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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Kiel L. Cavitt v. D&D Services, LLC d/b/a Novus Auto Glass and Ohio Casualty Insurance Company (Liberty Mutual Insurance Company) (6/19/2020) sp-7461
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@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
KIEL L. CAVITT, )
) Supreme Court No. S-17441
Appellant, )
) Alaska Workers' Compensation
v. ) Appeals Commission No. 18-012
)
D&D SERVICES, LLC d/b/a NOVUS )
O P I N I O N
AUTO GLASS and OHIO )
CASUALTY INSURANCE ) No. 7461 - June 19, 2020
COMPANY (LIBERTY MUTUAL )
INSURANCE COMPANY), )
)
Appellees. )
)
Appeal from the Alaska Workers' Compensation Appeals
Commission.
Appearances: KeenanPowell, LawOfficeofKeenan Powell,
Anchorage, for Appellant. Martha T. Tansik, Barlow
Anderson, LLC, Anchorage, for Appellees.
Before: Bolger, Chief Justice, Winfree, Stowers, Maassen,
and Carney, Justices.
MAASSEN, Justice.
I. INTRODUCTION
A worker sought an order from the Alaska Workers' Compensation Board
requiring his employer to pay for medical care for his serious elbow injury for the rest
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of his life. The Board ordered only that the employer "pay future medical costs in
accordance with the [Alaska Workers' Compensation] Act," and the Alaska Workers'
Compensation Appeals Commission affirmed the Board's decision. We construe the
Commission's decision as requiring the employer to provide periodic surveillance
examinations until another cause displaces the work injury as the substantial cause of the
need for this continuing treatment, and with that construction - consistent with the
medical testimony - we affirm it.
II. FACTS AND PROCEEDINGS
In August 2015 Kiel Cavitt was working for D&D Services, repairing a
motor home's windshield, when he fell from a scaffold onto concrete and fractured his
right elbow. He suffered what is known as a "terrible triad" fracture, which has three
components: dislocation of the elbow (which can result in ligament injury), fracture of
1
the radial head, and fracture of the ulnar coronoid process.
Cavitt soon had surgery
which included an implanted prosthesis for the radial head. The surgeon, Dr. Kenneth
Thomas, testified that "typical" complications following surgery for a terrible triad
fracture include pain, decreased range of motion, infection, and the "need for further
surgery."
Cavitt appeared to recover well from the surgery, but several months later
he began to experience "shooting electrical pain" in his elbow. Doctors thought the pain
was"neuropathicin nature [but] of somewhat unclear etiology"and attempted to manage
1 Ke Xiao et al., Anatomy, Definition, and Treatment of the "Terrible Triad
of the Elbow" and Contemplation of the Rationality of this Designation , 7 O RTHOPAEDIC
SURGERY, Feb. 2015, at 15. The coronoid process "plays a major role in keeping the
elbow stable"; it is part of the ulna where it meets the humerus. Id. at 13. A terrible triad
fracture has historically "had an unsatisfactory prognosis, almost unavoidably causing
long-standing postoperative pain, elbow instability[,] and a range of complications." Id.
at 17.
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the pain with medication. Cavitt was unable to return to his former work as a glazier
because of restrictions on his use of the arm, and he started a new job delivering pizza.
In February 2017 Cavitt fell while on a delivery. The prosthesis came
loose, and he had to have another surgery. D&D Services initially controverted benefits
on grounds that Cavitt had reached medical stability following the 2015 injury and that
there was insufficient evidence of the new injury's cause. But after D&D Services' own
examining physician, Dr. R. David Bauer, concluded that the need for the second surgery
was due to the 2015 injury, the company accepted the claim's compensability and paid
benefits. A tissue sample from the surgery showed the presence of bacteria, and Cavitt
was referred for evaluation to an infectious disease specialist, who began antibiotic
treatment in late 2017.
Following up in November 2017, Dr. Thomas predicted that Cavitt would
"most likely have reached maximum medical stability" by the one-year anniversary of
his second surgery, that is, in approximately July 2018. In January 2018, however,
Cavitt attended another employer's medical examination (EME) with Dr. Bauer, who
reported that Cavitt was already medically stable and no longer needed medical care
related to the injury. Dr. Bauer also thought Cavitt had the capacity to do sedentary
work, though herecommendedafunctionalcapacitiesevaluation. Dr. Thomas concurred
with Dr. Bauer's report.
