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Robinson v. Municipality of Anchorage (5/9/2003) sp-5690
Robinson v. Municipality of Anchorage (5/9/2003) sp-5690
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 ALASKALEON ROBINSON,
) ) Supreme Court No. S-
10373 Appellant, )
) Superior Court No. v. )
3AN-00-3618 CI )MUNICIPALITY
OF ANCHORAGE, ) O P I N I O N
) Appellee. ) [No. 5690 - May
9, 2003]_______________________________ )Appeal from
the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Eric T. Sanders,
Judge.Appearances: Charles W. Coe, Law Office of
Charles W. Coe, Anchorage, for Appellant. Trena L.
Heikes, Anchorage, for Appellee.Before: Fabe, Chief
Justice, Matthews, Eastaugh, Bryner, and Carpeneti,
Justices. FABE, Chief Justice.I. INTRODUCTION
Leon Robinson appeals the Alaska Workers' Compensation
Board's denial of benefits related to back injuries that he
allegedly suffered in 1992 and 1996 while working as a bus driver
for the Municipality of Anchorage and the Board's refusal to rule
upon the issue of whether Robinson's daily work aggravated his
condition. Complicating this case is the fact that Robinson was
also injured in a 1993 non-work-related automobile accident which
he settled for over $47,000. Because substantial evidence
supports the Board's finding that Robinson failed to establish
that his work-related injuries continued to be a substantial
factor in his back condition after he stopped receiving workers'
compensation benefits, we affirm the Board's denial of benefits.
And because it was not clear error for the Board to decline to
answer the question whether Robinson's work aggravates his
condition, we affirm the Board's decision requiring Robinson to
file a new claim addressing this issue.
II. FACTS AND PROCEEDINGS
A. Factual History
1. The 1992 slip-and-fall work-related
injury
Leon Robinson has worked as a bus driver for the
Municipality of Anchorage for over ten years. On the morning of
September 23, 1992, Robinson slipped on the stairs of the bus
that he was driving. While grabbing the sides of the door to
prevent himself from falling to the ground, he heard a popping
sound in his back. Robinson finished his shift in the afternoon
and went to the emergency room that evening complaining of back
pain, primarily in the lower left area of his back and radiating
down his left leg to his foot. The admitting doctor diagnosed
Robinson with a "[l]ow back sprain . . . associated with
sciatica" and noted that Robinson "may well have a herniated
disc," but the doctor also stated that "[t]here is no indication
at this time of central herniation." The doctor referred
Robinson to Dr. Declan Nolan for a follow-up appointment.
Dr. Nolan diagnosed Robinson as having "[a]cute lumbar
strain and facet pain. Doubt disc syndrome. No radiculopathy."
Dr. Nolan advised Robinson to take ten days off from work, to do
gentle exercises, rest, and take prescribed medications.
Robinson returned to work without restrictions on October 5,
1992, after using paid sick leave from September 27 through
October 4, 1992. Robinson seeks compensation for wage losses
from September 24 through October 5, 1992.
2. The 1993 non-work-related automobile
accident
On December 22, 1993, Robinson's vehicle struck another
vehicle, totaling Robinson's car. This accident was not work-
related. Dr. Davis Peterson, who became Robinson's regular
doctor and treated Robinson following this car accident,
diagnosed Robinson with a right foot fracture, a contusion to his
left knee from when his knees struck the dashboard, and
"paraspinal muscle strain." Robinson also complained of pain to
his right elbow and left thigh and back.
Robinson missed work from December 22, 1993 to March 1,
1994 because of his injuries. He was given paid sick leave from
December 22 through January 7, 1994 and was granted medical leave
without pay from January 10 through March 1. He initially
claimed workers' compensation benefits for both of these periods
but later waived these claims.
Sometime before May 1995 Robinson contacted the other
driver's insurer, State Farm Insurance Company, seeking damages
to compensate him for his injuries resulting from the car
accident. Dr. Stephen Thomas, an orthopedist, was retained by
State Farm to perform an independent medical examination to
substantiate Robinson's claims. Dr. Thomas's report discussed
only Robinson's foot and leg injuries. Dr. Thomas noted:
Mr. Robinson states that prior [to] the motor
vehicle accident he had been walking up to
seven miles at a time for weight loss and had
lost approximately 30 pounds and was down to
about 245. He felt that he was doing well.
