KYLE V. REEVES,			)
				)
Employee,			)	DECISION AND ORDER
Applicant,			)	AWCB Case No. 8821436
				)	AWCB Decision No. 90-0065
v.				)
				)	Filed with AWCB Anchorage
PROVIDENCE HOSPITAL,		)	April 6, 1990
				)
Employer,			)
				)
and				)
				)
AETNA CASUALTY & SURETY,	)
				)
Insurer,			)
Defendants.			)
				)

This claim was heard at Anchorage, Alaska, on March 21, 1990, 1990. Employee was present and represented by attorney Charles Coe. Defendants were represented by attorney James Pentlarge. We continued the hearing so Employee's attorney could file an affidavit itemizing his services and for Defendants' response. The hearing was completed on March 27, 1990, when Defendants response was received, and the record closed at the end of the hearing.

1. Did Employee suffer an aggravation of a pre-existing condition during the course and scope of his employment?

2. If so, what is the duration of his disability?

At the start of the hearing, Employee requested that we continue the hearing until April 3, 1990, in order to allow Employee an opportunity to submit additional medical evidence. We denied that request. Employee filed an affidavit October 19, 1989, requesting a hearing and stating that he was fully prepared to have us hear the issue of the compensability of his claim. Employee even filed a request that we expedite the hearing. Because Defendants opposed Employee's request that we schedule a hearing, a pre-hearing was held November 21, 1989. Because Defendants wanted an opportunity to complete discovery, no hearing date was selected at the pre-hearing. Instead, another pre-hearing was held December 21, 1989. At that time the parties agreed to a hearing date of March 21, 1990. Employee twice represented that he was ready for hearing. The medical records for which he sought the continuance were for treatment in 1988. Because Employee had been given ample time to obtain the records and had twice represented that all the necessary evidence had been submitted, we concluded that Employee's request should be denied. We proceeded with the hearing.

In February 1987 Employee, who is a registered nurse, fractured his fifth metatarsal bone in his right foot. (Holderness February 6, 1987, report). His foot was casted, and he continued to receive medical care. Employee was in an auto accident in July 1987. Immediately after that accident he went to the emergency room with complaints of a concussion, injured shoulder, bruises, and general pain. About a month after the car accident, his foot began hurting. Employee filed a lawsuit against the other driver, alleging the accident had aggravated his foot condition. He eventually received a $50,000.00 settlement. (Reeves Dep. at 14 - 18).

In December 1987, Ross Brudenell, M.D., performed a surgical fusion of the fourth and fifth metatarsal. (Brudenell December 28, 1987 chart note), By April 14, 1988, Dr. Brudenell determined the fusion was not successful. (Brudenell April 14, 1988 chart note). By May 12, 1988, Employee had some improvement and was able to return to work. (Brudenell May 12, 1988).

Employee testified he has worked at Providence Hospital since 1979. After the foot surgery, he was able to work but he could only work about 24 hours a week because of his limitations. Eventually he could have worked more, but the scheduling did not permit him to work more hours per week. Although he was able to work, he continued to have substantial pain, especially while running. According to Dr. Brudenell, Employee's July 1988 x-rays indicated the fusion was unsuccessful. At that time Dr. Brudenell discussed Employee's treatment alternatives. He strongly recommended the use of a bone growth stimulator for the next three to four months. (Brudenell July 21, 1988 chart note).

Employee testified Dr. Brudenell ordered the bone growth stimulator for him, but Employee was unable to pay for it. Therefore, he did not get to use it. Employee saw Dr. Brudenell again on September 29, 1988. According to the doctor's chart note, at that time Dr. Brudenell indicated that Dr. Mills had recommended against using the bone growth stimulator because it was not likely to provide a solid union in Employee's situation. In his September 29, 1988, chart note Dr. Brudenell states:

Employee testified that before the October 3, 1988, incident Dr. Brudenell had given him the choice of doing nothing about his foot, using the bone growth stimulator, or having surgery. Employee alleges he had chosen to use the bone growth stimulator. He contends that an on-the-job incident on October 3, 1988, aggravated his pre-existing condition, and after that aggravation he had no choice but to have a second fusion surgery. He also alleges the injury permanently precludes him from returning to nursing work, and he needs retraining assistance.

