EUGENE SULKOSKY,		)
				)
				)	DECISION AND ORDER
Employee,			)	AWCB Claim No. 8225909
Applicant,			)	AWCB Decision No. 90-0105
				)
v.				)	Filed with AWCB Juneau
				)	May 11, 1990
MORRISON-KNUDSEN,		)
				)
Employer,			)
				)
and				)
				)
AETNA CASUALTY & SURETY CO.,	)
				)
Insurer,			)
Defendants.			)
				)

We met in Juneau, Alaska on 16 April 1990 to consider Employee's claim for medical benefits and attorney's fees and costs. Employee attended the hearing and testified. He is represented by attorney Paul M. Hoffman. Defendants are represented by attorney Michael A. Barcott. We completed our deliberation and closed the record on 16 April 1990 at the conclusion of the hearing.

We have heard Employee's claims on several previous occasions and are familiar with the voluminous record. Employee is a 47-year-old disabled heavy equipment operator who is seeking osteopathic care for diffuse pain in the neck, upper back and left shoulder. in Sulkosky v. Morrison- Knudsen, AWCB D&O No. 88-0114 (3 May 1988), we determined Employee was entitled to permanent total disability (PTD) compensation as a result of an aggravating back injury which occurred on 24 October 1982. Employee had sustained other serious injuries which required multiple surgeries prior to the October 1982 incident.

In 1962 Employee was hit in the face by a cable when it parted in a logging accident. We do not have the medical records from this injury. The available records indicate Employee sustained jaw, left clavicle and skull fractures in the accident. The skull fracture required a bone graft and plastic surgery. Employee reported having occasional headaches and neck stiffness. Employee has "some deformity over the proximal left clavicle near the sternum in the upper sternal rib joints." (Report of orthopedic Panel Consultants, 24 April 1985.) Employee testified his left clavicle had been removed.

In 1974 Employee feel down a hill and injured his back. L5-Sl disc surgery was performed in 1975 and Employee was able to return to work.

In 1976 Employee had a head-on collision while operating heavy equipment. He reinjured his back. Additional surgery at L4-5 was performed in 1978. At hearing, Employee testified his nose was broken in this accident when his face hit the steering wheel. He was rendered "groggy" by the blow, but not unconscious. We do not have the medical records related to this accident.

In October 1982 Employee slipped at work, striking his low-back on a ladder, and landing on his tailbone in a seated position. Low-back surgery was performed again in May 1983. Employee has not worked since October 1982.

At hearing, Employee testified that his pain is not the same all the time, that the pain originates in the center and shoots up at an angle into his left shoulder, and that he has reported neck, back and shoulder pain to every doctor who has seen him since his 1982 injury. He also testified he first noticed the pain after his 1983 low-back operation. He stated that shrugging his shoulders with his head bent forward, relieves the pain.

Employee testified he has received and paid for medical care for his upper back, neck and shoulder from Scott L. Havsey, D.O.. Employee requests reimbursement for $538 he has paid. Employee submitted a bill from Dr. Havsey totaling $508 for services for April 1989. Finance charges of $7.62 and $7.73 were added in May and June respectively, for a total of $523.35.¹Dr. Havsey's bill indicates that Employee was charged for diagnostic procedures for the cervical and thoracic spine. On each of three treatment visits, Dr. Havsey charged $99 for hot/cold packs, electrical stimulation, ultrasound and other osteopathic therapy and services. Employee testified that Dr. Havsey's care relieved his pain.

In connection with the treatment provided for Employee's upper back and neck pain, Dr. Havsey wrote in part:

(Havsey letter to Hoffman, 14 September 1989, emphasis added.)

On 16 September 1989 Employee was seen by Bruce E. Bradley, M.D., of Seattle Orthopedic & Fracture Clinic. Dr. Bradley is a board certified orthopedic surgeon and Clinical Associate Professor at the University of Washington Medical School.²On examination, Dr. Bradley found posterior cervical pain, relieved by flexion of the neck, and some left trapezium soreness. The x-rays were "within normal limits" but revealed some anterior calcification at C5. Dr. Bradley reported "areas of tissue loss over his left neck and multiple scars over his left face and neck."

