PEGGY M. CONNOLLY,		)
				)
Employee,			)	DECISION AND ORDER
Applicant,			)	AWCB Case No. 8528752
				)	AWCB Decision No. 90-0116
v.				)
				)	Filed with AWCB Anchorage 
SUNRISE ELECTRIC, INC.,		)	May 30, 1990
				)
Employer,			)
				)
and				)
				)
CIGNA/INA/ALPAC COMPANIES,	)
				)
Insurer,			)
Defendants.			)
				)

This claim was heard at Anchorage, Alaska, on May 4, 1990. Employee was present and represented by attorney Ernest Rehbock. Defendants were represented by attorney Allan Tesche. The record closed at the end of the hearing.

1. Is Employee entitled to continuing disability benefits for the period of time she refused surgery because of her pregnancy and while she is nursing her infant?

2. Is Employee entitled to attorney's fees?

Employee was hired as an apprentice electrician on May 22, 1985. In late December 1985, Employee injured her right and her left leg. Defendants did not dispute the compensability of her injury and began paying benefits on December 31, 1985. Employee's weekly compensation rate for total disability is $332.99.

Employee has had a lengthy course of treatment for her left leg including two arthroscopic surgeries, several arthograms and other diagnostic studies. In his November 28, 1988, report her doctor, Thomas P. Vasileff, M.D., suggested Employee get a bone scan to see if an area in her femur was "hot." He also stated

On March 29, 1989, Employee again saw Dr. Vasileff whose report of March 29, 1989 states in part:

. . . .

At the present time I do not feel that Peggy could return to heavy manual work with an anterior cruciate insufficient knee. I think she should be doing light work but certainly not heavy type work that she has done in the past.

On April 4, 1989, Employee saw John Frost, M.D., who also recommended cruciate ligament reconstruction. In his April 14, 1989, report Dr. Frost indicated he would make tentative arrangements for that surgery. However, in his July 24, 1989, report Dr. Frost noted that Employee was three months pregnant, and the surgery had to be canceled because of her pregnancy.

Dr. Frost stated the cruciate ligament reconstruction was an elective procedure which should wait until Employee completed her pregnancy. He indicated that the procedure during the pregnancy would have a potential for risking the baby's health and, additionally, the extra weight and balance problems associated with the pregnancy might compromise the surgical result. (Frost December 20, 1989, letter).

Defendants paid Employee temporary total disability (TTD) benefits through July 18, 1989, and then terminated TTD benefits on the grounds that the surgery was canceled due to reasons unrelated to the injury. (July 18, 1989 Compensation Report). Employee secured an attorney and filed a claim for the continuation of TTD benefits.

On March 8, 1990, Employee returned to Dr. Frost. In his March 8, 1990 chart note Dr. Frost stated that the surgery would be done in June or July after Employee completed breast feeding her baby. In his March 8, 1990 chart note Dr. Frost also stated:

A hand written note at the bottom of the chart notes states "Surgery will be done in June or July after she completes breast feeding her infant.

On March 12, 1990, Defendants filed a Controversion Notice denying TTD benefits until Employee underwent the knee surgery. Defendants gave the reason for controverting the benefits as superseding intervening cause, pregnancy." (March 12, 1990 Controversion Notice).

At the hearing Employee did not contend that the surgery was unreasonable or that she fears the surgery. Instead, she testified she wants the surgery because it might permit her to return to work as an electrician. Her position at the hearing was Defendants wrongfully suspended benefits without Board permission which is required by law. She also submitted a hand written note from Dr. Frost dated April 30, 1990, stating, it is my belief that it would be safer for both mother and baby to postpone the surgery until she has stopped breast feeding."

Defendants contend Employee's recovery from her injury has been delayed for approximately one year for reasons totally unrelated to her injury. Defendants cite Baker v. FMC Corp., AWCB Decision No. 85-0318 (November 14, 1985), to support their position that an employer is not responsible for benefits when an intervening injury creates a disability preventing the employee from participating in recovery or rehabilitation. Defendants argue they are not responsible for benefits for the disability attributable to the pregnancy rather than the compensable injury. Defendants also contend that Employee's pregnancy is analogous to a person voluntarily removing herself from the labor market. Vetter v. Workmen's Compensation Board, 524 P.2d 264 (Alaska 1974). Defendants contend Employee's pregnancy was her choice. It resulted from a consensual relationship, and she chose not to terminate the pregnancy.

Defendants distinguish Estate of Ensley v. Analo Alaska Constr., Inc., 773 P.2d 955 (Alaska 1989), and Cortay v. Silver Bay Logging, _ P.2d _ (No. 3557) (February 9, 1990). In Ensley the court held that when there are two conditions, one work related and one not, either of which prevents the injured worker from working, the employer is required to pay benefits for the period of time the injured worker would have been disabled by the work injury alone. Defendants argue Estate of Ensley is a unique factual case involving a terminal illness. They argue Employee’s departure from the work force due to her pregnancy was voluntary, and not due to a terminal illness.

