JOYCE L. ROBLES, 
Employee, 
and 
GRANT MATTHISEN, D.C.,
Applicants
v. 
WAL-MART, INC #2070 (A ST),
Employer,
and 
INSURANCE CO OF STATE PA,
Insurer,
Defendant(s).
______________________________________

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FINAL
DECISION AND ORDER
AWCB Case No. 199720700
AWCB Decision No. 99-0260 
Filed with AWCB Anchorage, Alaska 
December 28, 1999

We heard Employee and Dr. Matthisens’ claims on September 8, 1999, after the Board cancelled the hearing originally scheduled for August 25, 1999 because technical difficulties prevented Dr. Matthisen from adequately participating as a party. 8 AAC 45.072(f)(3) and 8 AAC 45.074(b)(1)(C). Attorney Chancey Croft represents Employee. Attorney Richard Wagg represents Employer and its Insurer. Dr. Matthisen represents himself. We closed the record at the end of the hearing.

Employee’s claims:

1. Is Employee entitled to Temporary Total Disability (TTD) from October 18, 1997 through April 27, 1998 because she was not medically stable, or able to return to work, during this time?
2. Is Employee entitled to penalties and interest on the TTD benefits, described above, because such benefits were due but not timely paid, and/or Employer’s controversions were unfair and frivolous?
3. Is Employee entitled to Permanent Partial Impairment (PPI) benefits, plus interest, based on the rating by either Glenn Ferris, M.D., or Douglas Smith, M.D.?
4. Is Employee entitled to fully compensable and reasonable attorney fees and costs?

Dr. Matthisen’s claims:

1. Should we order Employer to pay for treatment rendered by Dr. Matthisen?
2. Should we award penalties and interest on the value of the chiropractic benefits described above, and to whom should such payments be made, Dr. Matthisen or Employee?

Employee testified at hearing, and by deposition taken July 6, 1999. Employee said she has worked most of her adult life as a minister in Mexico. Beginning in May 1997, Employee worked for Employer as a "greeter." Her work area was near the front door of the store. There, she greeted customers on their arrival, provided them with shopping carts, and monitored departing customers for purposes of theft control. At hearing, Employee said her work was fast paced, and the floor on which she stood was concrete covered with tile. Employee testified Employer has since covered this area with a rubber mat.

On August 25, 1997, Employee fell. Employee’s Report of Occupational Injury states: "Aches + pains all over from falling backwards over a child who walked behind me as I was dispensing shopping carts, bruised right little finger, sore left wrist + shoulder, middle back pain."

Employee said the child’s legs became entangled with hers, twisting her left knee during the fall. (Employee dep. at 21, 28). Employee testified she never before had knee pain. (Id. at 12). Employee said her overall pain prevented her from realizing she had hurt her knee during the fall, until the following day. (Id. at 23-24).

Having successfully treated with Dr. Mattihisen for a prior injury, Employee sought treatment from him again pain following the work injury. On August 27, 1997, Employee completed Dr. Matthisen’s intake form. On it, Employee wrote she was experiencing backaches, neck pain and stiffness, and pain between her shoulders. Additionally, on the pain diagram, completed the same day, Employee also indicated she had pain in her left knee. (Dr. Matthisen July 13, 1999 dep., Exhibit 4, pg.2). At hearing, Dr. Matthisen testified Employee complained of neck, low back, wrist and knee pain on her initial visit. (Id. at 22; See also, Employee dep. at 53). Specifically, Dr. Matthisen recalled Employee telling him she twisted her knee when she fell. (Id.). Employee also testified she told Dr. Matthisen about her knee pain at the first visit, although he seemed more concerned about her neck injury. (Id. at 25-26).

At hearing and during his deposition, Dr. Matthisen testified he did not examine or treat Employee’s knee pain during the initial visit because it was secondary to her spinal complaints of pain. (Id. at 22-25). Therefore, Dr. Matthisen explained, he also did not document Employee’s knee complaints in his August 27, 1997 chart notes. (Id.) Instead he treated, and charted, her primary complaints, which were for spinal pain. Dr. Matthisen did not treat, or document Employee’s left knee complaints in his chart notes until November 3, 1997.

Employee testified at hearing that Dr. Matthisen released her for a trial return to work, with limitations, on September 23, 1997. Her limitations included the ability to sit and stand, as needed, and to avoid pushing, pulling or lifting.

Employee testified she returned to work with these restrictions, but continued to have problems, particularly with her low back. (Employee dep. at 33-34). Employee explained that when she would become fatigued, or felt overly pressured with work, her pain symptoms would increase. (Id. at 36, 38, 49). At hearing, Employee testified she was unable to comfortably move, or in her opinion, perform the duties of her greeter position at a pace her immediate supervisor, who was unaware of her limitations, found acceptable. Employee said her supervisor gave her a "rough time" and made her feel as though she was not doing her job. During cross-examination, Employee said this particular supervisor only managed her for three or four days, however.

On cross-examination, Employee testified that, to her understanding, employees are not generally allowed to ask for assistance. Employee said, and in her position, she would only be able to alternate sitting and standing for short periods of time. (See also, Employee dep. at 18, 36). Other than providing her with a chair on which to sit, and stationed her at the store’s less busy rear entrance. Employer made no other accommodations for her injury. (Id. at 19).

Employee said most of her limitations were self-imposed. Employee said she was concerned she might be fired for lack of her ability to fully return to work in the capacity that was, as she understood it, expected of her. Employee admitted that no one ever told her she would be fired. Employee said she was never offered any other position.

Coleman Taylor, manager of the "A" Street store for about three and one-half years, testified by telephone at hearing. Taylor said it is the store’s policy to accommodate an injured employee’s return to work in some capacity as quickly as possible, and that Employer could, and would, have modified the greeter position to accommodate Employee’s restrictions. Alternatively, Taylor said, if the greeter position could not be modified to accommodate Employee’s restrictions, then Employer would have provided Employee with different work, such as answering phones or processing paperwork.

Taylor testified he had direct contact with Employee. Employee denies they had direct contact. When Employee came back to work unexpectedly, he told her to get a doctor’s clarification of her work restrictions. Taylor testified Employer does not penalize workers with restrictions, and he would not have allowed any supervisor to penalize a person returning to work with restrictions.

