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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Thurston v. Guys With Tools, Ltd. (10/16/2009) sp-6423

Thurston v. Guys With Tools, Ltd. (10/16/2009) sp-6423, 217 P3d 824

     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.
SANDRA THURSTON,              )
                              )    Supreme Court No. S-12939
               Petitioner,     )
                              )    Alaska Workers Compensation
     v.                       )    Appeals Commission No. 06-039
                              )
GUYS WITH TOOLS, LTD.,        )    O P I N I O N
d/b/a THE BUSH PILOT, and          )
ALASKA NATIONAL               )    No. 6423 - October 16, 2009
INSURANCE COMPANY,       )
                              )
               Respondents.   )
                              )

          Petition  for Review from the Alaska  Workers
          Compensation   Appeals  Commission,   Kristin
          Knudsen, Chair.

          Appearances:    Robert  M.  Beconovich,   Law
          Office   of   Robert   M.  Beconovich,   LLC,
          Fairbanks,  for Petitioner.  Nora G.  Barlow,
          DeLisio   Moran  Geraghty  &   Zobel,   P.C.,
          Anchorage, for Respondents.

          Before:    Fabe,  Chief  Justice,   Eastaugh,
          Carpeneti, and Winfree, Justices.  [Matthews,
          Justice, not participating]

          WINFREE, Justice.

I.   INTRODUCTION
          This  case  presents questions of law about  a  workers
compensation claim for permanent total disability (PTD) when  the
employee:  (1) had a preexisting condition; (2) suffered  a  work
injury implicating the preexisting condition; and (3) suffered  a
subsequent  unrelated  medical condition independently  rendering
the employee disabled.
     
