PATSY GIBSON,			)
				)
Employee,			)	DECISION AND ORDER
Applicant,			)	AWCB Case Nos.	8827459
				)		8100518
				)	AWCB Decision No.	90-0057
				)
BIG K GROCERY,			)	Filed with AWCB Anchorage
				)	March 28, 1990
Employer,			)
				)
and				)
				)
ALASKA NATIONAL INS. CO.,	)
				)
Insurer,			)
				)
and				)
				)
INDUSTRIAL INDEMNITY INS. CO.,	)
				)
Insurer,			)
Defendants.			)
				)

We heard this matter on January 24, 1990 in Anchorage. Employee was present and was represented by attorney Joseph Kalamarides. Alaska National was represented by attorney Robert McLaughlin while Industrial Indemnity was represented by attorney Michael Budzinski. The record remained open until the filing of the deposition of Gerald Keane, M.D. We closed the record on February 21, 1990, the date we next met after receiving the deposition.

1. Is either Insurer (Alaska National or industrial Indemnity) liable for payment of workers' compensation benefits to Employee under the last injurious exposure rule?

2. Is either Insurer liable for Employee's medical benefits, attorney's fees and costs, transportation and interest?

Employee alleges she sustained two injuries while working as a checker and stocker for Big K Grocery, Employer in this matter. The first injury occurred on November 21, 1978 when Employee slipped on the wet floor in the store and fell, injuring her back. industrial Indemnity insured Employer at that time.

Employee testified she cannot recall a specific accident that brought on the symptoms for her second injury. She testified she used June 2, 1988 as the date of this second occurrence because that is the date she went to Nels Anderson, M.D., for back and leg pain. She testified she told her supervisor of this second injury. However, no injury report was ever filed.

Employee began working for Employer, a small Soldotna grocery store, in September 1976. Her primary duty was checking groceries although she also worked occasionally as a stocker, and in the liquor store and bakery.

After her first injury on November 21, 1978 Employee was paid disability benefits periodically, and she attempted to return to work, but her back pain persisted. She was eventually examined by several Anchorage physicians who recommended a fusion at the LS-Sl level. This surgery was performed by George Wichman, M.D. on October 10, 1980.

Employee improved after surgery and eventually returned to work, beginning with four-hour days. However, she continued to report pain and other symptoms to Dr. Wichman. (Wichman January 8, 1981 report). On August 18, 1981 Dr. Wichman reported that Employee was finding it "more and more difficult to do the job." Because of this, Dr. Wichman advised Employee to seek less strenuous work. (Wichman August 18, 1981 letter).

Employee, Employer and Industrial indemnity eventually settled the claim for this injury by Compromise and Release (C&R) which the Board approved on January 26, 1982. The C&R provided for payment of $11,250 to Employee. In return, Employee waived the following:

(C&R at 1).

In addition, Employee reserved the right to assert a claim for benefits under AS 23.30.040(e), in effect on the date of her injury. (Id. at 2).

The C&R also stated Employee was "unable to continue working as a grocery checker" which, she alleged, aggravated her condition, and she was taking typing and business courses while investigating less strenuous employment. Further, the C&R indicated Employee desired to work, but her family did not need the money, and she did "not require periodic compensation payment to support herself or any dependents." (Id.).

Prior to approval of the C&R on January 26, 1982, Employee had last been examined by Dr. Wichman in August 1981. Dr. Wichman (nor any other physician) did not examine her again until September 19, 1983. During this period of time between doctor visits, Employee testified she continued to have pain. (Employee Dep. at 32). According to Employee, Dr. Wichman told her at the September 1983 examination that she would have to learn to live with a certain amount of pain. She did not see Dr. Wichman again for her back symptoms until July 12, 1988.

Although the record is unclear on the exact date, Employee apparently returned to work for Employer (after the approval of her C&R) sometime in September or October 1983. She continued working there as a checker and stocker until she quit on August 15, 1988.

Employee testified she feels that the work duties she performed between 1983 and 1988 at the grocery store made her back condition worse. As noted, these duties included checking in both the grocery and liquor store, stocking and bakery work.

Employee testified in her deposition that her job duties over the years were roughly the same. (Id. at 12). In her deposition, she testified that she probably checked groceries for 30 hours of her 40-hour week. (Id. at 35). However, at hearing she testified that she sometimes worked 15 to 20 hours per week in the liquor store, particularly the last year or so before she quit working. At deposition, she stated that for a while, she worked every day in the liquor store. However, "it got less and less and they got someone who would work there all the time." (Id. at 40).

