BARBARA A. BAUMGARTNER, 
Employee, 
Petitioner,
v. 
NORTH POLE RECLAMATION, INC.,
Employer,
and 
EMPLOYERS INS. OF WAUSAU,
Insurer,
Respondents.

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DECISION AND ORDER
ON MODIFICATION
AWCB Case No. 199627404
AWCB Decision No. 99-0230
Filed with AWCB Fairbanks, Alaska 
on November 15 , 1999

We heard the employee's petition for modification of AWCB Decision No. 98-0143 (June 8, 1998); and claim for additional temporary total disability (TTD) benefits, permanent total disability (PTD) benefits, medical benefits, transportation costs, interest, attorney fees and legal costs, and a finding of unfair and frivolous controversion of her claim on November 10, 1999, in Fairbanks, Alaska. The employee represented herself. Attorney Deirdre Ford represented the employer and insurer. We heard the petition with a two-member panel, a quorum under AS 23.30.005(f). We closed the record at the conclusion of the hearing.

1. Shall we modify our June 8, 1998 decision and order on this case, AWCB Decision No. 98-0143, under AS 23.30.130?

2. Is the employee entitled to additional TTD benefits under AS 23.30.185 from March 1, 1997 and continuing?

3. Is the employee entitled to PTD benefits under AS 23.30.180 for a work-related injury to her lungs?

4. Is the employee entitled to additional medical costs under AS 23.30.095(a) for treatment from March 1, 1997 and continuing?

5. Is the employee entitled to medical transportation costs under 8 AAC 45.082(d) and 8 AAC 45.084?

6. Is the employee entitled to interest under 8 AAC 45.142?

7. Is the employee entitled to attorney fees and legal costs under AS 23.30.145?

8. Is the employer's controversion of the employee's claim frivolous or unfair under AS 23.30.155(o)?

This is our second hearing on this case, and our fourth decision and order. We are now considering a Petition for Modification, on remand from the Alaska Superior Court.

At our initial hearing, on May 21, 1998, the employee testified she fell from the cab of a truck and injured her back on June 20, 1996, while supervising a Steese Highway trailhead development project for her company, North Pole Reclamation. Lancer Green, the driver of the truck, testified concerning her fall. Jeff Prayed, who also worked on the Steese Highway project, testified concerning the ongoing therapeutic massage he provided her at the worksite trailer, and concerning his observations of her symptoms.

The employee testified she called her general health insurer about the accident, but was told treatment would have to be covered by a workers' compensation policy. She testified she decided not to file a claim, in order to spare her company. She claimed she treated herself with leftover medications.

The employee testified she suffered an excruciating onset of back pain in early October 1996, while attending a church service at the Airport Assembly of God. On October 23, 1996 she sought treatment from her physician, neurologist and psychiatrist Ronald Martino, M.D. The employee did not initially disclose the alleged 1996 injury to Dr. Martino. (Martino depo. p. 14.) Dr. Martino's medical report ascribed her condition to a chronic pain syndrome she suffered from a work-related back injury (while she was working for another employer) on February 28, 1986, and prescribed Prednisone to relieve the pain. He believed her symptoms in 1996 to be consistent with her 1986 injury. (Id. at 13.)

The record reflects the employee filed a previous workers' compensation claim for the 1986 back injury, settled all benefits except medical care in a Compromise and Release (C&R) approved in 1987, and settled her medical benefits in a C&R approved in 1991. Dr. Martino treated her for the 1986 injury from 1987 on, as a medical physician and as a psychiatrist. (Id. at 5-6.) He wrote a letter on April 19, 1995, confirming her chronic low back injury and permanent disability.

On November 1, 1996, the employee prepared a Report of Occupational Injury or Illness form for her accident of June 1996. She completed the form both as the injured worker and on behalf of the employer, as the president of the company. Insurance adjuster Larry Staiger investigated the claim for the employer, interviewing the employee, Mr. Green, and Dr. Martino. Based on Mr. Staiger's report, the employer began to pay TTD benefits and to provide medical care.

