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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
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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