You can
search the entire site.
or go to the recent opinions, or the chronological or subject indices.
Wollaston v. Schroeder Cutting, Inc. (03/01/2002) sp-5542
Wollaston v. Schroeder Cutting, Inc. (03/01/2002) sp-5542
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
CHRIS WOLLASTON, )
) Supreme Court No. S-9520
Appellant, )
) Superior Court No.
v. ) 1JU-98-2339 CI
)
SCHROEDER CUTTING, INC., ) O P I N I O N
and WAUSAU INSURANCE CO., )
)
Appellees. ) [No. 5542 - March 1,
2002]
________________________________)
Appeal from the Superior Court of the State
of Alaska, First Judicial District, Juneau,
Patricia Collins, Judge.
Appearances: Michael J. Jensen, Debra
Fitzgerald, Law Offices of Michael J. Jensen,
Anchorage, for Appellant. Robert J.
McLaughlin, Mann, Johnson, Wooster &
McLaughlin, P.S., Tacoma, Washington, for
Appellees.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
MATTHEWS, Justice.
EASTAUGH, Justice, with whom CARPENETI,
Justice, joins, dissenting.
Chris Wollaston was injured on June 27, 1996, when he
stepped in a hole, landed on the ball of his right foot, and bent
his toes sharply upward, feeling a tear in the back of his heel.
At the time of the injury he was working as a logger for
Schroeder Cutting, Inc., at a logging camp at Hobart Bay.
Wollaston could not work the next day and left camp the day after
that. He was treated for the injury on June 30, 1996, by Dr.
Riederer, a family practitioner in Juneau. Dr. Riederer
diagnosed Wollaston as having a ligamentous injury a mild to
modest ankle sprain with no evidence of fracture. Dr. Riederer
noted that Wollaston might need [an] estimated 7-10 days off if
modified work [was] not available.
Wollaston moved to Texas where he was seen on August 1,
1996, and January 21, 1997, by Dr. Whittemore, an orthopedic
specialist. Dr. Whittemore diagnosed a sprain or stretching of
the ligaments at the back of the ankle. After the January 1997
visit, Dr. Whittemore noted some improvement but not to the
extent that Wollaston could return to work as a logger. Dr.
Whittemore opined that Wollaston had a permanent partial
impairment of four percent.
Wollaston had previously injured his right ankle on
December 13, 1995, in a basketball game. He jumped and came down
on another players foot, dislocating his ankle. The dislocation
was reduced at a hospital emergency room and the ankle was placed
in a cast-splint device. About two months later, on February 21,
1996, Wollaston returned to work as a logger for Schroeder
Cutting in Hobart Bay. There is conflicting testimony concerning
the extent of Wollastons recovery from the December 1995 injury.
Wollaston and five witnesses testified that he was not limping
and had no evident problems after the first injury. But two
employees of Schroeder Cutting and the companys owner testified
that Wollaston walked with a limp from the time he returned to
work until the time he left Hobart Bay in late June.
Wollaston sought lost time benefits from the date of
the injury until September 9, 1996, when he went to work as a
cabinet maker, and permanent partial disability benefits based on
continuing problems with his ankle. A hearing was held before
the Workers Compensation Board on September 15, 1998.
Dr. Whittemores deposition testimony was presented at
this hearing. Dr. Whittemore testified based on his treatment of
Wollaston and his review of the records of the earlier injury,
that the June 1996 injury was a substantial factor in bringing
about Wollastons residual ankle disability. He differentiated
the June work-related injury from the December 1995 injury,
noting that the ligaments that were stretched or torn in the work
injury were different from those that were affected by the
basketball injury.
Dr. Riederer also testified at the hearing. He stated
that when he observed Wollaston he did not anticipate that there
would be any permanent adverse residual effects from the fall,
and that his opinion was that the disability would last no more
than ten days.
The board decided that the June 27, 1996 injury was
compensable through July 7, 1996. But the board also concluded
[b]ased on Dr. Riederers testimony, that after July 7, 1996, the
defendant had presented substantial evidence to overcome the
presumption of compensability. The question presented in this
appeal is whether Dr. Riederers testimony constitutes substantial
evidence1 rebutting the presumption of compensability for the
period after July 7, 1996. We answer this question in the
negative.
Dr. Riederers testimony was predictive based on a fixed
past perspective. He saw Wollaston only on June 30, 1996, and
based on this visit predicted that the consequences of the June
27 injury would clear up in seven to ten days. Dr. Riederers
testimony never progressed from predicting Wollastons course of
recovery from the perspective of the June 30 visit, to a current
expression of opinion as to Wollastons actual condition or its
causes. But he did make it clear that his June 30 prediction
could be wrong and if it was a specialist should be consulted.2
He did not testify that Wollaston did not have longer lasting
consequences caused by the work-related injury and thus did not
contradict Dr. Whittemores testimony that the work-related injury
has had a residual effect.
