of the disability. The employee claims that he has suffered a permanent impairment to his right arm and is, therefore, entitled to scheduled permanent partial disability compensation as provided for in AS 23.30.190(a)(1) [as it existed in 1983 when the employee was injured]. The employer, on the other hand, takes the position that the employee has only a neck and trunk injury and, accordingly, should receive unscheduled permanent partial disability compensation, if any, based on AS 23.30.190(a)(20) [as it existed in 1983 when the employee was injured].

AS 23.30.190 provides, in pertinent part:

(Emphasis added).

As can be seen from the language quoted above, the first question that must be determined is whether the employee has suffered a "disability" as a result of his 1983 injury.

AS 23.30.120(a) provides in pertinent 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."

In Burgess Construction Co. v. Smallwood, 623 P.2d 312, 316 (Alaska 1981) (Smallwood II), the Alaska Supreme Court held that the employee must establish a preliminary link between the injury and continuing symptoms. This rule applies to the original injury and continuing symptoms and to the nature and extent of the injury. See Rogers Electric Co. v. Kouba, 603 P.2d 909, 911 (Alaska 1979); Kodiak oilfield Haulers v. Adams, 777 P.2d 1145, 1150 (Alaska 1989. "[I]n claims 'based on highly technical medical considerations' medical evidence is often necessary in order to make that connection." Id. "Two factors determine whether expert medical evidence is necessary in a given case: the probative value of the available lay evidence and the complexity of medical facts involved." Veco Inc. v. Wolfer, 693 P.2d 865, 871 (Alaska 1985). Once the employee makes a prima facie case of work-relatedness or continuing symptoms the presumption of compensability attaches and shifts the burden of production to the employer. Id. at 870.

To overcome the presumption of compensability, the employer must present substantial evidence that the injury was not work-related or that the work-related injury is not a source of the employee's alleged disability. Id. Miller v. ITT Arctic Services, 577 P.2d 1044, 1046 (Alaska 197-8); Kodiak Oilfield Haulers, 777 P.2d at 1150. The Alaska Supreme Court "has consistently defined 'substantial evidence' as 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."' Miller, 577 P.2d at 1046 (quoting Thornton v. Alaska Workmen’a Compensation Board, 411 P.2d 209, 210 (Alaska 1966)). The same standards used to determine whether medical evidence is necessary to establish the preliminary link apply to determine whether medical evidence is necessary to overcome the presumption. Veco, 693 P.2d at 871, "Since the presumption shifts only the burden of production and not the burden of persuasion, the evidence tending to rebut the presumption should be examined by itself." Id. at 869. If the employer produces substantial evidence that the injury was neither work-related nor the source of the employee's disability, the presumption drops out, and the employee must prove all the elements of his claim by a preponderance of the evidence. Id. at 870. Kodiak Oilfield Haulers, 777 P.2d at 1150. "Where one has the burden of proving asserted facts by a preponderance of the evidence, he must induce a belief in the minds of jurors that the asserted facts are probably true." Saxton v. Harris, 395 P.2d 71, 72 (Alaska 1964).

From a review of the evidence, we find in the first instance that the employee has not established a preliminary link between his 1983 injury and his present disability, if any. We base this finding on three factors. First, the claim is based on highly technical medical considerations and, therefore, medical evidence is necessary to substantiate it. Notwithstanding this, however, the employee did not introduce any medical evidence to show that the injury causes him to be presently disabled. Next, the employee himself testified that since he recovered from his surgery in 1985, he has continuously done his usual and customary work as a teamster without any particular problems. Finally, the extent of the employee's arm problems that resulted from the injury and surgery are not of a debilitating nature. As Roetman stated at the hearing, they consist of a little numbness, a little pain occasionally, slight loss of grip strength and some lack of resistance to cold.

Even if the employee had established a preliminary link between the 1983 injury and a possible present disability so that the presumption of compensability attached to his claim, we still find that the employer has presented substantial evidence that there is no disability and, according, the presumption drops out. This finding is based on numerous medical reports and the testimony of Dr. Horning.