At the employer's request, orthopedic surgeon John Joosse, M.D., evaluated the employee on February 24, 1997. Dr. Joosse had previously evaluated the employee on February 18, 1987 concerning the injury and disability related to her 1986 workers' compensation claim. In his 1997 evaluation, Dr. Joosse examined her, reviewed her medical records, and compared her magnetic resonance images (MRI's) from 1986 and 1988, and a CT scan from 1988, but found no significant changes. (Joosse depo. p. 8.) The employee mentioned her June 1996 fall to him, but reported she had been uncomfortable about three days, then resumed work and remained asymptomatic until October 1996. (Id. at 5, 8.)

Dr. Joosse found she suffered a temporary aggravation of her pre-existing condition as a result of the June 1996 accident; she suffered no permanent impairment from that accident; and she was medically stable, as defined at AS 23.30.265(21), at the time of the examination. (Id. at 8, 11.) He determined she presently suffers a chronic pain syndrome related to her 1986 injury; and he found the 1996 injury was not a significant aggravation of the syndrome. (Id. at 9, 10.)

Based on Dr. Joosse's February 24, 1997 report, the employer controverted all benefits on March 26, 1997. The employer had paid all TTD and medical benefits claimed by the employee up to March 1, 1997.

Dr. Martino’s medical records reflect his changing understanding of the nature of the employee’s condition. On November 6, 1996, Dr. Martino wrote to the insurer to report the employee had now disclosed an incident of falling from her truck in June 1996, but she indicated the pain had resolved in several days. In a medical report on April 11, 1997, Dr. Martino indicated he could not determine the relationship between the June 1996 incident and her ongoing symptoms because of the long latency between that injury and the onset of symptoms in October 1996. However, in a July 8, 1997 medical report Dr. Martino indicated the employee now claimed she had suffered back pains from the time of the June 1996 injury to the October 1996 incident in the church, and he believed her present symptoms stemmed from the June 1996 aggravation.

In his deposition Dr. Martino conceded the employee was not originally telling him the truth, and that she was not a reliable historian. (Dr. Martino depo. at 14, 17.) He testified he, nonetheless, tries to take his patients' statements at face value for purposes of evaluation. (Id. at 17-18.)

Dr. Martino believed she suffered a lumbar strain in 1996, which has developed into a chronic pain syndrome. (Id. at 25.) He based his present evaluation on her most recent explanation concerning the 1996 accident and its aftermath. (Id. at 18.) He was treating her with Motrin, the anti-convulsant Gabapentin, Prozac, and small amounts of the narcotic Percodan. (Id. at 25.) He can find no objective change in her symptoms or radiographic images from her 1986 injury, but feels the 1996 accident could have aggravated the pre-existing condition. (Id. at 18, 33-34.) If she would return to work, he would restrict her to a desk job. (Id. at 18.)

As a result of the conflicting opinions of Drs. Martino and Joosse, under our authority at AS 23.30.095(k) we referred the employee to a second independent medical examination (SIME) by two physicians of our choosing: neurologist Thomas Gordon, M.D., and orthopedic surgeon Douglas Smith, M.D.. The SIME physicians examined her and reviewed the medical records on November 20, 1997. In Dr. Smith's December 27, 1998 medical report he diagnosed a chronic pain syndrome and degenerative disc disease, both unrelated to her June 1996 fall from the truck. Based on the records, her verbal reports, and his observations, he attributed her symptoms to a pre-existing condition. The employee refused to complete an inclinometer range-of-motion tests.

In Dr. Gordon's November 20, 1997 report he indicated her neurological examination was normal except for pain behavior, and he diagnosed a chronic pain syndrome of unknown etiology. He was unable to find that the fall in June 1996 was a substantial factor aggravating a pre-existing condition. Dr. Gordon did not believe her symptoms were related to her work supervising the Steese Highway project in 1996. He found her condition to be primarily a psychiatric problem, and not a neurological problem.

At the May 21, 1998 hearing, the employee testified she suffered ongoing, disabling symptoms from her June 1996 injury. The employee argued she is entitled to TTD benefits under AS 23.30.185 from March 1, 1997 and continuing, and continued medical care under AS 23.30.095(a). The employee also argued the employer's controversion of benefits was frivolous and unfair.

he employee argued her testimony, the testimony of her witnesses, and the opinion of Dr. Martino, provide evidence to raise the presumption of compensability. She argued the employer has failed to provide substantial evidence to rebut the presumption. Even if the presumption was rebutted, she contended the preponderance of the evidence shows her to be disabled from her 1996 work injury; and contended the report by Mr. Staiger should be regarded as a binding admission by a party-opponent under the Alaska Rules of Evidence.