Under AS 23.30.120(a) a claim is presumed to be
compensable.3 The burden is on the employer to prove noncompens
ability through substantial evidence.4 We held in Grainger v.
Alaska Workers Compensation Board that an employer can overcome
the presumption of compensability by presenting substantial
evidence that either (1) provides an alternative explanation
which, if accepted, would exclude work-related factors as a
substantial cause of the disability; or (2) directly eliminates
any reasonable possibility that employment was a factor in
causing the disability.5 We added in Big K Grocery v. Gibson
that an employer may rebut the presumption of compensability by
presenting a qualified expert who testifies that, in his or her
opinion, the claimants work was probably not a substantial cause
of the disability.6
Dr. Riederers testimony did not satisfy any of these
formulations. He did not exclude the June 1996 work-related
injury as a cause of Wollastons continuing problems. Likewise he
said nothing that directly eliminated any reasonable possibility
that the work-related injury had consequences beyond July 7.
Finally, Dr. Riederer did not testify that in his opinion
Wollastons disability is probably not attributable in any
substantial way to the work-related injury.7
The presumption of compensability therefore has not
been rebutted and thus the statutory presumption that Wollastons
claim is covered controls. It follows that insofar as it
terminated compensation as of July 7, 1996, the decision of the
board must be reversed.8
REVERSED and REMANDED for remand to the board for
further proceedings in accordance with this opinion.
EASTAUGH, Justice, with whom CARPENETI, Justice, joins,
dissenting.
I respectfully dissent. In my opinion, the board did
not err in relying on Dr. Riederers testimony in concluding that
the employer successfully rebutted the presumption of
compensability under AS 23.30.120(a).1
1. The courts dismissal of Dr. Riederers testimony as
predictive is both factually incorrect and
doctrinally troublesome.
Dr. Riederer testified that he did not observe the
normal indicia of a serious ankle injury upon examining Wollaston
seventy-two hours after the work-related accident. He repeatedly
testified that Wollastons ankle was weight-bearing, and not
discolored or swollen. He further testified that while his
physical examination revealed some tenderness on the inside of
the ankle, it produced no objective indicia of the posterior
ligament or tendon trauma that Wollaston claimed was the primary
source of his permanent partial impairment. Based on these
clinical observations, Dr. Riederer diagnosed Wollaston with a
ligamentous injury on the inside of the ankle/foot structure a
mild to modest ankle sprain. There is nothing predictive or
speculative about this diagnosis.
Further, there is nothing inherently insufficient about
Dr. Riederers estimation of Wollastons likely recovery time. Dr.
Riederer thought Wollaston would fully recover within one to two
weeks. This estimation was based on Dr. Riederers sound medical
examination in combination with years of experience dealing with
many types of ankle injuries of different levels of severity.
His opinion should not be dismissed simply because Wollaston did
not return for a check-up.
The court, however, dismisses Dr. Riederers prognosis
as predictive based on a fixed past perspective,2 because Dr.
Riederers contemporaneous recovery estimation and subsequent
testimony were based upon a single examination performed before
Wollaston had fully recovered from his injury. Many recovery
prognoses made by original treating physicians would be subject
to the same criticism.3 I think it is undesirable to reject such
evidence. Employees may not return for follow-up treatment or
examination to the physicians who first treated them, or may
still be in the early stages of recovery when they do so. But
the original physicians observations, diagnoses, and prognoses
are closest in time to the injury and least likely to be
influenced by litigation strategy. By signaling that the board
should disregard these physicians analyses, the court unduly
limits useful and relevant expert evidence of the employees
condition. This restriction may increase litigation costs by
forcing parties to hire additional experts rather than rely on
the opinions of the original treating physicians. And this
limitation may disadvantage both employees and employers: an
opinion favorable to the employees claim would be entitled to
little weight when the board determines whether the employee has
proved his claim by a preponderance of the evidence.
2. Dr. Riederers testimony is sufficient to rebut the
presumption of compensability.
Dr. Riederers testimony fits seamlessly with the
surrounding evidence. Wollastons non-work-related basketball
injury which occurred just seven months before his work-related
injury was tremendously destructive. The X-ray report of the
basketball injury indicated a complete dislocation at the ankle
joint w[ith] the foot at right angles to the tibia.4 The
treating physician, Dr. Catalanello, characterized the basketball
injury as being as serious an injury as one could sustain without
tearing the ankle open. Dr. Riederer testified that the
basketball injury was horrendous. Dr. Catalanellos emergency
room report notes that he warned patient that there is no
guarantee that he will not experience a permanent dysfunction
secondary to this lesion. The owner of Schroeder Cutting and two
of his employees testified that Wollaston had still not recovered
from the basketball injury when he returned to work over two
months later.