Since the motor vehicle accident, the most he
could walk was a mile and he states that
after a mile he would have a lot of pain.
In April 1995 Dr. Peterson recommended that Robinson
get a lumbar MRI. The lumbar MRI revealed nerve root irritation
caused by a herniated disk. Dr. Peterson administered an
epidural injection of steroids to treat this condition, but the
injection was ineffective.
3. October 1995 surgery
Robinson had surgery to treat the herniated disk on
October 11, 1995. According to Dr. Peterson's report, four weeks
after the surgery, Robinson reported having "no back pain, still
has some right lateral thigh numbness, some occasional spasming
of both legs, but overall is markedly improved with respect to
pain." Dr. Peterson noted in January and March of 1996 that
Robinson reported experiencing some pain in his back, thigh, and
right knee.
4. 1996 bus seat injury
On August 6, 1996, Robinson injured his lower back when
the back of his bus seat collapsed. It is undisputed that this
accident temporarily increased Robinson's symptoms. Dr. Peterson
recommended physical therapy sessions, which Robinson attended
several times in September and October 1996.
After Robinson obtained a second lumbar MRI in December
1996, Dr. Peterson advised him that "given his occupation as a
professional driver it will be important for him to" exercise his
trunk and back daily. "He has to work 5 more years before
retiring and I think he will probably be able to do this if he
maintains adequate conditioning."
Robinson was relieved from his work duties to allow
time for physical therapy in August and September 1997. He
returned to work full time on January 4, 1998 after the
Municipality refused to pay for further benefits. However, the
Municipality modified Robinson's job by allowing him to work
split shifts and take extended breaks. It appears that Robinson
continues his work as a bus driver at present. Robinson claims
that his back condition requires him to continue to take time off
to recover and to see Dr. Peterson.
B. Procedural History
1. Robinson v. State Farm Insurance Co.
Robinson's attorney, Charles Coe, sent a series of
letters to State Farm Insurance Company, the insurer of the other
driver involved in the 1993 automobile accident, seeking
compensation for Robinson's injuries. Although Robinson
testified at the workers' compensation board hearing that his
back was not injured in the 1993 accident and that he did not
seek damages from State Farm related to his back, a July 1995
letter from Robinson's attorney to State Farm demanded "the
policy limits plus Rule 82 fees and interest" for Robinson's
expenses in traveling to Stanford and obtaining an MRI in May
1995,1 and for the eight weeks of missed work that were expected
to result from the recommended disc surgery. A September 1995
letter from Robinson's counsel to State Farm states that "his
1992 back strain was on the left side and normally described as a
muscle strain. The 1993 injury is to the right side radiating
into his right leg. He intends to have surgery in the next
couple of weeks. . . . Once again we demand the policy limits,
plus interest and fees." An October 1995 letter from Robinson's
counsel to State Farm states that Robinson "is undergoing back
surgery" and that "[h]e did not need surgery prior to this
incident."
In December 1995 Robinson filed suit against the driver
of the other vehicle for damages for "injuries to his back, foot,
and leg," including "[e]xpenses and medication for medical
treatment" and "[l]oss of wages." Robinson settled his claim
against State Farm and its insured in March 1996 for
approximately $47,000 for bodily injury, in addition to payments
for property damage.
2. Workers' compensation claims
On November 14, 1996, Robinson filed a workers'
compensation application for out-of-pocket medical expenses and
"time loss" due to his 1992 slip-and-fall back injury. He later
amended that application to include claims relating to his 1996
bus seat injury.
Robinson had initially sought recovery for temporary
partial disability (TPD) benefits and the cost of the 1995
surgery, but he later abandoned these claims, conceding that "his
group insurer has paid for some incurred medical expenses."
In his hearing brief, Robinson argued that he should
receive temporary total disability (TTD) benefits for the period
from September 1992 to August 1996 and "[t]ime loss [in the form
of TTD benefits] should be awarded after August 1996 for the
periods where Dr. Peterson restricts [him] from working." In
1997 Robinson received TTD benefits for four weeks. Robinson
also seeks "medical care for the 1992-1996 period, including his
MRI in 1995 and the related travel expenses he incurred," as well
as medical expenses after August 1996, including "all medications
prescribed by Dr. Peterson, and all care provided, including the
expenses related to the 1996 MRI." He further claims that a 13.5%
permanent partial impairment (PPI), as assessed by Dr. Peterson,
is more appropriate than the ten percent figure assessed by Dr.
