MANUEL MEZA,			)
				)
Employee,			)	DECISION AND ORDER
Applicant,			)	AWCB Case No. 8820067
				)	AWCB Decision No. 90-0063
v.				)
				)	Filed with AWCB Anchorage
ALYESKA SEAFOODS, INC.,		)	April 5, 1990
				)
Employer,			)
				)
and				)
				)
NATIONAL UNION FIRE INSURANCE,	)
				)
Insurer,			)
Defendants.			)
				)

On February 9, 1990, we heard the employer's appeal from the Reemployment Benefits Administrator's (RBA) decision and order (D&O) issued on March 28, 1989 and the employee's corresponding claim for reemployment benefits, temporary total disability (TTD) benefits, interest, and attorney's fees and costs. The employee was present and represented by attorney Michael J. Jensen; the employer was represented by attorney Shelby L. Nuenke-Davison. The record closed at the conclusion of the hearing.

We initially heard the employer's appeal from the RBA's March 28, 1989 D&O on April 21, 1989. That D&O had held that the employee was eligible for reemployment benefits under AS 23.30.041(e). On May 19, 1989, we issued a D&O which affirmed the RBA's D&O.

On May 25, 1989, the employer filed a petition for reconsideration and an interlocutory order which would deny payment of compensation and rehabilitation benefits. Under AS 44.62.540 and employer's petition, we issued an interlocutory order on June 2, 1989, which suspended our May 19, 1989 D&O until we had the opportunity to reconsider it. In a D&O issued on August 14, 1989, we modified our May 19, 1989 D&O and suspended the RBA's D&O on eligibility until 1) we had determined whether the employee suffered from a compensable injury, and 2) a second independent medical evaluation had been conducted and its results submitted to US.

In a letter to us from the employer's attorney dated August 15, 1989, we were advised that in our D&O of August 14, 1989, we had failed to address issues regarding physician referrals and independent medical evaluations. Since the issues raised by the employer's attorney had been previously briefed in May 1989 and neither party had requested a hearing on the matter, we determined those issues in a D&O issued on September 22, 1989. In that D&O we ordered 1) the employee to submit to a medical examination by Dr. Kralick in the presence of a Spanish speaking interpreter; 2) the employee was entitled to a referral to Drs. Vasileff and Garner; 3) the medical opinions of Drs. Vasileff and Garner were not be excluded from consideration by Dr. Kralick, the physician we had selected to perform a medical evaluation for us; and 4) the question of who is to pay reasonable medical expenses with regard to Drs. Vasileff and Garner was to be decided when we rendered a decision after a hearing had been held on the merits of the case.

As noted previously, we heard the merits of the case on February 9, 1990.

Manuel Meza was employed as a fish processor by Alyeska Seafoods when he allegedly injured his back on September 23, 1988. (Notice Of Occupational injury dated 9-28-88).

After initially being treated at a local clinic in Unalaska, the employee was flown to Anchorage and seen at Humana Hospital's Emergency Room, where the diagnosis was a low back strain. (Humana Hospital PR Chart notes dated 9-28-88).

On October 5, 1988, Meza saw John Schwartz, M.D. Upon examination, Dr. Schwartz found that range of motion was limited in forward and backward bending, and straight leg raising was limited to 30 degrees bilaterally. The doctor diagnosed low back strain with muscle spasm. (Dr. Schwartz chart notes dated 10-5-88). When Meza next saw Dr. Schwartz, the doctor noted that employee's straight leg raising had improved to 45 degrees bilaterally, and lateral and backward bending were normal. Dr. Schwartz diagnosed improving low back strain and referred his patient to the Alaska Treatment Center to undergo a back program. (Dr. Schwartz chart notes dated 10-11-88).

At the petitioners' request, the employee was examined by Edward Voke, M.D., an orthopedic surgeon on October 29, 1988. Dr. Voke noted that Meza's "behavior was not in keeping with acute distress, particularly if he were presenting with acute muscle spasm." Dr. Voke actually called Meza's actions "bizarre." The doctor was of the opinion that a CT scan and a referral to Michael James, M.D., a specialist in rehabilitation medicine, for an examination and B-200 evaluation would be beneficial in diagnosing the employee's condition. Dr. Voke stated that if these tests were negative, Meza should be released to work at his former occupation because there were no objective findings as related to the subjective complaints. (Dr. Voke report dated 10-29-88).

