SANDRA M. THURSTON v. BUSH PILOT RESTAURANT & LOUNGE

ALASKA WORKERS' COMPENSATION BOARD

P.O. Box 115512 Juneau, Alaska 99811-5512

SANDRA M. THURSTON,
Employee,
Applicant,
v.
BUSH PILOT RESTAURANT
& LOUNGE,
Employer,
and
AK NATIONAL INS CO,
Insurer,
Defendants. / )
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) / FINAL DECISION AND ORDER
AWCB Case No. 200217586
AWCB Decision No. 06-0323
Filed with AWCB Fairbanks, Alaska
on December 6, 2006

The Alaska Workers’ Compensation Board (Board) heard the employee’s claim for workers’ compensation benefits on October 12, 2006 at Fairbanks, Alaska. The hearing was conducted before a two member panel consisting of the undersigned hearing officer, and Management Member Chris Johansen. Attorney Robert Beconovich represented the employee. Attorney Nora Barlow represented the employer and insurer.

The record was held open for an affidavit of attorney fees. Meanwhile, Member Johansen was appointed to the Appeals Commission, and became unavailable to participate in the deliberations of this case. Therefore, the hearing record, including the hearing tape, was provided to the alternate members who participated in reaching the decision below. The record closed when the new panel met and deliberated on November 9, 2006.

ISSUES

1. Whether the employee's work for the employer is a substantial factor in her current left knee and lumbar conditions.

2. Whether the employee is entitled to permanent total disability (PTD) benefits for any disability caused by her work for the employer, under AS 23.30.180.

3. Whether the employee is entitled to Attorney fees for successfully prosecuting his claim, under AS 23.30.145.

SUMMARY OF THE EVIDENCE

The employee injured her left knee and back on August 17, 2002 while working for the employer as a bartender, cook, and cashier at Fairbanks International Airport. The employee was entering a freight elevator when she stepped in a puddle of liquid and slipped and fell, twisting her knee and landing on her hip and back area. She testified she heard a pop or snap in her knee.

The employee testified that following her injury she attempted to continue working but her condition persisted and worsened, so she sought initial treatment at Fairbanks Urgent Care on August 30, 2002. Fairbanks Urgent Care recommended that she seek treatment with orthopedic surgeon, George R. Vrablik, M.D. She saw Dr. Vrablik on September 2, 2002, who noted swelling, burning, and laxity laterally. He thought she might have a posterior cruciate tear. Dr. Vrablik then provided conservative treatment of the employee's condition.

On February 28, 2003, an MRI was performed on the employee's left knee, revealing progression of one of a lateral meniscus radial tear and a new radial tear in the medial meniscus. Surgery was suggested and she transferred to the Tanana Valley Clinic, in part, at the invitation of her Tanana Valley Clinic internist Victor Bartling, D.O.

On June 16, 2003, David M. Witham, M.D., of Tanana Valley Clinic, performed a partial lateral meniscectomy. She then underwent approximately one month of physical therapy. On April 21, 2004, Dr. Witham reported the employee's knee to be fixed and stable, although she also reported swelling and tingling down her left leg.

On August 30, 2005, the employee again saw Dr. Witham, who noted lateral knee pain, swelling laterally as well as low back pain with pain radiating to the buttock, thigh and calf. Dr. Witham suggested an additional MRI of the knee, because of the appearance of a popliteal cyst and to determine whether there was recurrent internal derangement. Dr. Witham also noted that in the interim, between April 21, 2004 and her most recent visit, the employee had been diagnosed with cancer and was undergoing treatment.

The employee underwent a repeat MRI on October 25, 2005, and her lateral meniscus was found to be grossly abnormal in appearance and the posterior horn of the lateral meniscus was found to have changed in appearance since the prior MRI. Additionally, an elongated popiteal cyst was found to be present.

