RALPH JOHNSON,			)
				)
Employee,			)	DECISION AND ORDER
Petitioner,			)	AWCB Case No. 617048
				)	AWCB Decision No. 90-0068
v.				)
				)	Filed with AWCB Fairbanks
STATE OF ALASKA,		)	April 11, 1990
				)
Employer,			)
Respondent.			)
				)

This petition for modification of our August 25, 1988 decision and order (30) was heard at Fairbanks, Alaska on February 27, 1990. The employee was represented by paralegal Pete Stepovich of the Stepovich, Kennelly and Stepovich law office. Attorney James Bendell represented the employer. The record closed on March 13, 1990 after we had received copies of the S. William Seidman, M.D., deposition.

In our August 25, 1988 D&O we were asked to decide, inter alia, whether to reinstate the employee's compensation benefits after he failed to participate in the Virginia Mason pain clinic treatment program. Primarily based on the testimony of Thomas Williamson-Kirkland, M.D., we found the employee failed to prove his continuing disability by a preponderance of the evidence. (AWCB No. 880225).

The employee now wishes to present "new evidence." He does not dispute the basis of our August 25, 1988 D&O. Rather, the employee now argues that his condition is explained by Dr. Seidman's subsequent diagnosis of spinal stenosis with compression of the L5 nerve roots bilaterally and his November 16, 1988 surgery in which he underwent an interlaminar decompression at the L4-5 level lumbrosacral on the right. The employee testified that his symptoms are remarkably improved since the surgery.

The threshold issue we must decide is whether to modify our August 25, 1988 D&O. In the event we find modification is appropriate, we must also decide the merits of the employee's claim for reinstatement of temporary total disability (TTD) benefits until his April 7, 1989 release to work, temporary partial disability (TPD) benefits after the release to work, medical costs and attorney fees and costs.

I. Modification

AS 23.30.130(a) provides:

Our Supreme Court discussed §130 in Interior Paint Company v. Rodgers, 522 P.2d 161, 168 (Alaska 1987). Quoting from O'Keeffe v. Aerojet-General Shipyards, Inc., 404 U.S. 254, 256, (1971) the court stated "The plain import of this amendment [adding "mistake in a determination of fact" as a ground for review] was to vest a deputy commissioner with broad discretion to correct mistakes of fact whether demonstrated by wholly new evidence, cumulative evidence, or merely further reflection on the evidence initially submitted."

The Court went on to say:

Id. at 169.

It is undisputed that since our August 25, 1988 D&O the employee has undergone an interlaminar decompression surgery at L4-5 and lumbrosacral on the right with decompression of the L5 nerve root. The treating physician Dr. Seidman, believes the employee's work aggravated his degenerative disc disease and created the need for surgery.

In our August 25, 1988 D&O we rejected the assertion that the employee's condition was caused by a work-related injury. We noted a lack of objective evidence in the record supporting the employee's claim. We concluded, based on Dr. Williamson-Kirkland's testimony, the employer's condition was medically stable and stationary, and observed the employee appeared to be motivated by secondary gain.

Dr. Seidman testified he is a neurosurgeon who has performed 100 - 150 similar back surgeries per year over the past 16 years. He said in this instance, according the CT scan, before the employee's surgery the employee showed classic objective signs of nerve root compression and nerve root, foramen narrowing at the L4-5 level. He also stated the employee's leg strength was 75 percent of normal bilaterally, somewhat weaker on the right than the left. Dr. Seidman specifically disputed Dr. Williamson-Kirkland's claim that no objective symptoms were present.

Based on Dr. Seidman's performance of surgery and his belief that the need for surgery may relate to the employee's work, we find a sufficient change in condition exists which justifies re-opening the record to consider additional evidence on this point. Although reopening the record might not change the final outcome of our August 10, 1988 D&O, we find we must consider this additional testimony and evidence to adequately give "due consideration" to the argument and evidence presented with the employee's petition for modification. See Interior Paint Co. v. Rogers at 169; Whaley v. AWCB 648 P.2d 955, 957 (Alaska 1982).