     An  employee  with preexisting arthritis in  her  left  knee
injured that knee at work in August 2002 and had knee surgery  in
June  2003.  She was diagnosed with lung cancer in October  2003.
She  was  determined medically stable with respect  to  the  knee
injury  in  April  2004.  In February 2006 she  filed  a  workers
compensation  claim  for  PTD  and other  benefits.   The  Alaska
Workers Compensation Board decided that the work injury continued
to  be compensable and that the combination of the cancer and the
knee   condition  made  the  employee  permanently  and   totally
disabled;  it thus awarded her PTD benefits.  The Alaska  Workers
Compensation  Appeals  Commission vacated  the  Boards  decision,
holding  that the Board was required to decide whether  the  knee
injury alone could cause PTD.
          Because  the  Commissions  decision  is  ambiguous,  we
granted  the  employees petition for review to  ensure  that  the
Board  used  the  correct legal standards in its rehearing  after
remand.
II.  FACTS AND PROCEEDINGS
          Sandra  Thurston worked as a bartender  for  Guys  With
Tools, Ltd. at the Bush Pilot bar in Fairbanks beginning in 2000.
She  injured  her  left knee while working on August  17,  2002.1
Thurston  had  knee  surgery  in June  2003  after  a  course  of
conservative  treatment.2   Guys With Tools  paid  her  temporary
total disability (TTD) and medical benefits for the injury.
          In October 2003 Thurston was diagnosed with lung cancer
and  underwent radiation treatment and chemotherapy.  She did not
have  knee-related medical treatment again until April 2004, when
she was examined, determined to be medically stable, and rated as
having  a  one-percent whole person impairment.  Guys With  Tools
then  paid permanent partial impairment (PPI) benefits and  ended
TTD payments.
          Thurston continued to have knee pain.  In July 2005 Dr.
J.  Michael  Carroll,  who was treating her  cancer,  ordered  an
ultrasound  of  Thurstons leg to rule out deep  vein  thrombosis.
The  ultrasound showed popliteal3 cysts in her left  knee,  which
Dr.  Carroll  attributed  to  her work  injury.   Thurston  first
returned  to the surgeon who had performed her 2003 knee surgery,
but then changed to Dr. Richard Cobden as her treating physician.
Dr.  Cobden also attributed her continuing knee pain to her  work
injury.4
          In  February 2006 Thurston filed a workers compensation
claim  for  a  variety of benefits, including TTD benefits  after
April  2004 and PTD benefits.  Guys With Tools filed a notice  of
controversion and an answer denying liability for any further TTD
benefits  or  PTD  benefits, relying on a  May  2006  independent
medical  evaluation (IME) by Dr. John Joosse.  Dr. Joosse  stated
in his IME report that Thurston was unable to return to work, but
that  the  majority  of her disability was  attributable  to  her
cancer.
          The  Board  held  a  hearing  on  Thurstons  claim   on
October  12,  2006.5  Thurston and her husband testified  on  her
behalf;  Dr.  Joosse testified for Guys With Tools.  Dr.  Cobdens
medical records were on file.
          Thurston and her husband described her medical problems
and  treatments,  as well as the limitations on  her  activities.
They both testified that before the work injury she had been able
to  perform  her  job functions, including her  waitress  duties,
without  any  knee-related  problems.   Thurstons  husband   also
testified that Thurston had no limitations in household tasks and
          no arthritis-related complaints before the work injury.  He
testified that as of the hearing, Thurston was unable to  perform
many  normal  activities,  such as walking,  without  assistance.
Both  Thurston  and her husband testified that  she  would  be  a
candidate  for knee replacement surgery, but her cancer treatment
precluded her from having surgery.
          Dr. Joosse testified that in his opinion Thurstons work-
related  knee  injury had resolved and she was  medically  stable
with  respect  to  the  knee injury.  Dr.  Joosse  described  the
earlier  damage  to  the  cartilage  in  Thurstons  knee  as  the
beginning  of genuine arthritis.  He testified that  a  traumatic
injury  could aggravate preexisting arthritis, but  that  in  his
opinion  Thurstons  injury  had not  aggravated  her  preexisting
arthritic condition.  He agreed that she might be a candidate for
knee  replacement surgery, but attributed all of her then-current
