GUGLIELMO v. MUNICIPALITY OF ANCHORAGE
ALASKA WORKERS' COMPENSATION BOARD
P.O. Box 25512 Juneau, Alaska 99802-5512
ARTHUR GUGLIELMO, )
)
Employee, ) DECISION AND ORDER
Applicant, ) AWCB Case Nos. 8700358
) 8626540
v. ) AWCB Decision No. 88-0098
MUNICIPALITY OF ANCHORAGE, )
(Self-insured), ) Filed with AWCB Anchorage
) April 27, 1988
Employer, )
Defendants. )
)
This claim was heard at Anchorage, Alaska on April 14, 1988. Employee was not present, but is represented by attorney Timothy MacMillan. Attorney Shelby Nuenke-Davison represents Defendant. The record closed at the end of the hearing.
Employee's attorney did not appear at the hearing. On April 11, 1988, just two day before this hearing, Employee filed a notice withdrawing his claim number 700358 "without prejudice." Employee stated in the notice: "Accordingly, the hearing before this Board scheduled April 14, 1988 can be cancelled."
Defendant objects to Employee's withdrawal of his claim. Defendant contends Employee's claim was filed months ago, Defendant has done extensive preparation, this April hearing date was set in November, 1987, and Employee has had an adequate opportunity to prepare. Therefore, there is no reason to permit the withdrawal of the claim.
Defendant contends Employee's maneuver is nothing more than an attempt to obtain a continuance. Under our regulation 8 AAC 45.074(a) good cause must be shown in order for us to grant a continuance on such short notice. As Employee has not given any reason, good cause does not exist for a continuance.
We contacted Employee's attorney to advised him of Defendant's objection. We advised him that only one claim had been withdrawn, and that claim number 626540 was still before us. He indicated this was an oversight, and that Employee wanted both claims withdrawn.
We advised Employee's attorney that under 8 AAC 45.070(2) we could proceed to hear the merits of both claims as we had proof that Employee had been given notice of the hearing and failed to appear. Employee's attorney did not provide any further justification for not appearing.
We considered Defendant's objection. We agreed with Defendant's analysis that Employee was merely attempting to continue the hearing. We denied Employee's request.
As claims have been filed, we also believe that under AS 23.30.110 we have jurisdiction to schedule and hold a hearing. We believe that fundamental fairness prohibits Employee from withdrawing his claims just two days before a hearing.
We concluded we would take evidence and decide the issues in Employee's application. We again contacted Employee's attorney to advise him of our decision and invite him to participate in the hearing. he declined to do so.
ISSUE
Was employee's knee condition aggravated in the course and scope of his employment?
SUMMARY OF THE EVIDENCE
On August 25, 1987 Employee filed a claim contending that he injured his right knee on December 24, 1986 and again on January 2, 1987. He contended that these two incidents necessitated arthroscopic surgery on January 2, 19897 for chondromalacia, and a tibial and fibular osteotomy on July 22, 1987. A partial meniscectomy was done arthroscopically on January 5, 1988 for a torn lateral meniscus.
Defendant produced extensive evidence of Employee's prior right knee injuries and surgeries. On November 10, 1971 Employee saw G.A. Bacon, M.D., complaining of a fall about 10 days earlier that caused swelling and tenderness. The doctor suggested cortisone injections. (Bacon November 23, 1971 letter).
In a February 1, 1972 letter Dr. Bacon stated that since Employee's last visit, Employee had slipped and injured both knees. He diagnosed a possible torn meniscus of the right knee.
In an April 3, 1972 letter Dr. Bacon indicated that Employee had again fallen and injured both knees. Signs of early degenerative changes were evident on the x-rays.
Dr. Bacon's chart notes for July 14, 1972 indicate both of Employee's knees were getting progressively worse, more sore and uncomfortable. The doctor recommended a right knee arthrotomy. This was done on July 19, 1972, and a torn right medical meniscus
was found along with medial femoral chondromalacia and synovitis. Surgery was also performed on the left knee.
Dr. Bacon's chart notes for the remainder of 1972 reflect employee's continued complaints of fluid in the right knee, crepitus, soreness and arthritis.