Further, Wollastons behavior after his work-related
accident tends to confirm Dr. Riederers diagnosis of a mild
sprain. Wollaston did not seek further medical treatment until
about a month after visiting Dr. Riederer. It is not surprising
Wollaston did not return to Dr. Riederer because Wollaston had
moved to Texas. But if his work-related injury had in fact been
serious, one would expect him to have seen some physician for
treatment sooner than he did.
Taking Dr. Riederers testimony in combination with the
evidence of Wollastons devastating prior injury and his behavior
following his work-related injury, the board could reasonably
conclude that the employer had rebutted the presumption of
compensability either by providing an alternative explanation for
Wollastons disability i.e., the basketball injury or by
directly eliminat[ing] any reasonable possibility that Wollastons
work-related injury was a substantial cause of his disability5
beyond July 7, 1996.6
The court, however, faults Dr. Riederers testimony for
failing to explicitly opine that the work injury was not a
substantial cause of Wollastons disability.7 I think the board
could permissibly disagree with the accuracy of this
characterization of Dr. Riederers testimony.8 But in any event,
there can be no serious doubt that Dr. Riederer believed
Wollastons work-related injury was probably not the cause of any
impairment beyond the estimated one-to-two-week recovery period.9
Requiring medical experts to mold their opinions to fit legal
formulae is unlikely to improve the accuracy of their testimony.
Likewise, it is of little significance that Dr.
Riederer did not stridently disagree with Dr. Whittemores
diagnosis of a posterior ligament injury or Dr. Whittemores
assessment of permanent impairment when given the opportunity to
do so by Schroeders attorney. If anything, it may have bolstered
his credibility before the board.
Because the court holds that Dr. Riederers testimony
was insufficient to rebut the presumption of compensability, it
does not address whether substantial evidence supported the
boards conclusion that Wollaston failed to prove his claim by a
preponderance of the evidence.10 I would hold that the evidence
discussed above is sufficient to support the boards ultimate
decision as well as its decision that the presumption was
rebutted. I would therefore affirm the superior courts
affirmance of the boards decision.
_______________________________
1 We will affirm the board if substantial evidence exists
to support the Boards findings of fact. Kolkman v. Greens Creek
Min. Co., 936 P.2d 150, 154 (Alaska 1997) (quoting Yahara v.
Construction & Rigging, Inc., 851 P.2d 69, 72 (Alaska 1993)).
Substantial evidence is that which a reasonable mind, viewing the
record as a whole, might accept as adequate to support the Boards
decision. Id.
2 The following excerpts illustrate the nature of Dr.
Riederers testimony:
A I didnt think it was going to put him
out of commission. Like I said, I --
from that decision at that day looking
at that man, and if Im wrong -- my
guesses arent always wrong, but I would
think that looking back at -- if I had
to face that injury today in you or
anyone, I think that it -- and with the
same findings, that I would be of my
same opinion. I dont know maybe whether
if he hasnt been able to, but that --
given that same set of circumstances, I
think Id make the same call.
Q One of your findings was -- or
conclusions is in response to the
question, will injury result in
permanent impairment. Do you feel that
the stepping in the hole incident
resulted in a permanent impairment of
this mans right ankle?
A I did not anticipate that, but had that
man been in town and he was having
trouble, I wouldnt have given him
another month. I would have made
arrangements for him to see one of the
orthopedists in town at that point.
Q But based upon what you observed on June
30, you didnt feel that the injury was
going to result in permanent impairment?
A I did not anticipate any permanent
residual.
Q Well, he has been rated with a permanent
impairment, 10 percent of the lower
extremity, four percent of the whole
person, by Dr. Whittemore in Texas. Do
you have an opinion on whether that
impairment relates to the stepping in
the hole incident or the dislocation
incident?
A I -- I -- impairment ratings may vary
from expert to expert. Im sure youre
aware of that, and I wouldnt comment on
that. I think someone else may rate him
entirely differently.
. . . .
Q Do you understand what it takes to give
rise to a permanent impairment?
A No, Im not sure that I do.
Q Okay. Then the -- what made you then
write down that Mr. Wollaston would not
have a permanent impairment from the
stepping in the hole incident when you
checked no?
A Yeah, I dont -- when I saw him that day
I didnt think -- I couldnt imagine him
having -- I didnt anticipate. I think
you have to go with the odds.