knee  problems  to  her preexisting arthritis.   He  agreed  that
surgery  is generally not performed while a patient is undergoing
chemotherapy.
          In its December 6, 2006, decision, the Board found that
Thurston was eligible for PTD benefits related to her August 2002
work-related injury.  The Board first used a three-step  analysis
to evaluate whether Thurstons condition remained compensable:  it
found   that   Thurston   had   attached   the   presumption   of
compensability,  the employer had rebutted it, and  Thurston  had
proven her claim by a preponderance of the evidence.6  The  Board
concluded,  based primarily on Dr. Cobdens medical reports,  that
Thurstons  condition  continued  to  be  compensable   and   that
Thurstons  work for Guys With Tools was a substantial  factor  in
her resulting left knee disability.  The Board did not explicitly
say  that  Thurstons knee disability was a substantial factor  in
her total disability  instead, the Board said she was entitled to
PTD  benefits  if she proved her work injury [was] a  substantial
factor  in  her resulting disability and that the combination  of
the  employees work injury and her cancer render her entitled  to
PTD  benefits.   The  Board then found that  the  combination  of
Thurstons  knee  disability  and  cancer  rendered  her   totally
disabled, and awarded her PTD benefits.
          Guys   With  Tools  appealed  to  the  Alaska   Workers
Compensation Appeals Commission on a number of grounds, including
its contention that the Board applied an incorrect legal analysis
to the PTD question.  The Commission agreed with Guys With Tools,
stating that it was error for the Board to combine the effects of
the  cancer and the knee injury in deciding whether Thurston  was
totally disabled:  [t]he [B]oard clearly did not consider whether
the  knee  injury was still disabling regardless  of  [Thurstons]
cancer.  The Commission stated that reasonable minds could differ
whether  the  evidence  in  the  record  supports  a  finding  of
permanent  total  disability based on the work injury  alone  and
remanded the case to the Board for a rehearing on the record.
          The  Commission also concluded that one of Dr.  Cobdens
medical reports on which the Board had relied was not substantial
evidence  because no reasonable person would  rely  on  it.   The
Commission  determined that the Board failed  to  clearly  define
Thurstons  claim, specifically noting that the  Board  failed  to
          answer whether Thurstons work-related injury aggravated a
preexisting  condition   her  arthritis   so  as  to  result   in
disability.  The Commission also faulted the Board for failing to
answer other material questions that the parties raised, such  as
whether  Thurstons  work-related injury had caused  a  disability
related to her back condition.
          Thurston  requested review, which we granted to  ensure
that the Board applied the correct legal standard on remand.
III. STANDARD OF REVIEW
          In   workers  compensation  appeals  from  the  Appeals
Commission,  we  review the Commissions decision  and  apply  our
independent judgment when, as here,  there is a question  of  law
that does not involve agency expertise.7
IV.  DISCUSSION
          The  parties disagree about how to analyze a case  like
this  one,  where  an  employee who has suffered  a  work-related
injury  is  subsequently diagnosed with an  unrelated  condition.
Guys With Tools argues that the Board incorrectly applied Tolbert
v.  Alascom,  Inc.8 and Providence Washington, Inc. v.  Fish9  to
Thurstons case.  Guys With Tools asserts that both of these cases
expressed  a  rule  about  preexisting  conditions  rather   than
subsequent  illnesses, and that Estate of Ensley v. Anglo  Alaska
Construction,  Inc.10 controls Thurstons case and  precludes  her
claim.  Relying on Estate of Ensley and DeYonge v. NANA/Marriott,11
Thurston  argues  that the Board correctly used  the  substantial
factor  test  when it found that she was permanently and  totally
disabled by a combination of her cancer and knee injury.
          Thurston  had a preexisting medical condition, suffered
a  work  injury,  and  then  suffered  a  subsequent  independent
condition.   Whether a work injury is a substantial factor  in  a
resulting disability is evaluated differently in the context of a
preexisting  condition  than in the context  of  two  independent
conditions.