Employee testified at the hearing that on Friday, October 3, 1988, he ran down a hallway in the hospital with a security guard, Jim Freeman, to respond to an emergency. While turning the corner on the run, his foot "popped" or snapped, and he stumbled. He testified he slowed down after that and walked the rest of the way to the emergency. He claims he injured his ankle and aggravated his foot condition.

John Lutsch, a safety and security officer for Employer, testified on Defendants' behalf and presented a copy of the report he completed immediately after the emergency to which Employee responded. The report indicates no one was injured in responding to the emergency. Neither party presented Jim Freeman as a witness to testify about Employee's alleged injury when responding to the emergency.

Employee testified both at the hearing and in his deposition that after the emergency, he returned to his regular duties but tried to stay off his feet because of the pain and swelling. At the end of the shift, he went home and applied ice to the injury. In his deposition, Employee testified at after the incident he "hurt real bad." (Reeves Dep. at 36).

Employee testified both at the hearing and in his deposition that Employer's procedures for on-the-job injuries are to report to the emergency room for an examination and to file an incident report immediately. In the past when Employee suffered a back strain at work, he reported immediately to the emergency room. (Id. at 12).

Defendants presented the testimony of Veronica Allmaras. She testified that Employee did not fill out the incident report or go to the emergency room until two days after the incident. Employee testified both at the hearing and in his deposition that the pain was so bad he did not go to the emergency room to be examined, but went home instead. (Reeves Dep. at 36).

The day after the incident Employee had National Guard duty. He put on an Ace wrap, stayed off his feet while at the National Guard, and did ice water treatments.

The following Monday, October 3, 1988, Employee saw Timothy Samuelson, M.D., an emergency room doctor. Dr. Samuelson's notes indicate Employee told him about responding to the emergency, and that Employee "felt there may have been a 'snap' when he ran." Dr. Samuelson said "there is no ankle swelling. There is also some tenderness over the calcaneus as well." Dr. Samuelson's assessment was that Employee had a strain to the right foot. He took x-rays and told him not to work. (Emergency Room Note).

Employee Saw Dr. Brudenell on October 6, 1988. Dr. Brudenell stated that he thought Employee had suffered an inversion sprain, without any significant increase in instability. Dr. Brudenell put him a short leg walking case for his mid-foot sprain which he believed "has also exacerbated his pseudarthrosis pain." Dr. Brudenell again mentioned the referral to Dr. Hanson. (Brudenell October 6, 1988, chart note).

Employee testified that after the September 30, 1988, incident Dr. Brudenell told him he had to have surgery. When Employee returned to Dr. Brudenell on October 20, 1988, the doctor noted that "he is tender most only at the areas of his pseudarthroses . . . (t]he remained of his tenderness is now absent." Dr. Brudenell again suggested that Employee been see a specialist not available in Alaska. (Brudenell October 20, 1988, chart note). In an October 25, 1988, chart note Dr. Brudenell indicated that Employee was "basically stable and stationary and he is at his pre-injury situation with respect to his on-the-job injury."

Dr. Brudenell, a board-certified orthopedic surgeon, submitted an affidavit stating that the inversion sprain did not cause any significant increase to Employee's tarsal metatarsal articulation instability. In Dr. Brudenell's opinion, Employee's inversion sprain was, at most, a temporary aggravation of his pre-existing condition and caused at most 45 days of disability. He believes the inversion sprain was actually resolved by October 25, 1988. (Brudenell February 5, 1990 affidavit).

After Dr. Brudenell recommended surgery by a specialist, Employee consulted Scott Holderness, D.P.M. Dr. Holderness referred him to Rex Smith, M.D., in Eugene, Oregon, who performed the second fusion in November 1988.

Employee testified he told Dr. Smith about the incident at work. Dr. Smith testified he took Employee's history when he first saw him on November 23, 1988. Dr. Smith testified he would normally write down the relevant points of the history. He has no note of Employee injuring his foot in October 1988. (Smith Dep. at 10 - 11). Dr. Smith testified Employee may have told him about it, but he failed to write it down. (Id. at 20).