Taylor testified it was his understanding Employee returned to work with a partial release, which would eventually be replaced with a full release. Taylor testified Employer could accommodate Employee’s September 1997 return to work restrictions, as set forth in Dr. Matthisen’s July 1999 deposition at page 38, and in fact did. Taylor said he had no independent knowledge Employee’s work, as modified, was causing her any problems. However, Taylor was aware Employee was having knee pain during her return to work trial, and that she was told to have it checked out by a physician.

On September 12, 1997, Employer controverted "chiropractic treatment 8/27 – 9/8/1997 and corresponding bill for $2,883.00 (5 treatment dates) and future neck treatment." The controversion states:

On September 15, 1997, Employee was examined by Susan Klimow, M.D., at Employer’s request. Dr. Klimow testified by deposition. Dr. Klimow said Employee did not complain of left knee pain at the time of the initial evaluation. (Dr. Klimow August 17, 1999 dep. at 10). However, Employee testified she told Dr. Klimow about her left knee during the September 1997 examination. (Employee dep at 30).

Dr. Klimow limited her initial examination to Employee’s stated complaints of "cervical, thoracic, low back myofascial [muscular] discomfort." (Id.) Her September 1997 report also indicates she was aware of Employee’s bilateral hip pain and intermittent headaches. In her September 1997 report, Dr. Klimow said these conditions were probably related to the August work accident. Dr. Klimow testified Employee had a "negative neurological examination . . .and did not believe she suffered a permanent partial impairment. . ." (Id.).

Although Dr. Klimow found Employee had not yet reached medical stability, because she would benefit from a program of physical therapy, Employee could have returned to full duties as a greeter. (Dr. Klimow Septemeber 12, 1997 report; Dr. Klimow dep. at 12). Dr. Klimow did not think further chiropractic treatment was reasonable or necessary, and doubted there would be any PPI at the time of medical stability. (September 12, 1997 report).

Employer controverted continued chiropractic care by Dr. Matthisen on October 7, 1997, citing questionable procedure codes and the reasonableness and cost of treatment as the basis for controverting. Glenn Drobot, D.C., performed a "chiropractic review of records" at Employer’s request. In his October 24, 1997 report, Dr. Drobot stated, in part:

On October 17, 1997, Employee returned to Dr. Matthisen. He issued another disability certificate because of neck and back pain. In his November 7, 1997 report, Dr. Matthisen also released Employee from further work because of knee pain, and referred her to Edward Voke, M.D., for an orthopedic evaluation of a suspected "chip avulsion fracture."

On November 4, 1997, Employer’s adjuster asked Barry Matthisen, D.C., to review Employee’s medical records for the purpose of providing an opinion about "whether the treatment received by Ms. Robles was reasonable and necessary when compared to the reported injury and description of the symptoms." (Dr. Barry Matthisen November 5, 1997 letter to Johanna Grasso). Dr. Barry Matthisen’s letter stated, in part:

Employer's November 6, 1997 Controversion rescinded its former denial regarding the compensability of Employee’s neck claim based on Dr. Klimow’s report. The controversion continued, however, to deny payment for chiropractic treatment, relying on the reports of Drs. Klimow, Drobot and Barry Matthisen. Employer controverted medical and disability benefits related to Employee’s knee on November 19, 1997 for failure to give notice under AS 23.30.100, and because there were no medical records to indicate the left knee was injured during the August 1997 fall.

Dr. Matthisen’s November 25, 1997 report referred Employee to Glenn Ferris, M.D., for further evaluation of Employee’s neck, back and knee. (See also, Dr. Matthisen dep. at 48). Employee continued to threat with Dr. Matthisen for back and knee pain, until she was released to work, within pain tolerance, on April 25, 1999. Employee testified that she understood she was to avoid twisting, and was instructed on proper methods for pushing carts, sitting and standing. (See also, Employee dep. at 46). Employee testified she has remained at work, since that time, limiting herself in accordance with the restrictions she understood Dr. Matthisen had put in place and never lifted. (Id.). Employee said she received an "Employee of Honor" award in March 1999.

Employee testified Dr. Ferris’ involvement in her medical care was mostly diagnostic and consultative. However, he also wrote a prescription for ultrasound cream to be used by Dr. Matthisen in the treatment of her knee. (Employee dep. at 39). Employee said Dr. Matthisen’s treatment regime, based on the recommendations by Dr. Ferris, successfully returned her to work. Employee testified Dr. Matthisen’s treatment was curative, not palliative, as she understood those terms when explained to her by Dr. Matthisen during direct examination.

At his deposition, Dr. Matthisen testified he graduated from Palmer College of Chiropractic in 1992. (Dr. Matthisen July 13, 1999 dep. at 5). At Palmer, he received training in radiology, including the taking, developing and reading of x-rays. (Id. at 6). Since graduation, Dr. Matthisen testified he has taken specialized training in diagnostic sonography, dual inclinometry, computerized range of motion, surface EMG, certified chiropractic examinations, and disability evaluation. (Id.).

Dr. Matthisen explained that phonophoresis is the application of prescription medication which is initially "massaged in," and then pushed into the muscle tissue by use of ultrasound. (Id. at 11). Dr. Ferris prescribed the medication, which Dr. Matthisen applied through ultrasound. (Id. at 12). At hearing, Dr. Matthisen said he relied on Dr. Ferris’ recommendations to make professional decisions about Employee’s treatment course.

At hearing, Dr. Matthisen said he also asked Noel Stipkovich, D.C., to review multiple scans to formulate his treatment plan. Dr. Matthisen explained that while he is qualified to perform the testing, he is not certified to interpret the data, as is Dr. Stipkovich. (Dr. Matthisen dep. at 32-34). In Employee’s case, Dr. Matthisen thought it was very important the x-rays be reviewed to verify what he thought may have been a fracture in Employee’s neck. (Id.). Additionally, Dr. Matthisen testified that he did not think it was prudent to begin treatment without such verification. (Id. at 38).