          In the context of a preexisting condition  in this case
Thurstons preexisting left knee arthritis  the employee must show
that  the  work injury aggravated, accelerated, or combined  with
the  disease or infirmity to produce the death or disability  for
which  compensation  is sought.12  To prove that  a  work  injury
combined  with  a preexisting condition to produce a  disability,
the  employee  must show that (1) the disability would  not  have
happened  but-for an injury sustained in the course and scope  of
employment; and (2) reasonable persons would regard the injury as
a cause of the disability and attach responsibility to it.13  The
Board  appears  to have considered that framework  for  Thurstons
preexisting  arthritis and the effect of her work injury.   Prior
to  discussing Thurstons cancer it found undisputed evidence that
[Thurston]  injured  her  back and knee  while  working  for  the
employer  and  after  undergoing surgery  .  .  .  symptoms  have
continued  to persist.  Relying on Dr. Cobdens opinion  that  the
work   injury  combined  with  and  accelerated  her  preexisting
condition,  the  Board then concluded that  her  knee  disability
remained compensable.  The Board found that Thurstons work injury
was  a  substantial factor in her resulting left knee  disability
          before determining that the combination of the employees work-
related  knee  injury and her cancer condition has  rendered  her
permanently totally disabled.
          In  the  different context of a subsequent  independent
condition  in this case Thurstons cancer  the employee must  show
that  the work-related condition is a substantial factor  in  the
overall  disability.   The Commission correctly  stated  that  an
employer  does  not  take  on unrelated diseases  that  find  the
employee  after  a  work-related  injury.   But  the  Commissions
decision  is  potentially ambiguous because it appears  to  adopt
Guys  With Toolss position that the work injury must be  analyzed
in  isolation.   Taken  to a logical end, this  could  result  in
application  of the but-for test that we rejected  in  Tolbert.14
Thurston  does not need to show that but for her work injury  she
would  not  be disabled.  To be eligible for TTD or PTD  benefits
Thurston  needs  to show that her work-related  disability  is  a
substantial  factor in her total disability,  without  regard  to
whether  her  cancer could independently have  caused  the  total
disability.15  The test does not require the Board to pretend that
Thurston does not have cancer.
          A  hypothetical loosely based on the facts of this case
illustrates  this point.  An employee suffers an on-the-job  knee
injury,  leaving her temporarily totally disabled.  The  employee
is initially treated conservatively, but after a number of months
all doctors involved in her care agree that surgery is necessary.
Before  the  employee  can undergo the  needed  surgery,  she  is
diagnosed   with  cancer  and  immediately  begins  chemotherapy,
foreclosing the possibility of knee surgery for at least a  year.
The  cancer itself does not change the character or extent of the
work-related  disability;  the  work-related  disability  remains
temporarily  but  totally disabling.  But the  subsequent  cancer
diagnosis  would impede necessary medical treatment of her  work-
related  condition  and  could not reasonably  be  excluded  from
consideration of the duration of her disability.  The employer is
not  liable  for the subsequent condition itself, but it  remains
liable  for  the work-related injury and disability, even  though
the  subsequent illness may prolong the duration of the employees
disability.   As we stated in Estate of Ensley, to deny  coverage
to  an employee in such circumstances would create a windfall  to
employers   simply  because  of  the  employees   misfortune   in
developing an independent medical condition.16
            Relying  on  Carter  v.  B & B Construction,  Inc.,17
Thurston argues that she is entitled to PTD benefits as a  matter
of  law.   At oral argument before us, she pointed out  that  the
employee in Carter had a number of medical conditions that  arose
after  his work-related injury and contributed to his disability.
But  Carter is distinguishable.  There the employee had a doctors
opinion  that  linked his work-related neck  injury  to  his  PTD
regardless of his other subsequent conditions,18 and his employer
did  not produce sufficient rebuttal evidence to meet its  burden
under  the  three-step presumption analysis, so the employee  was
entitled to PTD benefits as a matter of law.19  Thurston does not
point  to  a similar medical opinion in her case identifying  her
knee condition as permanently and totally disabling regardless of
          her cancer.
          It remains for the Board to determine on remand whether
Thurston  is eligible for TTD or PTD benefits, or any benefit  at
all.    Because the Board found that Thurstons work injury was  a
substantial factor in her left knee disability, we disagree  with
the  Commissions  conclusion  that the  Board  did  not  consider
whether  the  knee  injury  was  still  disabling  regardless  of
Thurstons  cancer.   But the Board did not explicitly  find  that
Thurstons  left knee disability was a substantial factor  in  her
total disability.  On remand, then, to obtain TTD or PTD benefits
Thurston   must  prove  that  her  knee  disability  is   totally
disabling, either temporarily or permanently, regardless  of  her
cancer.20
          Finally,  the  Commission determined that  one  medical
report  by  Dr. Cobden on which the Board relied for its  finding
that  Thurstons  knee  condition  remained  compensable  was  not
substantial evidence.  Noting that Thurstons surgical records did
not  show removal of the medial meniscus, the Commission  focused
on  Dr.  Cobdens  chart  note stating that  surgical  removal  of
Thurstons medial meniscus resulted in degeneration of her  medial
joint   compartment.21   Thurston  argues  that  the   Commission
overstepped  its  statutory mandate by holding that  Dr.  Cobdens
opinion  could not be credited and directing the Board  to  adopt
Dr. Joosses opinion.
          We do not read the Commissions decision so broadly, and
as Guys With Tools conceded at oral argument before us, the Board
may  rely on other medical records and opinions by Dr. Cobden  on
remand.   Furthermore, the Commissions statement that  reasonable
minds could differ whether the evidence in the record supports  a
finding  of  permanent total disability based on the work  injury
alone  suggests that in its view adequate evidence in the  record
supported Thurstons position, but that the Board, as fact finder,
needed to evaluate the evidence first.
V.   CONCLUSION
          For  the reasons stated above, we REMAND to the Appeals
Commission  with instructions to remand to the Board for  further
proceedings  consistent with this opinion.   The  Commission  may
grant  the  Board  discretion to accept  additional  evidence  on
remand.
_______________________________
     1     In  1998 Thurston had arthroscopic surgery on her left
knee because of a suspected torn medial meniscus.  A meniscus  is
[a]  cartilage disk that cushions the ends of bones meeting in  a
joint.   Websters  II  New  Riverside University  Dictionary  741
(1988).   There  are two menisci in the human knee,  the  lateral
meniscus  and the medial meniscus.  2 Roscoe N. Gray & Louise  J.
Gordy, Attorneys Textbook of Medicine  7A.13 (3d ed. 1999).   The
1998  surgery  revealed that both Thurstons menisci were  intact,
but  that cartilage had been damaged in both the medial  and  the
patella  compartments (areas where bones meet).  During the  1998
surgery  the  damaged cartilage was removed from  Thurstons  left
knee.