Smith "[i]n light of the new injury in 1996 and permanent
increase in symptoms." Robinson argued that the 1992 and 1996
work accidents were substantial factors in causing his back
condition and that the 1992 accident triggered a weakness in his
back that gradually developed over time.
On February 22, 1997, Dr. Thad Stanford, an orthopedic
surgeon, examined Robinson at the Municipality's request. Also
at the Municipality's request, Dr. Bryan Laycoe, an orthopedic
surgeon, examined Robinson on October 31, 1997. The Board
granted Robinson's request for a second independent medical
evaluation (SIME) based on its finding that there is "a dispute
between the attending physician [Dr. Peterson] and the employer's
physicians [Drs. Laycoe and Stanford] regarding the causes of the
employee's medical condition." Dr. Douglas Smith, an orthopedic
specialist, performed the SIME in June 1998.
Both parties filed hearing briefs, and the Board heard
Robinson's claim on December 2, 1999. For both the 1992 and 1996
injuries, the Board found evidence establishing a "preliminary
link" between the work accident and the employee's injury and
applied a presumption of compensability under Meek v. Unocal
Corp.2 The Board concluded that the Municipality had rebutted
the presumption with substantial evidence in both cases and that
Robinson had failed to prove his claim by a preponderance of the
evidence.
Robinson petitioned the Board to reconsider his claim
that "the employer is not entitled to notification or offset for
the employee's third-party lawsuit under AS 23.30.015(k)." He
also sought reconsideration of the Board's denial of benefits
from August to November 1996 and its finding that Robinson's
"physical therapist stated that he was potentially malingering."
The Board denied Robinson's motion.
Robinson appealed to the superior court in February
2000. The superior court affirmed the Board's decision in full,
finding that substantial evidence supported all of the challenged
findings. Robinson appealed to this court.
III. STANDARD OF REVIEW
When the superior court acts as an intermediate court
of appeal, "we independently review the merits of the
administrative determination."3 "Questions of law which do not
involve any particular agency expertise are reviewed under the
substitution of judgment standard[;] [q]uestions of law involving
agency expertise are reviewed under the `reasonable basis
test'[;] [d]eterminations of fact by an administrative agency are
reviewed under the `substantial evidence' standard."4 Thus, we
"will not vacate findings of the Board when supported by
substantial evidence. However, if the Board's decision rests on
an incorrect legal foundation . . . , independent review of the
law is proper."5
On review, we will not reweigh conflicting evidence,
determine witness credibility, or evaluate competing inferences
from testimony because those functions are reserved to the Board.6
Thus, even where there is conflicting evidence, we will uphold
the Board's decision if it is supported by substantial evidence.7
However, we must independently review the evidence and reverse
the Alaska Workers' Compensation Board's decision where we
"cannot conscientiously find that the evidence supporting that
decision is substantial."8
IV. DISCUSSION
A. Burden of Proof
Alaska Statute 23.30.120(a) provides in pertinent part:
"In a proceeding for the enforcement of a claim for compensation
under [the Alaska Workers' Compensation Act] it is presumed, in
the absence of substantial evidence to the contrary, that . . .
the claim comes within the provisions of the chapter." In Temple
v. Denali Princess Lodge, we laid out the three-step presumption
analysis that applies in workers' compensation cases:
First, the employee must establish a
preliminary link between the injury and the
employment. This step of the analysis
requires consideration of "only evidence that
tends to establish the link.". . .
In the second step, we inquire whether
the employer rebutted this presumption with
"substantial evidence that either (1)
provides an alternative explanation which, if
accepted, would exclude work related factors
as a substantial cause of the [injury]; or
(2) directly eliminates any reasonable
possibility that employment was a factor in
causing the disability." . . .
As a third step, once the employer has
rebutted the presumption that the injuries
are work related, the employee can prevail
only if he proves his claim by a
preponderance of the evidence.[9]
The Board applied this three-step presumption analysis to both
Robinson's 1992 and 1996 work-related injuries.
