Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions


Touch N' Go
, the DeskTop In-and-Out Board makes your office run smoother.

 

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Runstrom v. Alaska Native Medical Center (7/20/2012) sp-6694

Runstrom v. Alaska Native Medical Center (7/20/2012) sp-6694

        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, email 

        corrections@appellate.courts.state.ak.us. 



                 THE SUPREME COURT OF THE STATE OF ALASKA 



ESTHER J. RUNSTROM,                            ) 

                                               )       Supreme Court No. S-14294 

                        Appellant,             ) 

                                               )       Alaska Workers' Compensation 

        v.                                     )       Appeals Commission No. 10-001 

                                               ) 

ALASKA NATIVE MEDICAL                          )       O P I N I O N 

CENTER and ALASKA NATIONAL                      ) 

INSURANCE COMPANY,                             )       No. 6694 - July 20, 2012 

                                               ) 

                        Appellees.             ) 

                                               ) 



                Appeal   from   the   Alaska   Workers'   Compensation   Appeals 

                Commission, Laurence Keyes, Commission Chair. 



                Appearances:       Esther     J.  Runstrom,     pro   se,  Big   Lake, 

                Appellant.  Richard L. Wagg and Vicki A. Paddock, Russell, 

                Wagg, Gabbert & Budzinski, Anchorage, for Appellees. 



                Before:     Carpeneti,     Chief    Justice,  Fabe,    Winfree,    and 

                Stowers, Justices. 



                WINFREE, Justice. 



I.      INTRODUCTION 



                A   healthcare   worker   was   sprayed   in   the   eye   with   fluids   from   an   HIV- 



positive   patient.  She   received   preventive   treatment   and   counseling.     Her   employer 



initially paid workers' compensation benefits; it later filed a controversion based on its 



doctor's opinion that the employee was able to return to work.  The employee asked for 


----------------------- Page 2-----------------------

more benefits, but the Alaska Workers' Compensation Board denied her claim.  The 



employee   appealed,   but   the     Alaska   Workers'   Compensation   Appeals   Commission 



affirmed the Board's decision.  Because we agree with the Commission that substantial 



evidence supports the Board's decision, we affirm the Commission's decision. 



II.     FACTS AND PROCEEDINGS 



                In   2007   Esther   Runstrom   worked   for   the   Alaska   Native   Tribal   Health 



Consortium (the employer) as a patient services assistant at the Alaska Native Medical 



Center.     In   August    she  was    assisting  a  nurse   in  the  critical  care  unit  when    she 



experienced a "[h]igh risk splash" to her eye by fluids from an HIV-positive patient.  She 



washed her eye and went to the emergency room. The emergency room doctor consulted 



with   a doctor at the AIDS   hotline in   San Francisco   and   prescribed   an   antiretroviral 



medication as a preventive measure. Runstrom returned to work the following week, but 



at some point was told to leave because she did not want to do patient care.               Runstrom 



received temporary total disability (TTD) beginning in September. 



                Runstrom      consulted    with   nurse   practitioner   Ellen   Lentz,   her  primary 



healthcare provider, a few days after the exposure.              Lentz's chart notes showed the 



primary   treatment   plan   was   "[s]tress   management   and   relaxation."        Lentz   referred 



Runstrom to counseling with Denny Tranel, a licensed clinical social worker; Runstrom 



first   saw   Tranel   on   September   11. Runstrom   saw   Tranel   for   at   least   three   months. 



During this period of time she also had blood tests to check her HIV status.  On October 



3 Lentz asked for Runstrom to be excused from work until December 7. 



                On October 15 Dr. Eric Goranson conducted an employer's independent 



medical evaluation (EIME) of Runstrom.  Dr. Goranson indicated Runstrom's case was 



"difficult from a number of standpoints," in part because of conflicting reports from 



Runstrom and the employer.  Because Tranel had diagnosed Runstrom with "traumatic 



stress   secondary     to  exposure    to  AIDS,"     Dr.  Goranson     briefly   discussed    whether 



