KAM PUI YAN,			)
				)
Employee,			)	DECISION AND ORDER
Applicant,			)	AWCB Case No. 8502135
				)	AWCB Decision No. 90-0062
HOW HOW RESTAURANT,		)
				)	Filed with AWCB Anchorage
Employer,			)	April 4, 1990
				)
CIGNA, INA, ALPAC COMPANIES,	)
				)
Insurer,			)
Defendants.			)
				)

The employee's appeal from the Rehabilitation Administrator's (RA) decision and order (D&O) of March 28, 1988 and his claim for temporary and total disability (TTD), permanent partial benefits (PPD), medical expenses, attorney's fees and legal costs was heard by us on January 25, 1990. The employee was present and represented by attorney Michael J. Jensen. The employer and insurer (employer) were represented by attorney Timothy A. McKeever. The record closed on February 7, 1990, the first day we met after post-hearing briefs were submitted.

A statement of the facts as they existed prior to the time the RA issued her D&O on March 23, 1988, are thoroughly set forth in that D&O. Accordingly, that D&O must be consulted for an understanding of this case.

In denying the employee's request for continuing vocational rehabilitation services, the RA stated:

On April 11, 1988, the employee was examined by David M. Dietz, M.D., who noted that he has a dislocation of the costosternal junction at probably the fourth rib. His impression was "Old costochondral injury (1985). See no evidence that this should cause disability warranting inability to work or persistence of the amount of pain he has."

A MRI of Yan's cervical and dorsal spine was performed on April 29, 1988 and no demonstrable abnormalities were found.

On April 26, 1988, the employee saw Richard W. Garner, M.D., an orthopedic surgeon, and it was his assessment that the employee suffered from a chronic thoracic and lumbar strain and an anterior rib end dislocation.

Dr. Garner prescribed a TNS unit and physical therapy for Yan on May 10, 1988.

On May 27, 1988, Dr. Garner prescribed ultrasound for the rib problem and further physical therapy. The doctor noted that until that time he had not "found any condition which would preclude his return from eventual gainful employment, although that does not seem imminent."

After seeing Yan on June 7, 1988, Dr. Garner continued the rental of the TNS unit and prescribed further physical therapy. No medications were prescribed and the doctor stated that it was appropriate for the employee to get back to some form of light gainful employment.

On June 28, 1988, Yan saw Dr. Garner complaining of chest pains with some nausea and vomiting. The doctor did not know the cause of the nausea and vomiting but suggested that the employee see a gastroenterologist. Dr. Garner did not think pain medication was needed and stated "I continue to feel that he is suitable for 8 hours/day, 5 days/week, light employment with something similar to 35 pounds single lift limit and a 20-pound repetitive limit."

The employer controverted Yan’s ongoing medical treatment on July 27, 1988. In its Notice of Controversion, the employer stated "Present condition unrelated to 2/2/85 injury" and "Claimant: seeking care from physicians other than his designated treating physician, Dr. Horning."

On July 22, 1988, the employee saw Dr. Garner again in reference to his costalchondral rib end injury on the left anterior chest. The doctor noted that Yan was more comfortable when he took physical therapy and suggested that the employee see another chest surgeon to see if a resection of the end of the rib would be appropriate. At this time the doctor stated: "I continue to feel that he is employable as stated in my June 28, 1988 dictation."

In a report dated August 30, 1988, Dr. Horning stated:

Yan saw Dr. Garner on September 23, 1988. The doctor again recommended that the employee see a chest surgeon. Dr. Garner also noted that the employee should purchase a TNS unit because it apparently helped him considerably. In a report dated October 2, 1988, the doctor stated "He continues employable with respect to light duty, such as 10 lb. repetitive and 20 lb. single lift for the foreseeable future." The doctor prescribed Disalcid (an anti-inflammatory medication).

In a report dated September 29, 1988, Frederick R. Hood, Jr., M.D., stated that he had examined the employee and he agreed with Dr. Dietz that costochondral junction of the sixth rib problem should not be addressed surgically.