Employee's checking duties included taking groceries off the shopping baskets and putting them onto the counter. These groceries included bags of potatoes, and dog and cat food. Employee testified that the dog food included 25 and 40-pound bags. Employee testified that the store's grocery carts were the "old" style with deep baskets which required more bending and stooping than their more modern counterparts. Regarding stocking, Employee stocked mainly non-food items and candy.

Her duties in the liquor store included keeping the beer cooler stocked. Sometimes, Employee testified she was required to lift and carry three "half" cases of beer at a time from the back cooler to the front cooler. (According to Barbara Doran, a rehabilitation specialist who testified at the hearing, a case of beer weighs 26 pounds.) Employee asserted that sometimes she also had to climb a ladder to retrieve these half cases of beer. (See also Hearing Exhibit No. 1 at 6).

Barbara Doran testified that Alaska National requested that she perform a job analysis (JA) for Employee's position. Since Employer's grocery store was closed by the time of this request (December 1989), Doran put together the JA by using the description of cashier-checker for a convenience store as described by the Selected Characteristics of Occupations as Defined in the Dictionary of occupational Titles (SCODOT), and by speaking by telephone with Kerlee Wright, former owner of the grocery store. In devising the JA, Doran admitted she did not seek input from Employee.

Doran stated Wright told her the position was strictly in the realm of cashier-checker. The JA states Employee's duties were "cashier only" at either the grocery store or the liquor store. The JA also indicates Employee was required to lift up to 15 pounds. Doran testified that Wright said the heaviest item was a fifteen pound bag of spuds. She added that in a typical convenience store, medium lifting--up to 50 pounds--is required, However, the SCODOT information Doran provided in her report indicates a cashier-checker in a convenience store is classified as light work, requiring lifting of up to 20 pounds.

Doran's JA indicates Employee did occasional floor to waist lifting and squat lifting, with no waist to overhead lifting. (JA at 4-5). Employee disagreed, indicating lifting occurred all the time during checking, some items weighed more than 15 pounds, and overhead lifting from a three-step ladder to get beer down from tall stacks was sometimes required. (Hearing Exhibit One at 4-6). The JA also states "repetitive" bending and twisting were occasional. Employee again disagreed, asserting these activities occurred all the time during checking. (Hearing Exhibit One at 6-7).

During the period from 1983 until early 1988, Employee stated her back pain was "about the same." (Id. at 45). Employee testified that on a scale of one to ten, with ten representing the most pain, the level of her pain up to early 1988 was a five or six. She stated she took Tylenol for the pain.

Employee testified that sometime in early 1988, her symptoms increased in intensity. With this increase, she described her pain level as increasing to an eight or nine on a scale of ten. However, Employee asserted she was compelled to continue to work because of the financial needs of her family. She continued to work until August 1988 when she quit.

While still working, she was examined by Nels Anderson, M.D. her family physician in June 1988. Dr. Anderson referred her to Dr. Wichman who, as noted, had not examined her since 1983.

Dr. Wichman examined Employee on July 12, 1988. His chart notes for the examination state in pertinent part:

(Wichman July 12, 1988 chart notes).

Dr. Wichman also got x-rays which he felt showed "a solid fusion with no movement between the transitional vertebra and the sacrum, but distinct degenerative changes in her disc space above." Dr. Wichman gave her two choices: change jobs or undergo testing to determine if there is "pressure on the nerve system in her back."

Regarding Employee's 'heaviness' (indicated by Dr. Wichman), she testified she is five feet two inches and weighed 240 pounds at one time. In the mid-1980s she changed her diet and exercised her way down to 168 pounds. However, Employee stated she had to stop exercising (walking and an exer-cycle) in the latter part of 1988, and she has gained back most of the weight.

At hearing, Employee testified that although there were rumors that Big K may close down for financial reasons, she was not already giving serious thought to quitting or changing jobs when she saw Dr. Wichman in July 1988. She asserted she needed the work. Counsel for Alaska National then pointed out to Employee that Dr. Wichman's July 1988 report states that when Dr. Wichman suggested a change of jobs might relieve her symptoms, Employee indicated she had discussed this with her family and was "ready to take that step." (Wichman July 12, 1988 report). Employee then admitted that after Dr. Wichman made the suggestion, she told the doctor she had discussed, with her family, the possibility of her going to school in hopes of getting a better paying job. While then admitting she had given quitting at Big K some thought, she stated she was "not real serious to the fact" of quitting.

After her July 1988 examination by Dr. Wichman, Employee continued to work until August 15, 1988, when she quit at Big K. She then worked as a babysitter for approximately one month until she began collecting unemployment benefits in September 1988.