Dr. Smith testified that an inversion sprain could have a significant effect on a nonunion fracture site if it were severe enough. (Id. at 28). Dr. Smith testified it is not possible to look at the time of surgery and determine whether or not the alleged injury actually occurred a month or two before. (Id. at 29). He would have to have examined Employee at the time of the injury to determine the severity of the sprain. (Id. at 46). Because he did not do an examination shortly after the injury, Dr. Smith has no reason to disagree with Dr. Brudenell that the incident and sprain caused only a temporary disability. (Id. at 18). He does not have an opinion to a reasonable degree of medical certainty whether Employee's work or the alleged incident on September 30, 1988, aggravated his condition and necessitated the surgery he performed. (Id. at 47).

Since Employee's surgery, no doctor has permitted him to return to work. In fact, Employee testified Dr. Smith recommended he change jobs to avoid stressing the foot. Employee submitted a letter from Dr. Holderness in which he also recommends retraining. Employee is now working on getting his master's degree in sports medicine to become an athletic trainer. He is currently enrolled as a full-time student, but expects to get his certificate in July.

Employee seeks temporary total disability (TTD) benefits, reemployment benefits, payment of his medical expenses, actual attorney's fees and legal costs.

Defendants do not dispute that an incident occurred. Instead, relying upon Dr. Brudenell's testimony, they contend the incident was not a substantial factor in Employee's need for surgery, the resulting disability, or the need to change jobs. Defendants also request that if an attorney's fee is due and if the fee is based on the statutory minimum in AS 23.30.145(a), we should consider the amount of the benefits received by Employee. In addition, Defendants request that if we award an attorney's fee based on the actual services provided, that we deduct from the billing the time spent in administrative and clerical matters. They also question some of the legal costs for which Employee seeks reimbursement.

In Burgess Co. v. Smallwood, 623 P.2d 313 (Alaska 1981), the Alaska Supreme Court held that the employee must establish a preliminary link between the injury and the employment for the presumption to attach. 623 P.2d at 316. "[I]n claims 'based on highly technical medical considerations', medical evidence is often necessary in order to make that connection." Id. at 316 (quoting Commercial Union Cos. v. Smallwood, 550 P.2d 1261, 1267 (Alaska 1976). "Two factors determine whether expert medical evidence is necessary in a given case: the probative value of the available lay evidence and the complexity of medical facts involved." Veco, Inc. v. Wolfer, 693 P.2d 865, 871 (Alaska 1985).

Once the employee makes a prima facie case of work-relatedness the presumption of compensability attaches and shifts the burden of production to the employer. Id. at 870. To make a prima facie case the employee must show that (1) he has an injury and (2) an employment event or exposure could have caused it.

To overcome the presumption of compensability, the employer must present substantial evidence the injury was not work-related. Id.; Miller v. ITT Arctic Services, 577 P.2d 1044, 1046 (Alaska 1978). The Alaska Supreme Court "has consistently defined substantial evidence, as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion'." Miller, 577 P.2d at 1046 (quoting Thornton, 411 P.2d at 210). In Fireman's Fund American Insurance Cos. v. Gomes, 544 P.2d 1013, 1016 (Alaska 1976), the Court explained two possible ways to overcome the presumption: (1) produce affirmative evidence the injury was not work-related or (2) eliminate all reasonable possibilities the injury was work-related.

The same standards used to determine whether medical evidence is necessary to establish the preliminary link apply to determining whether medical evidence is necessary to overcome the presumption. Veco, 693 P.2d at 871. "Since the presumption shifts only the burden of production and not the burden of persuasion, the evidence tending to rebut the presumption should be examined by itself." Id. at 869.

If the employer produces substantial evidence that the injury was not work-related, the presumption drops out, and the employee must prove all elements of his case by a preponderance of the evidence. Id. at 870. "Where one has the burden of proving asserted facts by a preponderance of the evidence, he must induce a belief in the minds of the [triers of fact] that the asserted facts are probably true." Saxton v. Harris, 395 P.2d 71, 72 (Alaska 1964).