                                                 - 2 -                                           6694
 


----------------------- Page 3-----------------------

Runstrom met the diagnostic criteria for posttraumatic stress disorder (PTSD), but felt 



a   "diagnosis   of   adjustment   disorder   with   mixed   emotional   features   would   be   more 



appropriate   than   the   diagnosis   of   PTSD."     According   to   Dr.   Goranson,   Runstrom's 



adjustment      disorder    was   connected     to  the   work-related     HIV    exposure.     He    also 



diagnosed Runstrom with preexisting conditions that, in his opinion, contributed to her 



need for medical treatment for anxiety.  In Dr. Goranson's opinion, for the "first several 



weeks" the work-related accident was "the major contributing cause of her need for 



treatment," but "as time [went] on, the non-work-related factors [were] contributing to 



a more significant part of her ongoing symptoms and need for treatment."  Dr. Goranson 



recommended         a   specific   course    of  treatment     with   someone      other   than   Tranel. 



Dr. Goranson thought "it might be appropriate to consider that, if [Runstrom's] three- 



month HIV test [was] negative, that the work-related factors are no longer the main 



contributing cause (substantial factor) in her ongoing need for treatment." 



                The employer sent Dr. Goranson's report to Lentz with a note asking if she 



"concur[red] with his finding and recommendations, specifically counseling to include 



exposure      and    response     prevention     treatment     and   cognitive     behavioral     therapy 



approximately once per week of short duration, return to work with a gradual re-entry 



to   the   workplace,   initial   non-patient   care   transitioning   into   full   patient   care."  On 



November   6,   Lentz   answered   "yes"   and,   as   instructed   by   the   employer,   wrote   two 



prescriptions: one for "[c]ognitive behavioral therapy weekly" with the notation that 



Runstrom   "would   like   to   continue   with   Mr.   Tranel"   and   one   for      "[e]xposure   and 



response prevention treatment."  It is not clear what happened with these prescriptions. 



The record does not contain notes from any sessions with Tranel after November 8, and 



the notes from the November 8 session did not mention cognitive behavioral therapy. 



A later chart note from another healthcare provider indicated Runstrom continued to 



                                                   - 3 -                                            6694
 


----------------------- Page 4-----------------------

consult with Tranel over the telephone,   but there is no indication in the record that 



Runstrom received the therapy Lentz prescribed. 



                 On    November       12   Lentz    cleared    Runstrom       to  return   to  work     with 



restrictions, specifically "no patient care/contacts" until December 1.  Runstrom's later 



three-month HIV test was negative.             Runstrom applied for several positions with the 



employer   not   involving   patient   care,   but   she   was   not   hired   for   any   of   them.    On 



December 10 the employer controverted TTD and temporary partial disability (TPD) 



benefits after December 1, saying it had "offered to assist with a re-integration plan to 



place   [Runstrom]   back   into   her   position"   but   she   did   not   want   to   do   so;   it   did   not 



controvert   further   medical   care   at   that   time.   The   employer   terminated   Runstrom's 



employment effective January 11, 2008, because she had taken too much leave. 



                 Dr.   Goranson   did   a   second   EIME   in   February   2008   to   assess   medical 



stability and need for further medical treatment.  Dr. Goranson said it was "difficult" to 



answer whether Runstrom was medically stable, in part because she had not received the 



medical treatment he had recommended and Lentz had prescribed.   He gave the opinion 



that   Runstrom   was   "medically   stable   as   of   [November   12,   2007]   when   Ms.   [Lentz] 



returned her to work."  He then wrote that "placing [Runstrom] at her regular job duties 



. . . would be counterproductive unless the treatment modalities were in place."   He 



thought treatment would be related to "pre-existing non-work related factors," so with 



respect to the work injury, Dr. Goranson believed Runstrom was able to return to work 



as of November 12, 2007 "as noted by Ms. [Lentz]." 



                 Runstrom   continued   to   be   checked   for   HIV   reactivity;   her   tests   from 



February,   May,   and       November      2008    were    negative.    In   May    2008    the  employer 



controverted       further    counseling.       In   August     2009    Runstrom       filed   a  workers' 



compensation claim for TTD, penalties and interest if applicable, and unfair or frivolous 



controversion. According to Runstrom her injuries included the initial exposure, the side 



                                                    - 4 -                                             6694
 


----------------------- Page 5-----------------------

effects of the antiretroviral medication, and the "mental effects of being exposed to a 



fatal sexually transmitted disease." The employer answered and denied all claims; it also 



filed another controversion. 