Cavitt filed a written workers' compensation claim for benefits, including
continuing temporary total disability (TTD). D&DServices controverted TTDand other
benefits, including medical costs after January 25, the date of the EME, except for the
functional capacities evaluation Dr. Bauer had recommended.
Cavitt again showed symptoms of infection. After his doctors
recommended more treatment, D&D Services scheduled another EME. Dr. Bauer
thought the substantial cause of a possible infection was the work injury, so D&D
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Services modified its controversion of TTD benefits to include "such time periods as the
employee does not have an off work note and is considered medically stable." It also
modified its controversion to authorize expenses related to "hardware removal surgery,"
which the parties had stipulated should be performed. But Cavitt then had a tissue
biopsy that showed no infection, and the contemplated surgery was put off.
In May 2018 the parties deposed Dr. Thomas, who described Cavitt's need
for future treatment. Dr. Thomas testified that Cavitt should be seen every year or two
for "[s]urveillance . . . . to make sure that the components [were] still functioning
properly, to do a physical examination, radiographic examination"; these exams should
be more frequent if symptoms increased. Asked about the need for future replacement
surgeries, Dr. Thomas testified that the prostheses usually lasted only ten years, but he
did not lay out a specific timetable: In ten years the prosthesis "would have a risk or an
increased likelihood of needing replacement," but he could not "say it would be
required" at that time. He also testified that Cavitt was at increased risk of another
infection and would likely always be limited to sedentary work because of the injury; he
outlined conservative treatment to address Cavitt's symptoms.
The Board held a hearing in May 2018 on a number of issues, with Cavitt
as the only witness. In their presentations to the Board the parties interpreted
Dr. Thomas's deposition testimony differently, but as one member of the Board panel
observed, "[T]here's just not much of a dispute about the relationship between the work
injury and the complaints that Mr. Cavitt currently has about the condition of his arm."
Contending that he had faced "difficulties . . . getting the employer/insurer to live up to
its obligations," Cavitt asked the Board to forestall future problems by entering a specific
payment order, ensuring that he received future medical benefits "for his right elbow
injury for the rest of his life." In opposition, D&D Services was not willing "to
wholesale say . . . [it was] going to pay for [Cavitt's] treatment for a lifetime because if
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he were to run off of a bridge and jump down goofing off on a skateboard or
something . . . and landed right directly on the elbow," it would contest compensability.
D&D Services pointed out that no controversion was in place at the time of the hearing
and argued that there was no need to preauthorize care.
The Board issued a lengthy decision granting some of Cavitt's claims and
denying others. For purposes of this appeal the only relevant order concerns future
medical costs: that D&D Services "pay future medical costs in accordance with the
Act." The Board summarized Dr. Thomas's testimony as concluding that "[w]hether or
when the surgery will be necessary" and what type of surgery Cavitt would need were
unknown. The Board believed that Dr. Thomas had qualified his recommendation for
annual surveillance exams: "[W]hile Dr. Thomas recommended follow-ups at least
annually, he also stated that would be 'until further notice.' " The Board concluded,
"Without specific recommendations from [Cavitt's] treating physicians, an order for
future medical treatment can do no more than require [D&D Services] to pay reasonable
and necessary future medical costs, which the Act already requires it to do." The Board
therefore entered its order requiring D&D Services "to pay future medical costs in
accordance with the Act."
Cavitt appealed several issues to the Commission but ultimately briefed
only the medical benefits question and an issue related to unfair or frivolous
controversion. The Commission affirmed the Board's decision. It saw "no need for a
prospective determination of compensability," noting that D&D Services had conceded
compensability while "continu[ing] to question when and what future medical treatment
[Cavitt] may need." The Commission acknowledged Dr. Thomas's testimony that
"futuretreatmentshouldincludeannual check-ups andeventualreplacement of[Cavitt's]
prosthesis," but it said that "D & D has the right to investigate the treatment sought and
to determine whether his work injury is still the substantial cause for the medical
-5- 7461
----------------------- Page 6-----------------------
treatment sought by Mr. Cavitt," implicitly including the annual check-ups. The
Commission cautioned, however, that the Board's order meant that "D & D will need
significant reason to question any future treatment."
Cavitt appeals the Commission's decision as it relates to future medical
benefits.
III. STANDARD OF REVIEW
2
In an appeal fromthe Commission, we review the Commission's decision.
When wereviewtheCommission's conclusions abouttheBoard's exerciseofdiscretion,
we "independently assess the Board's rulings and in so doing apply the appropriate
3
standard of review."