When the employee returned to see Dr. Schwartz on October 31, 1988, he stated that his back pain was worse as a result of physical therapy. (Dr. Schwartz chart note date 10-31-88).

Meza underwent a CT scan on November 3, %1988, and, while no fractures were seen, the radiologist noted that a disc bulge was demonstrated at the L5-S1 level which was asymmetric to the left with some nerve root distortion (Denise C. Farleigh, M.D., and radiologist report dated 11-3-88).

Because of the CT scan findings, Dr. Schwartz referred Meza to Louis L. Kralick, M.D., a neurosurgeon, for an opinion regarding possible surgery. (Dr. Schwartz chart notes dated 12-1-88).

On December 8, 1988, Meza saw Dr. Kralick for a neurologic examination. The doctor concluded:

(Dr. Kralick report dated 12-8-88).

After examining the employee on January 5, 1989, Dr. James had the following impression of his condition:

Dr. James conducted a B-200 (a computerized assessment of the lumbosacral range of motion and strength in flexion/extension, lateral bending and rotation test) on the employee on January 9, 1989, and concluded that he demonstrated gross symptom magnification. (Dr. James report dated 1-9-89).

When the B-200 test was again done on January 12, 1989, it, according to Dr. James, showed gross symptom magnification, (Dr. James report 1-12-89). A week of physical therapy was prescribed. (Id.).

When Dr. James saw Meza on January 24, 1989, he discharged him from physical therapy because there had been no clear improvement and an inconsistent response in therapy. The doctor told the employee that notwithstanding the previous CT scan results, he could find nothing objectively to suggest that he had any significant pathology. Accordingly, Dr. James released him to return to work. (Dr. James clinical notes dated 1-24-89).

On January 30, 1989, Meza was again seen by Dr. Schwartz. The doctor noted that despite the employee's complaints of pain, his examination showed no major nerve related problems. While the doctor released the employee for work, he reported that Meza needed rehabilitation. (Dr. Schwartz report dated 1-30-89).

In a note written by Dr. Schwartz on February 9, 1989, he stated: "Manuel can not lift heavy objects because of back pain. He is still being evaluated for the source of pain."

In a medical report dated February 18, 1989, Dr. Schwartz noted; "Mr. Meza could perform sedentary work. He will need the flexibility to change positions frequently because of low back pain."

On February 21, 1989, Dr. Schwartz saw the employee again and reported that he was released for modified work. The doctor's restrictions were " no lifting or bending. Must be able to change positions frequently." (Dr. Schwartz report dated 2-21-89).

After reviewing the results of an MRI taken on February 22 , 1989, Dr. Schwartz diagnosed Meza as suffering from a herniation of a disc at the L5-S1 level. (George H. Ladyman, M.D., and radiologist report dated 2-22-89; Dr. Schwartz report dated 2-27-89). In his report of February 27, 1989, the doctor also noted that while the employee was released for modified work, he was to do no lifting or bending and he was to have freedom to stand, sit, and lie down in order to relieve his pain.

On March 14, 1989, Dr. Schwartz gave the employee an epidural steroid injection. (Dr. Schwartz report dated 3-14-89).

At the employer's request, Dr. James re-examined and re-evaluated the employee on April 11, 1989, and this Lime a Spanish interpreter was present. In his report, the doctor stated:

At Dr. Schwartz' request, the Meza was seen by Thomas P. Vasileff, M.D., an orthopedic surgeon. In his report dated April 12, 1989, Dr. Vasileff stated:

On April 14, 1989, Harold F. Cable, M.D. radiologist, performed a discogram and reported that the test was positive at the L5-S1 level, and it reproduced pain symptoms in Meza's back and both legs. Based on this results of this test and the fact that Meza had failed conservative treatment, Dr. Vasileff stated in a report dated April 21, 1989, that a suction discectomy should be tried. Dr. Vasileff referred the employee to R.W. Garner M.D., an orthopedic surgeon in his clinic, for a second opinion.

Meza was seen by Dr. Garner on April 25, 1989. Based on Dr. Vasileff's chart notes, the CT scan and discogram results and an examination which consisted predominantly of straight leg raising, the doctor planned to perform a suction discectomy in the near future.