After seeing Yan on October 14, 1988, Dr. Garner recommended a triple phase bone scan of the anterior chest and a regular bone scan. The doctor also noted that the employee continued to be employable.

In his radiologist report dated October 17, 1988, Harold P. Cable, M.D., a radiologist, noted "Complete triple phase bone scan shows no abnormal activity in the bony protuberance in the anterior sternum."

After seeing the employee again on October 25, 1988, Garner stated:

The doctor also noted that Yan was suitable for light duty work.

On November 11, 1988, Dr. Garner again prescribed Disalcid and noted. "He continues suitable for light employment and I would estimate that he could probably now handle an occasional 35 lb. lift and fairly frequent 15 to 20 lbs. lifts."

When the employee saw Dr, Garner on January 31, 1989, he reported that he had gone to China and had acupressure and acupuncture. Yan also stated the TNS unit and Disalcid continued to be helpful. The doctor referred him back to physical therapy twice a week for six weeks. Dr. Garner noted again that Yan was suitable for light employment.

After seeing the employee on March 14, 1989, Dr. Garner stated:

When Yan saw Dr. Garner in April 1989, he explained that while his low back felt better because of the physical therapy, the rib in front still hurt particularly when he attempted to lift with his arms flexed in front of him. The doctor continued the employee on physical therapy three days a week for another month.

On May 5, 1989, Dr. Garner released the employee to return to work with the restrictions of no lifting over 20 pounds and no repetitive lifting over 10 pounds.

From May 4 to June 9, 1989, the employee worked 12 hours a day, seven days a week, on a barge in Prince William Sound after the oil spill. He made salads and sandwiches, cut vegetables, cooked steak and did general kitchen work.

After seeing Yan on June 22, 1989, Dr. Garner noted that "[i]t appears that he has gone back to light type of work at Valdez doing some cooking at an American restaurant. He had a fair amount of difficulty in his back until he had the light duty slip and then they felt that they were able to cut back on his lifting and he has been tolerating it better." At this time the doctor again prescribed Disalcid.

Between June 24 and July 24, 1989, the employee worked 12 hours a day, seven days a week on a barge in Prince William Sound as a cook's helper.

In a report dated July 27, 1989, Dr. Garner noted that Yan had not quit his job because of pain and stated:

From August 5 to September 15, 1989, Yan again worked 12 hours a day, seven days a week on a ship in Prince Williams Sound. During this period, the employee was primarily responsible for making the midnight meal cooking and baking for breakfast.

On September 22, 1989, the employee saw Dr. Garner with complaints of intermittent back pain and cold feet. For the persistent back symptoms, the doctor ordered physical therapy two to three days a week for a month. He also noted that Yan was employable as before.

On October 5, 1989, Yan was re-examined by Dr. Horning. It was the doctor's opinion that the employee suffered from 1) Left costochondral rib separation, unchanged. 2) Low back strain without evidence of radiculopathy, unchanged. Dr. Horning noted that his grip strength and back range of motion tests showed fairly good consistency. He also felt that Yan needed to be reemployed and he was encouraged to learn that the employee was taking English classes.

When Dr. Garner's deposition was taken on October 24, 1989, he was asked if he considered Yan to be a seriously ill patient and he responded:

Regarding the 19% permanent impairment rating he gave the employee on July 27, 1989, the doctor testified:

. . . .

With respect to the work the employee did in connection with the Prince Williams oil spill, Dr. Garner testified as follows:

The doctor also stated, in essence, that the physical therapy and anti-inflammatory medicine he prescribed were predominantly for back condition and not his rib condition. When asked if physical therapy is assisting the employee, Dr. Garner responded:

The doctor also felt that the TNS unit reduced Yan's discomfort and therefore was beneficial.