In the May 21, 1998 hearing, the employer argued Dr. Joosee and both of the SIME physicians found the employee has been medically stable since February 28, 1997, and suffered no continuing symptoms or permanent impairment from her work in 1996. The employer noted Dr. Martino bases his opinion concerning the employee's continuing disability on her reports of events and symptoms; and noted her reports have not been consistent. It argued the preponderance of the medical record shows the employee is entitled to no further benefits. The employer additionally argued it's controversion was specifically based on the medical report of Dr. Joosse, and was not frivolous or unfair.

In our decision and order of June 8, 1998, AWCB Decision No. 98-0143, we found inconsistencies in the employee’s testimony and the written records. Consequently, under AS 23.30.122, we found the employee not credible. We found from the preponderance of the evidence, especially the medical evidence, that any injury suffered by the employee from the June 1996 accident resolved and reached medical stability on or before February 24, 1997. We concluded the employee was not entitled to TTD or medical benefits after that date; and we denied and dismissed her claims for additional TTD benefits under AS 23.30.185 from March 1, 1997 and continuing; for medical benefits under AS 23.30.095(a) from March 1, 1997 and continuing; and for a finding of a frivolous and unfair controversion under AS 23.30.155(o).

The evidence concerning this case is more fully discussed in the Summary of the Evidence section of our June 8, 1998 decision and order. We here incorporate that discussion by reference.

In AWCB Decision No. 98-0170 (June 25, 1998) AWCB Decision No. 98-0170 (June 25, 1998) we retained jurisdiction over the employee’s June 15, 1998 Petition for Reconsideration, permitting her to more fully brief the issues she wished us to examine. In AWCB Decision No. 98-0182 (July 15, 1998) we found the record had been fully developed, her claims had been fully argued, and the law had been appropriately applied in the first hearing on the case. Accordingly, we denied the employee’s Petition for Reconsideration of our June 8, 1998 decision.

The employee appealed our June 8, 1998; June 25, 1998; and July 15, 1998 decisions and orders to the Alaska Superior Court. On appeal, the employee attempted to introduce additional evidence and raise additional issues. In an Order filed on April 19, 1999, Case No. 4FA-98-1998 CI, the court stayed the appeal and directed the employee to exhaust her remedies by presenting the new evidence and issues to us in a Petition for Modification.

On May 14, 1999, the employee filed a Workers’ Compensation Claim and a Petition for Modification, requesting additional TTD benefits, PTD benefits for a lung injury, medical benefits, transportation cost, interest, attorney fees and legal costs, and a finding of unfair and frivolous controversion of her claim by the employer. The employee filed additional medical records and legal briefing with us. We heard the employee’s petition for modification on November 10, 1999.

At the November 10, 1999 hearing, the employee testified she fell and injured her back while getting out of her truck at the Key Bank on November 2, 1998. She saw Nathan Simpson, M.D., who diagnosed a large herniation at L5-S1, based on a November 3, 1998 MRI. In his deposition, Dr. Simpson testified repeated falls could aggravate a back injury, but that he had no independent knowledge of the employee’s medical history. (Dr. Nathan depo., p. 18.)

The employee testified at the November 10, 1999 hearing, that she did some research on the Internet, sought referrals from her family, and eventually contacted orthopedic surgeon William Bronson, M.D., in Spokane, Washington. Dr. Bronson saw her on December 23, 1998, and took a medical history from the employee, in which she reported her fall from the truck in 1996 "was the injury which essentially disabled her." (Dr. Bronson December 23, 1998 medical report.) Dr. Bronson performed a two-level BAK spinal cage fusion on December 28, 1998. The employee testified Kathleen Meyer, M.D., performed a related diskectomy. The employee returned to Fairbanks, and came under the follow-up care of Cary Keller, M.D.

Dr. Bronson indicated in a letter dated February 18, 1999 that the employee suffered a disc herniation at L5-S1 from the November 2, 1998 fall. He indicated L4-L5 and L5-S1 suffered degenerative changes from the accumulative affect of multiple injuries. In his deposition, Dr. Bronson testified the employee’s fall of November 1997 at the Key Bank in Fairbanks precipitated her need for surgery. (Dr. Bronson depo., pp. 10-11.) He testified he had not seen the employee before her fall at Key Bank, and that he based his opinions on the history the employee gave him and her medical records. (Id., pp.22-23.)

