OTTO D. OBERMILLER,		)
				)
Employee,			)	DECISION AND ORDER
Applicant,			)	AWCB Case No. 8420559
				)	AWCB Decision No. 90-0081
v.				)
				)	Filed with AWCB Anchorage
EMERALD CITY STEEL,		)	April 24, 1990
				)
Employer,			)
				)
and				)
				)
ALASKA NATIONAL INSURANCE CO.,	)
				)
Insurer,			)
Defendants.			)
				)

We originally decided this claim for temporary total disability (TTD) benefits, temporary partial disability (TPD) benefits, permanent partial disability (PPD) benefits, vocational rehabilitation services and attorney's fees and legal costs based on the record and the parties's briefs. The employee was represented by attorney Chancy Croft and the employer and insurer (employer) were represented by attorney Randall J. Weddle. The record closed on November 8, 1988.

In our decision and order (D&O) issued on November 29, 1988, we concluded from the evidence that the injury the employee suffered while working for the employer in 1984 was no longer a substantial factor with regard to his present disability and, accordingly, denied and dismissed his claim. Since it was undisputed that the 1984 injury aggravated the employee's pre-existing necrotic and arthritic hip condition and was a substantial factor in bringing about the need for him to have a total hip replacement surgery in November 1984, we did not think it appropriate to apply the last injurious exposure rule. The employee appealed our D&O to the Superior Court on December 5, 1988.

On September 20, 1989, Superior Court Judge Pro Tem William H. Fuld issued an opinion in which he remanded the case to us so that we could properly apply the last injurious exposure rule consistent with his opinion. In his opinion, Judge Fuld stated:

The judge also stated that we could take additional evidence or rely on the evidence presented in Dr. Dittrich's testimony.

We heard the case on remand on February 23, 1990, in Anchorage, Alaska. The employee was present and represented by attorney Chancy Croft and the employer was represented by attorney Robert J. McLaughlin. The record was left open until March 5, 1990 for the submission of post-hearing briefs. The record actually closed on March 21, 1990, the first regular hearing date after we had received the corrected copies of the briefs.

In addition to the facts as set forth in our November 29, 1988 D&O, we note that Dr. Dittrich also testified in his May 10, 1988 deposition as follows:

(Dr. Dittrich dep. at 15)

(Id. at 19)

MR. WEDDLE: Wait a minute. Is the question: does he know?

MR. WEDDLE: objection, leading.

(Id. at 24-26)

The record reflects that after the employee slipped and fell in September 1984, he saw Declan R. Nolan, M.D. In his clinical notes, Dr. Nolan stated:

After examining Obermiller, the doctor diagnosed. "Advanced traumatic arthritis of the left hip with acute sprain of the hip today." When Dr. Nolan saw the employee again a couple of weeks after the injury, he noted that he was no better subjectively or objectively and stated; "This patient may be getting into some serious trouble in that this injury tipped the scales to the extent that his real problem is surfacing."

In report dated October 15, 1984, Dr. Dittrich noted that Obermiller was scheduled for a total hip replacement because "He feels he is having persistent pain and cannot tolerate his present condition any longer."

At the hearing, Obermiller, testified that after his 1984 injury the pain in his left leg was considerably more intense and constant than it was before. He also stated that his left leg is stiffer than it was before 1984. The employee explained that because of the pain and stiffness in his leg, he knew that he could not go back to work as an ironworker after the 1984 injury and surgery. He stated that the employer provided him with a program in 1986 and 1987 to become a certified welding instructor and he worked in that capacity at the Ironworkers Local 751 training center for parts of 1988 and 1989. The employee testified that the union did not offer the welding school in 1990 and so he has not worked recently.

Paul Johnson, an ironworker with Ironworkers Local 751 since 1954 and a person who had worked with Obermiller, testified at the hearing that the employee could not work iron with the restrictions that Dr. Dittrich put on him. He stated that even after his 1976 injury, Obermiller has always been an exceptional ironworker and even with a stiff hip after the 1976 injury he was better that most other workers.

Also testifying at the hearing, was Kancho Spasoff, a member of Ironworkers Local 751 since 1960 and business manager between 1970 and 1976 and 1985 and 1988. He stated that Obermiller had a good reputation as a hard worker before 1984. After reviewing the physical limitations placed on the employee by Dr. Dittrich, Spasoff testified that he could not return to work as an ironworker and could work as a welding instructor only in union training programs and not in the field. He reported that the union's welding apprenticeship program had been discontinued this year because of the lack of work in the field.

On direct examination by the employer's attorney at the hearing, Mary Moran, a certified vocational rehabilitation counselor, testified that the employer provided Obermiller with a plan by which he became a certified welding inspector. She stated that on February 18, 1986, Dr. Dittrich reviewed a job analysis for a welding inspector and he predicted that the employee would have the physical capacities to do the job. Moran said that while Obermiller has the skills to be a welding instructor, she would have to check with a physician before she could say that he had the physical capacities to the job now. On cross-examination, Moran acknowledged that the rehabilitation plan was never signed by the employee or representative of the employer and was never approved by us. She also stated that a physical capacities evaluation was never performed by a physician in this case.