B. Robinson Is Not Entitled to Workers' Compensation
Benefits After May 1993 for Work-Related Injuries
Sustained in September 1992.
Robinson first argues that his September 1992 work
injury was a substantial factor in causing his current
discomfort. With regard to Robinson's September 1992 work
injury, the Board concluded:
We agree with the SIME and conclude that
the substantial evidence demonstrates the
employee's September 1992 injury was a strain
that resolved. We find the employee's need
for medical care ended at the end of May
1993. We find his 1992 accident did not
contribute to the employee's later medical
conditions, need for treatment, or time off.
We find the employee's subsequent
"herniation" and back complaints were caused
by the December 1993 car accident, which
caused the employee to walk with an antalgic
ga[it] and by his pre-existing disc
degeneration. We conclude the employee has
received all compensation benefits due and
owing to him from the 1992 accident. The
employee's claim . . . is denied and
dismissed.
In support of this determination, the Board relied on
testimony of Drs. Smith and Laycoe indicating that Robinson's
need for medical care ended after May 1993. It also cited
evidence that Robinson's back complaints decreased in 1993 with
his weight loss through exercise. The Board considered
Robinson's testimony that "he was feeling `pretty good' before
the December 1993 automobile accident, walking up to six miles
per day for exercise and had lost 37 pounds." Additionally, the
Board found Robinson not to be a credible witness, pointing to
the fact that in his lawsuit against State Farm he asserted that
"his 1992 work accident produced merely a `muscle strain' and `he
did not need surgery prior to this [automobile] incident.' The
employee now seeks to be reimbursed again for those same expenses
in these workers' compensation claims."
Robinson challenges the Board's decision. He contends
that the record does not support Dr. Smith's opinion that the
1992 injury was "self-limited," and he seeks "TTD benefits from
1992 through August 1996" and "additional benefits for time loss
and medical care from May 1993 until after his 1995 surgery." He
argues that "[t]he 1992 injury triggered a weakness in [his] back
that gradually developed over time, and was continually
aggravated by his job as a bus driver." He asserts that "the
weight of the evidence" indicates that the 1995 surgery and his
current back pain are "directly related to this early accident
and continuum of aggravations."
The Municipality does not contest the Board's finding
that Robinson satisfied his burden of establishing a preliminary
link between the 1992 and 1996 injuries and his employment.
Thus, we turn to whether the Municipality "rebutted this
presumption with `substantial evidence that either (1) provides
an alternative explanation which, if accepted, would exclude work
related factors as a substantial cause of the [injury]; or (2)
directly eliminates any reasonable possibility that employment
was a factor in causing the disability.' "10 Because we are
reviewing an administrative agency's decision and because this is
a question of fact, we apply the substantial evidence standard.11
Therefore, we must determine whether the evidence presented by
the Municipality, when viewed without consideration of Robinson's
evidence to the contrary, is such that a reasonable mind would
accept it as adequate to support the Board's conclusion that the
work-related injury was not a substantial factor in Robinson's
post-May 1993 condition.12 The Board found that the Municipality
offered substantial evidence which rebutted the presumption of
compensability. We agree.
The Board relied on Dr. Laycoe's February 1997 report,
Dr. Smith's June 1998 report, and Dr. Stanford's October 1997
affidavit, to which he attached his February 1997 report, in
concluding that substantial evidence indicated that Robinson's
need for medical care related to the 1992 injury ended in May
1993. Dr. Laycoe offered his opinion that the 1992 slip injury
caused Robinson to need treatment "following September, 1992,
over a six week period with occasional follow-up doctor visits
into the spring of 1993. I do not believe that the 1992 injury
was a substantial factor in his condition in August of 1996 . . .
[or] in causing Robinson's L5-S1 herniation." Dr. Laycoe
concluded: "The progression of the degenerative disc disease at
L5-S1 is a result of the degenerative disease and the surgery of
October, 1995, and this is the sole responsibility for his
worsening back pain over the years." Similarly, Dr. Smith, the
SIME, concluded: "I do not find a connection between the 1992
industrial injury that is substantial relative to the need for
care after May, 1993, or for the surgery in 1995" and that the
1992 injury "rapidly cleared" and "was relatively self limited."