IV. DISCUSSION
A. The Commission Did Not Err In Affirming The Board's Decision.
Medical care for work-related injuries is a key facet of workers'
compensation. Alaska Statute 23.30.095(a) requires an employer to
furnish medical, surgical, and other . . . treatment . . . for the
period which the nature of the injury or the process of
recovery requires, not exceeding two years from and after the
date of injury to the employee. . . . [I]f continued treatment
or care or both beyond the two-year period is indicated, the
injured employee has the right of review by the board. The
board may authorize continued treatment or care or both as
the process of recovery may require.
In Municipality of Anchorage v. Carter we held that "an injured employee may raise the
presumption that a claim for continuing treatment or care comes within the provisions
of AS 23.30.095(a), and that in the absence of substantial evidence to the contrary this
2 Smith v. CSK Auto, Inc., 204 P.3d 1001, 1007 (Alaska 2009).
3 Id.
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----------------------- Page 7-----------------------
presumption will satisfy the employee's burden of proof as to whether continued
4
treatment or care is medically indicated."
Cavitt relies on the presumption to argue that the Commission and the
Board erred as a matter of law by not ordering the lifetime medical care he sought for his
elbow. He argues that he attached the presumption that (1) "he would need further elbow
revisions"; (2) he "would need further elbow surgeries in addition to elbow revisions";
and (3) he "is entitled to life-time follow-ups." He maintains that because D&D Services
offered no medical evidence to rebut the presumption, the Board and Commission erred
in not awarding him the care he requested. Relying on a case about permanent total
disability benefits,5 he asserts that when an employer does not rebut the presumption, the
employee is entitled to benefits as a matter of law. He also argues that the Commission
and the Board misconstrued parts of Dr. Thomas's testimony.
D&D Services responds that any order beyond the one the Board
entered - for "future medical costs in accordance with the Act" - would be improperly
speculative. It maintains that because Dr. Thomas's testimony about future treatment
lacked certainty, it was appropriate for the Board and the Commission to defer any order
about whether future care was necessary and reasonable, also noting that because "Cavitt
is entitled to the presumption of compensability for his medical benefits going forward,"
there was no "need for a specific order." D&D Services points out that under the new
causation standard, "an intervening incident can usurp the original injury" in the
causation analysis, "even just for a period of time." It argues that in Municipality of
4 818 P.2d 661, 664-65 (Alaska 1991).
5 See Carter v. B & B Constr., Inc., 199 P.3d 1150, 1157-58 (Alaska 2008)
(holding that when doctor testified that employee's work injury was substantial factor
in bringing about permanent total disability, employer's rebuttal evidence was
insufficient to overcome presumption of compensability).
-7- 7461
----------------------- Page 8-----------------------
Anchorage v. Carter we "affirmed that an employer must be able to rebut the
presumption to not pay for recommended medical treatment" and that the Board has
discretion not to award continuing benefits. D&D Services does not address Cavitt's
argument that the Board misunderstood parts of Dr. Thomas's testimony.
In reply, Cavitt asserts that his case is "remarkably similar" to Carter. He
says the claimant in that case sought care on an as-needed basis, which the Board denied,
and that we affirmed the superior court's decision that "only upon adequate rebuttal by
his employer would Carter's burden of proof require that he persuade the Board by a
preponderance of evidence."
In Carter we decided that the presumption of compensability applies to
claims for medical care after the first two years following an injury, but only to the fact
6 We further held, as
question whether medical care beyond two years is "indicated."
D&D Services emphasizes, that
the Board retains discretion not to award continued care or
treatment or to authorize care or treatment different from that
specifically requested based on the requirements
demonstrated either by the employee's raised and unrebutted
presumption, or by the preponderance of the evidence, as
further informed in each case by the "Board's experience,
judgment, observations, unique or peculiar facts of the case,
[ ]
and inferences drawn from all of the above." 7
Thus, under Carter, the question whether any care beyond two years is "indicated" is one
of fact to which the presumption applies, but the reasonableness and necessity of any
6 Carter, 818 P.2d at 664-65.
7
Id. at 665 (quoting Kodiak Oilfield Haulers v. Adams, 777 P.2d 1145, 1151
(Alaska 1989)).
-8- 7461
----------------------- Page 9-----------------------
8
given care are discretionary questions left to the Board.
Applying this analysis, we agree that Cavitt's need for continuing care was
established as fact by the presumption. Dr. Thomas's testimony clearly showed that
Cavitt's conditionwill requirecontinuedmedical careandtreatment beyond thestatutory
two-year mark. D&D Services did not seriously contest this at the hearing. But although
the presumption applied to the factual question of the need for continuing care, the Board
retained the discretion to decide whether Cavitt's specific request was reasonable and
necessary, even if D&D Services did not offer medical evidence in an attempt to rebut
the presumption.