The record indicates Employee was not examined again by a physician until July 15, 1989 when Edward Voke, M.D., an Anchorage orthopedic specialist examined her at Industrial indemnity's request. Dr. Voke reported that Employee stated she still had low back discomfort with pain radiating into both legs, and this pain, aggravated by sitting, particularly beyond 45 minutes, had progressively worsened up to that time. She stated she did no heavy lifting, she has pain at night but gets relief with rest and hot baths, and she rides her bike and walks for exercise. In addition, she reported she had not returned to work since she quit the grocery clerk job in August 1988.

Dr. Voke found 50 percent decreased range of motion in all planes of the 1umbosacral spine with straight leg raising positive at 20 degrees bilaterally. He found no neurologic deficit.

Dr. Voke stated he felt Employee presented "with a new injury, onset in 1988." He also stated in pertinent part:

(Voke July 15, 1989 report at 2-3).

Dr. Voke recommended conservative treatment, a CAT scan to determine whether there was impingement on the lumbar spine nerves, and an EMG.

Employee was next examined by Dr. Wichman, on August 14, 1989. The doctor noted Employee reported an onset of pain in January 1988 when lifting "heavy beer cases." (Wichman August 18, 1989 report). Dr. Wichman found the neurological examination, muscle strength sensation and reflexes to be normal, and he also found negative straight leg raising. He diagnosed mechanical low back pain due to degenerated L4-5 disc, and he referred Employee to physical therapy in Soldotna.

Dr. Wichman examined Employee again on October 23, 1989. (Wichman October 27, 1989 report). Employee still complained of low back and left leg pain. Dr. Wichman wrote that "[a]pparently she was seen by Dr. Voke who agreed with me that the low back pain should be considered as a new injury that does not have much to do with the previous surgery but involves the disc space above." (Id.). He also stated he would wait for Dr. Voke's report before deciding "what to do about her back." He added:

(Id. at 2).

Employee continued in physical therapy from September 1989 through November 1989. The reports of these sessions indicate Employee repeatedly complained of low back and leg pain, and that she was "very discouraged."

On December 7, 1989 Dr. Wichman again examined Employee, noting Employee was having a problem "even sitting." Dr, Wichman also noted he had reviewed Dr. Voke's report and he did not understand Dr. Voke's "conclusion or the reasoning behind his conclusion." However, he added that there was "some confusion as to what injury has caused this pain. I believe that it is Dr. Voke's opinion as well as my own that the second injury and continuation of her work has caused this present pain to occur." (Wichman December 12, 1989 report).

Both Dr. Voke and Dr. Wichman were deposed in January 1990.

In his deposition, Dr. Wichman explained that by "nonanatomical" (in his July 1988 report), he meant that Employee's "numbness did not correspond to the course of the nerves in her leg." It (Wichman Dep. at 13). Regarding degeneration of the disc above the fusion (L4-5), Dr. Wichman acknowledged that this degeneration was not unusual given Employee's obesity, her age, and the

fact she had a fusion eight years earlier. (Id. at 12, 16). He also agreed the degeneration might be a normal progression. (Id. at 12-13).

Dr. Wichman testified that at the time, he simply diagnosed "pain," and he was unsure what to attribute it to. Dr. Wichman indicated Employee said the only specific injury Employee reported following her surgery was a fall. (Id. at 15). Dr. Wichman indicated this injury occurred when Employee's leg gave out, and she fell against a piano stool, hitting the base of her neck and her right shoulder. (Id. at 14).

When asked if he attributed some of Employee's low back problems to her work for Employer, Dr. Wichman replied: "That's correct. It seems like there has always been a conflict between her employer and herself, but I don't know that. I put it down." (Id. at 16). He described this conflict as personal tension.

Regarding any medical significance of this conflict, Dr. Wichman asserted that it could impact Employee's condition "in a sense that if a person has pain and has emotional problems that the pain is always worse." (Id. at 21).

When asked if he could say Employee's work as a grocery store clerk was a substantial or significant factor in the deterioration of her disk, Dr. Wichman replied "possibly." (Id.). He was then asked whether this was so to a reasonable degree of medical certainty. He replied: "I think it's a combination of factors. I don't know exactly what her work situation is, but I do know that for her, the way she's built, if she has to do lifting cartons, bending, twisting, she puts herself into jeopardy of hurting her back." (Id. at 16-17). He again acknowledged that the deterioration of Employee's disk was a combination of factors, including her work, her build, the 1980 surgery, and normal day-to-day incidents of living. (Id.). He added that if Employee had to do a lot of lifting on her job, this would probably accelerate the process of degeneration and would likely bring on the pain. (Id. at 18). He also asserted that any mechanical stress could accelerate the process of degeneration. (Id. at 18- 19).