Dr. Stanford explained in an October 1997 affidavit that
the September 1992 injury probably did not
cause the herniation nor the subsequent
disability and need for medical care and
surgery . . . . [T]he most likely cause[s]
of Mr. Robinson's back pain, lumbar
herniation and need for surgery [were] the
injuries sustained by Mr. Robinson in the
1993 automobile accident . . . and his pre-
existing obesity.
Substantial evidence supports the Board's finding that the
Municipality rebutted the presumption of compensability by
offering an alternative explanation for Robinson's 1995 surgery
and current back pain - namely, the 1993 car accident.13 In
addition to Dr. Stanford's opinion, the letters that Charles Coe,
Robinson's attorney, wrote to State Farm concerning the 1993 car
accident further support this alternative explanation. Coe
notified State Farm by letter in October 1995 that Robinson
planned to undergo back surgery and that "[h]e did not need
surgery prior to this incident."
Because the Municipality has overcome the presumption
of compensability, the presumption drops out. To prevail,
Robinson had to prove to the Board, by a preponderance of the
evidence, that the 1992 work injury was a substantial factor in
causing his need for medical treatment and disability after May
1993.14 "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."15
Robinson points to Dr. Peterson's April 1997 report in
support of his claim that the 1992 injury caused his current
condition:
I believe there is a high likelihood that his
initial slip produced the initial disc
disruption that gradually progresses to
bilateral disc herniation with radiculopathy
requiring microdisectomy. His motor vehicle
accident may certainly have been a major
contributing factor and, in fact, he probably
had some degree of underlying disc
degeneration, even preceding his slip on the
bus steps.
. . . [A]t least part of this most likely is
work-related and part of it should be
assessed to the motor vehicle accident and
some also should be considered pre-existing
due to degenerative disease.
Dr. Peterson's testimony establishes only that the 1992 injury
was one cause of Robinson's condition, but not that it is a
substantial cause. Moreover, as the Municipality points out,
"even Dr. Peterson, Robinson's treating physician, could not say
the work injuries were substantial factors in Robinson's
condition, disability, impairment, need for medical treatment or
in any need for retraining." In his deposition, Dr. Peterson
explicitly rejected the theory that the 1992 injury was a
substantial factor in Robinson's present condition. When asked
whether the 1992 injury was a substantial factor in Robinson's
inability to drive a bus today, Dr. Peterson responded "I can't
say that it is a substantial factor. It may be a factor, but I
can't really weigh it as substantial."
In addition, the Board concluded that Robinson was not
credible because he claimed double recovery for his back injury.
The Board's determination of a witness's credibility is given
deference.16 The Board noted that in his third-party lawsuit,
Robinson attributed his back injury solely to the car accident
and claimed damages for his back surgery and related medical
expenses. Robinson then sought reimbursement from the
Municipality for those same expenses. He also offered
"contradictory testimony . . . that the December 1993 automobile
accident `didn't play any [part]' in [his] subsequent back
problems."
Because Robinson's treating physician, Dr. Peterson,
does not advocate strongly the theory that Robinson's 1992 injury
is a substantial factor in his continuing discomfort and because
Robinson attributed his back problems to the 1993 car accident
during his third-party lawsuit, we conclude that the Board did
not err in finding that Robinson failed to prove his claim based
on his 1992 injury by a preponderance of evidence. We affirm the
Board's ruling that Robinson received all compensation benefits
due and owing to him from the 1992 accident.
C. Robinson Is Not Entitled to Workers' Compensation
Benefits After November 1996 for Work-Related Injuries
Sustained in August 1996. " \l 2 With regard to
the August 6, 1996 work injury claim, the Board held
that Robinson "has received all workers' compensation
benefits due and owing [from August 6, 1996 through
November 6, 1996]. Regarding the employee's claim that
he is entitled to additional benefits after November 6,
1996, we find he has failed to meet his burden of
proof." Citing evidence from Dr. Laycoe's report, the
Board found that Robinson "suffered a lumbar strain in
August 1996 that resolved in November 1996 and left no
residuals." Thus, the Board found "no objective
medical evidence [that] the employee suffered any
permanent impairment due to this accident and there is
no medical testimony that the employee's 1996 work
accident was a substantial factor in the employee's
need for medical treatment or additional benefits after
November 6, 1996."
