JOSEPH C. DENNIS,		)
				)
Employee,			)	DECISION AND ORDER
 Applicant,			)
				)	AWCB Case No. 8805680
v.				)
				)	AWCB Decision No. 90-0049
MUNICIPALITY OF ANCHORAGE,	)
FIRE DEPARTMENT,		)	Filed with AWCB Anchorage
(Self-Insured),			)	March 20, 1990
				)
Employer,			)
 Defendant.			)
				)

This claim was heard at Anchorage, Alaska, on February 8, 1990. Employee was present and represented by attorney Eric Olson. Defendant was represented by attorneys Karen Russell and Lee Glass, M.D. The hearing was continued to permit Employee to submit a letter signed by Robert Bundtzen, M.D. This was received later on the same day as the hearing.

Employee's request for attorney's fees and legal costs was received February 20, 1990. Defendant was notified that we would address this request at the same time we addressed the merits of Employee's claim. Defendants, response was received March 2, 1990. The hearing was complete on March 12, 1990, after the time had passed for Employee to reply.

1. Is Employee's osteomyelitis related to his industrial injury?

2. Is Employee's dental treatment compensable?

3. Is Employee entitled to actual attorney's fees and his legal costs?

The parties have stipulated that Employee, a fire fighter, sustained a lumbar strain on April 30, 1988, while lifting a freezer during the course and scope of his employment. Employee testified that he did not seek medical treatment that day, but the next morning he could barely get out of bed. He described the pain as being in the middle area, but more right-sided, of his back near the belt line. He testified he sought medical care at Providence Hospital Emergency Room. He was placed on medication and referred to an orthopedic specialist.

On May 4, 1988, he consulted W. Laurence Wickler, M.D., who diagnosed acute lumbosacral strain. (Wickler May 12, 1988 Physician's Report). He did well until May 10, 1988, when he experienced significant back spasms and pain. (Wickler May 11, 1988, chart note). On May 12, 1988, he was taken to the Emergency Room at Providence Hospital for treatment of his severe low back pain. (May 13, 1988, Hospital Admission Report).

Employee testified at the hearing that he became very uncomfortable on the evening of May 12. That day he had administered an oral examination to fire fighters, and sitting for almost eight hours had bothered him. He said around midnight he began to feel like he was going to pass out and he began to lose control of his bodily functions.

Employee was admitted to the hospital by Timothy Samuelson, M.D., with a diagnosis of possible herniated nucleus pulposus. His pain had begun to radiate to the right to the level of the superior thigh or buttocks. At the time he was admitted his temperature was 96 degrees. (May 13, 1988, Hospital Admission Report).

Dr. Wickler examined Employee on May 13, 1988. He believed Employee was suffering an acute recurrence of the lumbosacral strain, and ordered an MRI to help determine whether there was a herniation. (Wickler May 13, 1988 Examination Report).

According to Employee, Dr. Wickler requested a consult by Robert W. Bundtzen, M.D., an infectious disease specialist. Employee presented the deposition testimony of Dr. Bundtzen. Dr. Bundtzen is board certified in infectious disease and internal medicine. (Bundtzen Dep. at 6). He was asked by Dr. Wickler to consult on the treatment of Employee when Employee's blood tests were positive for Staphylococcus aureus. Staphylococcus aureus is one of the more common bacteria that causes infection. It can be found on the skin of humans. (Id. at 7-8).

Dr. Bundtzen's report for his May 17, 1988, consultation states:

(May 17, 1988, Infection Disease Consultation).

In that same report, Dr. Bundtzen stated:

(Id. at 2).

In treating Employee Dr. Bundtzen had additional blood samples drawn and cultured, had various tests performed, and reviewed Employee's fever history which showed a fever of 100.8 on May 13, 102.4 on May 14, and 100.4 on May 15. (Bundtzen Dep. at 10 26).

Apparently on May 18, 1988, Dr. Bundtzen was notified that Staph aureus was identified in three out of the four bottles of blood drawn on May 14, 1988. (June 17, 1988, Cumulative Summary, Smithkline Laboratory Report, page 1).

On May 18, 1988, a bone scan was done by David Moeller, M.D. He reported there was

(Moeller May 18, 1988, radiology report).

After that test, Dr. Bundtzen began treating Employee with Nafcillin, an antibiotic, on May 18, 1988 to treat the infection. (Bundtzen Dep. at 17; Providence Hospital Medication Sheet).

