ALLAN NEWCOMB,			)
				)
Employee,			)	DECISION AND ORDER
 Respondent,			)
				)	AWCB Case No. 815934
v.				)
				)	AWCB Decision No. 90-0046
QWICK CONSTRUCTION,		)
				)	Filed with AWCB Anchorage
Employer,			)	March 15, 1990
				)
and				)
				)
ALASKA NATIONAL INSURANCE,	)
				)
Insurer,			)
 Petitioners.			)
				)

We heard this Petition to Dismiss the employee's claim in Anchorage, Alaska on March 8, 1990. Attorneys Lee Glass and Constance Livsey represented the petitioning employer and insurer, and attorney Joseph Kalamarides represented the responding employee. We closed the record at the conclusion of the hearing.

1. Did the employee's acute retina necrosis (ARN) condition arise as a result of a work injury on August 6, 1988?

2. Is the employee entitled to statutory minimum attorney fees and reasonable legal costs under AS 23.30.145?

The employee suffered a whipping blow to his right eye by a flailing, knotted, one-half inch manilla rope while working as a millwright for the employer on August 6, 1988. The employee treated the abrasions to his face and eye in a workshop eyewash, and finished his day's work.

The following day his eye was inflamed. He consulted the head of plant safety, Larry Woods, who referred him to a physician. Peter Hanson, M.D., diagnosed cornea abrasion and provided topical medication. Dr. Hanson's intern referred him to an opthamologist, Peter Cannava, M.D. The employee continued working, though his symptoms did not abate. After a few days he began to lose vision in his right eye and Dr. Cannava referred him to another opthamologist, Marvin Grendahl, M.D., who diagnosed traumatic iritis.

The employee needed to go to Washington state for personal reasons, so Dr. Grendahl referred him to Jerry LeClaire, M.D., another opthamologist in Spokane. Dr, LeClaire saw him an September 13, 1988, finding that his vision in the right eye was failing, and also diagnosed iritis, Dr. LeClaire agreed with a request by the employer to have the employee examined by Robert Kalina, M.D., at the University of Washington on September 21, 1988. Dr. Kalina diagnosed ARN and prescribed antiviral medication. The employee returned to the care of Dr. LeClaire, who now concurred with Dr. Kalina's diagnosis and treated the employee for ARN.

The employee is virtually blind in his right eye as a result of the condition. The employee testified that he can detect only bright lights with the eye, and that he now lacks depth perception and must be careful in his movements. He suffered no problem with his right eye before the accident. He did return to millwright work for a period in the summer of 1989.

The employer filed Notice of Controversion of the employee's claim, contending that the ARN was not related to his work injury to the right eye. The employee filed an Application for Adjustment of Claim on December 16, 1988. On June 20, 1989 the employer filed a Petition to Dismiss the employee's claim. This hearing was held to consider the employer's petition.

Dr. Kalina testified at the hearing that ARN is a relatively rare disease, with approximately 100 cases reported in the medical literature, about ten of which he his examined. A few of the cases have been biopsied, and the disease appears to be a severe retinal inflammation associated with herpes simplex or herpes zoster virus infestation. The employee tested positive for past exposure to both viruses.

Dr. Kalina did not know how herpes virus could get into the eye's interior, nor did he know what would trigger the onset of the condition. The disease usually runs its course within a few months, though it can be shortened to a few weeks with antiviral drug therapy. The inflammation starts at the periphery of the retina and works inward, making it difficult to diagnose in the early stages. It can result in severe retina damage and blindness, Although Dr. Kalina is aware that trauma can trigger herpes inflammation in other parts of the body, he has found no link between the onset of the disease and trauma in any of the reported cases. In his opinion the ARN was not related to the work. He believes that the condition existed before the accident, but is not certain.

In his deposition Dr. LeClaire testified that the few reported cases of ARN have not identified all the causes of the condition. (LeClaire Dep. P. 19). Although herpes viruses appear to be a causal agent, what triggers latent herpes virus to become active in the retina is not known. (Id. at 10). Trauma causes herpes inflammation on other parts of the body, and Dr. LeClaire believes that the trauma of the eye injury triggered the ARN in the employee. (Id. at 13-14).

In his deposition, Dr. Grendahl largely agreed with Dr. LeClaire. Dr. Grendahl felt that too few cases of ARN had been reported to determine the cause of the disease. (Grendahl Dep. P. 39). He felt that physicians must rely on their patient's recitation of their histories, and the temporal relationship between this injury and the onset of the employee's ARN indicate a link. (Id. at 20, 22, 27). He noted that trauma causes herpes inflammation on other parts of the body. (Id. at 37). Although no doctor could say categorically whether or not the injury was related to the ARN, he finds it more probable than not that a causal relationship exists, (Id. at 22, 28).

In a letter dated July 20, 1989 Dr. Cannava wrote that the literature on ARN failed to show a link to trauma, but he believed that this case was linked to the employee's eye injury, and that future medical case reports would shed light on the causation. Dr. LeClaire consulted with Mary Lou Lewis, M.D., of the Bascom Palmer Eye Institute in Florida. In a letter dated December 13, 1988 she indicated that the medical literature indicated no causal link between injury and ARN, but she reserved judgement concerning this case.