The last injurious exposure rule adopted in Ketchikan Gateway Borough v. Saling, 604 P.2d 590, (Alaska 1979), applies when employment with successive employers contributes to an employee's disability and imposes full liability on the employer at the time of the most recent injury which bears a causal relationship to the disability. Veco, Inc. v. Wolfer, 693 P.2d 865, 868, n. 1 (Alaska 1985). This rule, combined with the presumption of compensability set forth in AS 23.30.120(a), imposes liability on the subsequent employer when a "preliminary link" between the disability and the employment is established. Providence Washington Company v. Bonner, 680 P.2d 100 (Alaska 1984) (Rabinowitz J. concurring). The Board must make two determinations regarding the "preliminary link" and the presumption of compensability under this rule: (1) Whether employment with the subsequent employer "aggravated, accelerated, or combined with" a pre-existing condition; and, if so, (2) Whether the aggravation, acceleration or combining with is a "legal cause" of the disability, i.e., "a substantial factor in bringing about the harm." United Asphalt Paving v. Smith, 660 P.2d 445, 447 (Alaska 1983) (quoting Ketchikan Gateway Borough, 604 P.2d at 597-598).

An aggravation, acceleration or combining with, is a substantial factor in the disability if it is shown (1) that "but for" the subsequent employment the disability would not have occurred and (2) the subsequent employment was so important in bringing about the disability that a reasonable person would regard it as a cause and attach responsibility to it. See State V. Abbott, 498 P.2d 712, 727 (Alaska 1972) The court expressly adopted the "but for" test in a "last injurious exposure" rule context in a recent case. Fairbanks North Star Borough v. Rogers & Babler, 757 P.2d 528, 533 (Alaska 1987).

The evidence necessary to raise the presumption of compensability varies depending on the type of claim. "[I]n claims 'based on highly technical medical considerations' medical evidence is often necessary in order to make that connection." Burgess Construction Co. v. Smallwood (Smallwood II), 623 P.2d 312,316 (Alaska 1981). In less complex cases, lay evidence may be sufficiently probative to establish causation. Veco, 693 P.2d at 871. With regard to medical evidence, Professor Larson states:

. . .

2 B Larson, Workmen's Compensation Law, 9979.50-51 at 15-426-128 (citing Employers Commercial Union Co. v. Libor, 536 P.2d 129 (Alaska 1975); Kessick v. Alyeska Pipeline Service Co., 617 P.2d 755 (Alaska 1980). The court has held:

Miller v. ITT Arctic Services, 577 P.2d 1044, 1048-49 (Alaska 1978).

Once the presumption attaches, the subsequent employer must come forward with substantial evidence that the disability is riot work-related. Burgess Construction v. Smallwood (Smallwood II), 623 P.2d 312, 316 (Alaska 1981). Substantial evidence is such relevant evidence as a reasonable mind would accept in light of all the evidence to support a conclusion. Kessick v. Alyeska Pipeline Services Company, 617 P.2d 755, 757 (Alaska 1980). There are two methods of overcoming the presumption of compensability (1) presenting affirmative evidence showing that the disability is not work-related or (2) eliminating all reasonable possibilities that the disability is work-.related. Land and Marine Rental Company v. Rawls, 686 P.2d 1187, 1188 (Alaska 1984).

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, 511 P.2d at 210). In Fireman's Fund American Insurance Cos. v. Gomez, 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).

In the first instance, we find that the employee has established a preliminary link between his 1984 injury and his present disability. This was accomplished through the chart notes of Drs. Nolan and Dittrich and the testimony of Dr. Dittrich. After seeing Obermiller on September 6, 1984, Dr. Nolan noted that he had a "bad fall today torquing his left hip," and the "pain radiates to the knee," and "it hurts him to walk." After examining Obermiller, Dr. Nolan agreed with his assessment that it would be dangerous for him to go back to ironworking at that time. When the doctor saw Obermiller a couple of weeks after the accident, he noted that there had been no improvement in his condition and made the comment that: "This patient may be getting into serious trouble in that this injury tipped the scales to the extent that his real problem is surfacing." On October 15, 1984, Dr. Dittrich found that Obermiller could not tolerate his condition any longer and, therefore, a total hip replacement was scheduled. Dr. Dittrich testified, in essence, that while he could not precisely quantify the amount of damage caused by the 1984 injury, it definitely aggravated the employee's preexisting degenerative arthritis condition, and probably was a substantial factor in bringing about the hip surgery and resulting physical limitation he placed on him. The doctor explained that in 1982, the last time he had seen Obermiller before the 1984 injury, the disability that the arthritis and necrosis of the hip was causing was not sufficient enough to warrant a hip replacement. Dr. Dittrich testified that because the employee had not come to him between 1982 and 1984 and was working as an ironworker during that period, he assumed that the employee was getting along all right until the injury. Finally, he stated that Obermiller probably could have continued to work as an ironworker for a significant period had it not been for the 1984 injury and resulting surgery.