Based on his initial evaluation, Dr. Matthisen did not think Employee could return to work. (Id. at 36). Subsequently, he released Employee for a trial return to work on September 25, 1997 with restrictions. (Id. at 39, 45). However, by early November, Dr. Matthisen testified, Employee’s knee problems (rather than spinal pain) prevented her continued employment. (Id. at 41). Nevertheless, Dr. Matthisen testified that while her spinal conditions were improving, her pain persisted. (Id. at 42). According to Dr. Matthisen, Employee continued to improve under his care, and was not medically stable even on April 24, 1998. (Id. at 50-52). Dr. Matthisen testified, however, that by then, his treatment "had reached its affectability" and Employee could return to work. (Id. at 53). On April 27, 1998, Dr. Matthisen released Employee from further treatment at his office and referred her back to Dr. Ferris for final evaluation. (Id. at 46).

With regard to billing, Dr. Matthisen explained he generally highlights what he has done during treatment, and gives his notes to his receptionist for entry on a computer. (Id. at 19). Although not admitted at hearing, Dr. Matthisen argued from Dr. Stipkovich’s May 12, 1997 letter responding to Dr. Matthisen’s request for "medical necessity material to answer queries by insurance companies."

Based on his understanding of the "Mercy Guidelines," Dr. Matthisen also explained that someone with significant pre-existing conditions, like Employee, is treated more frequently, than someone without such preconditions. For this reason, Dr. Matthisen testified, the opinion offered by Scott Fechtel, D.C., M.D., should be discredited. Dr. Matthisen testified the opinions offered by Susan Klimow, M.D., should also be discredited given her incorrect understanding of the term "subluxation" and her lack of chiropractic credentials. Dr. Matthisen testified the American Board of Independent Medical Examiners and the State of California, Nevada, and Minnesota have adopted prohibitions against permitting medical doctors from rendering opinions in chiropractic claims.

Although not marked as an exhibit, Dr. Matthisen referred us to his October 10, 1997 letter of complaint to the Board regarding Employer’s adjuster. Employee also testified she had a less than "cordial" interaction with Employer’s adjuster. The scope of the complaint, in both instances, centered mostly on the adjuster’s unwillingness to authorize payment for Dr. Matthisen’s treatments.

On April 27, 1998, Employee was reevaluated by Dr. Klimow. During the second evaluation, Employee complained of left knee pain, in addition to ongoing neck, low back, and hip problems.

With regard to the left knee complaints, Dr. Klimow’s report states: "There are indications throughout the medical records that this was not an issue until it was brought up on November 3, 1997. I agree . . . the left knee should not be considered a part of this workers’ compensation claim." Dr. Klimow believed Employee had reached "pre-injury status."

Except for opinions expressed about Employee’s left knee complaints, Dr. Klimow’s subsequent report was in most respects consistent with her earlier report. (Dr. Klimow dep. at 19; but see, 34-41). In her April 1998 report, Dr. Klimow affirmed her position that further chiropractic care, or additional treatment of any type, or diagnostic tests were unnecessary. Finally, Dr. Klimow stated, in her April 1998 report, Employee had "not suffered a permanent partial impairment from this injury . .." (See also, Dr. Klimow dep. at 16).

Consistent with her April 1998 report, Dr. Klimow testified she found no objective impairment to Employee’s left knee, or inability to work because of it. (Id. at 15-16, 19). Based on her April 1998 examination, Dr. Klimow testified Employee has been able to work as a greeter since her September 1997 evaluation, even though she may not have been medically stable, at that time. (Id. at 16, 38).

With regard to Employee’s overall PPI rating, Dr. Klimow testified Employee has a zero PPI whole person rating because there were no findings to place her outside of Category I under the AMA Guidelines, Fourth edition. (Id. 22-25, 32). Dr. Klimow testified she would not have conducted range of motion (ROM) testing, as did Douglass Smith, M.D., because in her opinion there was no question about which category in which Employee’s conditions fell. (Id. at 28, 30-31). Also, because Employee’s neurological evaluation was negative, Dr. Klimow did not believe there was justification for further diagnostic testing, evaluation or treatment. (Id. at 34). After reviewing Dr. Smith’s Second Independent Medical Evaluation (SIME) report (summarized below), Dr. Klimow testified she found nothing in his report which would change any of the opinions she expressed in her reports or testimony. (Id. at 49).

Dr. Ferris performed a PPI rating on May 19, 1998. He determined Employee was ten percent whole person impaired, half of which was attributable to her neck condition, and half to her low back condition. Employer controverted Dr. Ferris’ ten percent rating, and denied "future medical treament from 4/27/98 forward" based on Dr. Klimow’s report. (June 10, 1998 Controversion).

Dr. Matthisen also performed range of motion tests and determined Employee had suffered an 8 percent whole person impairment for her cervical condition (April 27, 1998 Spinal Range of Motion Exam; Hearing Exhibit 1) and seventeen percent whole person impairment for her lumbar condition (September 7, 1999 Spinal Range of Motion Exam; Hearing Exhibit 2). Dr. Matthisen testified these percentages were derived by using computer assisted chiropractic measurements which he is certified to perform, even though his ability to perform ratings in accordance with the AMA Guidelines was never established. (Dr. Matthisen dep. at 54).

In December 1997 and January 1998, a panel SIME was performed by Douglas Smith, M.D., and Scot Fechtel, D.C., M.D., respectively. In his January 7, 1998 report, Dr. Smith concluded, in pertinent part:

1. Employee’s low back condition is historically related to the August 1997 injury, and has resulted in a five percent whole person impairment.
2. Employee’s neck condition may just as likely be attributable to a prior (1995) injury as the August 1997 incident, but that any residual problems did not result in an impairment.
3. Employee’s knee condition, although possibly related to the August 1997 work injury, is probably not work related, and in any event would have a zero percent of impairment.
4. No further testing or treatment is appropriate for any of the conditions.
5. Employee became medically stable from her work-related low back condition in late April 1998 (based on Dr. Klimow’s measurements), but given the "paucity of objective measurements provided by treaters that would allow evaluation of progress from an objective point of view," Employee may have been stable earlier.

Dr. Fechtel’s Janaury 23, 1998 report, concludes in pertinent part:

1. Employee suffers from myofacial (muscle) pain, with no evidence of more significant orthopedic or neurologic findings.
2. X-rays (taken by Dr. Matthisen on 8/27/97 and 10/3/97) showed mild degenerative joint disease consistent with Employee's age.
3. Ongoing chiropractic treatment was palliative only, and would not help with recovery from the work injury or reduce any permanent impairment, but could promote recovery from individual attacks caused by a chronic condition which would allow her to continue working. Dr. Fechtel’s report also stated, in part:

In a subsequent letter to the Board providing clarification, Dr. Fechtel expanded on his opinions. Dr. Fechtel’s March 6, 1999 letter states in relevent part:

We first address the claims asserted by Dr. Matthisen, because our findings with regard to his claims are, in part, the basis for our findings with regard to Employee’s claim for additional TTD benefits and penalties.