On December 29, 1983 Employee was seen at Elko General Hospital, Elko, Nevada, for an injury to his right leg for a fall. The diagnosis was a ruptured plantaris.
Defendant also provided documentation of numerous work-related injuries and surgeries on Employee's left knee. the first of the injuries occurred in 1965.
In a letter dated November 14, 1986, Employee wrote to Dr. Bacon asking him to reopen his disability case. Employee indicted that he was experiencing further knee problems and that corrective measures may be needed. On November 25, 1986, Dr. Bacon responded stating that he could not reopen the claim, Employee must do that himself. the doctor also advised him that unless there were extenuating circ*mstances, industrial injuries in the state of Idaho were not compensated past five years after the date of injury.
Employee, who is 61 years old, first reported an unwitnessed on-the-job injury on December 24, 1986, when he allegedly slipped on the ice and over extended his right knee. Another unwitnessed incident occurred on January 2, 1987 when he slipped on a polymer solution on the floor and felt right patella pain.
Since the December 1986 incident, Employee has been treated by David McGuire, M.D., and Michael Newman, M.D. He also was examined by J. Paul Dittrich, M.D. Defendant has had Employee's medical records reviewed and evaluated by William Lanzer, M.D., an associate professor a the University of Washington who specializes in the treatment of knee and osteoarthritis.
Defendant initially accepted the January 2, 1987, injury and paid temporary total disability benefits from January 6, 1987 to January 11, 1987, and again on January 15, 1987. (January 23, 1987 Compensation Report). However, on July 20, 1987 and after further investigation, Defendant controverted all benefits. Defendant alleged that Employee had only temporarily aggravated his pre-existing right knee condition and had returned to pre-injury status. (Controversion Notice July 20, 1987).
Dr. McGuire testified that Employee's chondromalacia did not occur as a result of the 1986 or 1987 injuries. (McGuire Dep. pp. 12-13). Dr. McGuire testified that in January 1987 Employee's synovium was inflamed with the kind of inflammation that takes more than two weeks to happen. The degenerative arthritis and synovitis that Employee had are inextricably linked. (Id. at 13-14). Therefore, Dr. McGuire does not believe the injuries are the cause of Employee's condition. (Id. at 13). Dr. Lanzer agrees with Dr. McGuire's opinion. (Lanzer dep. pp. 19-20).
Dr. McGuire found no evidence of acute injury. (Id. at 17). Therefore, he "cannot make an immediate causal link between (Employee) subsequent dysfunction and the fall. If he says it's true (that the fall occurred), I'm not going to deny it. I just don't understand it." (Id. at 33-34). Dr. Lanzer agreed that there was not evidence of acute trauma at the time of the January 4, 1987 arthroscopy. (Lanzer Dep. pp. 14-16).
Dr. Lanzer believes Employee's knee problems are the natural progression of his degenerative arthritis. Dr. Lanzer would expect Employee to have symptoms periodically even without trauma. (Id. at 13). The degenerative arthritis is the result of the medial meniscectomy in 1972. (Id. at 8-9; 16-17). At most the slips and falls in December 1986 and January 1987 could have caused a temporary aggravation of Employee's knee condition. (Id. at 17).
The need for an osteotomy of Employee's right knee existed before the slip and falls. (Id. at 17-18). The need for the arthroscopy that was done in January 1988 was not caused by Employee's alleged work-injuries. (Id. at 21). Dr. McGuire also agreed that Employee had longstanding osteoarthritis which is consistent with a history of the knee giving way and causing falls. (McGuire Dep. p. 31).
Employee had a right knee osteotomy performed by Michael Newman, M.D. Dr. McGuire and Dr. Lanzer both testified that the osteotomy was done to remove the degeneration or take the stress off the medial compartment of the knee. (Id. at 32; Lanzer at 10). Both doctors agree that the slips and falls that Employee alleged occurred in 1986 and 1987 would not produce the need for a tibial osteotomy. (McGuire Dep. p. 21; Lanzer Dep. p. 17).