When Dr. Horning was deposed on November 1, 1989, the parties stipulated that he was an expert in rehabilitation medicine. in addition, he testified:

Dr. Horning testified that when he reviewed and approved the job descriptions for the Peking Palace, China Garden and How How Restaurants on July 13, 1987, he felt those jobs were within the employee's physical capacities. He also stated that the physical capacities evaluation he prepared for Yan on August 4, 1987 was a little conservative and he gave him the benefit of the doubt. Dr. Horning stated that he never believed that Yan was disabled and completely unable to work. When asked about the job description formulated by the employee on January 14, 1988, the doctor stated:

In referring to his report of August 30, 1988, Dr. Horning stated:

When the kitchen work Yan did in the summer of 1989 in Prince Williams Sound was described to Dr. Horning, he commented that it was within his physical capacities. He also stated that this shows that working more of an ordinary work week would be quite within his limitations.

With regard to his October 5, 1989 examination of Yan, Dr. Horning testified that he was still capable of working and had the same physical capacities that he described in August of 1987.

Finally, he testified as follows when asked medical treatment for the employee:

The principal question to be determined is whether the RA was correct when, in her March 23, 1988 D&O, she found that Yan was not "titled to continuing vocational rehabilitation services and corresponding TTD benefits since July 1987.

The primary issue raised in this case was whether the employee has been and continues to be disabled.

The Alaska Workers' Compensation Act defines "disability" as "incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment." AS 23.30.265(10). The Act provides for benefits at 80% of the employee's spendable weekly wage while the disability is "total in character but temporary in quality," AS 23.30.185, but doesn't define TTD. In Phillips Petroleum Co. v. Alaska Industrial Board, 17 Alaska 658, 665 (D. Alaska 1958) (quoting Gorman v. Atlantic Gulf & Pacific Co., 178 Md. 71, 12 A.2d 525, 529 (1940), the Alaska territorial court defined TTD as "the healing period or the time during which the workman is wholly disabled and unable by reason of his injury to work." The court explained:

17 Alaska at 666 (citations omitted) in Vetter v. Alaska Workers’ Compensation Board, 524 P.2d 264, 266 (Alaska 1974), the Alaska Supreme Court stated:

In Bailey v. Litwin Corp., 713 P.2d 249, 253 (Alaska 1986) the Alaska Supreme Court set out this same authority and then stated; "Our previous cases stress the claimant's ability to return to work and indicate that medical stability is not necessarily the point at which temporary disability ceases." (Emphasis in original). The court also quoted the following description of temporary disability. "Temporary disability may be total (incapable of performing any kind of work), or partial (capable of performing some kind of work." Id. at 234 n. 12 (quoting Huston v. Workers' Compensation Appeals Bd., 95 Cal. App. 3d 856, 868, 157 Cal. Rptr, 355, 262 (Cal. App. 1979) (emphasis in original).

The Alaska Supreme Court has placed the burden of proving loss of earning capacity, at least in the area of permanent partial disability, on the employee. Brunke v. Rogers & Babler, 714 P.2d 795, 801 (Alaska 1986). We have also found that an employee bears the burden of proving whether or not he is disabled and the nature and extent of the disability. Keyes v. Reeve Aleutian Airways, AWCB No. 85-0312 at 12-13 (November 8, 1985).

However, even if we analyze this claim under the presumption of compensability, the result is the same. 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 provision 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 applied 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." 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 $69. If the employer produces substantial evidence that the injury was not work-related, the presumption drops out, and the employer 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).

First, we must decide if Yan has been unable to earn the wages he was receiving at the time of injury in the same or any other employment because of his 1985 injury.