     2     The  notes  from  Thurstons 2003 arthroscopic  surgery
indicate  that  Thurston had a tear in her lateral  meniscus  but
that  her medial meniscus was intact.  Earlier diagnostic imaging
studies  had suggested tears in both menisci.  Part of  Thurstons
lateral meniscus was removed in the 2003 surgery.

     3     Popliteal means pertaining to the posterior surface of
the knee.  Dorlands Illustrated Medical Dictionary 1334 (28th ed.
1994).

     4     Thurstons  medical records also noted  a  work-related
back  condition.  Whether Thurston hurt her back or aggravated  a
preexisting  back problem in the 2002 work-related  incident  was
disputed,  although it appears that the employer did not  dispute
that  the  brace Thurston wore for several months after her  knee
injury caused some back strain.

     5     At  an  August  9,  2006, prehearing  conference,  the
benefit claims for the hearing were narrowed to PTD, PPI, medical
and  transportation costs, penalties, and interest.  Both parties
discussed  TTD  briefly at the hearing even  though  it  was  not
listed in the prehearing conference summary.

     6     See Smith v. Univ. of Alaska, Fairbanks, 172 P.3d 782,
788 (Alaska 2007) (citing Bradbury v. Chugach Elec. Assn, 71 P.3d
901,  905-06  (Alaska 2003)) (summarizing three-part  presumption
test for workers compensation claims).

     7    Barrington v. Alaska Commcns Sys. Group, Inc., 198 P.3d
1122, 1125 (Alaska 2008).

     8     973  P.2d 603, 611-12 (Alaska 1999) (rejecting but-for
test   and   adopting  substantial  factor   test   for   workers
compensation cases involving two independent causes resulting  in
a disability).

     9     581 P.2d 680, 680-81 (Alaska 1978) (affirming award of
PTD   benefits  when  work-related  back  injury  combined   with
preexisting  psychological or emotional disorders or  infirmities
to render employee permanently and totally disabled).

     10     773 P.2d 955, 959-60 (Alaska 1989) (holding that when
employee  suffers  compensable work injury, concurrent  unrelated
medical  condition rendering employee unable  to  work  will  not
excuse  employer from paying compensation otherwise due for  work
injury,  and  remanding for determination whether employees  work
injury  would have prevented him from working regardless  of  his
ongoing cancer treatment).

     11     1  P.3d  90, 96 (Alaska 2000) (stating that  worsened
symptoms may be compensable and that for an employee to establish
an  aggravation claim . . . the employment need only have been  a
substantial  factor in bringing about the disability.   (emphasis
in  original) (quoting Hester v. State, Pub. Employees Ret.  Bd.,
817 P.2d 472, 476 n.7 (Alaska 1991)).

     12     Thornton v. Alaska Workmens Comp. Bd., 411 P.2d  209,
210 (Alaska 1966).

     13     Doyon  Universal Servs. v. Allen, 999 P.2d  764,  770
(Alaska  2000)  (citing Fairbanks N. Star  Borough  v.  Rogers  &
Babler, 747 P.2d 528, 532 (Alaska 1987) and State v. Abbott,  498
P.2d 712, 726-27 (Alaska 1972)).

     14    Tolbert, 973 P.2d at 611-12.

     15     Id. at 612 (quoting State, Pub. Employees Ret. Bd. v.
Capcioppo, 813 P.2d 679, 683 (Alaska 1991)).

     16    Estate of Ensley v. Anglo Alaska Constr. Inc., 773 P.2d
955, 959 (Alaska 1989) (noting that we had previously allowed  an
employee to receive temporary disability benefits during a period
in  which  he was also totally disabled as a result of  treatment
for  a  nonwork-related medical condition (citing Jones v. Alaska
Workmens Comp. Bd., 600 P.2d 738 (Alaska 1979))).

     17    199 P.3d 1150 (Alaska 2008).

     18     Id.  at  1154  (noting that doctor completed  a  form
stating  that  employee was permanently and totally disabled  and
diagnosing only work-related neck condition).

     19    Carter, 199 P.3d at 1155, 1157-58.

     20     Thurston  argues that the Board found her permanently
and  totally disabled because her cancer severely restricted  her
treatment  options  for  her knee and  given  typical  remissions
time[s]  the  Board  decided that her  injuries  were  permanent.
Thurston  also asserts that the Board does not need  to  document
the  patent and obvious in reaching its conclusions that her knee
condition  prevents her from working and that she is  permanently
and   totally   disabled.   But  assuming  that  Thurstons   knee
disability  remains  compensable, the Board must  make  decisions
regarding the relationship of the knee disability to the  quality
and duration of Thurstons overall disability  whether it is total
or  partial,  temporary or permanent.  The cause  and  extent  of
Thurstons  overall  disability, the ultimate  questions  in  this
case,  are  neither  patent nor obvious.  We express  no  opinion
about the standards for TTD or PTD benefits or how to apply  them
to  the facts of this case as those issues were not presented for
review.

     21     Cf.  supra  notes 1-2.  This apparent  error  is  not
explained in the record, and the Commissions conclusion  that  it
is not reliable evidence seems correct.

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