                Runstrom's   claim   hearing   before   the   Board   was   brief.    There   were   no 



witnesses, although Runstrom was put under oath.                 The parties agreed that medical 



benefits   were   not   an   issue;   they   identified  the   issues   as   TTD,   unfair   or   frivolous 

controversion, and penalties.1        Runstrom submitted letters from friends to support her 



claim, as well as a summary of medical literature related to HIV exposure in healthcare 



workers interwoven with the story of her exposure and treatment. The employer did not 



object to admission of these documents.           Runstrom argued that Dr. Goranson's report 



was not substantial evidence because there was no evidence she had preexisting mental 



health   problems.     Runstrom   also   said   that   she   had   interpreted   Lentz's   comments   in 



November as agreeing that Runstrom needed more counseling, not that Runstrom could 



return to work. 



                The Board first decided Runstrom had not attached the presumption of 



compensability that she was entitled to more TTD because she "presented no medical 

evidence she is unable to work as a result of [her] exposure."2                It also said that "the 



        1       There was a later exchange between the Chair and Runstrom in which 



Runstrom indicated that she needed additional counseling but did not want to go unless 

the employer did not have access to the records.  At oral argument before us, Runstrom 

clarified that she was not and is not seeking medical benefits for continued counseling. 



        2       Workers'       compensation      claims    have    been    subject    to  a  three-step 



presumption   analysis   in     which    the   employee   must   first   attach  the   presumption     of 

compensability by presenting some evidence linking work and the injury.  McGahuey 

v. Whitestone Logging, Inc., 262 P.3d 613, 620 (Alaska 2011) (citing Smith v. Univ. of 

Alaska, Fairbanks , 172 P.3d 782, 788 (Alaska 2007)).   If the employee is able to do so, 

the employer then has to rebut the presumption.             The standard we have articulated for 

                                                                                        (continued...) 



                                                  - 5 -                                           6694
 


----------------------- Page 6-----------------------

exposure plus [Runstrom's] statements that she is unable to work as a result of the stress 



from the exposure may be sufficient to raise the presumption."                 It then alternatively 



decided,   assuming   Runstrom   had   attached   the   presumption,   that   the   employer   had 



rebutted   the   presumption   through   Dr.   Goranson's   reports.      The   Board   set   out   the 



following test for rebutting the presumption:   "An employer may rebut the presumption 



with medical testimony that rules out work as the substantial cause of an employee's 



disability."   It decided that Dr. Goranson's reports met that standard.            The Board then 



decided Runstrom had not proved her claim by a preponderance of the evidence because: 



(1) Lentz released her to work on November 12, 2007; (2) she had applied for non- 



patient work with the employer and had worked elsewhere in the summer of 2008; and 



(3) she had received unemployment after she was terminated by the employer.  The 



Board also decided the employer's controversions were not frivolous or unfair because 



they were based on Dr. Goranson's reports, characterized by the Board as "the kind of 



medical opinion upon which an employer may rely in good faith to controvert a claim." 



                Runstrom appealed the decision to the Commission.              She argued that the 



EIME   reports   were   not   substantial   evidence   because   of   inaccuracies   and   bias.   She 



mentioned a mental stress case and questioned whether the Board had resolved doubt in 



her   favor.   The    employer   argued     that   substantial   evidence   supported    the  Board's 



decision. 



        2       (...continued) 



rebutting the presumption requires the employer to produce substantial evidence that: 

(1) provides an alternative explanation which 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.            Id. (citing Smith, 172 P.2d at 

788).   If the employer meets its burden of producing evidence, the burden then shifts 

back to the employee to prove all elements of the employee's claim by a preponderance 

of the evidence.  Id. at 621. 