Q Okay.
A And (indiscernible) may be wrong too
often, but I think . . . .
Q And then based on what you observed that
day, he had a mild to moderate ankle
sprain?
A I dont think Id put him in the moderate
category.
Q Just mild?
A Mild to modest. I dont think he had a
moderate injury. I think Id say be sure
you get back in here or see -- I think
it was -- commonly I make the call that
whoever -- if I think he needs a follow-
up in 10 days for sure, Ill call one of
the orthopedic offices (indiscernible)
to see if they cant get him right away
(indiscernible).
. . . .
Q Okay. It says here that -- off work for
four to -- eight -- or eight to 14 days.
A It came to, I think, seven. Yeah. And
definitely between eight and seven and
10 or . . . .
Q And it says on something work. I cant
read your writing.
A Let me try. Lets see. I put down here,
eight to 14 days for regular work, its
supposed to be.
Q Okay. Regular work.
A And modified work if available. And
they didnt -- I maybe wrote this down
before I made the check there. May need
seven to 10 days if modified work is not
available.
Q To find out how he was doing from this
ligamentous injury, would you have
wanted to see him back?
A I think that speaks for itself. I was
not much impressed with it, and he can -
- if hes bearing weight flat-footed, and
is not uncomfortable in a week -- seven
to 10 days has no problems, I dont think
its worth 60 bucks for somebodys office
call.
Q Okay. And if he is having problems?
A Then he should be rechecked, and this is
why I said down here, recheck in seven -
- recheck PRN in seven to 10 days.
Q Okay.
A If recheck was needed in seven to 10
days. If hes still having symptoms. I
certainly -- and people in that setting
I virtually always tell them Im leaving
the door open. If youre not doing as
well as I think youre going to do, you
come back in, or youll be seen. I think
unequivocally I tell patients that, that
I dont necessarily think I need to see
again, but that theyre not cutting off
their eligibility for the care for that
injury.
3 AS 23.30.120(a)(1) provides:
(a) 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[.]
4 See Tolbert v. Alascom, 973 P.2d 603, 611 (Alaska
1999).
5 805 P.2d 976, 977 (Alaska 1991) (footnote omitted).
6 836 P.2d 941, 942 (Alaska 1992).
7 The following are excerpts of Dr. Riederers testimony
which, according to the dissent, support the boards decision.
A [T]his usually screams at you in terms
of a Achilles tendon injury, and I
examined him carefully with that in
mind, specifically with him either --
youre stressing the Achilles tendon
either by having him stand on the ball
of his foot or having him lie and
dorsiflex the foot so if that is not
intact, or have him press the foot down
against resistance. People that have a
rupture thats complete or partial, cant
do that well. I did not comment -- or
the notes that I made refer to -- I put
painful under the medial malleolus,
which I probably should have said
tender, but I certainly, by examining
the ankle for stability, usually go
around the ankle more, that is, around
the medial portion here was where I
specified it as tender, but you will go
around certainly laterally. He
certainly had no evidence of Achilles
tendon injury, in my opinion, either by
stressing the -- the -- this tendon the
name of which I mentioned or by feeling
any defects in the Achilles tendon that
could be ruptured anywhere from the heel
up six inches above the injury can
occur. . . . I didnt -- certainly was
not an ecchymotic swollen joint.
. . . .
Q So you didnt see -- you didnt observe
discoloration, an ecchymosis?
A I -- I did not see that. . . . I dont
tell people to bear weight the next day,
and like I said, I think you can go back
to work if you can bear weight flat-
footed.
. . . .
Q If the stepping in the hole incident had
damaged the ankle sufficiently, would
you have expected to see swelling and
some discoloration by the time you saw
him?
A That certainly is a common finding 72
hours out to find something of that
nature.
. . . .
A The history made me concerned about
Achilles tendon. The exam did not.
. . . .
A [B]ut after examining him, it was not a
concern.
Q And you tested that and you didnt find
any obvious problem with the Achilles
tendon?
A Thats correct. . . .
. . . .
A Correct. On the inside of his ankle.
. . . .
A [W]here he was tender was medially
. . . .
. . . .
Q It was a horrendous discoloration.
A [I]t certainly sounds horrendous any
time you dislocate . . . .
. . . .
A I think he described the foot as being
almost 90 degrees or something like
that.
. . . .
A Where the snap came from was troubling
to me when he didnt have anything in his
Achilles tendon . . . .
. . . .
A Inside of his ankle.
Q The inside of his ankle, not the
outside? Okay. And he complained about
the back of the ankle. Thats where he
said he told you he had felt this tear?