Based on this evidence, we find that the 1984 injury both aggravated, accelerated or combined with the employee's pre-existing condition and that aggravation, acceleration or combining with is a legal cause of his present disability. Accordingly, the preliminary link was established, the presumption of compensability attaches to the employee's claim and we must determine whether the employer has come forward with substantial evidence that the employee's disability is not the result of the 1984 injury.

As noted in our D&O of November 29, 1988, the employer relied on the following evidence to rebut the presumption of compensability:

As we did in our prior D&O, we find these facts sufficient to overcome the presumption and the employee must prove the elements of his claim by preponderance of the evidence.

After reviewing all of the evidence in this case, especially the medical reports of Drs. Nolan and Dittrich and the testimony of Dr. Dittrich which raised the presumption of compensability, we find that Obermiller did, by a preponderance of the evidence, prove that the work-related injury in 1984 caused his present disability. While in making our determination, we relied an the medical evidence mentioned above, we did not limit ourselves exclusively to it. We also found support for the employee's position in lay testimony and the circumstances that existed before and after the September 1984 injury. Johnson testified that from personal knowledge, he could attest that Obermiller was an exceptional ironworker prior the 1984 incident. This even included the time after the employee's 1976. Spasoff testified that from being a business manager for the ironworker's union over many year, he knew Obermiller had a good reputation as an ironworker before 1984. Both Johnson and Spasoff stated that with physical limitations that Dr. Dittrich placed on Obermiller after the 1984 injury and surgery, he would not be able to return to ironwork. Obermiller testified that while he had some pain and stiffness in leg before the 1984 incident, the pain in his leg became significantly more intense and constant, and the stiffness became greater afterwards. Finally, the record shows that before the 1984 injury, Obermiller worked many years as an ironworker, took pride in his work and trade, made good wages and was well respected by his follow workers. After 1984, on the other hand, the employee has not been able to work as his chosen trade, has only been able to work on a part-time basis, and has been unable to earn the wages he once did.

The record reflects and we find that Obermiller was temporarily and totally disabled between December 24, 1987 and January 3, 1988, between May 28, 1988 and July 24, 1988, between July 30, 1988 and January 15, 1989 and from May 31, 1989 until such time as the Reemployment Benefits Administrator determines that further vocational rehabilitation services are not needed.

The next question raised in the employee's initial claim is whether he is entitled to vocational rehabilitation services. We cannot make this determination at this time because the question must first be brought before the Reemployment Benefits Administrator as provided in AS 23.30.041. See, Warren v. Spencer Roofing, AWCB No. 88-0083 (April 14, 1988).

The employee also requests that we make a compensation rate adjustment and grant interest and a penalty. Since these issues were not part of the original claim and were not properly raised after that, we cannot address them at this time. Simon v. Alaska Wood Products, 633 P.2d 252 (Alaska 1981).

The last question to be resolved is the amount of fees the employer's attorney is entitled to, if any. Obermiller contends that;

(Obermiller Final Brief, at 28).

Based on this reasoning, the employee asserts that he is entitled to twice the statutory minimum attorney's fees provided for in AS 23.30.145(a). In support of it position, the employee also submitted the insurer's 1988 report to the Alaska workers' Compensation Division which indicated that it paid its attorneys 3.65 times as much as it paid claimants' attorneys. The employer argues that the figures in the report do not support the the employee's contention for several reasons. First, the employer points out that many settlement agreements are worked out between the injured employee and the employer and insurer without the necessity of the employee having an attorneys. Next, there are cases in which the employer's attorney does work beyond the direct scope of the workers' compensation claim. Third, because the employer's burden of disproving compensability is very difficult, the employer's attorney must perform substantially more work that the employee's attorney. Finally, the employer argues that the contingent nature of the employee's attorney's work recognizes that in some cases an attorney will be overpaid, while in others he will underpaid. We agree with the employer's reasoning and find that there is insufficient evidence to support a claim that a contingency factor should be applied to the employee's fee award in this case. See also, Bailey v. Litwin, AWCB No. 87-0041 (February 18, 1987); Adams v. Hoffman Construction Co., AWCB No. February 27, 1987) and Lovick V. Anchorage School District, AWCB No. 89-0235 (September 1, 1989). Accordingly, we find that the employee is entitled to attorney's fees at the minimum rate provided for in AS 23.30.145(a).

1. The employer shall pay temporary total disability benefits in accordance with this decision.

2. The employee's claim for vocational rehabilitation services is denied and dismissed at this time.

3. The employee's claim for a compensation rate adjustment is denied and dismissed at this time.

4. The employee's claim for interest is denied and dismissed at this time.

5. The employee's claim for a penalty is denied and dismissed at this time.

6. The employer shall pay the employee attorney's fees at the minimum rate provided by AS 23.30.145(a).

Dated at Anchorage, Alaska, this 24th day of April, 1990.

ALASKA WORKERS' COMPENSATION BOARD

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

/s/ John Creed
John 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 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 Otto D. Obermiller, employee/applicant; v. Emerald City Steel, employer; and Alaska National Insurance Co., insurer/defendants; Case No. 8420559; dated and filed in the office of the Alaska Workers' Compensation Board in Anchorage, Alaska, this 24th day of April, 1990.

Jamie Whitt, Clerk

SNO