                                                 - 6 -                                          6694
 


----------------------- Page 7-----------------------

                The Commission decided the Board erred in its legal analysis.  But rather 



than remanding the case to the Board, the Commission determined the Board's findings 



were   sufficiently     detailed   that   it   could  apply  its   own  judgment   to   the   case.   The 



Commission interpreted 2005 amendments to the Alaska Workers' Compensation Act 



                                                                                  3 

as changing the presumption analysis at the second and third stages,  although this issue 

was not raised by the parties.4      The Commission wrote that "if the employer can present 



substantial evidence, that if believed, demonstrates that a cause other than employment 



played a greater role in causing the disability, etc., the presumption is rebutted."                    It 



decided that the second method of rebutting the presumption from prior case law - 



directly eliminating any reasonable possibility that employment was a factor in causing 



the disability - was "incompatible with the statutory standard for causation under AS 



23.30.101(a)."     The Commission said the Board "applied the three-step analysis under 



former   law"   but   because   the   Board   "held   [the   employer]   to   a   higher   standard   than 



required of it to rebut the presumption," it agreed with the Board that the presumption 



had been rebutted.        It then concluded that substantial evidence supported the Board's 



decision that Runstrom was not entitled to TTD after December 1, 2007. It also affirmed 



the Board's decision that the controversions were in good faith. 



                Runstrom appeals. 



III.    STANDARD OF REVIEW 



                In   an   appeal   from    the  Commission,       "we   review    the  [C]ommission's 



decision   and   apply   our   independent   judgment   when   there   is   a   question   of   law   not 



        3       See note 2, above. 



        4       Our review of the record discloses no discussion of this point in either of 



the parties' briefs to, or at oral argument before, the Commission. 



                                                   - 7 -                                              6694 


----------------------- Page 8-----------------------

involving     agency     expertise."5    We    also   independently      review   the   Commission's 



conclusion that substantial evidence in the record supported the Board's factual findings, 

which "requires us to independently review the record and the Board's factual findings."6 



IV.	    DISCUSSION 



        A.	     Runstrom        Suffered     A   Physical-Mental        Injury    Covered      By   The 

                Presumption Analysis. 



                As we noted in Kelly v. State, Department of Corrections, "[w]ork-related 

mental   injuries   have   been   divided   into   three   groups   for   purposes   of   analysis."7 A 



"physical injury that causes a mental disorder" is considered a "physical-mental" claim; 



a "mental stimulus that causes a mental disorder" is considered a "mental-mental" claim; 



and a "mental-physical" claim occurs when a mental stimulus causes a physical injury, 

such    as  a  heart   attack.8   Classification     is  important    because    the  presumption      of 



                                                                    9 

compensability does not apply to mental-mental claims,  making them generally more 



difficult to prove, and those claims must be based on unusual and extraordinary work- 

related stress.10   The fact that an accident produces unusual stress does not transform it 



into   a   mental-mental   claim   -   the   key   to   analyzing   such   claims   is   to   look   at   the 



underlying cause of the disability, which in this case was the "[h]igh risk splash." 



        5       Shehata v. Salvation Army, 225 P.3d 1106, 1113 (Alaska 2010) (citing 



Barrington v. Alaska Commc'ns Sys. Grp., Inc. , 198 P.3d 1122, 1125 (Alaska 2008)). 



        6	      Smith v. CSK Auto, Inc., 204 P.3d 1001, 1007 (Alaska 2009). 



        7       218 P.3d 291, 298 (Alaska 2009) (citing 3 ARTHUR  LARSON  & LEX  K. 



LARSON , LARSON 'S WORKERS ' COMPENSATION LAW  56.01 (2008)). 



        8       Id. 



        9       AS 23.30.120(c). 



        10      AS 23.30.010(b). 



                                                  - 8 -	                                          6694
 


----------------------- Page 9-----------------------

                Kelly involved a prison guard who was diagnosed with PTSD after an on- 

the-job incident in which a murderer threatened him with a sharpened pencil.11                     The 



guard's claim was based on stress from the threat; he never alleged a  physical injury.12 



Runstrom's claim similarly arose from a discrete incident - the splash that exposed her 



to HIV, which was undoubtedly frightening after she realized she had been exposed to 



a potentially fatal disease.     Runstrom's claim, however, did not arise from job-related 



stress   -   her   claim   arose   from   a   physical   injury   for   which   she   was   treated   in   the 



emergency room and later with medication. The Commission agreed with the Board that 



Runstrom's claim was not a mental-mental claim, rejecting Runstrom's argument to the 



contrary.   We agree with the Commission. 