I. Should we order Employer to pay for services rendered to Employee by Dr. Matthisen?

Dr. Matthisen argues he is entitled to payment for the value of services he provided to Employee which were unfairly or frivolously controverted by Employer’s adjustor, penalties, and interest. Dr. Matthisen admits the multiple treatments he provided Employee exceeded the frequency standards outlined in our regulations. He asserts the Board should invoke its discretion and order payment for the additional treatments because he has met the criteria outlined in our regulations based on his own testimony and the medical recommendations made by Dr. Ferris. Specifically, Dr. Matthisen argues that Employee’s pre-existing spinal condition required treatments in excess of the frequency standards and therefore should be ordered paid by the Board.

Employer disputes the compensability of Dr. Matthisen’s claims, not just because his treatments were excessive, but because they were also unnecessary, unreasonable and costly.

AS 23.30.095 states in relevant part:

. . .

Our regulation AAC 45.082 states, in part:

The Board has a long upheld the sanctity of medical benefits provided to injured workers. Egemo v. Egemo Construction, AWCB Decision No. 98-0116 (May 11, 1998). Nevertheless, medical benefits must be reasonable and necessary to be payable under subsection 95(a). Municipality of Anchorage v. Carter, 818 P. 661 (Alaska 1991). Consequently, while the purchase of an ordinary hot tub may be compensable because it would aid in the process of recovery from acute episodes of pain caused by a chronic condition (Carter), the purchase of an elaborately landscaped, gazebo-covered, out-door hot tub is not. Hodges v. Alaska Constructors, Inc., Slip. Op. No. 4971 (April 17, 1998). See also, Weinberger v. Matanuska-Susitna School Dist., AWCB Decision No. 810201 (July 15, 1981; aff’d 3AN-81-5623 (Alaska Superior Crt., June 30, 1982).

In chiropractic care claims, the Board has determined the treatment standard outlined in its implementing regulation is a guideline, and not an inflexible or absolute maximum. Bockness v. Brown Jug, AWCB Decision No. 96-0335 (August 22, 1996); aff’d Alaska Supreme Crt., Slip Op. 5122 (May 28, 1999). In Bockness, based on facts similar to those presented here, the Board found, and the Alaska Supreme Court agreed, Brown Jug had presented substantial medical evidence which showed that the employee’s chiropractic treatment was unreasonably excessive. "[C]hiropractic treatments, of such a passive nature, were not necessary for such a long and extensive duration." Id. at 18. Reviewing the evidence as a whole, the Board found Bockness had failed to prove his claim for chiropractic treatment in excess of the Board’s frequency standards by a preponderance of the evidence. Id.

More recently, the Alaska Supreme Court has held medical care sought by an injured worker within two years of the injury is compensable, unless the employer can meet the "heavy burden" of proving such care is unreasonable, unnecessary or outside the scope of accepted medical practice. Weidner & Associates v. Hibdon, Slip Op. 5189 at (October 8, 1999). The Court’s decision appears to change the presumption analysis, as first articulated in Carter, by making the employer’s burden of proving that a particular treatment is not compensable higher than a mere "preponderance of the evidence." (For a detailed explanation regarding the presumption of compensability under AS 23.30. 120, and its application, see infra. pp. 28-29). As between two legitimate, yet competing opinions about the efficacy of treatment, the employee may choose to follow the recommendations of his/her own physician. Hibdon states, in pertinent part:

Although Hibdon did not address the compensability of chiropractic care specifically, we find it is applicable to the Dr. Matthisen’s claim for payment of his services in this case. We make this finding based on Dr. Matthisen’s medical reports that indicate Employee sought, and received, treatment from Dr. Matthisen for her work injury within two years of the work accident. Based on his reports, we also find the care rendered by Dr. Matthisen during this time, late August 1997 through late April 1998, was for continuing and multiple treatments of a similar nature.

Based on the testimony of Employee and Dr. Matthisen, we find Dr. Matthisen’s treatment was prescribed and endorsed by Dr. Ferris who, on a consulting basis, corroborated Dr. Matthisen’s decision to render chiropractic care in excess of the frequency standards under 8 AAC 45.082.

Dr. Matthisen also argues, post hoc ergo propter hoc, that because his nine months of chiropractic treatment preceeded Employee’s return to work, his care must therefore have been responsible for her recovery, and is compensable. In support of this position, Dr. Matthisen relies on Employee’s testimony that she believes it was his care which restored her health, and allowed her to return to work. Taken in isolation, we do not find such argument convincing. However, based on Dr. Matthisen’s testimony that Employee’s age and pre-existing spinal condition necessitated the treatment regime Dr. Ferris prescribed, and he rendered, we find Dr. Matthisen has presented sufficiently credible evidence his care was reasonable and necessary to the process of Employee’s recovery, given the nature of her work injury. We find this same evidence attaches the presumption of compensability under AS 23.30.120. Carter, supra. Therefore, based on Hibdon, we will conclude Dr. Matthisen’s care is compensable, unless Employer can not only rebut the presumption of compensability with substantial evidence, but also sustain its "heavy burden" of proof, when reviewing the record as a whole, that Dr. Matthisen’s treatment was "not reasonable or necessary, nor within the realm of acceptable medical options under the particular facts."

We find Employer has sustained its burden of proof that the extent and duration of Dr. Matthisen’s care was unreasonable, unnecessary and outside the realm of acceptable medical options. We find Employee’s recovery from her August 1997 work accident, and subsequent return to work, occurred despite Dr. Matthisen and Dr. Ferris’ care, not because of it.

We make this finding based on the SIME reports of Drs. Smith and Fechtel, which in turn, relied substantially on the objective measurements and detailed findings rendered by Dr. Klimow from her two evaluations of Employee in September 1997 and April 1998. Although we found Employee and Dr. Matthisen’s testimony was sufficiently credible to invoke the application of Hibdon, and attach the presumption of compensability under AS 23.30.120, we nevertheless give substantially greater weight to the medical reports generated by the other physicians who have offered opinions in this claim, particularly our SIME physicians, Drs. Smith and Fectel. AS 23.30.122. We find, based on the same evidence, Employer has rebutted the presumption with substantial evidence. Furthermore, reviewing the record as a whole, we find Dr. Matthisen has not sustained his burden of proving his treatment was reasonable or necessary because it aided in the process of Employee’s recovery.