The employee testified that throughout the course of her treatment, she had desired to be treated Richard Cobden, M.D., who had previously treated her husband. Initially, when he worked at Tanana Valley Clinic, Dr. Cobden was not taking new patients. After he moved to Advanced Pain Centers, however, the employee was able to see Dr. Cobden on December 21, 2005. Dr. Cobden diagnosed internal derangement; probable lateral meniscus tear, partially resolved; and disk degeneration and collapse L4-5, L5-S1. Dr. Cobden also recommended a lumbar MRI.

On December 30, 2005 Dr. Cobden opined the employee sustained an injury to her back at the same time she injured her knee on August 17, 2002. She was referred to Marc Slonimski, M.D., and underwent lumbar facet joint injections on January 24, 2006.

On March 22, 2006 Dr. Cobden found that the employee's back and knee injuries, which he related to her August 17, 2002 injury, precluded her from returning to work. On July 27, 2006, Dr. Cobden found that the employee was losing the medial joint compartment of her left knee, and that the condition was secondary to her August 17, 2002 injury. Dr. Cobden further stated that anti-inflammatory medications and injections were not working and that she may need to have a brace or further surgery.

Meanwhile, on May 24, 2006, the employee underwent an employer-sponsored medical evaluation (EME)[1] with John W. Joosse, M.D. Dr. Joosse testified that, based on his review of the October 2002 and February 2003 MRI studies of the left knee, he found that the employee’s work incident caused partial tears of her lateral meniscus and a tear of the lateral collateral ligament of the left knee, although both had resolved and needed no further medical treatment. Dr. Joosse further testified that the employee had pre-existing patellar chondromalacia and medial femoral chondromalacia and pre-existing recurrent episodic low back pain. Dr. Joosse indicated that the employee was medically stable at the time of his examination and that she had a 1% PPI rating as a result of the work injury.

Dr. Joosse acknowledged that employee's ability to return to work was complicated by the existence of her lung cancer and other ongoing treatment. Specifically, he noted that after the date of her knee injury, she was diagnosed with cancer by J. Michael Carroll, M.D. Dr. Joosse further noted, however, that if one isolated a review of the employee’s condition to the August 2002 work injury, he believed that she had recovered to the point where she could return to work as a bartender.

On May 24, 2006, Dr. Joosse again evaluated the employee. After reviewing a more comprehensive set of her medical records, including historical radiographic studies, and examining the employee, Dr. Joosse again found that the August 17, 2002 work incident caused a knee sprain injury with a minor lateral meniscal tear, which had since resolved. Dr. Joosse also diagnosed chronic low back pain of a recurrent nature following initial injury in a motor vehicle accident in 1997, which is related to degenerative disc disease and low back pain, all of which, he said, is pre-existing and unrelated to the August 17, 2002 work injury.

In his testimony, Dr. Joosse agreed the employee is a candidate for total knee replacement surgery, but concluded the condition was caused by non-work-related degenerative disc disease. Dr. Joossee also agreed the employee cannot undergo knee surgery while being treated for cancer.

On June 8, 2006, Dr. Witham indicated that he had reviewed Dr. Joosse's medical evaluation reports of June 2004 and May 2006 and that he agreed with opinions contained therein. The threshold issue we must decide is the compensability of the employee’s knee and back condition.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

I. Compensability

The Alaska Supreme Court has long recognized that employment which causes injury or which sufficiently aggravates, accelerates, or combines with a pre-existing condition to cause disability entitles an employee to compensation and benefits. Thornton v. Alaska Workmen's Compensation Board, 411 P.2d 209, 210 (Alaska 1966). Liability may be imposed on an employer, however, only if the employment injury aggravated, accelerated, or combined with the pre-existing condition and was a "substantial factor" contributing to the ultimate disability. United Asphalt Paving v. Smith, 660 P.2d 445, 447 (Alaska 1983). [2]

AS 23.30.120(a) provides, in part, "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 (1) the claim comes within the provisions of this chapter." Continuing disability and need for medical benefits must also be presumed. Olson v. AIC/Martin J.V., 818 P.2d 669, 672 (Alaska 1991); Municipality of Anchorage v. Carter, 818 P.2d 661, 665 (Alaska 1991).