                Compensation cases involving exposure to disease, when the likelihood of 

exposure      is  increased     by   work,    are  generally     classified   as   physical    claims.13 



Psychological claims arising from physical claims are analyzed as part of the physical 



claim:  "when there has been a physical accident or trauma, and [a] claimant's disability 



        11      218 P.3d at 293-94. 



        12      Id. at 294.  Kelly's claim initially was a mental-physical claim because he 



suffered stress-related angina.  Id . 



        13      See Doe v. City of Stamford, 699 A.2d 52 (Conn. 1997) (police officer's 



exposures to HIV and tuberculosis compensable injuries even though he did not test 

positive for either disease); Ky. Emp'rs Safety Ass'n v. Lexington Diagnostic Ctr., 291 

S.W.3d 683 (Ky. 2009) (blood splatter to eye from HIV-infected patient is compensable 

injury even though worker did not develop disease); Jackson Twp. Volunteer Fire Co. 

v.   Workmen's   Comp.   Appeal   Bd.   (Wallet),   594   A.2d   826   (Pa.   Commw.   Ct.   1991) 

(volunteer   ambulance   worker's   exposure   to   HIV-infected   blood   was   compensable 

injury).   See also Ark. Dep't of Corr. v. Holybee, 878 S.W.2d 420 (Ark. App. 1994) 

(affirming     finding   that   testing  and  preventive   treatment   for   HIV     were   reasonably 

necessary medical care for prison guard bitten by HIV-positive prisoner).                  These cases 

deal with payment for medical care, such as HIV testing. 



                                                  - 9 -                                           6694
 


----------------------- Page 10-----------------------

is increased or prolonged by traumatic neurosis, . . . it is now uniformly held that the full 

disability including the effects of the neurosis is compensable."14  The Commission was 



therefore correct in deciding that Runstrom's claim was not a mental-mental claim and 



that her claim should be analyzed under AS 23.30.010(a) because Runstrom's mental 



stress followed from the physical event of HIV exposure. 



       B.	     The    Commission      Correctly    Decided     That   Substantial    Evidence 

               Supported The Board's Decision. 



               Runstrom     argues  that  she  is  entitled  to  additional  TTD  because   the 



employer did not present substantial evidence to rebut the presumption that she was 



disabled from working.   The employer contends that the Commission correctly decided 



that substantial evidence in the record supported the Board's decision. 



               As the Commission observed, the Board provided two alternative analyses 



of   Runstrom's    claim,   one  deciding  that   she  had  not  attached  the  presumption   of 



compensability and one assuming she had.   The employer did not dispute that Runstrom 



was initially unable to work because of her work-related injury.  "Once an employee is 



disabled, the law presumes that the employee's disability continues until the employer 

produces substantial evidence to the contrary."15       We therefore examine whether the 



employer rebutted the presumption. 



               As we noted earlier, the Commission decided that the Board erred as a 



matter of law in its application of the presumption analysis because in its view the Board 



applied an incorrect legal standard at the second stage.  In her brief to us, Runstrom did 



not raise this issue; in its brief the employer argued only that the Commission's new 



       14      3   ARTHUR     LARSON     &     LEX  K.    LARSON ,    LARSON 'S    WORKERS ' 



COMPENSATION LAW  56.03[1] (2011). 



       15      Grove v. Alaska Constr. & Erectors, 948 P.2d 454, 458 (Alaska 1997) 



(citing Bailey v. Litwin Corp. , 713 P.2d 249, 254 (Alaska 1986)). 



                                             - 10 -	                                       6694 


----------------------- Page 11-----------------------

interpretation   of   the   presumption   analysis   supports   the   Board's   decision.     Because 



Runstrom did not appeal this issue and because the employer rebutted the presumption 



under either standard, we do not reach the question whether the Commission erred in 

interpreting AS 23.30.010(a) and its impact on the presumption analysis.16 



        16      We are concerned, however, with the manner in which the Commission 



interpreted the statute.  In their briefs before the Commission neither party mentioned or 

discussed the change in the causation standard   in   AS 23.30.010(a) and its potential 

impact on Runstrom's case. More to the point, neither party discussed whether the 2005 

amendments to the Act had any effect on the second stage of the existing presumption 

analysis.    And the Commission did not ask the parties questions about the issue at oral 

argument or request supplemental briefing. 