9 Phillip Weidner &Associates
Cavitt relies on Bockness v. Brown Jug, Inc.,
10 and Summers v. Korobkin Construction11 to support his contrary view, but
v. Hibdon,
these cases do not support the limits on Board discretion that he proposes. In Bockness
we explicitly rejected the "argument that employers must pay for any treatment obtained
during a temporary period of medical instability," emphasizing that "[t]he text of the Act
itself, along with [our] judicial interpretation [of it], indicates that Alaska's statutory
scheme limits an employer's responsibility to medical care that is reasonable and
necessary."12 In Hibdon we addressed claims for medical treatment within two years of
the date of injury.13 We noted that the Board's review in that context was "limited to
8 Id. at 664-66.
9
980 P.2d 462 (Alaska 1999).
10 989 P.2d 727 (Alaska 1999).
11 814 P.2d 1369 (Alaska 1991).
12 980 P.2d at 466-67.
13
989 P.2d at 730-32.
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----------------------- Page 10-----------------------
whether thetreatment sought [was]reasonableand necessary," though wecontrasted this
with the Board's review of "a claim for continued treatment beyond two years from the
date of injury," when - as in this case - "it has discretion to authorize 'indicated'
medical treatment 'as the process of recovery may require.' " 14
In Summers an employer, without conceding compensability, withdrew its
controversion of specific benefits before a hearing; the Board then declined to hold a
hearing, reasoning that there was no "current dispute."15 We reversed the Board's
decision, interpreting AS 23.30.110(c) as requiring the Board to hold a hearing on
compensability whenever a worker files a written claim regardless of whether there is a
standing controversion of specific benefits.16 Since then the Board has appropriately
cited Summers when considering claims for specific future medical care or care
17 We discussed with approval this application of
recommended for the near future.
Summers in Bockus v. First Student Services, in which the Board had construed Summers
as allowing the claimant to obtain a prospective determination of the compensability of
14 Id. at 731 (quoting Municipality of Anchorage v. Carter, 818 P.2d 661, 664
(Alaska 1991)).
15 814 P.2d at 1370.
16 Id. at 1371.
17 See, e.g., Wood v. Quest Diagnostic, Inc., AWCB Dec. 10-0065 at 39, 2010
WL 1538885, at *29 (Apr. 5, 2010) (ordering employer to pay for future, unscheduled
knee replacement surgery); Andrews v. McGrath Light & Power, Inc., AWCB Dec. 05-
0236 at 15-17, 2005 WL 2319177, at *11 (Sept. 14, 2005) (ordering employer to pay for
shoulder surgery when employer accepted compensability of shoulder injury); Gillespie
v. Our House, an Assisted Living Family, AWCB Dec. 05-0202 at 9-10, 2005
WL 1861525, at *7, *11 (Aug. 3, 2005) (ordering proposed knee surgery when employer
accepted compensability of knee injury and additionally ordering medical benefits "as
may reasonably be required").
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18
a fusion surgery he was then attempting to schedule. We reinstated the Board's award
of attorney's fees to the successful claimant. 19
We did not directly address whether an
employer's statutory duty to provide medical care "includes a general duty to
preauthorize treatment," but we did observe that "a worker may be unable to get needed
20 A prospective
treatment without some assurance . . . that the carrier will pay for [it]."
determination of compensability addresses this concern.
By statute, as noted above, the Board has the discretion to "authorize
continued treatment or care or both as the process of recovery may require" when a
worker's injury requires continued care more than two years after the injury.21 The
necessity and reasonableness of care involve factual issues and must be assessed
individually in each case. Cavitt sought an open-ended order requiring payment for
future surgeries that his doctor could not say with certainty would be needed at a specific
time or for a specific reason. While Dr. Thomas testified that annual to biennial
examinations for surveillance were reasonable and necessary on an ongoing basis, most
of his recommendations were contingent in their timing or necessity or both. For
example, when asked whether "the current implant" would require replacement in ten
years, he answered, "It wouldn't be required, no. . . . It would have a risk or an increased
likelihood of needing replacement. I can't say it would be required."
Relevant to D&D Services' responsibility for Cavitt's future treatment is
the change in the compensability standard from "a substantial factor" to "the substantial
18 384 P.3d 801, 806-07 (Alaska 2016).