Robinson argues that his increased symptoms after
the 1996 work injury are compensable as an aggravation
of his preexisting condition. He claims that he should
be awarded "temporary time loss benefits after August
1996 for the periods where Dr. Peterson restricted him
from working, and all medications prescribed by Dr.
Peterson, and care provided, including the expenses
related to the 1996 MRI." Robinson maintains that he
should be entitled to TTD and compensation for medical
care expenses "until his own physician rates him as
medically stable, and then he is entitled to another
PPI rating for any increased impairment."
Here, as with the 1992 injury, the Municipality
does not appear to challenge the Board's finding that
Dr. Smith's report establishes a preliminary link
between the 1996 work accident and Robinson's post-
November 1996 back condition. Dr. Smith noted that
"[t]he 1996 aggravation after surgery had already been
performed, could be . . . considered a factor relative
to his current presentation." Because this evidence
establishes the preliminary link between Robinson's
work and his current condition, we turn to whether the
Municipality has overcome the presumption of
compensability.
The Board relied on the October 1997 report of Dr.
Laycoe in concluding that the Municipality had overcome
the presumption of compensability. Dr. Laycoe stated
that he "do[es] not believe that the [1992 and 1996]
work injuries remain a substantial factor in
[Robinson's] condition presently . . . . [O]ne would
anticipate the effects of the 1996 strain would have
only lasted a period of weeks no greater than six to
eight on a more probable than not basis." According to
Dr. Laycoe, Robinson's "back pain would have worsened
irrespective of the event of August, 1996 . . . . The
progression of the degenerative disc disease at L5-S1
is a result of the degenerative disease and the surgery
of October, 1995, and this is the sole responsibility
for his worsening back pain over the years." This
evidence rebuts the presumption of compensability
because it establishes an alternative cause for his
present condition - the progressive degenerative disc
disease and surgery - and "directly eliminates any
reasonable possibility that employment was a factor in
causing the disability."17
The burden thus shifts to Robinson to prove his
1996 work injury claim by a preponderance of the
evidence. Robinson maintains that "[t]he increase in
[his] symptoms is compensable" and that "all physicians
agreed" that his symptoms increased after the 1996
injury. The Municipality does not dispute that the
1996 injury temporarily increased Robinson's symptoms.
The physicians who examined Robinson all agreed that
the 1996 injury made his preexisting condition
temporarily symptomatic but caused no structural
changes. The issue is whether those symptoms continued
after November 1996.
Temporary total disability benefits are not
available to employees once they become medically
stable.18 Medical stability must be measured by
objective evidence:
"[M]edical stability" means the date
after which further objectively measurable
improvement from the effects of the
compensable injury is not reasonably expected
to result from additional medical care or
treatment, notwithstanding the possible need
for additional medical care or the
possibility of improvement or deterioration
resulting from the passage of time; medical
stability shall be presumed in the absence of
objective measurable improvement for a period
of 45 days; this presumption may be rebutted
by clear and convincing evidence.19
The Board concluded that the Municipality offered
substantial evidence to show that Robinson reached medical
stability as of November 6, 1996. Drs. Laycoe and Smith both
concluded that Robinson became medically stable from the effects
of the back sprain by November 1996.
Although Dr. Peterson disagreed with Drs. Laycoe and
Smith and offered his opinion that Robinson was not medically
stable as of November 1996,20 it is not our role to reweigh the
evidence.21 Because substantial evidence supports the Board's
finding that Robinson failed to prove his claim for benefits from
his August 1996 work injury by a preponderance of the evidence,
we affirm the Board's decision to deny his claim for additional
TTD benefits stemming from the August 1996 injury.
In addition to temporary total disability, Robinson
also argues that he is entitled to partial permanent impairment
benefits stemming from the 1992 and 1996 work-related accidents.
A claimant is entitled to partial permanent impairment if the
injury is "partial in character but permanent in quality."22 Dr.