                There are some issues that a court or administrative agency should raise on 

its own, such as subject matter jurisdiction, Monzulla v. Voorhees Concrete Cutting , 254 

P.3d 341, 344 (Alaska 2011), and we acknowledge that at times the lack of subject 

matter   jurisdiction   is   so   apparent   that   briefing   on   the   issue   is   not   necessary. See 

Robertson v. Riplett , 194 P.3d 382, 386 (Alaska 2008) (deciding without requesting 

supplemental briefing that Alaska courts lacked subject matter jurisdiction over custody 

modification      because    resolution    of  the   issue   was   "so   self-evident    that  ordering 

supplemental briefing would merely delay the resolution of [an] expedited appeal").  But 

in   this   case   the   Commission    decided   a   substantive   legal   issue,   which  could    have 

precedential value both for it and the Board, without giving notice that it would consider 

the issue or providing the opportunity to present argument about it.              We have held that 

similar action by a trial court violated due process, see Price v. Eastham , 75 P.3d 1051, 

1056 (Alaska 2003) (holding that court's failure to give parties notice . . . violated due 

process), and we have also held that due process applies in administrative proceedings. 

Balough v. Fairbanks N. Star Borough , 995 P.2d 245, 266 (Alaska 2000). 



                Whether or how the 2005 amendments to the Act modified the existing 

three-step presumption analysis is an open question.               We do not decide whether the 

Commission is correct that the amendment results in a change of an employer's burden 

at the second stage of the presumption analysis, but we note that parts of the legislative 

history suggest that the presumption analysis was to remain unchanged until the third 

step.  See, e.g., Minutes, H. Free Conference Comm. on S.B. 130, 24th Leg., 1st Sess., 

at 10 (May 21, 2005) (testimony of Kristin Knudsen, Assistant Attorney Gen.) (stating 

                                                                                        (continued...) 



                                                 - 11 -                                           6694
 


----------------------- Page 12-----------------------

                 To   rebut   the   presumption   that   Runstrom   remained   temporarily   totally 



disabled, the employer needed to produce evidence that she could return to work.  In Dr. 



Goranson's first report, he said that Runstrom was able to and should return to work as 



soon   as   possible;   he   also   gave   the   opinion   that,   "if   the   three-month   HIV   test   [was] 

negative,"  Runstrom   was   medically   stable   with   respect   to   the   work-related   injury.17 



Viewed in isolation,18 this evidence rebutted the presumption that Runstrom continued 



to be unable to work. 

                 Relying on Black v. Universal Services, Inc. ,19 Runstrom argues that Dr. 



Goranson's reports are not substantial evidence that could rebut the presumption because 



they are biased and have multiple mistakes.  Black is distinguishable, however, because 



the    claimant    there   offered    testimony     from    a  number     of  medical     providers     that 

contradicted   the   EIME  report.20        Here,   in   contrast,   Runstrom's   treating   healthcare 



provider agreed with the EIME's proposed treatment plan and signed a return-to-work 



form indicating that Runstrom could resume her former work after a few weeks with no 



patient contact.    Runstrom did not depose Dr. Goranson or try to call him as a witness, 



so her claims are based on her interpretation of the reports rather than admissions by Dr. 



        16       (...continued) 



that employer's burden is "unchanged"). We encourage the Commission to take up the 

issue again when it can be fully briefed by parties before it in an appeal, and to provide 

a thorough explanation of its reasoning and decision. 



        17       A finding of medical stability also ends a worker's eligibility for TTD.  AS 



23.30.185. 



        18      McGahuey v. Whitestone Logging, Inc. , 262 P.3d 613, 620 (Alaska 2011) 



(citing Stephens v. ITT/Felec Servs., 915 P.2d 620, 624 (Alaska 1996)). 



        19       627 P.2d 1073 (Alaska 1981). 



        20      Id. at 1076. 



                                                  - 12 -                                             6694
 


----------------------- Page 13-----------------------

Goranson.     Because Runstrom did not challenge the EIME conclusions and diagnoses 



through   cross-examination   or   testimony   from   her   treating   providers,   there   was   no 



conflicting medical testimony to undermine Dr. Goranson's medical opinions. 