We give less weight to Dr. Matthisen’s reports and testimony, because we, like Dr. Smith, found the "paucity of objective measurements provided by treaters [Drs. Matthisen and Ferris]. . . [prevents] evaluation of [Employee’s] progress from an objective point of view." By contrast, we find that Dr. Klimow’s reports detailed objective data, and that Drs. Smith and Barry Matthisen also found Dr. Klimow’s reports a valuable source of information for rendering their own opinions. (Dr. Barry Matthisen’s November 5, 1997 letter to Johanna Grasso and Dr. Smith’s January 7, 1998 SIME report to the Board).

Based on the reports of Drs. Fechtel and Barry Matthisen, both chiropractors, we find that Dr. Matthisen’s treatment was excessive, unreasonable, unnecessary, and not within the realm of acceptable chiropractic or medical practices which would promote or aid in the process of Employee’s recovery for the injuries she sustained. To the contrary, we find the duration of Dr. Matthisen’s excessive treatment with passive modalities retarded Employee’s return to health by "predisposing [her] to continuing symptoms" and "ongoing musculoskeletal decompensation." (Dr. Fechtel January 23, 1998 SIME report). We make this finding based on the reports of Drs. Klimow, Barry Matthisen, Smith and Fecthel that Employee did not suffer from any significant pre-existing orthopedic, neurologic, or other health problems which would, under the Mercy Center Guidlelines, justify multiple weekly chiropractic visits for more than 8 weeks following the injury. We find eight weeks of treatment to Employee’s neck, and back, at the frequency standard under 8 AAC 45.082, should have been completed no later than the first week of November 1997. (For reasons explained below, we do not find Employee’s left knee condition compensable. Therefore, Dr. Matthisen’s claim for treatment of her knee is denied and dismissed.)

Thereafter, Employee should have been engaged in "active self-treatment measures to increase her strength and endurance to support [ . . .] soft issues." (Dr. Fechtel January 23, 1999 SIME report). As Dr. Fechtel explained, passive modalities over an extended period of time do not promote recovery, but instead "promote long term slow deterioration of function."

We find Employee continued to suffer symptoms because she was not in an active program to increase her strength and endurance. This finding is supported by Employee’s own testimony that she experiences increased symptoms when fatigued even now. We find Dr. Fechtel’s position is corroborated by Drs. Klimow, Smith and Barry Matthisen, who also recommended the discontinuation of passive chiropractic treatment, and initiation of physical therapy to improve her general level of fitness. Additionally, based on Dr. Fechtel’s March 6, 1998 report, we find no treatment in excess of the frequency standards during the first eight weeks following the injury is reasonable, necessary, or appropriate. Therefore, we find Employee should have been treated no more than three times per week for the first month following her injury, and no more than twice per week during the second month following her injury.

Additionally, based on the reports of Drs. Fechtel, Drobot and Barry Matthisen, we find that two of the diagnostic protocols used by Dr. Matthisen were unjustified. Specifically, based on Dr. Barry Matthisen’s report and Dr. Fechtel’s March 6, 1999 report, we find the paraspinal ultrasounds and digital evaluation of spinal x-rays were neither reasonable, necessary, or within accepted chiropractic practices because the same information could be acquired from a standard examination.

Finally, Employer has raised a colorable argument regarding the excessive expense of the multiple modalities (manipulation, moist heat, ultrasound, traction, electrical muscle stimulation) used to treat Employee during each visit. (Dr. Drobot October 24, 1997 letter and Dr. Barry Matthisen November 5, 1997 letter). We do not find, however, that Employer has proven that any particular modality was outside of accepted medical practice or unreasonable. Accordingly, to the extent Employer has not already paid, we will order it to fully pay for the first twenty office treatments (3 x week during the first month and 2x per week during the second month) rendered by Dr. Matthisen, to the extent permitted by the Board’s fee schedule. In all other respects Dr. Matthisen’s claim for the payment of services rendered is denied and dismissed.

II. Should we award interest and penalties on the value of the medical benefits described above, and to whom should such payments be made, Dr. Matthisen or Employee?

"Interest awards are a way to recognize the time value of money, and they give a necessary incentive to employers to release . . . money due." Childs v. Copper Valley Elec. Assn., 860 P.2d 1184, 1191 (Alaska) (quoting Moretz v. O’Neill Investigations, 783 P.2d 764, 766 (Alaska 1989). Therefore, pursuant to Land Marine v. Rawls, 686 P.2d 1187, 1191-92 (Alaska 1984), and our regulation, 8 AAC 45.142(b)(3), we also order Employer to pay Dr. Matthisen interest at the statutory rate of 10.5 percent per annum, as provided in AS 45.45.010, on any unpaid treatments as ordered above.

We will dismiss Dr. Matthisen’s claim for penalties on the value of the treatments we have determined are compensable. Unlike interest, the injured worker, not his or her medical care provider, is entitled to an award of penalties, even under those circumstances where the claimant has not paid the fee, and the physician has pursued his/her own claim for payment of outstanding fees and penalties. Hubbard v. Alaska Airlines, AWCB Decision No. 99-0206 (October 11, 1999). Although Employee agreed to waive her claim for any penalties to which she might be entitled, we are not certain public policy should encourage or endorse the waiver of such benefits under these circumstances. An employee’s concession to allow the recovery of penalties by a medical provider could be coerced. For example, an unethical provider might attempt to extort a penalty, otherwise payable to a claimant, in exchange for "favorable" testimony or cooperation with pending litigation. While we have no reason to believe that is the situation here, as a matter of policy, we decline to award a penalty to Dr. Matthisen for this reason.

In any event, we find no penalty is due based on the merits of the claim, as explained below. We find Dr. Matthisen’s claim Employer’s controversions were unfair or frivolous or untimely are without merit.