Dr. Bradley concluded:

(Bradley report, 16 September 1989.)

Dr. Bradley was deposed on 12 March 1990. He testified;" [I]f there's an injury to the cervical spine... the symptoms would be invariable and the findings would invariably manifest themselves before a year." (Bradley dep. p. 13.) He also testified that he had reviewed Dr. Havsey's report, and that he did not agree that a person would develop upper back problems, as described by Employee, in the manner Dr. Havsey suggested in his 14 September 1989 letter. Dr. Bradley explained:

(Id. at 13-14.)

Dr. Bradley testified that in his opinion, Employee's neck and upper back pain are not related to the October 1982 injury. (Id. at 19.)

AS 23.30.095(a) requires employers to pay for the medical care and treatment necessitated by the nature of the injury and the process of recovery up to two years after the injury date. After the two years, we may authorize treatment as necessary for 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 consistently held that the treatment must also be reasonable and necessary. Thirlwell v. Central Penin. Gen. Hosp., AWCB D&O No. 89-0035 (9 February 1989).

Before Defendants may he found responsible for the cost of Dr. Havsey's treatment for Employee's upper-back and neck pain, we must determine if that pain is related to the October 1982 injury. Dr. Havsey and Dr. Bradley disagree on this issue. We find that any presumption is overcome by DT. Bradley's testimony. We find, by a preponderance of the evidence, that Employee's upper back, neck and shoulder pain is not related to his 1982 injury. We will dismiss Employee's claim.

In finding that Employee's upper body pain is not related to the 1982 injury we relied on the following: (1) The trauma Employee sustained in 1982 was to the low back and tailbone, not to the upper back and neck. (2) Employee received no treatment for an upper body injury for about six and one-half years after the injury. (3) Dr. Bradley testified that the symptoms of such an injury would manifest themselves within a year.³(4) Employee's pain is diffuse, and no diagnosis has been made. (5) Employee's left face, neck and clavicle were injured in 1962. (6) We accorded more weight to the testimony of Dr. Bradley because he is a highly trained, board certified orthopedist and professor in a university hospital.⁴(7) We accord less weight to Dr. Havsey's opinion, as expressed in his letter of 14 September 1989, which provides in part. "Mr. Sulkosky states that he has not had any antecedent trauma to the neck and upper back and the only plausible explanation of neck and back pain would be causal to his low back injury." The record suggests Employee sustained significant trauma to the head and upper body in the 1962 logging accident and 1976 head-on collision.

In addition, we have no evidence to support a finding that Dr. Havsey's treatment is reasonable and necessary. We find no evidence that Dr. Havsey's treatment is necessary to prevent the deterioration of Employee's condition and, although Employee testified Dr. Havsey's treatment relieved his pain, he also indicated on numerous occasions that the same result was achieved by raising his shoulders with his neck flexed forward. We have no doubt that Employee experiences diffuse upper body pain, or that Dr. Havsey's treatments have a palliative effect. In our view, however, the Alaska Workers' Compensation Act does not require Defendants to pay for that care.

Employee seeks payment for his attorney's fees and costs from Defendants. We may require an employer to pay those costs when we award benefits in a contested claim. AS 23.30.145. Mr. Hoffman has not requested that his fee be paid out of Employee's compensation. In view of our denial of Employee's claim for payment of Dr. Havsey's charges, we deny the claim for payment of Employee's attorney's fees and litigation costs.

Employee's claim for reimbursement for the costs of osteopathic treatments for upper body pain, for an order requiring Defendants to pay attorney's fees related to that issue, and for litigation costs is denied and dismissed.

DATED at Juneau, Alaska this 11th day of May, 1990.

ALASKA WORKERS' COMPENSATION BOARD

/s L.N. Lair
Lawson N. Lair, Designated Chairman

/s/ DwRichards
David W. Richards, Member

LNL:wjp

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 315t 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 Eugene Sulkosky, Employee/Applicant; V. Morrison-Knudson, Employer; and Aetna Casualty & Surety Co., Insurer/Defendants; Case No. 8225909; dated and filed in the office of the Alaska Workers' Compensation Board at Juneau, Alaska, this 11th day of May, 1990.

Clerk