Dr. Wichman was also asked that, assuming Employee is to be believed that she can no longer perform the duties she did at the Big K, would this inability represent a significant worsening of her back condition? His reply was: "Can't answer that." (Id. at 21). The doctor was then asked if he would say Employee's work from 1988 onwards was an important factor in bringing about her current condition. He stated: "I think so." (Id. at 22) He added that it is unnecessary for someone to suffer a traumatic injury to experience the Current back problems exhibited by Employee. (Id.).

Dr. Wichman acknowledged that given the scenario of Employee lifting cases of beer and cases of food products, bending to lift grocery items out of deep grocery carts, and twisting, he thinks Employee's "work conditions would have contributed to the degeneration of her back more significantly than if she had not worked during that period of time (until July of 1988)." (Id. at 23). However, he also added that it would be speculation to state to what degree her work contributed to her problem. (Id. at 24). Further, he stated he found no indication that Employee has a nerve impingement. (14. at 25). Finally, Dr. Wichman stated that Employee has chronic back pain, that he had not made any attempt to determine the extent of her physical capacities, and that the doctor did not know whether Employee could, at that time (his deposition was taken on January 4, 1990), return to work at the Big K grocery store. (14. at 26).

In his deposition, Dr. Voke discussed fusions such as that performed on Employee, Dr. Voke acknowledged that the fusion puts unusual stress on the areas above and below the fusion, and this can result in pain. (Voke Dep. at 5). In addition, "physiologic changes" can occur, resulting in increased friction and stress which would cause an inflammatory condition and damage to the "structure." (Id. at 5-6). Dr. Voke went on to state that although these increased stresses might accelerate the degenerative process at the levels just above and below the fusion site, this acceleration is not common and most people can cope with it. (Id.) He later added that people with fusions usually have pain but learn to live with it and the aggravations and exacerbations that sometimes develop. He added that if Employee had a flare-up, he thinks it would be temporary. (Id. at 16-17). In fact, he stated he did not understand why Employee would still be having a problem when he examined her in July 1989 if her flare-up occurred 13 months before, in June 1988. (Id. at 19).

Dr. Voke indicated it is not unusual for someone of Employee's age to have degenerated discs. He also stated obesity itself does not contribute to back problems, but it usually causes people to be physically inactive which makes the spine more vulnerable to injury. (Id. at 8).

Dr. Voke could not recall Employee relating a specific event or activity to her back problem. (Id. at 11). He felt Employee presented with a nerve inflammation to both the right and left sciatic nerves. (Id. at 12-13). He asserted it was difficult to understand what was causing the inflammation but said it was possible Employee was just having a bad day. However, he assumed since Employee had done well for years that it was a problem due to something that occurred in June 1988. (Id. at 13-14). He went on to state it is usually an injury that causes the nerve inflammation, but scar tissue from the 1980 surgery could do it too. (Id. at 15-16).

Dr. Voke was also asked whether the additional symptoms of leg numbness or weakness reported in 1988 would indicate a more permanent back problem than experienced earlier. He stated:

(Id. at 20).

Dr. Voke was also asked if there was an available test that might provide some objective reason for Employee's pain. He testified: "Well, I think the pain is coming from her low back, and I don't think there's any doubt that she has something wrong with her. The big issue for the third time now is: why couldn't it have happened some place else other than the grocery store?" He went on to assert that he was not "impressed that a big, major problem occurred in that grocery store." (Id. at 23-24).

However, Dr. Voke did not preclude the possibility that lifting, bending, and stooping could cause the nerve inflammation. (Id. at 24). Several times during his deposition, he questioned why Employee had continued to work it she injured herself at work.

Dr. Voke concluded that he was impressed with Employee and felt she looked pretty uncomfortable. He explained that in cases like Employee's, when his own patients report pain following surgery, he felt they usually present with a lumbar spinal stenosis, where the fusion causes a crowding of the nerve roots in the spinal cord. In these cases, he sometimes performs an additional operation to relieve the pain. (Id. at 26-27).

Finally, Employee was also examined by Gerald Keane, M.D., a San Francisco physician, on January 4, 1990 at the request of Alaska National. Dr. Keane specializes in physical medicine and rehabilitation which he explained as the nonsurgical management of problems related to pain and disability. His interest is spine-related problems.

Dr. Keane asserted that it is well-documented that a fusion at the L5-S1 level causes abnormal stress at the disk space above the fusion site. He stated that obesity has not been scientifically proven as causing unusual stress on the lumbar spine. Still he personally believes obesity is detrimental to a fusion. (Keane Dep. at 6-8).