We find Employer’s September 12, 1997 controversion denying chiropractic treatments provided from August 23, 1997 through September 8, 1997 was timely filed in accordance with AS 23.3.0.155(d) which requires an employer to pay a medical bill within 14 days, or controvert within 21 days. We also find the controversion was not unfair or frivolous because it denied payment for "extensive neck treatment" when "no neck injury was reported via the Report of Occupational Injury or Illness."

We find Employer’s controversion, based on this rationale, was made in good faith and remained in effect until Employer withdrew it on November 6, 1997, based on Dr. Klimow’s report that Employee’s neck condition was work-related. However, the November 6, 1997 controversion asserted a new basis for controverting continued chriopractic care based on Dr. Klimow’s report, and the reports of Drs. Drobot and Barry Matthisen. All three reports concluded continued chiropractic treatment was not reasonable, and Drs. Drobot and Barry Matthisens’ reports stated that prior treatments were excessive and inappropriate.

Finally, Employer controverted Employee’s November 3, 1997 and continuing knee treatment on November 19, 1997. Employer’s controversion denied such benefits because there were no medical records to indicate the knee condition was work related, and the report of injury also failed to provide notice to Employer of any injury to Employee’s left knee from the August 27, 1997 accident.

Under the standard articulated in Harp v. ARCO, 831 P.2d 352, 358 (Alaska 1992), we find Employer had substantial evidence in its possession at the time of controverting to support the allegations made for denying payment of benefits. Accordingly, Dr. Matthisen’s claim for penalties, on Employee’s behalf, for untimely, unfairly or frivolously controverting is also denied and dismissed.

III. Is Employee entitled to Temporary Total Disability (TTD) from October 18, 1997 through April 27, 1998 because she was not medically stable, or able to return to work, during this time because of conditions caused or aggravated by her August 1997 injury?

"In a proceeding for the enforcement of a claim for compensation under this chapter it is presumed, in the absence of substantial evidence to the contrary, that the claim comes within the provisions of this chapter." AS 23.30.120(a)(1). The presumption also applies to claims that the work aggravated, accelerated or combined with a preexisting condition to produce a disability or need for medical treatment. Burgess Construction Co. v. Smallwood, 623 P.2d 312, 315 (Alaska 1981).

Application of the presumption is a three-step process. Gillispie v. B&B Foodland, 881 P.2d 1106, 1109 (Alaska 1994). First, Employee must establish a "preliminary link" between the disability and his work. To rebut the presumption, Employer must produce substantial evidence the disability is not work-related. Id. Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Graninger v. Alaska Workers’ Compensation Bd., 805 P.2d 976, 977 n.1 (Alaska 1991).

Employer may rebut the presumption by presenting expert opinion evidence the work was probably not a cause of the disability or need for treatment. Big K Grocery v. Gibsen, 836 P.2d 941 942 (Alaska 1992). Evidence used to rebut the presumption is examined by itself to determine whether it is sufficient to rebut the presumption. Veco, Inc. v. Wolfer, 693 P.2d 865,869 (Alaska 1985). Medical testimony cannot constitute substantial evidence if it simply points to other possible causes of Employee’s left knee condition without ruling out her work as a cause. Childs v. Cooper Valley Elec. Assn., 860 P.2d 1184, 1189 (Alaska 1993).

If Employer rebuts the presumption with substantial evidence, then Employee must prove her claim that the work is a substantial factor in causing her disability by a preponderance of the evidence. Wolfer, supra. at 870. If the work is a substantial factor in bringing about the disability or need for treatment, then the disabiling condition is compensable. Burgess, supra. at 317. Work is a substantial factor if: (1) the resulting disability or need for treatment would not have occurred at the time it did, in the way it did, or to the degree it did but for the work injury and (2) reasonable people would regard the work injury as a cause of the disability or need for treatment and attach responsibility to it. Fairbanks North Star Borough v. Rogers & Babler, 747 P.2d 528, 533 (Alaska 1987).

We will now apply the above analysis to the following questions to determine whether Employee is entitled to additional TTD benefits.

1. whether Employee’s work injury was a cause of any of the particular conditions Employee claims prevented her from working;
2. whether such work-related conditions were not medically unstable until April 27, 1998; and
3. even if any of the work-related were not medically stable, was Employee nevertheless capable of working in the same, or a modified position.

We will consider Employee’s knee condition first, as it is the most controversial. Based on her own testimony, we find Employee has attached the presumption her knee condition is work-related because it was injured either in the August 27, 1997 falling incident (when she claims the child’s legs became entangle in her own, thereby twisting her knee as she fell) or from pain caused by standing on a concrete floor as a greeter. Both allegations are, to some extent, corroborated by the pain diagram Employee filled out on her first visit to Dr. Matthisen’s office following the August 1997 accident. Additionally, Employee testified she told both Dr. Matthisen and Dr. Klimow about her knee pain during her initial examination with both of them, despite the fact neither physician makes mention of it in their chart notes or reports of the same day.

We find Employer has rebutted the presumption Employee’s knee condition is work-related with substantial evidence. We make this finding based on the April 1998 report by Dr. Klimow, and the SIME report by Dr. Smith. Therefore, we consider the record as a whole to determine whether Employee has proven her knee condition is work related by a preponderance of the evidence. We conclude she has not sustained her burden of proof for the following reasons.

We find only Dr. Matthisen has corroborated Employee’s claim she told him of knee pain. Dr. Klimow denies Employee told her of knee pain. We additionally find Employee did not mention knee pain in her August 1997 report of injury following the accident, or in the questionnaire filled out and signed by her in Dr. Matthisen’s office on her first visit. Nevertheless, we find Employee did mention a bruised right little finger in her report of injury, and bilateral hip pain and headaches to Dr. Klimow. We find it inconsistent that Employee would tell and Dr. Klimow about these ancillary, and more minor complaints, but would not mention her knee pain.

Although Employee makes an alternative argument at hearing her knee pain may have been caused from standing on a concrete floor, the first medical documentation of knee pain does not occur until her visit with Dr. Matthisen in November 1997. Employee had been released for a trial return to work in a modified position. By her own deposition testimony she admitted she sat most of the time, only rising occassionaly to greet customers. Considering all these factors, we concur with Drs. Smith and Klimow that while Employee’s knee condition may possibly be work related, it is not related on a more probable than not basis. Accordingly, Employee’s claim for benefits arising from her knee condition, whether disability or medical, is denied and dismissed.