Based on the medical reports of Drs. Emerson, Horning and Garner and the testimony of the employee, we find that the employee has established the preliminary link between his 1985 injury and inability to work since July 1987. In February 1987, Emerson advised Yan that he should discontinue cooking and try to give his body a chance to heal. In April 1987, Dr. Horning stated in a report that he felt pessimistic about the employee being able to return to heavy kitchen work. Between April 1988 and September 1989, the employee was treated by Dr. Garner with a TNS unit, physical therapy and an anti-inflammatory medicine for his chronic thoracic and lumbar strain and anterior rib end dislocation. During this period, Dr. Garner stated repeatedly that the employee could not return to heavy work. The doctor testified that every time he saw Yan he complained of back and chest pain. Yan stated in his depositions and at the hearing that working in a Chinese kitchen required heavy lifting and he could not do that because it caused him a great deal of pain in his chest and back. Yan Zhao, She Tian Lian, Wing Shing Yan and Yu Qin Sun all testified that working at the How How Restaurant involved long hours with few, if any, breaks and in most cases, heavy lifting without the assistance of hand carts. Having determined that the preliminary link has been established we conclude that the presumption of compensability arises and the employer must come forward with substantial evidence to overcome it.

We find that the employer overcame the presumption by introducing affirmative evidence that the employee's inability to work as a Chinese cook, if any, was not related to his 1985 injury. As early as June 1987, Dr. James believed that a B-200 functional back evaluation gave findings that the employee may have symptom magnification. When Dr. Horning was presented with job descriptions for the How How and other Chinese restaurants in July 1987, he approved them based on the relatively small objective findings and the large amount of symptom magnification demonstrated. Also in July 1987, Dr. Fu released Yan for work. After examining the employee in September 1987, Dr. horning advised that in spite of any pain he might have, the employee must make the most of his life and his only option was to return to work as promptly as possible. In February 1988, Dr. Horning approved a job analysis for a cook at the How How Restaurant which was prepared by Yan himself. The only restriction the doctor placed on Yan was that he would need help moving or lifting over 50 pounds. As far as the standing, walking, sitting, bending and other physical activities required of a Chinese cook, the doctor saw no problems. It is important to note in this regard that Yan testified before the RA that he had the authority to make others do the lifting and he was never forced to do heavy lifting. Even Zhao and Sun acknowledged that a cook at the How How Restaurant could get help moving and lifting heavy items.

Based on these facts, we conclude that Yan was, from a medical standpoint, physically capable of returning to work in July 1987. Even it he could not return to work as cook with his former employer, the record reflects that at that time there was a very good possibility for Yan to work at other Chinese restaurants. While prospective employers were found for him and interviews set up, the employee, for his own reasons, did not take advantage of the situation.

In April 1988, Dr. Dietz examined Yan and found no evidence to warrant his not going back to work or explain the persistence of pain he was complaining of. This visit was followed by an MRI which showed no demonstrable abnormalities in the cervical and dorsal spine. In August 1988, the employee was examined again by Dr. Horning and it was his feeling that while Yan undoubtedly had pain, it was relatively modest and he should return to work as did the vast majority of other people with his rib condition. Dr. Garner agreed that the employee's discomfort was mild or modest.

Finally, we find it particularly important that not only did Drs. Horning and Garner think the employee was capable of returning to work, but Yan actually did, in fact, work as a kitchen helper and cook during the summer of 1989. While Yan argues that this was light duty work where he had sufficient help and could take breaks when needed, it nevertheless entailed working 12 hours a day, seven days a week. He was able to carry out his duties for 111 days without missing any time because of his back or rib conditions.

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 as discussed above, we find that the employee has not, by a preponderance of the evidence, proven that the work-related injury in 1985 caused him to be disabled since July 1987. Accordingly, his claim for continuing rehabilitation services and corresponding TTD benefits is denied.

The next question to be decided is whether Yan is entitled to PPO benefits. If the employee's claim for these benefits is based on 19% permanent impairment rating given to him by Dr. Garner, it must be denied for two reasons. First, the doctor gave the largest proportion of that rating based on loss of motion to the spine and in 1985, when Yan was injured, the spine was not ratable under the American Medical Association Guides to the Evaluation of Permanent Impairment AMA Guides). in 1985, PPD benefits for spinal "juries were based on loss of wage earning capacity pursuant to AS 23.30.190 (a) (20) If the employee is basing his claim on loss of wage earning capacity, it must fail because we have found that he was not disabled during the period in question. Second, Dr, Garner's 5% rating for Yan's dislocated rib cartilage cannot stand because it is not rated in the AMA Guides and, as the doctor testified, "That's completely seat of the pants."