In response to the employer’s hearing brief, Dr. Bronson wrote a letter dated November 4, 1999, which was filed with us on November 8, 1999. In this letter, Dr. Bronson explained that the employee failed to report her June 1996 injury or to seek treatment for it because she had a bad experience with her workers’ compensation claim for the 1987 injury, and because she did not want to file a claim against her own company. He wrote that he thinks she was disabled after her 1996 accident, and h would have offered to perform a fusion surgery, even before her fall at the Key Bank. The employer made an objection to this letter, under 8 AAC 45.052(c)(4), based on the late date of the filing and on the employer’s right to cross-examination. In accord with 8 AAC 45.052(c)(4), we ruled that we will not be able to rely on this letter in our decision on this hearing.

In a letter dated October 15, 1999, Dr. Joosse indicated he read the medical records regarding her November 1998 herniation at Key Bank, and concerning the treatment of that condition. He indicated this information did not alter his opinion concerning her June 1996 accident. The employee filed a timely objection to this letter, under 8 AAC 45.052(c)(2), based on the employee’s right to cross-examination. In accord with 8 AAC 45.052(c)(2), we ruled that we will not be able to rely on this letter in our decision on this hearing.

At the November 10, 1999 hearing, the employee testified she suffered chemical exposure at the Wellness Clinic, while in Washington State for her grandmother’s funeral. She testified she was receiving massage for her back problems at the time of the exposure, and that the employer’s insurance adjuster had authorized the employee’s request for treatment at the spa. The employee’s file contains a March 17, 1997 medical report concerning the employee from the Holy Family Medical Hospital Emergency Center of Spokane, Washington. The employee was seen by Ward Merkeley, M.D., who reported the employee had been exposed to "aqua chemical" fumes from a hot tub while receiving a massage at a spa that day. Dr. Merkeley noted she was suffering a cough, without wheezing. She was given nebulized and oral cough suppressants. On March 19, 1997 she was seen by Edwin Stroup, M.D., at the same facility. Dr. Stroup diagnosed chemical pneumonitis, and prescribed an albuterol inhaler and a four-day course of prednisone, advising her the condition would persist a "week or two."

The employee testified that, upon her return to Fairbanks, she came under the continuing care of Owen Hanley, M.D. She testified she secured an attorney in Washington, and was pursuing a tort claim settlement against the spa. In a letter to the employee’s attorney in the tort claim, dated March 1, 1999, Dr. Hanley indicated the employee suffered a methachlorine inhalation injury during the spa therapy, and that the employee is not able to work in an environment with air-borne chemicals or perfumes.

Dr. Hanley testified at the hearing that he believed the employee is limited in her ability to work exposed to the public. He did not expect her respiratory condition to improve in the foreseeable future. In his testimony, and in a medical report dated August 31, 1999, Dr. Hanley diagnosed the employee to be suffering from environmental irritant asthma, and gave her a 10-25 percent permanent impairment rating, based on his interpretation of the American Medical Association, Guides to the Evaluation of Permanent Impairment.

We observed the employee during the course of the hearing. Although the employee coughed persistently in our presence during the time leading up to the hearing, and during the initial portion of the hearing, her coughing ceased immediately and completely once she engaged in her argument. From that point, the employee spoke nearly continuously for 50 minutes without any respiratory difficulty.

The employee argued her former attorney interfered with her attempt to present all of her evidence before us during our initial hearing, on May 21, 1998. She also testified she was under the influence of "heavy" medication during that hearing, which may have influenced our perception of her. She also testified she has been receiving Social Security disability benefits, and other benefits since her fall at Key Bank until a month and a half before the November 10, 1999 hearing. She testified she intends to get those benefits restored by depreciating certain family assets. She testified that, if she is successful in her tort claim against the Wellness Center, she will not request workers’ compensation benefits for the lung injury from the employer.