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

Although we question whether there was a September 30, 1988, incident which caused a sprain, Defendants have not disputed this. Therefore, we find an incident occurred on September 30, 1988, when Employee responded to an emergency. While Dr. Samuelson believed Employee suffered a strain, Dr. Brudenell determined Employee had a sprain. Dr. Brudenell also testified that the sprain temporarily aggravated Employee's pre-existing condition. We find this evidence is adequate to raise the presumption that Employee suffered an injury in the course and scope of his employment.

However, we find Defendants presented substantial evidence to overcome the presumption. Dr. Brudenell testified that the incident caused a sprain which resolved by October 25, 1988, and Employee returned to pre-injury status.

Because Defendants overcame the presumption, we must determine whether Employee has proven his claim by a preponderance of the evidence. We find Dr. Brudenell's testimony does not support Employee's claim that the incident necessitated the November 1988 surgery and his subsequent disability.

We find Dr. Smith's testimony that a sprain could have been severe enough to aggravate a condition like Employee's and necessitate surgery is a generic statement; it is not his opinion based on the particular facts of this case. Dr. Smith testified he could not render an opinion to a reasonable degree of medical certainty regarding the relationship between Employee's incident, the sprain, and the need for surgery because he did not examine Employee until long after the incident. At the time of his examination and surgery almost two months after the incident, he cannot look at Employee's condition and make a determination about the severity of the sprain. Accordingly, Dr. Smith deferred to Dr. Brudenell's opinion.

Because of the highly complicated nature of Employee's injury and pre-existing medical condition, we find medical evidence is necessary to prove Employee's claim. We find Employee has not presented the necessary medical evidence to prove his claim that the incident on September 30, 1988, aggravated his pre-existing condition and necessitated surgery and caused his disability.

Assuming Employee does not need to present medical evidence to prove his claim and lay testimony alone could be sufficient, we find that we cannot rely upon Employee's testimony to prove his claim. We find there are to many inconsistencies in Employee's testimony to make him a reliable witness whose testimony would support a finding that the injury produced the need for surgery.

Employee is a registered nurse. In his job, he must interpret doctors' order and follow procedures carefully. Employee previously followed Employer's procedures in reporting an injury. However, in this case he did not. He testified in his deposition and at the hearing that he knew he'd hurt his foot while running, and he hurt real bad. However, he did not follow Employer's procedures at the time of the incident to report an injury. Therefore, we question the accuracy of his testimony about the seriousness of the incident at the time it occurred. When Employee saw the emergency room doctor just over two days later, he did not find any swelling and did even think Employee had a sprain.

Employee testified at the hearing that before the incident he had three choices of treatment, and he had decided to use the bone growth stimulator once he could pay for it. However, Dr. Brudenell's report of September 29, 1988, makes it clear that the bone growth stimulator was not an option for Employee. Given Employee's special training and experience in medical matters, we find it unlikely that he misunderstood Dr. Brudenell's decision regarding the bone stimulator and the need for surgery. Dr. Brudenell's September 29, 1988, report makes it clear that Employee must see a specialist for another surgery in order to assure a solid union. Either Employee is a poor historian, or a poor listener and communicator who cannot accurately explain the facts.

We conclude Employee's testimony about the severity of the incident and the sprain is not reliable, and do not give it any weight. Accordingly, we conclude Employee failed to prove his claim by a preponderance of the evidence.

Of course, because of Dr. Brudenell's testimony about the temporary aggravation, we find Employee is entitled to temporary total disability (TTD) benefits and medical care for a brief period of time. Based on Dr. Brudenell's October 25, 1988, report, we find Employee's period of temporary disability had resolved at that time. We conclude Defendants must pay Employee TTD benefits between September 30, 1988, and October 25, 1988.

Clearly, some of Employee's medical care between the date of the injury and October 25, 1988, was for the aggravation of his pro-existing condition. Because we find it is not possible to apportion the medical care during this period, we award Employee payment of all his medical care for his sprain and foot treatment during this time.

Because we have found Employee's injury only temporarily aggravated his pre-existing condition, we deny his claim for medical care after October 25, 1988, as well as his claim for TTD benefits after that date and reemployment benefits under AS 23.30.041.

While Defendants were willing to concede at hearing that Employee experienced a period of temporary disability, they did not pay him any TTD benefits. Accordingly, we find they controverted Employee's claim, and an attorney's fee is due under AS 23.30.145(a). Employee seeks a fee in excess of the statutory minimum amount. Under AS 23.30.145(a) we can award a fee in excess of the statutory minimum based on the nature, length, complexity of the case, and the benefits resulting from the services.