Even if we had determined Employee’s knee condition was work-related, we conclude it did not prevent her from working in the modified position Employer provided during her trial return to work. Our finding is corroborated by Dr. Klimow’s April 1998 report and, based on Employee’s own testimony, we find Employer provided her with a chair, at the less active rear entrance to its store, and she testified she sat most of the time during the trial return to work. Based on this evidence we find Employee’s knee condition did not prevent her from working. Instead, for the reasons outlined below, we find Employee was not medically stable from her low back condition, and she was unable to work because of it.

AS 23.30.185 states:

AS 23.30. 395(21) defines medical stability as:

Based on Employee’s own testimony, and the reports of Drs. Matthisen and Ferris, we find she has attached the presumption her neck and low back conditions were related to the August 1997 falling incident, and her low back condition did not become stable until April 27, 1998. Based on Dr. Klimow’s April 1998 report, we find Employer has rebutted the presumption Employee’s spinal conditions were not medically stable with substantial evidence. (Employer did not dispute the work-relatedness of Employee’s low back condition and withdrew its controversion of Employee’s neck condition based on Dr. Klimow’s September 1997 report) Additionally, we find Employer has rebutted the presumption Employee could not work with Dr. Klimow’s September 1997 report (even though it said Employee was not medically stable because she needed physical therapy) as well as Dr. Klimow’s April 1998 report which stated Employee has been capable of work in her greeter position since September 1997. We also find Employer has offered credible evidence through the testimony of Employer’s store manager, Coleman Taylor, that Employer would have accommodated Employee’s restrictions without any reduction in pay.

Because Employer has rebutted the presumption Employee was not medically stable and unable to return to work with substantial evidence, Employee must prove her claim by a preponderance of the evidence, reviewing the record as whole. We find she has sustained her burden of proof for the following reasons.

Although we are disturbed by the passive medical approach Employee chose, we do not find Employee attempted to sabotage her recovery, or attempted to malinger. Overall, we found Employee credible. AS 23.30.122. We find, based on Employee’s testimony, she seriously attempted to return to work in late September 1997, only to experience continued problems with her low back, despite Employer’s earnest efforts to accommodate her restrictions by allowing her to sit and stand as needed.

We find, based on Employee’s testimony, that when she tried to work she could not comfortably move, and that when she became fatigued or felt pressured her back symptoms would increase. We find, Employee’s historical account of her slow recovery is corroborated by Dr. Matthisen’s reports (October 17, 1997 disability certificate for neck and back pain) and testimony which indicated that while Employee’s low back condition continued to improve, her pain persisted. Dr. Matthisien testified Employee had not reached medical stability, even by late April 1998, but that he released her from further treatment because his care had "reached its affectability." Dr. Matthisen also released her to work at that time, as did Dr. Ferris.

We find that if Employee had undertaken a course of physical therapy to improve her fitness, as Dr. Klimow recommended in September 1997, Employee probably would not have experienced these symptoms to the degree she did, or for the duration she did. Our finding is also supported by the medical reports of Employer’s physicians, Drs. Barry Matthisen and Drobot, and the SIME physicians, Drs. Fechtel and Smith.

Nevertheless, Employee relied on the opinions of her treating physicians, Drs. Matthisen and Ferris and continued to be treated with passive modalities which, as we have already determined, impeded her recovery and ability to return to work. Based on Hibdon, however, we do not find Employee’s decision to follow the recommendations of her treating physicians, over the recommendations of Employer’s doctors, inappropriate at the time. Finally, we rely on the SIME report by Dr. Smith which stated Employee became medically stable in "late April 1998," to conclude Employee has sustained her burden of proof her back was not medically stable, and she was not able to work, by a preponderance of the evidence, when reviewing the record as a whole. Accordingly, we will award Employee additional TTD benefits from October 18, 1997 through April 27, 1998.

IV. Is Employee entitled to penalties and interest on the TTD benefits, described above, because such benefits were due but not timely paid, and Employer’s controversions were unfair and frivolous?

Applying the same analysis we did above with regard to Dr. Matthisen’s request for penalties, we conclude Employee is not entitled to penalties on the TTD we have awarded. We make this finding based on Employer’s November 6, 1997 controversion of TTD and/or TPD after October 19, 1997. First, we find it was timely filed within 21 days of the time payment would have been due. Second, we find Employer had in its possession Dr. Klimow’s September 1997 report which stated Employee could return to work as a greeter. We find such report is substantial evidence to support Employer’s controversion under the standard articulated in Harp. Additionally, we find Employer’s November 19, 1997 controversion, denying disability benefits for Employee’s left knee pain, was also timely, and supported by substantial evidence. Specifically, Employer stated its position the knee was not work-related based on Employee’s failure to provide timely notice to Employer of any such injury under AS 23.30.100. In summary, we find the Employer’s controversions were both timely and in good faith. Accordingly, we deny Employee’s claim for penalties.

Based on the analysis set forth above with regard to Dr. Matthisen’s claim for interest on unpaid medical bills, we concluded Employee is entitled to the time value of the TTD benefits we have awarded from the time they were due until paid. Accordingly, we will award Employee interest, at the statutory rate of 10.5 percent per annum on the TTD benefits awarded above.

V. Is Employee entitled to Permanent Partial Impairment (PPI) benefits, plus interest, based on the rating by either Glenn Ferris, M.D., or Douglas Smith, M.D.?

AS 23.30.190 provides in part:

Applying the presumption analysis set forth above with regard to Employee’s claim for TTD benefits, we now consider her claim for additional PPI benefits based on either Dr. Ferris' 10 percent whole person rating (divided equally between Employee’s neck and low back conditions) or Dr. Smith’s 5 percent rating for Employee’s low back condition only. We find, Employee has attached the presumption she suffered a compensable permanent neck condition based on Dr. Ferris’ May 1998 report. We find Dr. Ferris’ position Employee suffered a permanent impairment to her neck is corroborated by Dr. Matthisen’s April 27, 1998, eight percent whole person rating for Employee’s neck. We do not, however, consider Dr. Matthisen’s rating for any other purpose, because we find it was not done in accordance with the AMA Guides.

We find Employer has rebutted the presumption Employee suffered a permanent impairment to her neck based on both Dr. Klimow’s reports and Dr. Smith’s January 7, 1999 SIME report. Reviewing the record as a whole, we conclude Employee did not suffer an impairment to her neck as a result of the work, because we give greater weight to Dr. Klimow and Dr. Smiths’ opinions than we do Dr. Ferris’. AS 23.30122. Accordingly, we find Employee’s claim for PPI related to her neck condition is denied and dismissed.