Apparently, Dr. Bundtzen was notified on May 19, 1988, that of the two sets (four bottles) of blood drawn on May 17, 1988, one bottle of each set was positive for Staph aureus. (Smithkline Laboratories Report, May 28, 1988 at 3).

It also appears that no growth occurred in blood samples taken on May 19, 1988, after antibiotics were begun. (Id. at 2). n0 May 20, 1988, James O'Malley, M.D., inserted a catheter in Employee's external jugular vein because, despite several attempts, he could not locate Employee's subclavian vein. (May 20, 1988 O'Malley Op/Procedure Note). On May 21, 1988, a chest x-ray was done, and Denise Farleigh, M.D., noted that the tip of the catheter was not well demonstrated. (May 21, 1988, Radiology Report).

In his discharge summary of May 25, 1988, Dr. Wickler stated that[h]is low back

On May 23, 1988, Louis Kralick, M.D., an orthopedic specialist also performed a consultation examination. His impression was vertebral osteomyelitis, secondary to Staphylococcus aureus. (May 23, 1988, Consultation Report).

On June 6, 1988, Employee consulted Alan B. Rosenthal, D.M.D., because he thought had a toothache in his lower left jaw. According to Dr. Rosenthal, Employee had significant cervical swelling on the left side with tenderness in tooth number 19. Dr. Rosenthal reported that after beginning the initial step of a root canal, he found no signs of pathology. (Rosenthal July 18, 1988 and August 24, 1988 reports).

Dr. Bundtzen continued to see Employee after his release from the hospital. He saw him on June 7 and 9, 1988, for Employee's complaints of pain and swelling in the left side of his neck. At the time of the June 7, 1988, visit Employee reported to Dr. Bundtzen that he heard gurgling in left ear while irrigating the catheter, and he had experienced increased swelling in the left side of his neck and jaw. Dr. Bundtzen wanted to rule out that the catheter was misplaced. (Bundtzen June 7, 1988, chart note). Janice M. Anderson, M.D., was able to visualize the tip of the Groshong catheter at the junction of the right subclavian vein and the superior vena cava during the venography done on June 7, 1988. (June 7, 1988, Radiologist Report). Relying on that venogram, Dr. Bundtzen believed the catheter was still in place. (Bundtzen Dep. at 30 -31).

Employee returned to Dr. Bundtzen on June 9, 1988, with complaints of pain and swelling on the left side of his neck. (Bundtzen's June 9, 1988, chart notes). By June 16, 1988, the swelling was gone, and Employee was feeling much better. (Bundtzen's June 16, 1988 chart notes).

When Employee saw Dr. Bundtzen on July 5, 1988, he again complained of neck pain and swelling. Dr. Bundtzen thought he might have a problem with his salivary gland. (Id. at 34 - 37). When he saw Employee on July 7, the swelling was increased and Employee complained of a gurgling sound in his left ear when he manipulated the catheter. At this time, Dr. Bundtzen ordered more tests. (Id. at 37 - 38).

A CT scan performed by Maurice Coyle, M.D., showed the catheter "extending toward the subclavian area; the tip, however, is just above the upper right clavicle, consistent with displacement from the subclavian vein." (Coyle July 7, 1988, Radiologist Report). On July 7, 1988, Dr. Coyle performed a fluoroscopic examination and found there was "a sinus tract which begins at the catheter tip [,] extending horizontally across the midline, then extending superiorly within the left neck, ending in a blind pouch at the midcervical level . . . ." (Coyle July 7, 1989, Radiologist Report). According to Dr. Bundtzen this meant that although the catheter had not left the vein, it had developed a fistulous tract and this had been the cause of the intermittent swelling problems and pain. (Bundtzen Dep. at 37 - 38). Dr. O'Malley removed the catheter on July 7. 1988. (Id. at 47).

Based on this information Dr. Rosenthal concluded that Employee's tooth complaints were actually related to the fistula that developed from the leaking catheter. (Rosenthal July 18, 1988 and August 24, 1988 reports).

Another MRI of the thoracic spine was performed by John Kottra, M.D., on August 24, 1988. He reported that

Although Defendant stipulated that Employee received treatment that was appropriate for osteomyelitis, Defendant has denied liability for paying for the osteomyelitis treatment. Defendant contends the osteomyelitis is not related to the industrial injury. Defendant also contends that the dental treatment is not related to the industrial injury, and has refused to pay those charges as well.

Dr. Bundtzen testified that vertebral body osteomyelitis can occur in males in their mid-40's without a prior incident of trauma. (Bundtzen Dep. at 70). However, Dr. Bundtzen believes Employee's osteomyelitis was related to his April 30, 1988, industrial injury. He hypothesized that the lumbosacral sprain may really have been near the T12 region, and the tissue that was sprained was damaged or a little bleeding occurred. When this happens the tissue

(Id. at 85 -86).

Later in his deposition, Dr. Bundtzen was asked the standard of certainty for his hypothesis.

(Id. at 90 - 92).

Defendant presented the testimony of Peter O'Hanley, M.D., both in person and by deposition. Dr. O'Hanley is not board certified. He received combined degrees in anatomy and immunology. He did a residency in internal medicine, was a clinical infectious disease fellow and research fellow at Stanford, he has been the clinical chief of infectious disease at a Veterans' Administration hospital since 1986, and he is now a faculty member in the Departments of Medicine and microbiology at Stanford University. In addition to several other publications, he co-authored a chapter on osteomyelitis for general education for internists in Scientific American Medicine. (O'Hanley Dep., at 4 - 5).

Dr. O'Hanley testified at the hearing that in his opinion Employee's work-related injury in April 1988 did not induce, cause, or aggravate his osteomyelitis. Dr. O'Hanley testified that in all the literature he has reviewed there has never been a report of lumbosacral strain producing osteomyelitis. He also testified that if the injury had produced osteomyelitis, Employee symptoms would have progressively increased and he would have had other symptoms such as fevers and an elevated white count. Therefore, Dr. O'Hanley disagrees with Dr. Bundtzen's diagnosis, and he believes Employee did not have osteomyelitis.

In his deposition, Dr. O'Hanley testified that he does not think Employee had any other serious infections problem. (O'Hanley Dep. at 10, 26). He also testified at the hearing that the treatment given Employee was not appropriate for acute osteomyelitis.¹ Dr. O'Hanley testified at the hearing and in his deposition that he believes the pain Employee experienced on may 13, 1988, was from his lumbosacral strain. (Id. at 14).

Dr. O'Hanley bases his opinion in part on the fact that he believes Employee did not have a fever when he was admitted to the hospital and did act experience a fever until about two days after he was admitted. (Id. at 15) . He also testified that it was a brief, transient fever lasting only a day or so.

Dr. O'Hanley also testified that Employee was begun on antibiotics too soon without a full workup. Generally, multiple blood cultures are obtained over a period of time. He testified that

(Id. at 20).

(Id. at 15).

Later on cross-examination Dr. O'Hanley again testified about the blood tests:

. . . .

(Id. at 55 - 56).

Dr. O'Hanley also testified to the other reasons why he does not believe Employee had osteomyelitis -- his normal white count, his normal urine culture, and normal liver function. (Id. at 22 - 23).

Dr. O'Hanley reviewed the bone scan which had been performed by Dr. Moeller on may 18, 1988, and in which Dr. Moeller found lucency at T-12. (Radiologist report). In Dr. O'Hanley's opinion "there was a misconception of a dot that appeared over the T-12, that's the thoracic vertebra, in the body, again, where the patient's pains were always in the lower -- lower back.

(O'Hanley Dep. at 27). According to Dr. O'Hanley

(Id. at 28 -29).

In addition to seeking payment of charges relating to the treatment for osteomyelitis, Employee seeks payment of Dr. Rosenthal's charges as well as attorney's fees and legal costs. Employee seeks payment of his actual attorney's fees. Employee's attorney submitted an affidavit itemizing 28.7 hours of time spent providing legal services. At an hourly rate of $125.00 this equals $3,587.50. In addition, Employee seeks payment of the legal fees of the firm which attended Dr. O'Hanley's deposition; that firm charged $562.50. He also seeks legal costs of $43.00.

Defendant contends that Employee’s attorney's fees should be paid in accordance with AS 23.30.145(a) based on the amount of the medical expenses in controversy. Because the medical expenses total $25,236.59, Defendant contends the fee should not exceed $2,673.66. Other than arguing that the fee awarded should be the minimum under AS 23.30.145(a), Defendant does not object to the billing rate of the time spent providing legal services.

I. IS EMPLOYEE'S OSTEOMYELITIS COMPENSABLE?

AS 23.30.120 provides:

In Burgess Co. v. Smallwood, 623 P.2d 313 (Alaska 1981), the Alaska Supreme Court held that the employee must establish a preliminary link between the injury and the employment for the presumption to attach. 623 P.2d at 316. "[I]n claims 'based on highly technical medical considerations, ' medical evidence is often necessary in order to make that connection." Id. at 316 (quoting Commercial Union Cos. v. Smallwood, 550 P.2d 1261, 1267 (Alaska 1976)). "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 that (1) he has an injury and (2) an employment event or exposure could have caused it.

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, 411 P.2d at 210). 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) produce affirmative evidence the injury was not work-related or (2) eliminate all reasonable possibilities the injury was work-related.

The same standards used to determine whether medical evidence is necessary to establish the preliminary link apply to determining 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 not work-related, the presumption drops out and the employee must prove all elements of his case 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 the [triers of fact] that the asserted facts are probably true." Saxton v. Harris, 395 P.2d 71, 72 (Alaska 1964).

Another long-standing principle that must be included in this analysis is that inconclusive or doubtful medical testimony must be resolved in the employee's favor. Land & Marine Rental Co. v. Rawls, 686 P.2d 1187, 1190 (Alaska 1984); Kessick v. Alyeska Pipeline Service Co, 617 P.2d 755, 758 (Alaska 1980); Miller v. ITT.Arctic Services, 577 P.2d 1044, 1049 (Alaska 1978); Beauchamp v. Employers Liability Assurance Co., 477 P.2d 933, 996-7 (Alaska 1970).

We find this case involves highly technical medical considerations. We find Employee produced medical evidence, namely Dr. Bundtzen's testimony, which raised the presumption that his condition is related to his industrial injury. We also find that Defendant overcame the presumption through Dr. O'Hanley's testimony. Viewing his testimony alone and in isolation, it is affirmative evidence that the industrial injury did not cause the condition for which he sought treatment in May 1988. Therefore, Employee must prove his claim by a preponderance of the evidence.

We first consider Dr. Bundtzen's testimony. Dr. Bundtzen is board certified in infectious disease and internal medicine. No evidence was submitted challenging his medical credentials. We find that Dr. Bundtzen's medical opinion, to a reasonable degree of medical certainty, is that Employee's April 1988 injury caused osteomyelitis.

Dr. Bundtzen's opinion is based in part on blood cultures which were performed on May 15 and May 17. In the first set, three out of four samples were positive for staph infection. In the second set, two out of four samples were positive for staph infection.

Dr. Bundtzen's opinion is also based in part on the bone scan performed by Dr. Moeller. Dr. Moeller viewed that bone scan as showing lucency at the T-12 area consistent with osteomyelitis. This same scan was reviewed by Dr. Kottra in August 1988, and compared with a scan done at that time. We find Dr. Kottra also read the May 1988 scan as indicating a condition consistent with osteomyelitis.

We also find that both Dr. Wickler and Dr. Kralick filed reports indicating that Employee has developed osteomyelitis as a result of his work-related injury.

We next consider Dr. O'Hanley's testimony. Although he is not board certified, we find his credentials are impressive. Dr. O'Hanley testified that about 30 percent of his time is spent treating patients. We do note, however, that a good deal of his time is spent in supervising others and his duties appear to be more administrative than treatment or research oriented.

In reviewing Dr. O’Hanley’s testimony, we find two areas where his testimony conflicts with the records before as. First, he testified that Employee did not have a fever until about two days after his admission to the hospital, and that a fever was noted one day. However, the record reflects that Employee had a fever the day after his admission to the hospital and for two days thereafter.

Second, Dr. O'Hanley believes only one set of blood samples were taken and that only three out of four bottles cultured for staph. However, the record reflects that samples were taken on May 15 and May 17, and three out of four of the May 15 samples were positive while two out of four samples taken on May 17 were positive.

While Dr. O'Hanley's theory and testimony about how osteomyelitis develops appears more likely than Dr. Bundtzen's theory, we are troubled by the fact that in order for the evidence to support Dr. O'Hanley conclusion, we must find that five out of eight samples of blood were erroneously positive for staph infection, and that both Dr. Moeller and Dr. Kottra erroneously read the May 1988 bone scan. Finally, we are faced with the fact that Defendant stipulated that Employee was properly treated for osteomyelitis. Therefore, Defendant has also rejected a portion of Dr. O'Hanley's testimony because he clearly testified the treatment given was inappropriate. Considering these factors, we conclude we should give less weight to Dr. O'Hanley's testimony. Accordingly, we give more weight to Dr. Bundtzen's testimony. We also consider the reports of Dr. Wickler and Dr. Kralick, and we conclude Employee has proven his claim by a preponderance of the evidence.

In addition, there is another reason why we would find this claim compensable. Dr. O'Hanley testified that Employee's symptoms on May 13, 1988, were the result of his lumbar strain and it was the pain from the recurrence of the strain that sent him to the hospital. Employee's primary physician for his back injury, Dr. Wickler, sought a consultation from Dr. Bundtzen. Based on that consultation, Dr. Wickler believed Employee developed osteomyelitis as a result of his injury. Accordingly, he treated based on that diagnosis. We find that even if it was the wrong treatment, the expense of the treatment would still be Defendant's responsibility.

Although Ribar v. H & S Earthmovers, 618 P.2d 582 (Alaska 1980,) is factually distinguishable from this case, we believe the court's ruling is broad enough to apply to this case.

618 P-2d 584.

In this case Dr. O'Hanley testified it was the recurrence of the injury that sent Employee to the hospital. Dr. Wickler, Employee's treating physician for his back injury, called in a specialist to assist in treating Employee. Both Dr. Wickler and the specialist thought they were treating a condition that was related to the accident. Therefore, if they were wrong in their diagnosis, under Ribar, Defendant would still be liable for the medical treatment provided for the incorrect diagnosis.

II. IS EMPLOYEE'S DENTAL TREATMENT COMPENSABLE?

We have found above that Employee's osteomyelitis is compensable. In the course of the treatment for that osteomyelitis, a catheter was inserted in Employee's jugular vein. Based on Dr. Coyle's report as interpreted by Dr. Bundtzen, we find the catheter caused a fistulous tract to develop which produced intermittent pain and swelling. (Coyle July 7, 1989 Radiologist Report; Bundtzen Dep. at 37 - 38). Relying on Dr. Rosenthal's reports of July 18, 1988, and August 24, 1988, we find that Dr. Rosenthal's charges are related to the compensable condition because the treatment for osteomyelitis produced a condition that caused symptoms similar to those of a tooth abscess, but further dental examination indicated no abscess existed. Because the condition and need for dental treatment was related to the treatment for the osteomyelitis, we find it is compensable. We conclude that Defendant is liable for Dr. Rosenthal's charges for treatment.

III. IS EMPLOYEE ENTITLED TO ACTUAL ATTORNEY'S FEES AND COSTS?

We next consider Employee's request for costs and attorney's fee. AS 23.30.145 provides in pertinent part:

We have repeatedly held that AS 23.30.145(a) applies when compensation benefits are controverted, while subsection 145(b) applies when medical benefits are controverted or resisted. In this case, we find Defendant controverted and resisted only medical benefits. We conclude a reasonable attorney's fee is due under subsection 145(b) as well as legal costs.

Defendant did not object to the time spent by Employee's attorneys as being unreasonable nor the hourly rate as being unreasonable. We have independently reviewed Employee's attorney's affidavit and agree the fee requested is reasonable. We conclude that Defendant shall pay Employee's attorneys $4,150.00.

Defendant did not object to the legal costs requested by Employee. We also award Employee $43.00 for legal costs.

1. Defendant shall pay Employee's medical expenses in accordance with the decision.

2. Defendant shall pay $4,150.00 as reasonable attorney's fees and legal costs of $43.00

DATED at Anchorage, Alaska this 20th day of March 1990.

ALASKA WORKERS' COMPENSATION BOARD

/s/ Rebecca Ostrom
Rebecca Ostrom, Designated Chairman

/s/ John H. Creed
John H. Creed, Member

/s/ Donald R. Scott
Donald R. Scott, Member

RJO:rjo

If compensation is payable under the 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 injunction staying payment is obtained in Superior Court.

APPEAL PROCEDURES

A compensation order may be appealed through proceedings in Superior Court brought by a part 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 Joseph Dennis, employee/applicant; v. municipality of Anchorage, employer (Self-Insured)/defendant; Case No. 805680; dated and filed in the office of the Alaska Workers' Compensation Board in Anchorage, Alaska, this 20th day of March, 1990.

Clerk