Dr. Keane reiterated the opinion from his January 4, 1990 report that he found nothing in Employee's history or medical record to suggest that there had been a new event as the source of her current symptoms. We note that among several documents attached to Employee's deposition is one titled "history of present injury." In it, Employee indicated her present pain began approximately January 1988, and it occurred while lifting and bending to check groceries, and putting up stock and filling beer coolers. She added she could hardly walk after doing these things.

Dr. Keane also reasserted that Employee's current symptoms were a result of the natural progression that would have occurred as a result of her 1980 fusion surgery, and her symptoms therefore date back to her original 1978 surgery. (Id. at 8-9). He described this as a strong probability although he could not preclude the possibility that Employee's work from 1985 to 1988 accelerated her preexisting condition. (Id. at 18-19).

Dr. Keane stated Employee told him she bagged groceries, requiring her to usually lift five pounds, and it was unusual for her to lift more than fifteen pounds. He stated she did not tell him she was required to bend down and lift things out of a deep grocery cart. (Id. at 10-11). Dr. Keane added that his impression (that the 1978 injury caused Employee's current symptoms might change if the kinds of weights involved were different from what he had been told. (Id. at 13-14). Nonetheless, he stated it would not make any difference if she were lifting 10 to 20 pounds six times a day. (Id. at 14).

Although Dr. Keane had no history of a second injury, he admitted that the continuation of Employee's work may cause some increased symptoms. Still, he related any deterioration in her condition to the natural progression of the level above the fusion. (Id. at 17).

Dr. Keane completed a physical capacities evaluation (PCE) which indicates Employee can lift no more than 20 pounds occasionally, bend, squat and reach above shoulder level occasionally, but not climb, twist or crawl at all. He also indicated she could not sit or stand for more than one-half hour at a time, and she should not sit or stand more than four hours in an eight-hour day. Be also advised that Employee's physical capacities could be improved with a successful "physical re-training program" and therapy. (Keane January 18, 1990 report).

Employee testified her pain continues to worsen. She asserted the pain is now more severe than when she sustained her 1978 injury.

Employee requests temporary total disability (TTD) benefits, temporary partial disability (TPD) benefits during periods she received unemployment compensation benefits (September 10, 1988 to June 10, 1989), permanent partial disability (PPD) benefits, medical costs, interest, transportation costs, and attorney's fees and costs. She asserts that the main issue here is which Insurer is responsible for Employee's benefits. She believes the evidence shows Alaska National, the most recent insurer is liable for her benefits.

Employee also contends the medical evidence is equivocal, and some of the facts relied on by the physicians are incorrect. For example, she points out that Dr. Keane, noting Employee had been "quite heavy for some time," asserts that Employee's added weight "almost certainly caused increased stress on the low back in the level above the fusion. (Keane January 4, 1990 report at 6). She asserts that the evidence shows that she weighed only 165 pounds during the onset of her current condition, and she had weighed this amount for most of the two prior years. She points out this weight was significantly lower than her weight when she was examined by Dr. Keane. She further argues that the evidence, including her hearing testimony shows that her work aggravated her preexisting condition more so than if she had not worked, and Alaska National should therefore be liable.

Alaska National, the most recent Insurer, argues that the real issue was whether an aggravation or acceleration that may have occurred was a substantial factor in bringing about Employee's present condition. It asserts no last injurious exposure has occurred here. Alaska National contends that we must rely on medical testimony in this case because there is no probative lay testimony regarding the causes of Employee's back condition.

Alaska National points to inconsistencies in Employee's testimony, and asserts that while Employee is a credible witness, she has engaged in some "puffing" by exaggerating, over time, the job duties and strenuous nature of her job. For example, it points out that in a recorded statement taken sometime after she quit, Employee stated she had to lift a case of beer; now, Employee testified she had to carry three half-cases at a time. In addition, it asserts Employee is inconsistent in the number of hours she worked and the time she spent doing various tasks on the job.

Alaska National also asserts that there were dramatic turnarounds" between the initial medical reports of Doctors Wichman and Voke, and their later depositions. It asserts their depositions should be more probative than their reports.

Regarding Dr. Wichman's medical evidence, Alaska National points out that in several written reports, Dr. Wichman mentioned Employee sustained a new injury. However, he never acknowledged a new injury during his deposition, and he also disagreed with Dr. Voke that Employee suffered a nerve injury.

Industrial Indemnity argues there are obvious differences between Employee's symptoms since her recent Employment (1983 to 1988) with Big K and her pre-fusion employment. It asserts Employee is credible in every respect. It points out Dr. Keane is not an orthopedist, and he often mistakenly applied generalities (such as lifting capacities) to Employee's specific medical situation. Industrial Indemnity argues the evidence shows Employee sustained an aggravation while working at Big K in 1988, and this aggravation was a substantial factor in bringing about Employee's current condition; accordingly, Alaska National should be liable for Employee's benefits.