                At oral argument before us, Runstrom relied on Lentz's chart notes to argue 



that medical evidence supported her claim. But Lentz's return-to-work form would have 



been adequate to rebut the presumption even in the absence of Dr. Goranson's report. 



Lentz    apparently    contemplated      that  Runstrom     would    return  to  work    after  or  in 



conjunction with   a treatment plan as outlined in the first EIME report:              Lentz wrote 



prescriptions so that Runstrom could get specific treatment and returned Runstrom to 



work, with restrictions at first, but with a deadline for lifting the restrictions.           At the 



hearing Runstrom did not explain why she did not follow through with the prescribed 



treatment, nor was there any indication that Runstrom asked Lentz to change the return- 



to-work form.     Lentz cleared Runstrom to work with patients after December 1, 2007. 



Because Runstrom's primary healthcare provider said Runstrom was able to work at her 



previous position without restrictions as of December 1, 2007, the Commission correctly 



decided     substantial   evidence   in   the   record  supported   the   Board's   finding  that   the 



employer      rebutted   the  presumption     that  Runstrom    continued    to  be  disabled   from 



working. 



                After the employer rebutted the presumption, Runstrom had to show that 

the HIV exposure was the substantial cause of her inability to return to work.21            She did 



not meet that burden.      Runstrom's hearing testimony indicated that she was concerned 



about whether she might still become HIV-positive from the work-related exposure.  She 



was also afraid of being exposed to HIV again:           she indicated she refused to get some 



medical care because of her fears of exposure.          But she did not present evidence from 



        21      AS 23.30.010(a). 



                                               - 13 -                                            6694 


----------------------- Page 14-----------------------

healthcare providers to contradict Lentz's statement about her ability to return to work, 



including performing patient care, after December 1, 2007. 



                Because both Lentz and Dr. Goranson thought Runstrom could return to 



her prior work after December 1, 2007, and Runstrom did not offer any evidence from 



a healthcare provider to contradict these opinions, the Commission correctly determined 



that substantial evidence in the record supported the Board's decision that Runstrom was 



not entitled to further TTD. 



        C.	     The Commission Correctly Decided That The Controversions Were In 

                Good Faith. 



                Runstrom argues that the employer's controversions were frivolous and 



unfair in large part because they were based on Dr. Goranson's reports, which she does 



not regard as substantial evidence. The employer counters that the Board's decision was 



correct because it could rely on Dr. Goranson's opinion to controvert Runstrom's care. 



                A controversion must be made in good faith in order for an employer to 



avoid   a   penalty:   "the   employer   must   possess   sufficient   evidence   in   support   of   the 



controversion   that,   if   the   claimant   does   not   introduce   evidence   in   opposition   to   the 

controversion, the Board would find that the claimant [was] not entitled to benefits."22 



Whether the employer acted in good faith is a factual issue.23 



                Dr. Goranson's report met this standard.           If Runstrom had introduced no 



evidence opposing the controversion, the Board could have found she was not entitled 



to   benefits   based   on   Dr.   Goranson's   report.   In   October   2007   Dr.   Goranson   said 



Runstrom was able to and should return to work.  Lentz agreed with the report, and she 



wrote prescriptions directing Runstrom to receive the treatment recommended in the 



        22	     Harp v. ARCO Alaska, Inc. , 831 P.2d 352, 358 (Alaska 1992) (citing Kerley 



v. Workmen's Comp. App. Bd., 481 P.2d 200, 205 (Cal. 1971)). 



        23      See Bailey v. Tex. Instruments, Inc., 111 P.3d 321, 324 (Alaska 2005). 



                                                 - 14 -	                                            6694 


----------------------- Page 15-----------------------

EIME.  The employer did not file the controversion until after December 1, 2007, when 



Lentz said Runstrom could return to patient care.            The Commission, and the Board, 



correctly concluded that the controversions were not unfair or frivolous. 



V.      CONCLUSION 



               Subject   to   our   caveat   in   footnote   16,   we   AFFIRM   the   Commission's 



decision. 



                                              - 15 -                                         6694
 

Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC