ALASKA WORKERS' COMPENSATION BOARD

P.O. Box Juneau, Alaska 99802-5512

HENRY BLATCHFORD, )

)

Employee, ) DECISION AND ORDER

Applicant, ) AWCB Case No. 8828004

) AWCB Decision No. 90-0094

v. )

TAYWOOD-BERG-RIEDEL, ) Filed with AWCB Fairbanks

) May 3, 1990

Employer, )

)

and )

)

FIREMAN'S FUND INSURANCE CO., )

)

Insurer, )

Defendants. )

)

We heard this claim for temporary total disability (TTD) benefits, interest, medical benefits, attorney fees, and costs in Anchorage, Alaska on April 18, 1990. Attorney Michael Jensen represented the applicant employee, and attorneys Trena Heikes and Lee Glass represented the defendant employer and insurer, We kept the record open to receive a second deposition of Kenneth Leung, M.D., and to provide an opportunity for the employer to object to the employee's request for attorney fees. We closed the record when we next met, May 2, 1990.

1. Is the employee entitled to TTD benefits from the employer under AS 23.30.185 from July 7, 1988 through July 18, 1988 and August 19, 1988 continuing?

2. Is the employee entitled to interest on unpaid compensation?

3. Is the employee entitled to medical benefits under AS 23.30.095(a)?

4. Is the employee entitled to attorney fees and legal costs under AS 23.30.145(b)?

The employee was diagnosed to have spondylolisthesis, a slippage of a spinal vertebra, in 1973. On October 24, 1983 the employee fell from a conveyor belt while working for Central Paving, aggravating his spondylolisthesis and causing him to miss five months of work. His treating physicians at the time, Thomas Kiester, M.D., and George Von Wichman, M.D., recommended spinal surgery. At the hearing the employee testified that the physicians recommended surgery only if his condition didn't improve, that his condition did gradually improve following 1983, that he returned to work as a heavy equipment operator, and that he decided against surgery. He continued to seek treatment for his low-back pain, but less and less frequently until 1988, seeing physicians only twice during the last two years of that period.

He worked for the employer on Amchitka beginning February 18, 1988, first at a camp on the south of the island, then in May on the north of the island. On the north end he was assigned a heavy loader with a broken shock absorbing system in its seat. He repeatedly complained about the seat on the daily equipment report, but the seat was not repaired for several months. He worked seven days a week, ten to twelve hours a day.

He testified that his back began to bother him by the second day of work with the defective loader, and on or about June 1, 1988 the pain grew severe. On June 11, 1988 he saw the camp medic for sleep medication. The chart note did not give the reason for his sleeplessness, but at the hearing he testified that he was unable to sleep because of his back pain. Later in June he asked for two weeks off for rest and relaxation. He testified that he requested a week's extension of that leave because his back pain continued. He then returned to work on the same loader. He testified that he was laid off on August 18, 1988 at his own request because of the severity of his back pains. He has not worked since, and testified that he is unable to return to his former work, an opinion concurred in by his treating physicians and his employer.

On October 18, 1988 Richard Garner, M.D. reported the employee was being treated for his back pains, but did not discuss the cause of those pains. The employee saw several physicians, and surgery was recommended. The first recorded mention of a possible exacerbation of his condition from his work with the employer was in a medical report dated March 17, 1989 by Dr. Garner. The employee completed a Report of Injury on March 27, 1989, though the parties stipulated at the hearing that the employer had informal notice of injury while the employee worked on Amchitka.

Dr. Garner and Thomas Vasileff, M.D., performed spinal fusion surgery, installing two metal Steffe plates as bracing, on May 12, 1989. The employee suffered severe bilateral leg pains following the surgery. The physicians operated once again to remove the left Steffe plate. The employee’s symptoms lessened following the second surgery. The employee's physicians referred him to Kenneth Leung, M.D., for consultation; and the employer had him examined by Leonard Wiltse, M.D.

Doctors Garner, Vasileff, and Leung testified in their depositions that they were not aware of any specific cause for the employee's condition. In response to the attorneys' representations of the facts concerning the employee's history Dr. Garner felt that the 1988 work was more likely than not a substantial factor in the employee's present condition (Garner Dep. p. 50), Dr. Vasileff refused to give an opinion (Vasileff Dep. p. 9), and Dr. Leung felt that the 1988 work was most likely not a substantial factor (Leung Dep. #I, p. 10). In the representation of the employee's history to Dr. Leung the employer's counsel represented that the employee separated from his work in 1988 as a result of a lay-off. (Id. at p. 8). When the employee's physician posed a hypothetical situation in which the employee's symptoms increased dramatically and persisted following his work as the loader, Dr. Leung felt that work could have aggravated the underlying condition. (Leung Dep. #2, p.7).

Dr. Wiltse, an expert in the treatment of spondylolisthesis, testified that he believed the 1988 work made no significant contribution to the employee's condition. He testified that patients have a tendency to misattribute physical problems to recent trauma. He felt that the employee was mistakenly attributing the worsening of his condition to the jolting from driving the loader in 1988. Under cross examination Dr. Wiltse admitted that he was not aware that the employee's medical attention had continually decreased from 1983 until 1988, and he felt that only two visits to the physician in the two years before he began to work for the employer probably indicated that he was medically stable. In his opinion, however, the employee was no longer medically stable at the time of the hearing. He also admitted that trauma could significantly worsen a condition like the employee's.

The employee argues that the sequence of events and the employee's own testimony clearly show the disabling aggravation of the employee's condition during his work in 1988, and that this aggravation was the "motivating force" bringing him to seek surgical treatment. He requests TTD benefits for his work-time loss, medical benefits, interest, attorney fees (both statutory minimum and actual), and legal costs. He submitted affidavits itemizing attorney fees and costs. He listed 11.3 hours of paralegal time at $75.00 per hour, and costs of $1,155.10. Including the time spent at the hearing, the attorney's time totaled 87.5 hours at $125.00 per hour.

The employer argues that the employee suffered from a chronic, disabling condition resulting from his 1983 injury, and that there was no significant permanent worsening of his condition from his 1988 work. It pointed out that the employee did not give the physicians the 1988 work as a cause of his condition until the spring of 1989, approximately when he decided to file a Notice of Injury. The employer argued that the employee lost the presumption of compensability for filing late, according to AS 23.30.120(b).

The employer argued that the employee should receive no more than statutory minimum fees if he should prevail, and that in no event should he be able to recover both statutory minimum and actual fees as he requested. The employer made an objection to the itemization of attorney fees and costs. The employer argues that all time spent by the employee's attorney in connection with the second deposition of Dr. Leung was the result of that attorney's inability to make a telephone connection to participate in the first deposition. It objects to fees related to work with certain witnesses whom the employee did not call after the parties stipulated that the employer had actual notice of the injury. It objects to fees for repeated demands for additional on-site medic records; it denied any additional records exist. It argued that 4.3 hours for preparing an Objection and a letter to opposing counsel, 32 hours (4 days) for the deposition of Dr. Wiltse in California, and 1.5 hours for preparing a fee request are unreasonable and excessive. It argues that paralegal time should be compensated at $40.00 to $50.00 per hour.

The employer also argued that the date of injury should be in August 1988, when the employee left his work. The employee objected to the consideration of this issue because it had not been previously raised.

1. TTD Benefits

Although AS 23.30.100(a) requires the employee to give formal notice of his injury to the employer, AS 23.30.100(d)(1) provides that a failure to give formal notice will not bar a claim if the employer had actual notice of the injury and we determine that the employer has not been unduly prejudiced. The preponderance of the evidence available in this case indicates that the employer had actual notice at the time of the employee's back injury, and we find no showing of prejudice to the employer. We conclude that the claim is not barred.

The employer suggests that as a consequence of the lack of formal notice the employee lost the presumption of compensability of his claim under AS 23.30.120(b), Nevertheless, AS 23.30.120(b) eliminates the presumption only if failure to give proper notice is "excused" by us. The "excuse" provision is under AS 23.30.100(d)(2). We did not excuse the employee for failure to give notice under AS 23.30.100(d)(2); rather, we found that AS 23.30.100(d)(1) applied. AS 23.30.100(d)(1) leaves the presumption of compensability intact.

AS 23.30.120(a) provides in pertinent part: "In a proceeding for the enforcement of a claim for compensation under this chapter is presumed, in the absence of substantial evidence to the contrary, that (1) the claim comes within the provisions 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 the employment. 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." Smallwood II. "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 employee 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).

The employee's statements concerning his work and his symptoms clearly provide a sufficient link of evidence to raise the presumption of compensability. We also find that Dr. Wiltse's opinion that the employee's condition is not related to his work with the employer is substantial evidence rebutting the presumption. The employee must prove his claim by the preponderance of the evidence.

The facts in this case raise the question of whether this claim should be regarded as compensable at all, suggesting that any need for medical care by the applicant was actually the result of a spinal injury predating the claim. Nevertheless, in Thornton v. AWCB, 411 p.2d 209, 210 (Alaska, 1966), the court held that "a pre-existing disease or infirmity does not disqualify a claim under the work-connection requirement if the employment aggravated, accelerated, or combined with the disease or infirmity to produce the death or disability for which compensation is sought."

We find the broad outline of facts in this case are persuasive. The employee was injured in 1983, recovered sufficiently to return to his usual occupation, drove defective heavy equipment in 1988 which caused an exacerbation of symptoms, quit because of the physical problems, and has been unable to work since. Although the employer dwells on the fact that the employee did not report to his doctors that the 1988 work was the cause of his symptoms until about the time that he filed his Notice of Injury, our review of the records indicates that he generally did not report anything as the cause of his condition until he began this claim in March 1989. The medical reports focused on the treatment of the employee's condition, not on its connection to work in either 1988 or 1983. We find the employee credible. AS 23.30.122.

Based on the medical history and the opinion of Dr. Wiltse we find that the employee was medically stable before he began his work with the employer in 1988. Considering the employee's testimony, his work history, and the opinion of Dr. Garner we find that the preponderance of the evidence shows that the employee suffered a substantial aggravation of his pre-existing injury, which interfered with his subsequent ability to work. We conclude that this a compensable claim.

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. 365, 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 evidence in the record is uniform that the employee has been, and continues to be, unable to return to his work as a result of his back condition. We conclude that he is entitled to TTD benefits for the time that he took R&R during 1988, and from the time he left his work with the employer, through the date of the hearing and continuing.

II. Date of Injury

The employer attempted to raise the date of the employee's injury as an issue during the hearing. The employee objected based on a lack of Notice. We uphold the employee's objection and will decline to rule on the new issue. We cannot consider disputes not properly noticed and at issue before us. Simon v. Alaska Wood Products, 633 P.2d 252, 254 (Alaska 1981). Nevertheless, we note that based on the employee's testimony and the fact that he had to take R&R in June, we would find by the preponderance of the evidence that the date of injury was precisely when the employee suggested, June 1, 1988.

III. Interest

In Land & Marine Rental Company v. Rawls, 686 P.2d 1187, 1192 (Alaska 1984), the Alaska Supreme Court held "that a workers' compensation award, or any part thereof, shall accrue lawful interest, as allowed under AS 45.45.010, which provides a rate of interest of 10.5 percent a year and no more on money after it is due, from the date it should have been paid." The court's rationale is that the applicant has lost the use (hence, interest) on any money withheld, and should be compensated. In accordance with the courts' decision in Rawls, we award interest on the past-due TTD benefits awarded to the applicant by this decision.

AS 23.30.095(a) requires employers to pay for the treatment necessitated by the nature of the injury or the process of recovery up to two years after the injury date. After the two years we may authorize treatment necessary for the process of recovery. "If the treatment is necessary to prevent the deterioration of the patient's condition and allow his continuing employment, it is compensable within the meaning of the statute." Wild v. Cook Inlet Pipeline, No. 3AN-80-8083 (Alaska Super. Ct. Jan. 17, 1983); See accord Dorman v. State, No. 3AN-83-551 at 9 (Alaska Super. Ct. February 22, 1984).