1. Last Injurious Exposure Rule

The Alaska Supreme Court has held that "injury" under the Alaska Workers' Compensation Act includes aggravations or accelerations of pre-existing conditions. See, e.g., Burgess Construction v. Smallwood, 623 P. 2d 312, 316 (Alaska 1981) (Smallwood II); Thornton v. Alaska Workmen's Compensation Board, 411 P. 2d 209, 210 (Alaska 1966). When multiple injuries are involved, liability for disability must be decided under the last injurious exposure rule. Ketchikan Gateway Borough v. Saling, 604 P. 2d 590 (Alaska 1979). This rule "imposes full liability on the employer or insurer at the time of the most recent injury that bears a

causal relation to the disability." Id. at 595. In United Asphalt Paving V. Smith, 660 P. 2d 445, 447 (Alaska 1983), the court stated:

Whether subsequent employment "aggravated, accelerated, or combined with" a pre-existing condition is a question of fact "usually determined by medical testimony." Smallwood II, 623 P. 2d at 316 (quoting Thornton, 411 P. 2d at 210). Whether an aggravation was a substantial factor must be determined by the following test: "[I]t must be shown both that the [disability] would not have happened 'but for' the employment and that the [employment] was so important in bringing about the disability that reasonable men would regard it as a cause and attach responsibility to it." State v. Abbott, 498 P. 2d 712, 717 (Alaska 1972).

In applying the last injurious exposure rule we must first determine whether the presumption of compensability attaches against the last employer (or, as in this case, the last insurance carrier). See Providence Washington Insurance Co. v. Bonner, 680 P.2d 96 (Alaska 1984).

AS 23.30.120(a) provides in pertinent part: 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 F.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. See Rogers Electric Co. v. Kouba, 603 P.2d 909, 911 (Alaska 1979). "[I]n claims ‘based on highly technical medical considerations' medical evidence is often necessary in order to make that connection" Smallwood II. "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 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 v. Alaska Workmen's Compensation Board, 411 P.2d 209, 210 (Alaska 1966)). 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 work-related. 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 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).

Based on Bonner, we first determine whether the statutory presumption of compensability attaches against the most recent carrier--Alaska National. We find the presumption attaches to Employee's claim against Alaska National. We base this finding on Dr. Wichman's testimony that he thinks Employee's work from 1988 onwards was an important factor in bringing about her current condition.

Next, we must determine whether Alaska National has produced substantial evidence to overcome the presumption. Based on Dr. Keane's testimony that Employee's current condition was a natural progression resulting from her 1978 injury (which occurred while Big K was insured by industrial Indemnity), we find that Alaska National has overcome the presumption. Therefore, the presumption drops out, and we must determine whether Employee has proved all elements of her claim against Alaska National by a preponderance of the evidence.

We must first determine the weight to be given the testimony of Employee, Barbara Doran and the three primary physicians here, Doctors Wichman, Voke and Keane. Regarding Employee, we find that because of some of the inconsistencies in her testimony, we will not give her testimony full weight. Even so, we found Employee generally credible and truthful. We simply believe that her descriptions of her duties during her work hours, her physical requirements, and her physical condition were somewhat overstated. We also found unsatisfactory her initial denial that she had discussed changing jobs before she saw Dr. Wichman in July 1988. Therefore, we make a slight reduction in the weight to be given her testimony.

On the other hand, we give even less weight to the job analysis provided by Barbara Doran. Our weighting has nothing to do with Doran's credibility. She just did what she was told to do, and she provided straightforward answers at hearing. However, we find the answers provided by Kerlee Wright on the JA conflict with Employee's testimony on job requirements, even after we factor in a reduction in the weight of her testimony on the job requirements. We believe the Big K was probably a "mom and pop" type of grocery which required Employee to perform a variety of duties. We believe Employee's testimony was a more accurate description of the duties of the job.

We give full weight to the testimony of the physicians. However, we found the testimony and medical reports of Dr. Wichman inconclusive, ambiguous and equivocal. Although he testified Employee's job was an important factor contributing to her condition, and any mechanical stress could accelerate the process of degeneration, he asserted it would be speculation to state to what degree Employee's work contributed to her problem. We find there is doubt as to the substance of Dr. Wichman's testimony. Accordingly, we construe his medical testimony in Employee's favor. Miller v. ITT Arctic Services, 577 P.2d 1044, 1048-1049 (Alaska 1978), Beauchamp v. Employer's Liability Assurance Corporation, 477 P.2d 993, 997 (Alaska 1977).