At the hearing on November 10, 1999, the employee argued we should modify our decision and order of June 8, 1998. She argued we gave too much weight to the inaccurate medical opinions of Drs. Joosse, Gordon, and Smith. She argued Drs. Bronson and Simpson diagnosed a cumulative series of injuries to her spine, resulting in her need for surgery. She argued her 1996 injury, while working for the employer, was a substantial aggravation of her pre-existing condition, and the employer should be liable for her ongoing need for TTD benefits.

The employee also argued her asthma resulted from an accident during treatment for her compensable work-related back condition. She contended the respiratory injury is compensable, that it effectively precludes her from work, and that it is a permanent condition. She claimed PTD benefits, medical benefits and associated travel costs, interest, attorney fees, and legal costs. She requested us to find the employer frivolously and unfairly controverted her claim, and to refer the employer to the state Division of Insurance for investigation.

The employer argued we correctly weighed and evaluated the medical records concerning the employee’s back condition, and that we should decline to modify our decision and order of June 8, 1998. It noted the employee’s treatment at the Wellness Clinic took place before Dr. Joosse’s evaluation, and the resulting controversion of all benefits on March 26, 1997. It argued the treatment sought by the employee at the Wellness Clinic was for back problems unrelated to her work for the employer, and any medical problems resulting from that treatment would not be compensable under this claim.

The employer argued the employee has no new evidence concerning her 1996 injury, and that she is simply trying to re-litigate her case. It contended we should not consider the new medical records. It also argued that, if the new records are considered, those records should be submitted to our SIME physicians for evaluation.

I. MODIFICATION

AS 23.30.130(a) provides:

The Alaska Supreme Court discussed subsection 130(a) in Interior Paint Company v. Rodgers, 522 P.2d 161, 168 (Alaska 1974). 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." We have also applied AS 23.30.130 to changes in condition affecting vocational status and reemployment benefit determinations. See Imhof v. Eagle River Refuse, AWCB Decision No. 94-0330 (December 29, 1994).

Our regulation at 8 AAC 45.150(e) requires specific facts, not just a general allegation, of a change of condition or mistake of fact to serve as a basis for modification. AS 23.30.135 provides us with general investigation powers, and responsibility, to best ascertain the rights of the parties. AS 23.30.110(g) specifically authorizes us to conduct medical investigations.

In this case, the Alaska Superior Court specifically remanded this case to us to consider new evidence offered by the employee. The employee asserts Drs. Bronson and Simpson diagnosed a cumulative series of injuries to her spine, resulting in her need for surgery. She argues her 1996 injury, while working for the employer, was a substantial aggravation of her pre-existing condition and the employer should be liable for her ongoing need for TTD benefits. The employee also asserts her asthma resulted from an accident during treatment for her compensable work-related back condition. She contends the respiratory injury is compensable, that it effectively precludes her from work, and she claims PTD benefits. We will exercise our discretion under AS 23.30.130 to re-examine our decision and order for possible modification.

II. TTD BENEFITS FOLLOWING MARCH 1, 1997

AS 23.30.185 provides:

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. However, § 185 does limit the duration of TTD to the date of medical stability.

AS 23.30.395(21) defines medical stability:

Moreover, the Alaska Supreme Court in Bailey v. Litwin Corp., 713 P.2d 249 (Alaska 1986), held "that 'medical stability' is irrelevant in determining cessation of TTD benefits if the employee has returned to work." Olson v. AIC/Martin J.V., 818 P.2d 669, 673 (Alaska 1991). However, if TTD benefits are to be terminated because the employee has returned to work, it must be shown the employee is capable of steady and readily available employment. Id. at 10-13. Thus, under AS 23.30.185 and .395(10) and the case law, TTD benefits cease when the employee 1) reaches medical stability, or 2) returns to steady and readily available employment, whichever comes first.

The employer does not dispute the benefits paid before March 1, 1997. In the March 26, 1997 controversion the employer terminated benefits based on the report of Dr. Joosee. The dispute is whether or not the employee reached "medical stability" by February 24, 1997, thereby terminating her entitlement to TTD benefits thereafter.