We find Employee has attached the presumption she suffered a compensable low back impairment based on the reports of Dr. Ferris (5 percent) and Dr. Smith (5 percent). We find Employer has rebutted the presumption Employee has suffered a permanent impairment to her low back based on Dr. Klimow’s April 1998 report. Therefore, we review the record as whole to determine whether Employee has proven her claim to PPI for her low back by a preponderance of the evidence. We conclude she has.

Based on our experience, we find both Dr. Klimow and Dr. Smith are competent physicians well versed in performing and reporting PPI ratings. We do not dispute Dr. Klimow’s professional observations that, in her opinion, Employee does not demonstrate objective criteria for placing her in any other impairment category than "I" which carries a zero impairment. Nevertheless, we place greater reliance on Dr. Smith’s opinion that Employee’s objective findings should be evaluated under the range of motion standard, when there is reasonable question as to which category an impairment should be assigned. AS 23.30.122. Therefore, we conclude Employee has proven her claim for PPI benefits, in an amount equivalent to a five percent whole person rating. Accordingly, we will award Employee $6,750 in PPI benefits, and interest at the statutory rate from the date it was due, January 22, 1999, until paid.

VI. Is Employee entitled to fully compensable and reasonable attorney fees and costs?

AS 23.30.145 (a) provides that legal services rendered in respect to a claim, which has been controverted, must be approved by the Board and may not be less than 25 per cent on the first $1,000 awarded and 10 percent on all sums awarded in excess of $1,000. Section 145(a) also provides that the Board may direct that fees be paid by the employer or carrier in addition to compensation which was controverted and awarded.

AS 23.30.145(b) additionally provides that if an employer resists the payment compensation and the claimant has employed an attorney in successful prosecution of the claim, the Board shall make an award to cover the costs of the proceedings. Among the costs which the Board mau order is a reasonable attorney fee, which shall be paid in addition to the compensation awarded.

We find Employer controverted, and otherwise resisted, the payment of TTD and PPI benefits. Based on our findings and conclusions above, we find Employee retained Attorney Croft and that he successfully prosecuted her claims for additional TTD and for PPI benefits. Attorney Croft advises that he rendered legal services as set forth in his affidavits of attorney fees and costs dated August 17, 1999; August 25, 1999; and September 8, 1999. According to his August 17, 1999 affidavit, total costs for postage, copies, messenger services, faxes and court reporter fees amounted to $215.63. No claims for additional legal costs were made on the subsequent affidavits.

Based on his affidavits, we find Attorney Croft charges $200 per hour for his services, and $90 per hour for paralegal services. Accordingly, Attorney Croft asks for a total of $12,476.50 in attorney fees, paralegal services and legal costs. (September 8, 1999 Second Supplemental Affidavit of Fees). Additionally, Attorney Croft asks the Board to award him a fee for the time spent preparing for (30 minutes), and attending (4.5 hours), the September 1999 hearing on the merits. In summary, Employee asks the Board to award a total of $13,476.50 in attorney fees and costs.

Applying the criteria set forth in our regulation, 8 AAC 45.180(d)(2), we consider Attorney Croft’s affidavit. We find the hours Attorney Croft and his paralegal worked to obtain the controverted benefits Employee sought is reasonably commensurate with the nature, length and complexity of the litigation, in addition to the value of the benefits Employee sought and received. We also find, as we have in the past, Attorney Croft’s hourly rate (and that of his paralegal) is appropriate given his extensive experience representing injured workers on a contingent basis. Applying our regulation, 8 AAC 45.180(f), we consider Attorney Croft’s affidavit with regard to the legal costs incurred. We find the amounts expended are reasonable. Accordingly, we will award a total of $13,476.50 in attorney fees and costs.

1. To the extent Employer has not already paid, we order it to fully pay for the first twenty office treatments (3 x week during the first month and 2 x per week during the second month) rendered by Dr. Matthisen, to the extent permitted by the Board’s fee schedule. In all other respects Dr. Matthisen’s claim for the payment of services rendered is denied and dismissed.
2. Dr. Matthisen’s claims for penalties, on Employee’s behalf, for untimely, unfairly or frivolously controverting Dr. Matthisen’s chiropractic treatments is denied and dismissed.
3. Employee’s claim for additional temporary total disability benefits from October 18, 1997 through April 27, 1998 is granted.
4. Employee’s claim for penalties on the above awarded temporary total disability benefits is denied and dismissed.
5. Employee’s claim for interest, at the statutory rate of 10.5 percent per annum, on the temporary total disability benefits awarded above, is granted.
6. Employee’s claim for additional permanent partial impairment benefits in an amount equal to a five percent whole person impairment ($6,750.00) is granted. Employee’s claim for permanent partial impairment benefits in excess of $6,750.00 is denied and dismissed.
7. Employee’s claim for interest, at the statutory rate 10.5 percent per annum, on the additional permanent partial impairment benefits awarded, is granted. Employer shall pay interest from the date it was due, January 22, 1999, until paid.
8. Employee’s claim for $13,476.50 in attorney fees and costs is granted.

Dated at Anchorage, Alaska this 28^th day of December 1999.

ALASKA WORKERS' COMPENSATION BOARD

/s/ Rhonda L. Reinhold
Rhonda Reinhold,
Designated Chairman

/s/ Philip E. Ulmer
Philip E. Ulmer, 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.

Within one year after the rejection of a claim or within one year after the last payment of benefits under AS 23.30.180, 23.30.185, 23.30.190, 23.30.200 or 23.30.215 a party may ask the Board to modify this decision under AS 23.30.130 by filing a petition in accordance with 8 AAC 45.150 and 8 AAC 45.050.

I hereby certify that the foregoing is a full, true and correct copy of the Final Decision and Order in the matter of JOYCE L. ROBLES employee / applicant; v. WAL-MART, INC #2070 (A ST), employer ;INSURANCE CO OF STATE PA, insurer/ defendants; Case No. 199720700; dated and filed in the office of the Alaska Workers' Compensation Board in Anchorage, Alaska, this 28th day of December, 1999.

Debra Randall, Clerk

 SNO