At the request of the employer, and in the presence of a Spanish interpreter, Meza was examined again by Dr. Kralick on October 11, 1989. After the examination, the doctor stated:

After reviewing the medical records submitted to him by the parties, Douglas G. Smith, M.D., an orthopedic surgeon selected by us pursuant to AS 23.30.095(k) to perform an independent medical evaluation, issued his report on November 6, 1989. He concluded this report by making the following observations:

At his deposition taken on January 22, 1990, Dr. Voke was asked a number of questions on direct examination by the employer's attorney regarding the examination he performed on Meza on October 29, 1989. When asked to explain what he meant when he said the employee demonstrated "bizarre behavior," Dr. Voke testified:

When asked if he considered the examination to he normal, the doctor replied:

When referred to Dr. Kralick's report of December 8, 1988, Dr. Voke noted that he found no evidence of paraspinal spasm, noted a bizarre and inconsistent responses to the examination and normal gait. We stated that these findings were consistent with his own physical examination. When asked to comment on the CT scan findings which Dr. Kralick had before him and Dr. Voke did not, Dr. Voke stated:

After reviewing Dr. James' report of April 11, 1989, Dr. Voke responded to the following question:

Dr. Voke said that it was his medical opinion that Meza could return to work as a fish processor with no restrictions. When asked about discometrics test, Dr. Voke stated that "it isn't a wonderful test" and "it's not the panacea of the testing modalities that we use as far as diagnosing and treating disc problems" and whether it was positive or negative, it would not change his opinion of Meza's condition.

When his was deposed on January 25, 1990, Dr. Kralick acknowledged that when he examined Meza on December 8, 1988, he found no objective evidence of radiclar deficit and felt that if Dr. James' B-200 evaluation was found to be non-contributory, it was his position that the employee could return to work. He testified that his physical findings on October 11, 1989 were consistent with his physical finding on December 8, 1988. When asked why he stated in his report of October 11, 1989 that he doubted that Meza would be able to return to his position as a fish processor when Dr. James' B-200 results were shown to be non-contributory, the doctor explained:

He testified that he now agreed with Drs. James and Voke that Meza can return to work as a fish processor with no restrictions.

The doctor also stated that discogram report did not affect his opinion that there was no objective evidence of deficit from a neurologic standpoint. He felt that discograms were not of "much value at all," and explained:

When asked about the weight he gives to a B-200 examination, Dr. Kralick stated; "In the appropriate situation, I think it gives very useful information."

At his deposition which was taken on February 8, 1990, Dr. James reviewed his examination reports of January 5, January 24, March 3, and April 11, 1989 and the four B-200 results and reaffirmed his position that Meza's complaints of low back pain were not supported by objective evidence of findings, clinically or electrodiagnostically. Accordingly, he stated that the employee was, in his opinion, medically stationary, not disabled and showed signs, consistently, of symptom magnification. In fact, the doctor described the employee as a malingerer. The doctor reviewed the reports of Drs. Voke and Kralick and felt that their findings upon physical examination were consistent with his. In this regard, he said that their use of the word "bizarre" with his "symptom magnification." When asked about the results of the MRI and CT scan, Dr. James stated that they were incidental findings. Regarding the discogram results and the reports of Drs. Vasileff and Garner, Dr. James testified that they did not change his opinion. Regarding test results, the doctor testified:

At the hearing, Meza, through an interpreter, testified that because of back pain, his day is limited basically to walking to the post office, eating, taking medication and sleeping. He stated that feels bad all the time and is not faking. Meza testified that he could not do the B-200 test because it caused too much pain. On cross-examination, he testified that he could not do such physical activities as skiing and dancing. The employee gave the impression that he could speak and understand very little English.

Also testifying at the hearing was Gilbert Petty, Special Agent with the U.S. immigration and Naturalization Service. He stated that in his official capacity he had spent an hour to an hour and a half talking with the employee. Petty said Meza "pretty fluent" English and he had no difficulty understanding the witness. He said that was in definite contrast to the way Meza spoke and acted at the hearing. Petty also testified that during the time he spent with Meza, he observed Meza walking and bending without showing any signs of pain or discomfort,

Paul Munoz, a legal investigator, testified at the hearing that he had observed the employee dancing and walking on night of January 3, 1990, and he did these activities without showing signs of pain. Munoz also submitted pictures and video tapes which he said showed Meza dancing and walking. We reviewed these pictures and video tapes and found them to be of little or no probative-value.

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 Workmen's 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 or work. Id. at 254 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 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." Id. "Two factors determine whether expert medical evidence is necessary in a given case: the probative value of the available lay evidence and the complexity of medical facts involved." Veco Inc. v. Wolfer, 693 P.2d 865, 871 (Alaska 1985). Once the employee makes a prima facie case of work-relatedness 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 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).