The employer argues that medical evidence is needed to raise the statutory presumption of compensability and that the doctors on which the employee relies have no medical evidence of causation, only a temporal relationship. It argues that even if a presumption is raised it has been rebutted by a showing that herpes causes ARN, and that no scientific evidence links trauma and ARN. The preponderance of the evidence shows the injury and the ARN condition to have been simply incidental. It cites Delaney v. Alaska Airlines, 693 P.2d 859 (Alaska 1985).

The employee argues that his own testimony and the opinions of Drs. Grendahl and LeClaire clearly raise the presumption of compensability. He argues that the employer simply relies on the scarcity of medical information available concerning ARN to argue that the injury and disease are unrelated. This is simply an absence of evidence and not the substantial evidence required to rebut the presumption. Even if the presumption is rebutted, the employer offers no positive evidence and the preponderance of the evidence clearly shows the disease to be related to the injury. He requests statutory minimum attorney fees and reasonable legal costs. He provided an itemized list of legal costs totaling $216.50.

I. The Compensability of the Claim

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 the symptoms. "[I]n claims 'based on highly technical medical considerations' medical evidence is often necessary in order to make that connection." Rogers Electric Co. v. Kouba, 603 P.2d 909, 911 (Alaska 1979). "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 the presumption of compensability attaches and shifts the burden of production to the employer. Id. at 870, To make a prima facie case the employee must show 1) that he has an injury and 2) that an employment event or exposure could have cause it.

The employee's injury in this case is the ARN, which is clearly documented in our record. Drs. Grendahl, LeClaire, and Cannava all hold the opinion that the blow to the employee's right eye during his work accident triggered the ARN inflammation. We find sufficient evidence to establish a preliminary link, and we conclude that the presumption of compensability has attached.

To overcome the presumption of compensability, the employer must present substantial evidence the injury was not work-related. Id.: Miller v. ITT Arctic Services, 577 P.2d 1044, 1046 (Alaska 1978). 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's 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. In Fireman's Fund American Insurance Cos. v. Gomes, 544 P.2d 1013, 1016 (Alaska 1976), the court explained two possible ways to overcome the presumption: 1) producing affirmative evidence the injury was not work-related or 2) eliminating all reasonable possibilities the injury was workrelated. In Delaney the Alaska Supreme Court held that unequivocal expert testimony based on recent research would be substantial evidence rebutting the presumption. Delaney 693 P.2d at 863.

In accord with the court ruling in Delaney we find that the testimony of Dr. Kalina is substantial evidence rebutting the presumption of compensability. Because the employer produced substantial evidence that the injury was not work-related, the presumption drops out, and the employee must prove all the elements of his claim by a preponderance of the evidence. Id. at 870. "Where one has the burden of proving asserted facts by a preponderance of the evidence, he must induce a belief in the minds of jurors that the asserted facts are probably true." Saxton v. Harris, 395 P.2d 71, 72 (Alaska 1964).

In this case the employer's evidence is essentially negative, as the employee argues. Although trauma has not been shown to be a cause in the cases reported on this condition, we note that few cases of ARN have been studied, and that Dr. Kalina concedes that what triggers the herpes onset is unknown. We are persuaded by the analogy drawn by Drs. Grendahl, LeClaire, and Cannava between the effect of trauma on herpes infestations in other parts of the body and a retinal infestation in ARN. We find by the preponderance of the evidence that the condition arose from his work injury. We conclude that this claim is compensable.

II. Attorney's Fees and Costs

AS 23.30.145 provides, in part:

The applicant has retained an attorney and incurred costs in the successful prosecution of this claim. We award him statutory minimum attorney's fees under subsection (a) on all compensation benefits received as a result of this decision and all reasonable costs incurred in the action under subsection (b). ORDER

1. The employer's Petition to Dismiss the employee's claim is denied.

2. The employer shall pay the employee statutory minimum attorney fees under AS 23.30.145(a) on all compensation paid as a result of this decision.

3. The employer shall pay the employee reasonable legal costs under AS 23.30.145(b).

DATED at Anchorage, Alaska, this 15th day of March, 1990.

ALASKA WORKERS' COMPENSATION BOARD

/s/ William S.L. Walters
William S.L. Walters, Designated Chairman

/s/ D.F. Smith
Darrell Smith, Member

/s/ RL Whitbeck Sr.
Richard Whitbeck, Member

WSLW/ml

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 interlocutory order staying payment is obtained in Superior Court.

APPEAL PROCEDURES

A compensation order may be appealed through proceedings in the 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 Allan Newcomb, employee/respondent; v. Qwick Construction, employer; and Alaska National Insurance, insurer/petitioners; Case No. 815934; dated and filed in the office of the Alaska Workers' Compensation Board at Anchorage, Alaska this 15th, day of March, 1990.

Clerk

SNO