Smith concluded that although Robinson suffers from a 10% whole
person permanent impairment, that impairment is not related to
either the 1992 or 1996 injury,23 and that Robinson became
medically stable in November 1996. Dr. Stanford rated Robinson's
PPI at 10% and could not attribute this rating to the 1992
injury. Dr. Peterson rated Robinson's PPI at 13.5% because "he's
at high risk for future problems, further increased risk of disk
herniations, [and] recurring back injuries," and he recommended
that Robinson be retrained. When asked whether the 1992 injury
was a substantial factor in causing Robinson's permanent
impairment, Dr. Peterson stated that "this whole process is
multifactorial." Substantial evidence supports the Board's
finding that Robinson failed to establish by a preponderance of
evidence that his work injuries were a substantial factor in his
permanent impairment. Accordingly, we affirm the Board's denial
of PPI benefits.
D. Robinson Failed To Adequately Raise the Issue of
Whether His Daily Work as a Bus Driver Aggravates His
Back Condition.
In his hearing brief to the Board, Robinson argued that
"there is no question that [his] driving for the city aggravated
his back . . . , which would further warrant an award of
benefits." The Board ruled that Robinson had not properly raised
this issue:
The employee never filed a claim seeking
benefits for such an occupational aggravation
and there was little argument or evidence
presented regarding this allegation. It is
not clear to us whether the employee is
claiming cumulative trauma or rather alleging
that specific incidents caused new claims for
time loss and the need for further medical
care. The employer appropriately relied on
the employee's claims in preparing its
defenses and accordingly did not obtain a
medical opinion regarding whether or not the
employee's work as a bus driver was a
substantial factor aggravating his condition.
Because the Board did not have enough evidence to properly
evaluate the issue of occupational aggravation, it declined to
rule on that issue. Instead, it retained jurisdiction to
consider the issue and instructed Robinson to file a workers'
compensation claim form specifically raising that issue, if he so
desired. We agree with the Board that if Robinson's daily work,
as opposed to the 1992 and 1996 work injuries, is an aggravating
condition for him, he needs to articulate that in a new workers'
compensation claim. We hold that it was not an abuse of
discretion for the Board to require a new claim.
E. The Board Did Not Err in Denying Robinson's Motion
for Reconsideration.
Alaska Statute 44.62.540(a) provides that an agency
"may order a reconsideration of all or part of the case on its
own motion or on petition of a party." The Board denied
reconsideration on all three of the issues raised in Robinson's
motion for reconsideration. Robinson argues that the Board erred
in denying reconsideration on whether the Municipality is
entitled to notification or offset of benefits from August to
November 1996 and on whether he is entitled to additional
benefits.
With regard to the offset issue, the Board asserted in
its final decision and order, "[t]o the extent the employee
pursues additional compensation benefits the [employer] may be
entitled to a credit, but we do not address the issue at this
time." The Board concluded in its order on reconsideration:
"Since we did not order any credit or declare the employer was
due a credit, and we expressly declared we would not address the
issue, there is nothing for us to reconsider."24 Neither party
raised the issue of whether the Municipality was entitled to a
credit in the hearing briefs, and the Municipality never raised
it at the workers' compensation hearing. Because the issue was
not briefed by the parties, it was not squarely before the Board,
and the Board did not err in declining to address the issue.25
And as the Municipality correctly points out, "even if the Board
somehow erred in its comments, the error is harmless as no
decision was rendered and the matter was left for the parties to
raise and argue in the future."
With regard to the 1996 compensation issue, we affirm
the Board's denial of reconsideration because substantial
evidence, as discussed above with regard to the 1996 injury,
supports its decision.26
V. CONCLUSION
Because Robinson failed to establish his claims by a
preponderance of the evidence, we AFFIRM the Board's denial of
additional workers' compensation benefits. In addition, because
it was not clear error for the Board to decline to rule upon the
issue of whether Robinson's daily work as a bus driver aggravates
his condition, we AFFIRM its decision to require Robinson to file
a new claim that addresses this issue.
_______________________________
1Because of Mr. Robinson's size, the MRI machine in Anchorage
could not accommodate him, and he had to travel to Stanford
University to have the MRI done.
2914 P.2d 1276, 1279 (Alaska 1996).
3DeYonge v. NANA/Marriott, 1 P.3d 90, 94 (Alaska 2000).
4Arnesen v. Anchorage Refuse, Inc., 925 P.2d 661, 664 & 666
(Alaska 1996) ("Substantial evidence is that which a reasonable
mind, viewing the record as a whole, might accept as adequate to
support the Board's decision.") (citation omitted).
5Childs v. Kalgin Island Lodge, 779 P.2d 310, 313 (Alaska 1989).