19 Id. at 811.
20 Id. at 808.
21
AS 23.30.095(a).
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22
cause." In its discussion, the Commission recognized that D&D Services retained "the
right to investigate the treatment sought and to determine whether [Cavitt's] work injury
is still the substantial cause for the medical treatment." Cavitt criticizes the
Commission's decision, saying "there was no evidence whatsoever to suggest that there
would be any causation other than work-relatedness for future treatment." He contends
that the employer's argument about the possibility of a future sports injury displacing
work in the causation chain is speculative and not based on evidence.
Also speculative, however, is the question whether Cavitt will need an
elbow replacement surgery in ten years. Cavitt's young age at the time of the injury, the
injury's severity, and its likely complications all point toward the future need for
compensable medical care, but the Board could reasonably decide, as it did here, to wait
and see. As the Commission observed, "[M]edicine is an evolving field," and what
seems reasonable now may be obsolete or outmoded in 10 or 15 years.
We emphasize that the Board's decisions about the reasonableness and
necessity of future medical care are fact-specific. The Board must in each case balance
an employer's ability to investigate a medical claim and a worker's need for some
measure of predictability. The Board should consider how specific or immediate the
treatment recommendation is and how likely it may be that another, non-work-related
cause will displace work in the causation analysis. The Board balanced these factors in
Cavitt's case, and we agree with the Commission that it acted within its discretion in
crafting the order it did here.
22
See Morrison v. Alaska Interstate Constr., Inc., 440 P.3d 224, 236 (Alaska
2019) (noting change in compensability standard); see also Ch. 10, § 9, FSSLA 2005.
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----------------------- Page 13-----------------------
B. Annual Or Biennial Surveillance Checkups Are Reasonable And
Necessary Unless Their Work-Related Cause Is Displaced By A New
Substantial Cause.
Our agreement with the Commission's decision comes with a caveat. One
part of Cavitt's future care that Dr. Thomas was certain about was the need for annual
or biennial surveillance exams of Cavitt's elbow to check its functioning and hardware.
The Board found that "while Dr. Thomas recommended follow-ups at least annually, he
also stated that would be 'until further notice.' " The Commission agreed with the
Board's reading of Dr. Thomas's testimony.
Cavitt contends, however, that the Board took the words "until further
notice" out of context, and we agree. The phrase "until further notice" appears in
Dr. Thomas's deposition only in an attorney's question about "treatment in the near
future": Dr. Thomas agreed that recommended treatment was "continued monitoring
with follow-ups and continu[ing] with physical therapy and routine follow-up," "routine
follow-ups" meaning that "he's scheduled to come in periodically . . . [u]ntil further
notice." But the context of the question was the then-current treatment for Cavitt's
"continued pain in his elbow." Questions about long-term care - "follow-up medical
treatment for his elbow for the rest of his life" - came earlier in the deposition. In that
context Dr. Thomas's testimony was unequivocal. He answered "yes" when asked
whether "coming in once a year would be reasonable and necessary" for exams that
Dr. Thomas described as for "[s]urveillance": "Just to make sure that the components
are still functioning properly, to do a physical examination, radiographic examination."
And while agreeing that annual exams were "reasonable and necessary," Dr. Thomas
testified that Cavitt should come in more often "[i]f there is increasing pain, decreasing
range of motion, mechanical symptoms, deformity, things like that."
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----------------------- Page 14-----------------------
Although we thus conclude that the Board and the Commission read
Dr. Thomas's testimony too narrowly, we are able to affirm the Commission's ultimate
decision - that "Cavitt is entitled to medical treatment in accordance with the
requirements of the Act" - by observing that periodic follow-up exams are reasonable
23 unless
and necessary, and therefore part of Cavitt's compensable medical treatment,
and until the Board determines that a cause other than the work-related fall is the
substantial cause of Cavitt's elbow condition. As the Commission noted, D&D Services
will "need significant reason to question any future treatment Mr. Cavitt may seek," a
caution which we believe is particularly applicable to the follow-up exams. With this
interpretation of the Board's order, we agree with the Commission that the Board did not
abuse its discretion when it ordered D&D to provide future medical care in accordance
with the requirements of the Act.
V. CONCLUSION
We AFFIRM the Commission's decision.
23 See Bockness v. Brown Jug, Inc., 980 P.2d 462, 466 (Alaska 1999)
(construing AS 23.30 as limiting an employer's responsibility "to medical care that is
reasonable and necessary").
-14- 7461
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