Dr. McGuire performed a second arthroscopy on Employee on January 5, 1988. In addition to other problems, Dr. McGuire indicated he found a degenerative tear of the lateral meniscus. Because Employee had alleged another work-related incident had occurred in January 1988, Defendant inquired about the cause of the tear. Dr. McGuire believes the tear was due to the tibial osteotomy which repositioned the knee and placed more weight on the lateral meniscus. (McGuire Dep. at 24). Dr. McGuire is able to distinguish by appearance the difference between a recent tear and one caused by degeneration. (Id. at 25). Dr. McGuire was quite sure the tear had not occurred in the few days before the second arthroscopy. (Id. at 36).
As a result of the December 24, 1986 and January 2, 1987 incidents, Employee claims temporary total disability benefits from July 22, 1987 through August 10, 1987, temporary partial disability benefits from August 11, 1987 through the present, permanent partial disability, medical expenses, interests and attorney's fees and costs.
Defendant contends Employee was not injured in the course and scope of employment. If an injury did occur, it was merely temporary. Finally, Defendant contends Employee was overpaid compensation and medical benefits because a mistake was made in even initially accepting the claim.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The Alaska Supreme Court has repeatedly held that "injury" under the Alaska Workers' Compensation Act includes aggravations or accelerations of pre-existing conditions. See, e.g., Burgess Construction v. Smallwood, 623 P.2d 312, 316 (Alaska 1981) (Smallwood II); Thornton v. Alaska Workmen's Compensation Board, 411 P.2d 209, 210 (Alaska 1966). Liability is imposed on the employer "whenever employment is established as a causal factor in the disability." Smallwood II, 623 P.2d 317 (quoting Ketchikan Gateway Borough v. Saling, 604 P.2d 590, 597-98 (Alaska 1979)). A causal factor is a legal cause if "'it is a substantial factor in bringing about the harm' or disability at issue." Id. Whether an aggravation was a substantial factor must be determined by the following test: "[I]t must be shown both that the [disability] would not have happened 'but for' the [employment] and that the [employment] was so important in bringing about the disability that reasonable men would regard it as a cause and attach responsibility to it." State v. Abbott, 498 P.2d 712, 717 (Alaska 1972).
We must first determine whether the presumption of compensability attaches. AS 23.30.120(a) provides in pertinent 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 provision of this chapter."
In Smallwood II the Alaska Supermen Court held that the employee must establish a preliminary link between the injury and the employment for the presumption to attach. 623 P.2d at 316. Whether employment "aggravated, accelerated or combined with" a pre-existing condition is a question of fact "usually determined by medical testimony." Id. (quoting Thornton, 411 P.2d at 210.) "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 medical facts involved." Veco, Inc. v. Wolfer, 693 P.2d 865, 871 (Alaska 1985). Once the employee makes a prima facie case of work-relatedness the presumption of compensability attaches and shifts the burden of production to the employer. Id. at 870. To make a prima facie case the employee must show that (1) he has an injury and (2) an employment event or exposure could have caused it.
To overcome the presumption of compensability, the employer must present substantial evidence the injury was not work-related. Id.; Miller v. ITT Arctic Services, 577 P.2d 1044, 1046 (Alaska 1978). The Alaska Supreme 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.sd at 210). In Fireman's Fund American Insurance Cos. v. Gomes, 544 P.2d 1013, 1016 (Alaska 1976), the Court explained two possible ways to overcome the presumption: (1) produce affirmative evidence the injury was not work-related or (2) eliminate all reasonable possibilities the injury was work-related. The same standards used to determine whether medical evidence is necessary to establish the preliminary link apply to determining 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 injury was not work-related, the presumption drops out, and the employee must prove all elements of his 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).
Employee testified that he suffered an incident at work on December 24, 1986 and again on January 2, 1987 which aggravated his right condition. (Guglielmo Dep. pp. 40-42). Given the nature of Employee's pre-existing condition, we find medical evidence is necessary to establish the preliminary link between the knee condition and the work-related incidents.
Both Dr. McGuire and Dr. Lanzer testified that if any incidents occurred, there was no evidence of acute trauma to the knee condition. Dr. McGuire testified that he believed the need for the January 1987 arthroscopy existed before the alleged on-the-job incidents. Dr. McGuire found only chondromalacia and synovitis which he could tell was not the result of a recent injury. We find there is no medical evidence of an aggravation or, if there was an aggravation, it was not a substantial factor in the need for Employee's two subsequent arthroscopies.