Regarding Dr. Voke's testimony, we find it "less than certain." Beauchamp, 477 P.2d at 996, n. 8. Nonetheless, medical opinion is "commonly less than positive." Id. Therefore, we conclude that Dr. Voke's testimony as a whole indicates that while Employee may have suffered a flare-up and nerve inflammation during her work time in 1988, her work was not a substantial factor in bringing about her inability to perform her regular job duties. Accordingly, we construe Dr. Voke's testimony in Alaska National's favor.

We find Dr. Keane's testimony unequivocal in concluding Employee's symptoms were brought about by her 1978 injury and 1980 surgery for which Industrial indemnity was responsible. We are concerned, however, that Dr. Keane may not have understood the real nature of Employee's job duties. Nonetheless, Dr. Keane indicated that even if Employee's lifting -requirements were somewhat heavier than noted on the job description, her current symptoms were still related to her fusion and 1978 injury.

Therefore, we conclude that the evidence in the record, weighted according to the above analysis, leads to the conclusion that although Employee's work with Big K, particularly in 1988 aggravated her symptoms from her fusion and inflamed her sciatic nerves, the work was not a substantial factor in bringing about her current symptoms. Accordingly, we do not attach responsibility to Alaska National, Big K's insurer in 1988.

We must next determine whether Employee's current symptoms resulted from her 1978 injury while working for Employer, and from her 1980 fusion. Regarding application of the statutory presumption, we find that the presumption is raised against Industrial indemnity based on Dr. Keane's testimony that Employee's current symptoms relate back to the 1978 injury. We also find that Industrial Indemnity has overcome the presumption with substantial evidence, particularly Employee's testimony that her symptoms worsened during 1988, and Dr. Wichman's testimony that her work accelerated the degeneration of her L4-5 disk. Therefore, the presumption drops out, and Employee must prove all the elements of her claim against industrial Indemnity.

Based on the weighting of the testimony outlined above, and viewing the entire record as a whole, we conclude that Employee's current symptoms were brought about by her 1978 injury and her 1980 fusion. We particularly support our conclusion with the medical testimony, of all three doctors, which indicates Employee's symptoms are a natural progression of her 1980 fusion which was necessitated by her 1978 surgery. Although we find Dr. Voke's testimony less than certain, we do not find it equivocal or ambiguous. We conclude that Dr. Voke's testimony, together with Dr. Keane's unambiguous opinion, lead to the conclusion Employee's current condition and symptoms are related to her 1978 injury, the resulting 1980 fusion, and the natural sequences of events since then. Accordingly, Industrial Indemnity is liable for Employee's benefits.

Because Employee waived her right to temporary and permanent partial or total benefits in the 1982 Compromise and Release, she is ineligible for these benefits. However, we find her eligible, under AS 23.30.095, for medical benefits based on our conclusion that her symptoms were brought about by her 1978 injury and fusion.

In summary, we find Industrial Indemnity liable under AS 23.30.095, for medical costs related to Employee's 1978 injury.

II. Interest

Employee requests interest in this matter. The only benefits we have awarded here are medical benefits. In Moretz v. O'Neill Investigations, 783 P.2d 764 (Alaska 1989), the Alaska Supreme Court held that medical benefits are compensation; for purposes of awarding interest under Land & Marine Rental Co. v. Rawls, 686 P.2d 1187 (Alaska 1984). However, we find no evidence that Employee paid for medical costs or insurance to pay for work-related medical expenses. We order Employee to submit this information to Industrial Indemnity who shall pay interest that is due in accordance with Moretz and Rawls. We retain jurisdiction to resolve any subsequent, related disputes.

III. Transportation Costs

Employee has also requested an award for transportation costs. We reviewed the record, including prehearing summaries and Employee's July 13, 1989 application for adjustment of claim. We found no specific amount of costs and no reason for this request. We order Employee to submit this specific information to Industrial Indemnity. We retain jurisdiction to resolve disputes.

IV. Penalty Issue

Employee requested a penalty award on her July 13, 1989 application. This issue was also mentioned in a brief statement in a July 24, 1989 preheating summary. However, we find no argument was presented on this issue. Accordingly, we make no findings or conclusions on the penalty matter. Assuming a penalty under AS 23.30.155(e) for late time loss benefits was sought, none would be payable since we have not awarded time loss benefits. It is also unclear if Employee seeks a penalty under AS 23.30.070,

V. Attorney's Fees and Costs

Employee also requests attorney's fees. We find that industrial Indemnity resisted the payment of medical costs. We further find that Employee retained an attorney who was successful in prosecuting her claim for medical costs. Therefore, we award Employee her costs in this proceeding, including a reasonable attorney’s fee. Employee shall submit an affidavit of his fees and costs to Industrial Indemnity for payment. We retain jurisdiction to resolve any related disputes.