Generally, "AS 23.30.120(a)(1) creates the presumption of a compensable disability once the employee has established a preliminary link between employment and injury." Wien Air Alaska v. Kramer, 807 P.2d 471, 474 (Alaska 1991). That the employee "suffered a work related injury for which he received compensation from [the employer] is sufficient to establish a preliminary link between his employment and his continuing disability thus implicating AS 23.30.120(a)." Id. at 474, n.6. Nevertheless, the Alaska Supreme Court ruled in Municipality of Anchorage v. Leigh, 823 P.2d 1241 (Alaska 1992), that the 1988 amendments to our Act specifically limit the statutory presumption to prevent its application to questions of medical stability.

The presumption of medical stability in the statutory definition must be read in the context of the terms that "improvement. . . is not reasonably expected": the employer is required to show at least some evidence to establish medical stability. Once medical stability is established and has continued for 45 days, it is presumed to continue until overcome by clear and convincing evidence. Id. at 1246-47.

In this case, the employer's examining physician, Dr. Joosse, found the employee medically stable as of February 24, 1997. Based on a physical examination of the employee and review of the medical records, Dr. Joosse found the June 1996 incident to be a temporary exacerbation, which quickly and completely resolved. He found her continuing symptoms resulted from her 1986 injury.

The employee's treating physicians, Drs. Martino and Bronson disagreed with Dr. Joosse. Both of these physicians believed the employee to be suffering continuing and disabling symptoms from the 1996 fall from the truck.

We are very troubled by the employee's inconsistent reports to the physician's concerning the accident of June 1996, and its aftermath. We find the changes in her story are self-serving. We find the employee is not credible. AS 23.30.122. We are also troubled by our observations of the employee during the course of the November 10, 1999 hearing. Although the employee coughed persistently in our presence during the initial portion of the hearing, her coughing ceased abruptly and completely once she was distracted with the presentation of her argument. The employee then spoke nearly continuously for 50 minutes without any respiratory difficulty. Regrettably, this reconfirms our determination that the employee is not credible. Because Drs. Martino and Bronson relied heavily on the employee’s version of her medical history, and other facts, as the basis for their opinions, we can give little evidentiary weight to their medical opinions.

Drs. Smith and Gordon both found the employee medically stable, having suffered only a brief exacerbation of her underlying condition from the June 1996 accident. They found no permanent impairment or ongoing symptoms related to that accident. They both ascribed her continuing symptoms to physical or psychological conditions, pre-existing 1996.

Based on our re-examination of the record from our initial hearing, together with the employee’s subsequently-generated medical records, we find from the preponderance of the evidence that any injury suffered by the employee from the June 1996 accident reached medical stability, and completely resolved, on or before February 24, 1997. We can find no clear and convincing evidence in the record to rebut this finding. We must conclude that the employee was not entitled to TTD benefits after that date. Her petition to modify our June 8, 1998 decision, and to award additional TTD benefits, must be denied and dismissed.

III. MEDICAL BENEFITS

The presumption of compensability, AS 23.30.120(a), also applies to claims for continuing medical benefits. Municipality of Anchorage v. Carter, 818 P.2. 661, 665 (Alaska 1991). 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 Superior Court June 30, 1982), aff'd Ireland Chiropractic Clinic v. Matanuska-Susitna School District, memorandum opinion and judgment, Op. No. 7033 (Alaska S. Ct. June 1, 1983).

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, 623 P.2d 316 (Alaska 1981). In less complex cases, lay evidence may be sufficiently probative to establish causation. Veco, Inc. v. Wolfer, 693 P.2d 865, 871 (Alaska 1985).

In this case, the employee, Dr. Martino, and Dr. Bronson all believed the employee needed continuing medical treatment for the injury she sustained in June 1996. As noted above, we find the employee not credible, and we give little weight to Dr. Martino's or Dr. Bronson’s opinions because of their reliance on her word. Nonetheless, viewed in isolation, we find the evidence from Dr. Martino and Dr. Bronson to be sufficient to raise the presumption of continuing compensability for the employee's medical benefits. Norcon v. AWCB, 880 P.2d 1051, 1054 (Alaska 1994).

Once the presumption attaches, substantial evidence must be produced showing the disability is not work-related. Smallwood, 623 P.2d at 316. 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 Serv. Co., 617 P.2d 755, 757 (Alaska 1980). There are two methods of overcoming the presumption of compensability: (1) presenting affirmative evidence showing that the injury, condition, or disability is not work-related or (2) eliminating all reasonable possibilities that it is work-related. Grainger v. Alaska Workers' Compensation Board, 805 P.2d 976, 977 (Alaska 1991).