As early as July 1985, Dr. Hein found that the employee had essentially full sensation except for decreased sensation in the right armpit. In fact, the doctor noted at that Roetman could squeeze 100 pounds with his right hand and 110 pounds with left hand. In none of Dr. Helin's reports does he note any permanent disability to the right arm.

While Dr. Horning initially noted in a report that his 20 percent impairment rating was for the right upper extremity, he clarified that in 1986 deposition by stating that the rating should have been to whole man only. The doctor stated that he would not rate the arm separately. Dr. Horning also testified that there was not permanent disability to the right arm because there were no identifiable objective findings of any residual of the surgery. When he was asked whether he considered the employee's nerve compression as a result of the thoracic outlet syndrome to be a permanent problem or was it corrected totally by surgery, the doctor answered that he thought that it was corrected completely by surgery. Dr. Horning also explained that he placed some restrictions on lifting only in order not to aggravate the areas of the body where there was known to be pathology, i.e., the thoracic outlet and the neck.

The record also reflects that when Roetman went to Dr. Horning in October asking if the doctor could convert the whole man rating to a rating of the right, the doctor thoughtfully reviewed the AMA Guides and discussed the question with a number of physicians and stood by his whole man rating. It is also important to note that Dr. Lipke agreed with Dr. Horning's whole man rating when he was asked for a rating by the employee in February 1989.

This case is similar to Asplund v. Alaska Timber Corp., AWCB No. 86-0259 (September 29, 1986), in which we held that the employee was only entitled to unscheduled PPD benefits after we found no injury to the left leg resulting in permanent disability, a crush injury to the pelvis did not cause any injury to the leg, no gross atrophy of the leg, no physician's diagnoses of leg injury, and no physician rated a permanent disability of the leg or loss of use of the leg. In Roetman's case, no physician has rated him for a permanent disability of the right arm, no physician has diagnosed an arm injury and no physician has found any appreciable atrophy or loss of strength.

In support of his position, Roetman relies on Glorioso v. Hoffman Construction Co, AWCB No. 84-0415 (December 31, 1984) and Bellezza v. State of Alaska, AWCB No. 88-0235 (September 12, 1988). While under the specific facts of these cases, we did indeed hold that regardless of the situs of the injury it was the location of the ultimate disability that counted. However, the critical distinction between Glorioso and Bellezza and this case is that in the previous <vases we found that the employees had suffered a "disability" to their extremities as a result of an injury to another part of their bodies and in this case we specifically found that a disability does not exist. This distinction also applies equally to the cases cited by the employee from Oregon and Arizona.

Based on this evidence, the presumption of compensability drops out, and the employee must prove the elements of his claim by a preponderance of the evidence.

After reviewing all of the evidence, we find that the employee has not, by a preponderance of the evidence, proven that his 1983 injury and resulting surgery cause him to be disabled at this time. Accordingly, his claim for scheduled PPD benefits must be denied.

The employee's claim for scheduled permanent partial disability benefits under AS 23.30.190(a)(1) is denied and dismissed.

Dated at Anchorage, Alaska, this 8th day of February 1990.

ALASKA WORKERS' COMPENSATION BOARD

/s/ Russell E. Mulder
Russell E. Mulder, Designated Chairman

/s/ Mary A. Pierce
Mary A. Pierce, Member

REM/rem/jw

If compensation is payable under terms of this decision, it is due on the date of issue and penalty of 20 percent will accrue if not paid within 14 days of the due date unless an interlocutory order staying payment is obtained in Superior Court.

APPEAL PROCEDURES

A compensation order may be appealed through proceedings in Superior Court 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 compensation order becomes effective when filed in the office of the Board, and unless proceedings to appeal it are instituted, it becomes final on the 31st day after it is filed.

CERTIFICATION

I hereby certify that the foregoing is a full, true and correct copy of the Decision and Order in the matter of Frank Roetman, employee/applicant, v. Morrison-Knudsen Co., Inc., employer; and Aetna Casualty & Surety, insurer/defendants, Case No. 8307603; dated and filed in the office of the Alaska Workers' Compensation Board in Anchorage, Alaska, this 8th day of February 1990.

Jamie Whitt, Clerk

SNO