We find the nature of this case was an aggravation of a pre-existing condition. We find this was a complicated and unusual medical case, which makes the nature of the case unusual. We find Employee was represented by his attorney for over one year, a relatively long period of time in workers' compensation matters. This justifies a fee in excess of the minimum.

We find Employee's attorney attended a deposition of a medical specialist. The deposition was scheduled by Defendants. We find examining a medical doctor is a more complex task, and justifies a fee in excess of the minimum. The remainder of the services provided were more routine in nature.

We find the benefits resulting to the employee are a brief period of TTD benefits and medical benefits. We find Employee did not prevail on all issues. The benefits obtained would not alone provide justification for a fee in excess of the minimum.

We find Employee's attorney has requested a fee at $125.00 for such things as preparing the medical summaries and requesting copies of medial records. We find these services do not justify the hourly rate requested; they are very routine tasks which are usually performed by a paralegal and are almost clerical in nature. We find a fee of $60.00 appropriate. We also find Employee did not prevail on the motion for an expedited hearing or his rehabilitation request. Therefore, we deduct the time spent on these matters. Also, Employee did not prevail on all the issues, and in fact prevailed on a small portion of his claim. Because his attorney's preparation time for hearing and attending the depositions are so intertwined, we find it is reasonable to reduce the fee requested by one-third to account for the services relating to the unsuccessful issues.

We find a fee in excess of the statutory minimum is appropriate, but we make the deductions discussed above. Accordingly, we award an attorney's fee of $1,192.31.

We agree with Defendants that we cannot adequately determine whether the postage cost of $14.65 and photocopying of $90.50 is reasonable and appropriate to award. Defendants did not object to the other legal costs requested. Therefore, we award costs of $168.75 at this time. We retain jurisdiction to award additional costs if Employee submits an affidavit explaining how the postage cost and photocopying were incurred, and the cost per page for photocopying.

1. Defendants shall pay Employee temporary total disability benefits for the period of September 30, 1988, through October 25, 1988.

2. Employee's claims for temporary total disability after October 25, 1988, and vocational re-employment benefits is denied and dismissed.

3. Defendants shall pay Employee's medical expenses between September 30, 1988, and October 25, 1988, relating to treatment of his foot and ankle.

4. Defendants shall pay Employee's attorney fees of $1,192.31.

5. Defendants shall pay Employee's legal costs of $168.75. We retain jurisdiction to award additional legal costs in accordance with this decision.

DATED at Anchorage, Alaska this 6th day of April, 1990.

ALASKA WORKERS' COMPENSATION BOARD

/s/ Rebecca Ostrom
Rebecca Ostrom, Designated Chairman

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

DISSENTING OPINION OF MEMBER SMITH:

I disagree with the majority's opinion that Employee is entitled to benefits. First, Employee has a long history of foot problems and needed surgery before the alleged incident. I do not find Employee's testimony about the alleged incident to be credible. I do not believe the alleged incident, if it actually occurred, aggravated Employee's pre-existing condition.

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

RJO:rjo

If compensation is payable under the terms of this decision, it is due on the date of issue and penalty of 25 percent will accrue if not paid within 14 days of the due date unless an interlocutory injunction staying payment is obtained in Superior Court.

APPEAL PROCEDURES

A compensation order may be appealed through proceedings in Superior Court brought by a part in interest against the Board and all other parties to the proceedings before the Board, as provided in the Rules of Appellate Procedure of the State of Alaska.

A compensation order becomes effective when filed in the office of the Board, and unless proceedings to appeal it are instituted, it becomes final on the 31st day after it is filed.

CERTIFICATION

I hereby certify that the foregoing is a full, true and correct copy of the Decision and Order in the matter of Kyle V. Reeves, employee/applicant; v. Providence Hospital, employer; and Aetna Casualty & Surety, insurer/defendants; Case No. 8821436; dated and filed in the office of the Alaska Workers' Compensation Board in Anchorage, Alaska, this 6th day of April, 1990.

Clerk

SNO