II. Compensability, Temporary Total Disability Benefits and Temporary Partial Disability Benefits

As we stated in our August 25, 1988 D&O, 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 of 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).

The employee seeks reimbursement of TTD benefits from the time he left the Virginia Mason Pain Clinic through April 17, 1989 when he was given a conditional release to work. The employer reasserts its argument that throughout this period the employee has not been disabled or otherwise has not cooperated, so as to justify the controversion of benefits.

As we stated in our August 25, 1988 D&O, Dr. Williamson-Kirkland testified that the 1986 injury should have resolved itself long before the 1988 hearing. He said there were no objective findings to support the employee's pain complaints. He said he believed the employee's motivation

was for secondary gain. Assuming the employee enjoys the presumption of compensability provided at AS 23.30.120(a), we find Dr. Williamson-Kirkland's testimony overcame the presumption and the employee must prove his claim by a preponderance of the evidence. Id.

Dr. Seidman specifically disputed Dr. Williamson-Kirkland's claim that no objective findings existed to support the employee's claim. Dr. Seidman was unwilling to state the employee's work caused his need for surgery, but Dr. Seidman did testify that the employee's underlying degenerative disc disease could have been substantially aggravated by the work so as to require the surgery.

The employee testified that his symptoms have remarkably improved since the surgery. He no longer drags his foot or experiences stabbing pain in his leg. His back and leg continues to ache but he is able to walk and perform other physical activities to a greater extent than before the surgery. He said he had none of these symptoms prior to the 1986 injury. He also mentioned he had had a personality clash with Dr. Williamson-Kirkland but expressed confidence in Dr. Seidman's medical ability.

Based on Dr. Seidman's testimony, supported by the employee's description of his symptoms, we find the employee proved by a preponderance of evidence that his back condition was substantially caused by his work-related injury. Accordingly, we conclude he was entitled to continuing TTD benefits. Given that he was not medically stable and stationary until April 7, 1989 when he was given a modified release to work, we find he was entitled to TTD benefits throughout this period.

Since the employer's April 7, 1989 modified release to work, the employee says he has been unable to find suitable employment. He testified that he has been able to do light work; his wife gets light jobs and he stays with her to help at her job site. Apparently, he helps his wife care for logging camps in Oregon.

In any event, the record does not contain evidence comparing his historical earnings with his earnings potential beginning at the time of his April 1989 release to work. Accordingly, we find the employee has not proven his need for TPD benefits by a preponderance of the evidence. We deny this claim until he provides documentation of his wage loss. We urge the parties to resolve this issue privately, but reserve jurisdiction to resolve disputes.

III. Medical Costs, Attorney Fees and Costs

We have found the employee's claim for workers compensation benefits compensable. The parties argue that medical costs and that attorney fees and costs are therefore payable. In the event the parties are unable to reach agreement on these amounts owed, we reserve jurisdiction to resolve disputes.

1. The employer shall pay the employee continuing temporary total disability benefits until April 7, 1989 when he was released to work. The employee's claim for temporary partial disability benefits is denied until he documents his wage loss. We reserve jurisdiction to resolve disputes.

2. The employer shall pay the employee's medical costs and attorney fees and costs. We reserve jurisdiction to resolve disputes.

DATED at Fairbanks, Alaska, this 11th day of April, 1990.

ALASKA WORKERS' COMPENSATION BOARD

/s/ Fred G. Brown
Fred G. Brown, Designated Chairman

/s/ Joe J. Thomas
Joe J. Thomas, Member

/s/ Steve M. Thompson
Steve M. Thompson, Member

FGB/ml

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 interlocutory order staying payment is obtained in Superior Court.

APPEAL PROCEDURES

A compensation, order may be appealed through proceedings in the 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.

I hereby certify that the foregoing is a full, true and correct copy of the Decision and Order in the matter of Ralph Johnson, employee/petitioner; v. State of Alaska, employer/respondent; Case No. 8617048; dated and filed in the office the Alaska Workers' Compensation Board at Fairbanks, Alaska this 11th day of April, 1990.

Clerk

SNO