The third issue raised is whether the employee is entitled to medical expenses.

We have held that treatment must be reasonable and necessary to be payable under subsection 95 (a) See Weinberger v. Matanuska - Susitna School District, AWCB No. 81-0201 (July 15, 1981), aff’d 3AN-81-5623 (Alaska Super. Ct. June 30, 1982), aff'd Ireland Chiropractic Clinic v. Matanuska - Susitna School District, memorandum opinion and judgment, Op. No. 7033 (Alaska June 1, 1983). Employee has the burden of proving the need for the treatment by a preponderance of the evidence. See Tamagni v. Alaska National Bank of the North, AWCB No. 86-0009 at 5 (January 14, 1986; Keyes v. Reeve Aleutian Airways, AWCB No. 85-0312 at 12/13 & n.5 (November 8, 1985).

In a statement submitted at the hearing, the employee states that his medical expenses are $3,896.62 and they are broken down as follows: 1) Dr. Hood - $76.42; 2) Hinch Medical for TENS unit and supplies - $590.45; 3) Yee's therapy and accupressure $465.50; 4) Diagnostic imaging - 59.85; 5) Anchorage Diagnostic $230.00; 6) Lake Otis Pharmacy - $46.70; and 7) Dr. Garner and Anchorage Fracture and Orthopedic Clinic-$2,370.50.

In support of his claim for medical expenses, the employee relied on the testimony of Dr. Garner. With respect to physical therapy, the doctor stated that while he felt it was reasonable because it made Yan less symptomatic, he did not think it necessary in terms of mandated medical treatment. Dr. Horning, on the other hand, testified that physical therapy for chronic pain is hard to justify, and if justifiable at all, he would limit it to approximately four months. Since Dr. Horning is a specialist in rehabilitation medicine and has kept up-to-date in the field by attending post graduate programs, we find his opinions more persuasive than Dr. Garner's. Accordingly, we conclude that the employee has carried his burden of proving, by a preponderance of the evidence, that physical therapy was reasonable and necessary for only four months. The parties are directed to determine the cost of four months of this treatment and the employer shall pay that amount. We retain jurisdiction over this issue if the parties are not able to resolve it.

Another medical expense that was incurred was $590.45 for TENS unit. Since Dr. Garner believed that the unit reduced Yan's pain and because Dr. Horning thought it was worth a try, we find that the employee has met his burden of proof in this regard and the employer should pay that expense.

Since no evidence has been introduced to show that the other medical expenses were incurred for the reasonable and necessary treatment of Yan, they must be denied.

Next, the employee requests $11,300.00 in actual attorney's fees and $1,518.65 in legal costs. Since these fees and costs were incurred with regard to the entire claim and we only awarded certain medical benefits, we cannot determine this issue at this time. We direct the employee to ascertain which fees and Cost are attributable to the benefits award and submit them to the employer. We retain jurisdiction over the matter if the parties cannot resolve it.

1. The RA's D&O issued on March 28, 1988 is affirmed and employee's claim for continuing rehabilitation services and TTD benefits are denied and dismissed.

2. The employee's claim for PPD benefits is denied and dismissed.

3. The employer shall pay the employee medical expenses as directed in this decision.

4. The employee's claim for attorney's fees and legal costs is denied and dismissed at this time.

Dated at Anchorage, Alaska, this 4th day of April, 1990.

ALASKA WORKERS' COMPENSATION BOARD

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

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

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

REM:fm

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 Kam Pui Yan, employee/applicant; v. How How Restaurant, employer; and CIGNA, INA, ALPAC Companies, insurer/defendants; Case No. 8502135; dated and filed in the office of the Alaska Workers' Compensation Board in Anchorage, Alaska, this 4th day of April, 1990.

Clerk

SNO