1. Employee's claim against Alaska National is denied and dismissed.

2 Industrial Indemnity shall pay Employee's medical costs, interest, attorney's fees and costs in accordance with this decision. We retain jurisdiction to resolve subsequent disputes.

3. We retain jurisdiction to resolve the transportation and penalty issues.

Dated at Anchorage, Alaska, this 28th day of March 1990,

ALASKA WORKERS' COMPENSATION BOARD

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

/s/ David W. Richards
David W. Richards, Member

I respectfully dissent from the majority's opinion. I agree with the majority that Dr. Wichman's medical testimony is equivocal and ambiguous. Because his statements in his deposition raise considerable doubt about the substance of his medical testimony, it must be construed in Employee's favor. To make matters worse (and as pointed out by Alaska National), Dr. Wichman's deposition testimony conflicts in many respects with his written medical reports. Dr. Wichman was never asked to explain this difference. Because of this discrepancy, I would also reduce the weight to be given his testimony.

Further, although I agree Dr. Keane's testimony is unequivocal, I would give his testimony reduced weight because I believe he had inadequate information, regarding Employee's job tasks in the period 1983 to 1988, to make a valid decision on whether this work period was a substantial factor in producing Employee's current symptoms. Because I believe Dr. Keane lacked complete and accurate information about Employee's job conditions, I would give less than full weight to his testimony. See Miller v. ITT Arctic Services, 577 P.2d 1044, 1048 (Alaska 1978). See also Beauchamp v. Employer's Liability Assurance Corp., 477 P.2d 993, 996 (Alaska 1970).

However, my primary incomparability with the decision of the majority lies in its construction of Dr. Voke's testimony. Although I agree with Alaska National that Dr. Voke's deposition testimony should be found more probative than his written medical report, I am troubled by the apparent and unexplained flip-flop in his medical opinions. In his July 15, 1989 report, he wrote that his feeling was Employee presented "with a new injury, onset in 1988." Yet, in his deposition, while asserting that some specific trauma must have occurred for Employee to have the nerve inflammation that he diagnosed, he repeatedly expressed his doubt that an injury had occurred. Still, he had no doubt Employee had something wrong with her.

Moreover, Dr. Voke never ruled out the possibility or probability that Employee's work from 1983 to 1988 was a substantial factor in producing her current condition. In fact, he alluded to an "attrition problem from the lifting, the bending and twisting, but no specific injury." (Voke Dep. at 25). In addition, he said he was "not impressed that a big, major problem occurred in that grocery stores" (Id. at 24). I believe this testimony could be construed to indicate Dr. Voke believed the store contributed to Employee's condition and was a substantial (as opposed to major) factor in bringing about her condition. It is noteworthy that Dr. Voke did not "positively exclude a causal connection" between Employee's 1988 work and her present condition. Libor, 536 P.2d at 132.

Having said this, I am not convinced Dr. Voke's testimony deals in reasonable probabilities. Beauchamp, 477 P.2d at 996. I find it too uncertain and equivocal, and, like the-testimony of Dr. Wichman, there is more than "any doubt" as to the substance of Dr. Voke's testimony. Therefore, I would construe it in Employee's favor.

In addition, I would find Employee's testimony of probative value, particularly her statements that her pain was essentially the same until early 1988 when her symptoms increased in intensity, and her belief that the lifting, bending and other job requirements in early 1988 brought on her current symptoms. In summary, I would conclude that Employee's testimony (even given a weight reduction for her inconsistencies), combined with the inconclusive testimony of Doctors Wichman and Voke, constitutes substantial evidence of a work connection between Employee's job duties in 1988 and her current condition. Libor, 536 P.2d at 132. On this basis, I would find Alaska National liable for Employee's workers' compensation benefits.

Although there has been no assertion that Employee failed to mitigate her disability, in her 1982 Compromise and Release (C&R) agreement, Employee indicated she intended to pursue more sedentary work, and she did not financially need to work at all. These were two reasons given for justifying a lump sum payment. Although circumstances can change, I simply note that Employee subsequently acted contrary to her statements in the C&R. By the same token, Employer, knowing her limitations, hired her back. In any event, if the parties had proceeded according to their representations in the C&R, we would probably not be here today for this matter.

/s/ MR Torgerson
Mark R. Torgerson, Designated Chairman

MRT/mrt/jpc

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 Patsy Gibson, employee/applicant; v. Big K Grocery, employer; and Alaska National Ins. Co., insurer/defendants; Case No. 8827459 and 8100518; dated and filed in the office of the Alaska Workers' Compensation Board in Anchorage, Alaska, this 28th day of March, 1990.

Clerk

SNO