Likewise, Defendants also distinguish Cortay because of the factual differences. In Cortay the court analyzed "disability" as depending on earning capacity. Quoting Estate of Ensley, the court stated "the concept of disability compensation rests on the promise that the primary consideration is not medical impairment as such, but rather loss of earning capacity related to that impairment." Estate of Ensley, 773 P.2d at 957. Defendants argue Employee will receive all benefits to which she is entitled for her injury when she submits to medical treatment. But the period of recovery has been delayed due to her pregnancy and care of her infant. Therefore, her disability for the past year is not "incapacity because of injury," but rather incapacity because of pregnancy.

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 the 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 does not define temporary total disability (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:

(Emphasis added).

Implicit in the discussion in Vetter is the court's reasoning that an injured worker must make reasonable efforts to minimize the disability resulting from the injury. See Phillips Petroleum Co. at 663.

In Cortay at 13 the court clarified its holding in Estate of Ensley by stating: TTD benefits cannot be denied to a disabled employee because he or she also may be unavailable for work for other reasons. Though Estate of Ensley concerns unavailability for medical reasons, the rationale for denying TTD benefits applies to any reason that might render the employee unavailable for work."

Employee cited the two Supreme Court cases which have interpreted this statute. Recently in Metcalf v. Felec Services, 784 P.2d 1386 (Alaska 1990), the court held that the insurer must petition the Board before suspending benefits on the grounds that an employee has unreasonably refused to submit to medical or surgical treatment. The court stated:

Defendants argued that Employee's pregnancy is a withdrawal from the labor market, and it is an intervening cause relieving them of liability. However, we find the Employee properly framed the argument as a question of whether her refusal to submit to surgery was reasonable. Because As 23.30.095(d) specifically addresses the situation, we believe it is the appropriate legal framework to use in analyzing this claim.

AS 23.30.095(d) and Metcalf make it clear that if the injury is causing disability and the injured worker refuses treatment for the injury, we must decide that the refusal is unreasonable before compensation benefits may be suspended.

We find the medical evidence clearly indicates that Employee was disabled from working as an electrician because of her injury at the time the surgery was initially scheduled. Dr. Vasileff stated in his March 30, 1989, report that he did not believe that Employee "could return to heavy manual work with an anterior cruciate insufficient knee. I think she should be doing light work but certainly not heavy type work that's she has done in the past."¹

We conclude there was evidence that Employee was totally disabled from working as an electrician. We find that Employee refused the recommended surgery. We find Defendants terminated her disability benefits because she refused the surgery. We find Defendants terminated the benefits without first obtaining a board order as required by AS 23.30.095(d). Based on Metcalf we conclude Employee is entitled to TTD benefits from the date they terminated, July 19, 1989, until the date of the hearing, May 4, 1990.

Defendants mentioned that Employee's pregnancy stopped the rehabilitation process. However, they did not present evidence or any legal analysis on this point. Therefore we do not address the issue.²

We next consider Employee's continued refusal to submit to surgery. She is willing to have the surgery, but unwilling to do so at this time while she is nursing her infant. Employee submitted Dr. Frost's statement that it would be safer for both Employee and the baby to postpone the surgery until she is no longer nursing. However, Employee did not submit any medical evidence that it is necessary for her to continue nursing her child. There is no evidence that her child, like many other children, could not be fed a formula given in a bottle. This is certainly a reasonable alternative. Although Employee can choose to nurse her child, her refusal of surgery on that basis alone is unreasonable. She has a duty to minimize her disability, and we find the continued delay in surgery while she nurses is not compensable.

As we have found the refusal of surgery at this time to be unreasonable, Defendants may terminate her disability benefits as of May 4, 1990. If Employee has the recommended surgery, Defendants shall pay the medical expenses and resume TTD benefits at the time of surgery.

We find this claim was controverted. Under AS 23.30.145(a) we may award a fee against Defendants. Under our regulation 8 AAC 45.180(b) an attorney requesting fees in excess of the statutory minimum must file an affidavit itemizing the services at least three days in advance of the hearing on the claim for which services were rendered. Employee's attorney did not file such an affidavit. Therefore, under 8 AAC 45.180(b) we award the minimum statutory fee based on the disability benefits awarded today.

l. Defendants shall pay Employee temporary total disability benefits for the period of July 19, 1989, to May 4, 1990.

2. Defendants may suspend Employee's temporary total disability benefits from May 4, 1990, until Employee has surgery.

3. Defendants shall pay Employee's attorney the minimum statutory fee under AS 23.30.145(a) computed on the temporary total benefits awarded herein.

4. If Employee submits to surgery, Defendants shall the medical expenses for the surgery as well as resume temporary total disability benefits at the time of the surgery.

DATED at Anchorage, Alaska this 30th day of May, 1990.

ALASKA WORKERS' COMPENSATION BOARD

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

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

/s Donald R. Scott
Donald R. Scott, Member

REM:RJO:rjo

If compensation is payable under the 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 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 Peggy M. Connolly, employee/applicant, v. Sunrise Electric, Inc., employer, and CIGNA/INA/ALPAC Companies, insurer/defendants; Case No. 8528752; dated and filed in the office of the Alaska Workers' Compensation Board in Anchorage, Alaska, this 30th day of May, 1990.

Clerk