We have also concluded that treatment must be reasonable and necessary to be payable under subsection 95(a), See Weinberger v. Matanuska-Susitna School District, AWCB No. 810201 (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. 860009 at 5 (January 14, 1986); Keyes v. Reeve Aleutian Airways, AWCB No. 850312 at 12-13 and n.5 (November 8, 1985).

The employee has undergone treatment and surgery for his injury at the direction of his treating physicians. Neither the employer nor any of the physicians have disputed the reasonableness or necessity of the treatment. By the preponderance of the evidence we find that the treatment has been reasonable and necessary, and we will award his claimed past and continuing medical benefits.

V. Attorney Fees and Costs

AS 23.30.145(b) provides:

The employee retained an attorney and incurred costs in the successful prosecution of his claim. He submitted affidavits and testimony itemizing legal services by his attorney, to which the employer made objection. It appears that the employee's counsel made a good-faith attempt to attend the first deposition of Dr. Leung and that he arranged the second deposition in his client's interest. The time spent with various witnesses and spent attempting to discover additional medic records appear to relate to disputes largely resolved before the hearing, but which were clearly integral to the

case. We agree with the employer that 4.3 hours is excessive for an Objection and a letter we will award 2 hours. We cannot see how the deposition of Dr. Wiltse, travel, and all other arrangements included, could have required more than 3 days; we will reduce this from 32 to 24 hours. The attorney should have recorded his billable hours as a matter of standard practice: the preparation of the fee request should have been essentially a clerical function. We will award no fees for this. Thus, we will reduce the itemized hours by 11.8 hours, leaving 75.7 hours. We find the rest of his itemized services to be reasonable, and we find his claimed fee of $125.00 per hour to be reasonable as well. See Gaffney v. Mayflower Contract Services, AWCB Case No. 8814608 (March 2, 1990). As authorized in AS 23.30.145(b) we will award a reasonable attorney fee of $9,462.50.

The affidavits itemized miscellaneous legal costs totaling $1,155.10, which we find reasonable. They also itemized 11.3 hours of paralegal costs at $75.00 per hour. We find the specific services reasonable, and the rate to be one consistent with our past rulings. See Earwood v. North Slope Borough AWCB No. 88-0218 (May 17, 1988). We will award an additional $847.50 in costs for paralegal fees. Total costs to be awarded will be $2,002.60.

1. The employer shall pay the employee temporary total disability benefits under AS 23.30.185 from July 7, 1988 through July 18, 1988 and from August 18, 1988 continuing.

2. The employer shall pay the employee interest at the rate of 10.5 percent per annum on all past-due compensation awarded by this decision.

3. The employer shall provide the employee with medical benefits under AS 23.30.095(a) for the treatment of his spondylolisthesis from June 1, 1988 continuing.

4. The employer shall pay the employee a reasonable attorney fee of $9,462.50 and reasonable legal costs of $2,002.60 under AS 23.30.145(b).

DATED at Fairbanks, Alaska, this 3rd day of May, 1990.

ALASKA WORKERS' COMPENSATION BOARD

/s/ William S.L. Walters
William S.L. Walters, Designated Chairman

/s/ Harriet Lawlor

Harriet Lawlor, Member

Board Member Mary Pierce, Dissenting;

Although I do not question the employee's truthfulness, I find that his actions during and following his work in 1988 belie his argument. He was severely injured in 1983, and his physicians recommended surgery at that time. He suffered no specific trauma in 1988, and we have no record linking his condition to the 1988 work until March of the following year. I would rely on the opinion of Dr. Wiltse that the employee's medical condition following 1983 was chronic and progressive, that the employment of 1988 did not play a significant role in his disability, and that the employee mistakenly attributes his condition to the 1988 employment. Accordingly, I would deny and dismiss the claim.

/s/ Mary Pierce

Mary Pierce, Member

WSLW/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.

CERTIFICATION

I hereby certify that the foregoing is a full, true and correct copy of the Decision and Order in the matter of Henry Blatchford, employee/applicant; v. Taywood-Berg-Riedel, employer; and Fireman's Fund Insurance Co., insurer/defendants; Case No. 8828004; dated and filed in the office of the Alaska Workers' Compensation Board at Fairbanks, Alaska this day of 1990.

Clerk

SNO