A Yeah, he said he felt the tear, but I
wasnt impressed by any findings on the
back of the ankle by going over it.
. . . .
A Some swelling on the inside of the
ankle.
. . . .
A [B]ut he didnt have marked swelling or
discoloration.
. . . .
Q [T]he radiologists note -- they did note
the swelling.
A On the inside.
Q [Y]ou put down ligamentous injury, right
ankle.
. . . .
Q What were you referring to? Which
ligament, if any, were you referring to?
A The inside ligaments . . . .
Q Could it have involved the ligament
running in back of the ankle, in back of
the heel?
A I had no reason to think that. . . . Im
certain that I felt that Achilles tendon
carefully up and down, and . . . where
he was tender medially, I made no note
of him being significantly tender
posteriorly . . . .
. . . .
Q Okay. Would your examination fit within
that?
A No, I had no reference to anything
posterior.
. . . .
A When I examined him, I found nothing
objective there.
. . . .
A And he wasnt particularly tender over
his Achilles tendon at all when I
stressed him.
. . . .
A [L]ike I say commonly you see with an
ankle sprain, blood from their heel to
their toes at 72 hours or more.
Q Or more?
A Yeah.
. . . .
A [B]ut you would have expected something
by three days if he had significant
injury. You can expect something in two
hours if its really a bad ankle sprain,
someone playing ball. Or one hour.
. . . .
A But three -- three days, that seems like
plenty time for discoloration to occur.
. . . .
A His complaint was pain behind his heel.
His tenderness was on here.
. . . .
A He was on the inside of the ankle joint.
. . . .
A If he could bear weight flat-footed
without taking pain pills . . . I dont
tell people that who have a swollen
foot, so he . . . .
. . . .
A [I]f hes bearing weight flat-footed
. . . .
. . . .
A [T]he only place where he was tender on
exam was on the inside of the ankle.
8 The award of attorneys fees must be vacated as it was
dependent on the resolution reached by the board which this
opinion reverses. The other claims of error presented by
Wollaston are mooted by our decision.
1 Tolbert v. Alascom, Inc., 973 P.2d 603, 611 (Alaska
1999) (employer must provide substantial evidence to rebut
presumption of compensability); Veco, Inc. v. Wolfer, 693 P.2d
865, 869 (Alaska 1985) (same). Substantial evidence is such
relevant evidence as a reasonable mind might accept as adequate
to support [the boards] conclusion. Miller v. ITT Arctic Servs.,
577 P.2d 1044, 1046 (Alaska 1978) (citations omitted).
Because the presumption shifts only the burden of
production and not the burden of persuasion, we review any
evidence tending to rebut the presumption in isolation, without
reweighing the rebuttal evidence against the evidence tending to
establish causation. Wolfer, 693 P.2d at 869.
2 Slip Op. at 3.
3 The court cannot intend to apply the predictive
pejorative to all medical estimations of recovery periods. After
all, permanent impairment determinations often involve a type of
prediction usually a prediction of the extent to which the
patient will not fully recover.
4 Dr. Catalanello attested that Wollastons accident
flipped [his ankle] under completely 90 degrees.
5 Grainger v. Alaska Workers Comp. Bd., 805 P.2d 976, 977
(Alaska 1991).
6 The board found that the presumption of compensability
had not been rebutted for the period prior to July 7, 1996.
7 Slip Op. at 7-11.
8 Dr. Riederer testified that based upon his examination
of Wollaston, he did not anticipate any permanent residual
impairment. Although Dr. Riederer stated that his recovery
prognoses were not always correct, this was nothing more than a
refreshingly candid admission of the uncertainty of medical
practice. Dr. Riederer unequivocally stated that he would make
the same diagnosis again if faced with a similar injury.
9 Dr. Riederer did testify that he thought the work
injury may have aggravated the previous injury. We have held
that [i]n the case of a preexisting condition associated with a
disability, a claim is compensable upon a showing that employment
(1) aggravated, accelerated, or combined with a preexisting
condition so as to be (2) a substantial factor in bringing about
the disability. Estate of Ensley, 773 P.2d 955, 958 (Alaska 1989)
(citations omitted). But this theoretical avenue of recovery is
not before us, because Wollaston claims he had completely
recovered from his basketball injury before his work injury
occurred.
10 When we review the boards decision that the employee
did or did not prove her claim, we apply the substantial evidence
test. Wolfer, 693 P.2d at 870. As with our review of whether
the evidence is sufficient to rebut the presumption of
compensability, we do not reweigh the evidence or choose between
competing inferences. Beauchamp v. Employers Liab. Assurance
Corp., 477 P.2d 993, 997 (Alaska 1970).