We find that the employee has established the preliminary link between his 1988 injury and his alleged disability. This finding is based on several factors. First, the CT scan, MRI scan and discogram all indicated that Meza has suffered a herniated disc at the L5-S1 level. Second, based on these test results, Dr. Vasileff recommended a suction discectomy and referred the employee to Dr. Garner. Third, based on Dr. Vasileff's findings, the CT scan, the discogram. and positive straight leg raising, Dr. Garner also recommended the Meza undergo a suction discectomy. Finally, after reviewing the employee's medical records, Dr. Smith believed that if he still wanted surgery and if Dr. Garner recommended surgery after reviewing the previous medical findings, then surgery should be an option.

Having determined that the preliminary link has been established and the presumption of compensability having attached to Meza's claim, the employer must come forward with substantial evidence to overcome the presumption.

Having reviewed further medical evidence, we find that the employer has come forward with the necessary substantial evidence. This finding is supported by numerous factors. First, even though the various tests showed positive signs that Meza had a herniated disc, there is more than ample evidence that that condition was not related to any pain that has allegedly disabled him. Dr. Voke termed the test result "incidental findings." He also testified that he did not think that the discometrics was a "wonderful test," and whether it was positive or negative, it would not make any difference to him. Dr. Kralick felt discograms "Were not of much value at all" and a "very crude test." Dr. Kralick explained that if an needle is inserted into the disc of a person and fluid introduced, the person is going to experience pain. Drs. Voke and James testified, in essence, that it is the doctor's finding upon physical examination and observation that are the essential factors to consider in assessing a patient's condition and not tests. Dr. James, like Dr. Voke, considered the test result to represent only "incidental finds."

Next, Drs. Voke and Kralick both agreed that every time they examined Meza, they were surprised, to say the least, at not only the fluidness and mobility of his back and hips, but his "bizarre" behavior. Dr. Voke reported that the employee's actions were something he had never seen before. The doctor explained that his patients with acute ruptures are not flexible and Meza was just the opposite. Dr. Voke testified that the inconsistent responses recorded by Dr. Kralick were the same as he had experienced. Drs. Voke and Kralick both testified that Meza's responses to their examinations were totally inconsistent with the symptoms he complained of Dr. James reported symptom magnification and he explained that this finding was equivalent to Drs. Voke's and Kralick's finding that Meza's actions were bizarre. Meza's inconsistent actions as noted by Dr. James after administrating four B-200 tests made the doctor feel that he was a malingerer; a word the doctor stated he does not use very often.

Third, Drs. Voke, Kralick and James, after extensive and repeated examinations, found absolutely no objective evidence of any radicular deficit or anything else that would account for the employee's symptoms. Next, Drs. Voke, Kralick and James all felt, in the final analysis, that Meza was not disabled and not only could he return to work, but to work as a fish processor, the job he had when injured. It should be noted in this regard, that while Dr. Schwartz did not release the employee to fish processing work, he nevertheless, consistently found him capable of doing some type of work. Finally, while this is a case involving complex medical evidence and we have based our findings on that evidence, it should also be pointed out that Petty and Munoz have observed Meza walking, bending and doing other physical activities without showing any signs of pain or discomfort.

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

After reviewing the evidence that was introduced to establish the presumption and the evidence we found rebutted that presumption, we find that the employee has not, by a preponderance of the evidence, proven that the work-related injury in 1988 has caused the employee to be disabled as claimed. Accordingly, his claim for TTD benefits must be denied.

Since we have concluded that Meza has not suffered a compensable injury, his other claims for reemployment benefits, interest and attorney's fees and legal costs must also be denied.

1 The employee's claim for TTD benefits is denied and dismissed.

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

3) The employee's claim for interest is denied and dismissed.

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

Dated at Anchorage, Alaska, this 5th day of April, 1990.

ALASKA WORKERS' COMPENSATION BOARD

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

/s/ RL Whitbeck Sr.
Richard L. Whitbeck, Member

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

REM/jw

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

APPEAL PROCEDURES

A compensation order may he 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 be comes 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 Manuel Meza, employee/applicant; v. Alyeska Seafoods, Inc. , employer; and National Union Fire insurance, insurer/defendants; Case No. 8820067; dated and filed in the office of the Alaska Workers' Compensation Board in Anchorage, Alaska, this 5th day of April, 1990.

Jamie Whitt, Clerk

SNO