6Id. at 315.
7DeYonge, 1 P.3d at 94.
8Bouse v. Fireman's Fund Ins. Co., 932 P.2d 222, 231 (Alaska
1997).
921 P.3d 813, 816 (Alaska 2001) (citations omitted).
10Id.
11Id. at 815.
12Id. at 815-16.
13See Big K Grocery v. Gibson, 836 P.2d 941, 942 (Alaska 1992)
("It has always been possible to rebut the presumption of
compensability by presenting a qualified expert who testifies
that, in his or her opinion, the claimant's work was probably not
a substantial cause of the disability. . . . [S]uch testimony is
affirmative evidence that an injury is not work connected.")
(citations omitted).
14Temple, 21 P.3d at 816.
15Saxton v. Harris, 395 P.2d 71, 72 (Alaska 1964).
16AS 23.30.122 ("The board has the sole power to determine the
credibility of a witness. A finding by the board concerning the
weight to be accorded a witness's testimony, including medical
testimony and reports, is conclusive even if the evidence is
conflicting or susceptible to contrary conclusions."); Norcon,
Inc. v. Alaska Workers' Comp. Bd., 880 P.2d 1051, 1054 (Alaska
1994) ("Deference should be given to the Alaska Workers'
Compensation Board's determination of witness credibility.").
17Temple, 21 P.3d at 815-16; see also Big K Grocery v. Gibson, 836
P.2d 941, 942 (Alaska 1992); Safeway, Inc. v. Mackey, 965 P.2d
22, 27 (Alaska 1998).
18Temporary total disability benefits are governed by AS
23.30.185:
In case of disability total in character but
temporary in quality, 80 percent of the
injured employee's spendable weekly wages
shall be paid to the employee during the
continuance of the disability. Temporary
total disability benefits may not be paid for
any period of disability occurring after the
date of medical stability.
19AS 23.30.395(21).
20In an October 1997 letter, Dr. Peterson wrote that Robinson was
not medically stable as of that date. He elaborated: "[Robinson]
has stabilized since driving discontinued. If permanently
reassigned, or retired from driving, [Robinson] would be
considered stable as [symptoms] are exacerbated & [Robinson]
deteriorates [with] driving."
21Robinson argues that because he went to physical therapy after
November 1996, he was receiving "additional medical care" within
the meaning of AS 23.30.395(21) and so he could not be declared
medically stable. However, the fact that he received treatment
is insufficient evidence of medical instability absent a
reasonable expectation of objectively measurable improvement from
that care. AS 23.30.395(21). The physical therapist treating
Robinson noted that his "[s]ubjective complaints do not equate
[with] objective changes" and that "[s]econdary gain issues may
come into play." Given this evidence that Robinson may be
malingering, the Board did not err in concluding that he was
medically stable due to the lack of objective evidence of
continuing improvement.
22AS 23.30.190.
23This is consistent with the Municipality's argument in its
hearing brief: "The employer does not dispute that the employee
may be unable to work as a bus driver for the Municipality due to
his physical condition, which includes narcolepsy, obesity, low
back pain, diverticulitis, carpal tunnel, hernias and a host of
other non-work related conditions. The employer does not believe,
however, the 1992 and 1996 injuries are substantial factors in
the need to change occupations."
24The Board's statement that the employer may be entitled to a
credit was a gratuitous remark with no legal effect.
25Legge v. Greig, 880 P.2d 606, 609 (Alaska 1994) ("An issue given
only cursory treatment in a brief will be treated as
abandoned.").
26We note that while substantial evidence does exist to support
the Board's decision, its assertion that "[w]e could find no
objective medical evidence the employee suffered any permanent
impairment from his 1996 accident, and there was no medical
testimony the employee's 1996 work accident was a substantial
factor in the employee's need for medical treatment or additional
benefits after November 6, 1996" seems overstated. The Board
recognized in its first decision that some evidence suggested
that Robinson's current discomfort stems from the 1996 work-
related accident: "When asked if he could say the employee's
August 1996 injury was a substantial factor in the employee's
continuing need for medical treatment, Dr. Peterson testified . .
. `I can't discount it.' " Robinson's situation is aggravated,
and he is permanently impaired. To say "no objective medical
evidence" exists ignores evidence in the record.