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. Wolfer, 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.

In his February 24, 1997 medical report, Dr. Joosse determined any symptoms from the 1996 injury had completely resolved, and attributed the employee's condition to her 1986 injury. We find Dr. Joosse's opinion to be substantial evidence, affirmatively showing her ongoing symptoms are not related to the 1996 work. We conclude his opinion rebuts the presumption of compensability.

Once substantial evidence shows the condition is not work-related, the presumption drops out, and the employee must prove all elements of the 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).

Considering all the evidence in the record, we find the opinions of Drs. Joosse, Smith, and Gordon persuasive. By the preponderance of the evidence, we find the employee suffered no more than a temporary exacerbation of her pre-existing condition in her accident of June 1996. We find that any harm from the 1996 accident was completely resolved before Dr. Joosse's examination on February 24, 1997. We must conclude under AS 23.30.095(a) the employee is entitled to no medical benefits, or any other benefits, after that date. We must deny and dismiss the employee's petition for modification and claim for medical benefits from March 1, 1997 and continuing.

IV. PERMANENT TOTAL DISABILITY BENEFITS

The Alaska Workers' Compensation Act at AS 23.30.180 provides, in part: "PERMANENT TOTAL DISABILITY. In case of total disability adjudged to be permanent 80 per cent of the injured employee's spendable weekly wages shall be paid to the employee during the continuance of the total disability. . . . [P]ermanent total disability is determined in accordance with the facts."

As noted in the section above, based on our examination of the record, we find from the preponderance of the evidence that any back injury suffered by the employee from the June 1996 accident reached medical stability, and completely resolved, on or before February 24, 1997. The employee alleges she suffers asthma as a side-effect of March 17, 1997 treatment related to her June 1996 accident. Because the employee’s 1996 injury was completely resolved before March 17, 1999, we cannot find the back treatment or the chemical exposure were compensable against this employer. Consequently, we will deny and dismiss the employee’s petition for modification , and deny her claim for PTD benefits.

V. OTHER ISSUES

Because the employee’s 1996 injury was completely resolved on or before February 24, 1999, we cannot find any basis on which to modify our dismissal of the employee’s various claims in our June 8, 1998 decision and order. Accordingly, we will deny and dismiss the employee’s petition to modify, and deny her reiterated claims for transportation costs, interest, attorney fees and legal costs, and a finding of unfair and frivolous controversion.

1. The employee’s petition to modify AWCB Decision No. 98-0143 (June 8, 1998) under AS 23.30.130 is denied and dismissed. Our decision and order of June 8, 1998 is reaffirmed.

2. The employee's claims for additional TTD benefits under AS 23.30.185 from March 1, 1997 and continuing; PTD benefits under AS 23.30. 180; medical benefits under AS 23.30.095(a) from March 1, 1997 and continuing; medical transportation costs under 8 AAC 45.082(d) and 8 AAC 45.084; interest under 8 AAC 45.142; attorney fees and legal costs; and for a finding of a frivolous and unfair controversion under AS 23.30.155(o) are all denied and dismissed.

Dated at Fairbanks, Alaska this 15^th day of November, 1999.

ALASKA WORKERS' COMPENSATION BOARD

/s/ William Walters
William Walters,
Designated Chairman

/s/ John Giuchici
John Giuchici, Member

This compensation order is a final decision. It becomes effective when filed in the office of the Board unless proceedings to appeal it are instituted. Proceedings to appeal must be instituted in Superior Court within 30 days of the filing of this decision and be 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 party may ask the Board to reconsider this decision by filing a petition for reconsideration under AS 44.62.540 and in accordance with 8 AAC 45.050. The petition requesting reconsideration must be filed with the Board within 15 days after delivery or mailing of this decision.

I hereby certify that the foregoing is a full, true and correct copy of the Decision and Order on Modification in the matter of BARBARA A. BAUMGARTNER employee / petitioner; v. NORTH POLE RECLAMATION, INC., employer; EMPLOYERS INS. OF WAUSAU, insurer / respondents; Case No. 199627404; dated and filed in the office of the Alaska Workers' Compensation Board in Fairbanks, Alaska, this 15^th day of November, 1999.

Lora J. Eddy, Clerk

SNO