"Two factors determine whether expert medical evidence is necessary in a given case: the probative value of the available lay evidence and the complexity of the medical facts involved." Veco, Inc. v. Wolfer, 693 P.2d 865, 871 (Alaska 1985). Once the presumption of compensability attaches the burden of production shifts to the employer. Id. at 869.

To overcome the presumption of compensability, the employer must present substantial evidence the disability is not work-related. Miller v. ITT Arctic Services, 577 P.2d 1044, 1046 (Alaska 1978). The Court "has consistently defined 'substantial evidence' as 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion'" Miller, 577 P.2d at 1046 (quoting Thornton, 411 P.2d at 209, 210). In DeYonge v. NANA/Marriott, 1 P.3d 90 (Alaska 2000), the Court explained that the employer must produce substantial evidence that either (1) non-work-related events alone caused the employee’s worsened condition, or (2) there was no possibility that the employee’s work caused the aggravation. “For the purposes of overcoming the presumption of compensability medical testimony cannot constitute substantial evidence if it simply points to other possible causes of an employee's injury or disability, without ruling out work related causes." Tolbert v. Alascom, Inc., 973 P.2d 603 (Alaska 1999).

The same standards used to determine whether medical evidence is necessary to establish the preliminary link apply to determine whether medical evidence is necessary to overcome the presumption. Veco, 693 P.2d at 871. "Since the presumption shifts only the burden of production and not the burden of persuasion, the evidence tending to rebut the presumption should be examined by itself." Id. at 869.

If the employer produces substantial evidence that the disability was not work-related, the presumption drops out, and the employee must prove all the elements of her claim by a preponderance of the evidence. Id. at 870. "Where one has the burden of proving asserted facts by a preponderance of the evidence, he must induce a belief in the minds of [the triers of fact] that the asserted facts are probably true." Saxton v. Harris, 395 P.2d 71, 72 (Alaska 1964).

In this case, based on the employee’s testimony and the medical records, we find the employee has established the presumption that her condition is still work related. Specifically, we rely on the undisputed evidence that the employee injured her back and knee while working for the employer.

To overcome the presumption, the employer presented the testimony and opinion of Dr. Joosse, agreed to by Dr. Witham. Dr. Joosse testified the employee experienced at work only a knee sprain injury with a minor lateral meniscal tear, which had since resolved, and chronic low back pain of a recurrent nature, which is related to degenerative disc disease and low back pain, all of which was pre-existing and unrelated to the August 17, 2002 work injury. We find this evidence sufficient to overcome the presumption, such that the employee must prove her claim for continuing benefits by a preponderance of the evidence.

The employee asserts Dr. Joosse failed to provide any meaningful opinion as to whether the employee's work injury combined with her preexisting conditions in a substantial way as to render her disabled. She noted the Alaska Supreme Court’s restatement in DeYonge v. Nana/Marriott, 1 P.3d 90 at 96 (Alaska 2000): "[A] preexisting infirmity does not disqualify a claim under the work-connection requirement if the employment aggravated, accelerated, or combined with the infirmity to produce the disability for which compensation is sought.”

We agree. The record reflects the employee was able to fulfill her duties of employment with the employer until her injury at work. Further, the record reflects that all doctors agree that she injured her knee while working for the employer and that surgery by Dr. Witham was appropriate.

It is undisputed that after undergoing surgery, the employee’s symptoms have continued to persist. Dr. Cobden[3] relates the employee’s condition to the trauma of her work injury and indicated it has combined with and accelerated her preexisting condition. Dr. Cobden also stated that because her medial meniscus was injured and them removed by surgery it has resulted in the degeneration of her medial joint compartment. Based on the medical opinion of Dr. Cobden, we find the employee’s condition remains compensable.

II. Permanent Total Disability Benefits