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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Sallyanne M. Butts, f/k/a Sallyanne M. Decastro v. State of Alaska Department of Labor & Workforce Development (7/10/2020) sp-7465
Notice: This opinion is subject to correction before publication in the P ACIFIC 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
SALLYANNE M. BUTTS, f/k/a )
SALLYANNE M. DECASTRO, ) Supreme Court No. S-17283
)
Appellant, ) Alaska Workers' Compensation
) Appeals Commission No. 17-023
v. )
) O P I N I O N
STATE OF ALASKA, )
DEPARTMENT OF LABOR & ) No. 7465 - July 10, 2020
WORKFORCE DEVELOPMENT, )
)
Appellee. )
)
Appeal from the Alaska Workers' Compensation Appeals
Commission.
Appearances: Andrew D. Wilson, Rehbock & Wilson,
Anchorage, for Appellant. Lars B. Johnson and Kim S.
Stone, Assistant Attorneys General, Anchorage, and Kevin
G. Clarkson, Attorney General, Juneau, for Appellee.
Before: Bolger, Chief Justice, Winfree, Stowers, Maassen,
and Carney, Justices.
BOLGER, Chief Justice.
I. INTRODUCTION
An office worker fell from her chair onto her hands and left knee. She
initially suffered left knee symptoms and later developed right knee problems and lower
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back pain that she alleged arose from the fall. She argues that the Alaska Workers'
Compensation Board erred when it performed its presumption analysis and when it
awarded compensation for her left knee and back for only a limited period of time
following the accident. But we conclude that the Board appropriately considered the
knee injuries and the back injury as distinct injuries and applied the presumption analysis
accordingly; that the Board properly relied on the conflicting medical evidence to make
its own legal decision about which of Butts's conditions were compensable; and that the
Board was not required to award compensation for knee replacement surgeries
performed five years after the accident. We therefore affirm the Alaska Workers'
Compensation Appeals Commission's decision affirming the Board.
II. FACTS AND PROCEEDINGS
Sallyanne Butts worked as an administrative assistant for the Department
of Labor and Workforce Development in Kenai in 2011. She was injured in March 2011
when she tried to get up from an ergonomic chair her supervisor had given her to use that
morning. She got the chair because the office chair she had been using "was kind of
bothering [her] a little bit." She said she knelt in the ergonomic chair, which had "pegs
behind [her]" to "hook [her] feet . . . over top of," pads in the front for her knees, and a
seat that was "almost like a bicycle seat."
Butts acted as a receptionist, and she fell when someone came into the
office and she tried to get up to help them. She said the chair tipped forward, flipped,
and "kind of forced [her] to the ground." She fell against a plastic runner on the floor,
bracing her fall with her hands; her knee hit the plastic runner, her hand "jammed," and
she "could feel it across [her] back." She tried to complete the work day but left an hour
or two early. Butts said that night she mainly felt pain in her upper back, arm, and left
hand, but her "left knee hurt some." The day of the accident she went to a massage
therapy appointment she had previously made for her back, used over the counter
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medication, and returned to work the next day. She told her supervisor she wanted to
"give it a couple of days and see what happens" before she decided whether to complete
an injury report or to see a doctor.
The left knee did not improve and began to show a significant bruise, so
Butts decided to consult a doctor. She had pain when walking and described hearing a
"crunch" when she put weight on her knee, but she continued to work at that time. She
first saw Dr. Henry Krull for knee pain on March 24, 2011. He examined her and
ordered X-rays, which showed no obvious problem. Dr. Krull diagnosed a left knee
contusion, did not restrict her work activities in any way, allowed her to engage in
activities "as tolerated," and estimated she would be medically stable "in the next 6
weeks." At Butts's next appointment with Dr. Krull in May, she reported improvement,
with decreased pain in her knee but "some upper back/shoulder pain." No work
restrictions were imposed.
In July Butts reported worsening left knee pain, and Dr. Krull
recommended physical therapy. The next month Butts again said the pain was worse,
and Dr. Krull ordered an MRI. The August exam for the first time recorded "crepitus
1 The MRI showed degeneration in the menisci but not a
without pain" in the left knee.
definite tear as well as "full-thickness" cartilage loss in one area of the joint. Dr. Krull
changed his diagnosis to a left knee bone contusion. He discussed possible arthroscopic
surgery with Butts, and she elected to proceed with surgery.
Dr. Krull described Butts as having a "kissing lesion" when her left knee
was in 90 degrees of flexion; he later testified that this meant there was an injury to the
cartilage on both sides of the joint. Because the two parts did not touch when the knee
1 "Crepitus" or "crepitation" is a "[n]oise or vibration produced by rubbing
bone or irregular degenerated cartilage surfaces together." Crepitus, STEDMAN'S
MEDICAL DICTIONARY (28th ed. 2005).
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----------------------- Page 4-----------------------
was extended, Dr. Krull thought the cartilage damage had happened when the knee was
bent. He testified that the cartilage damage he observed was consistent with the fall at
work as the mechanism of damage. He described "a fairly focal injury to cartilage in her
knee" to distinguish it from degenerative damage.
Dr. Krullperformedarthroscopicsurgery onButts's left kneeon August 31.
Butts received temporary total disability (TTD) for a short time immediately after the
surgery. In late October Butts reported that she did not feel she was progressing much;
Dr. Krull described her as "progressing very slowly" and ordered continued physical
therapy. He recorded "near-normal" range of motion in December. At some point in the
fall of 2011, Dr. Krull took Butts off work entirely, and he began viscosupplementation 2
in early January 2012.
By late January Butts was feeling much better and was returned to
"modified duty" at work. On May 10, 2012, Butts reported that she had "ongoing, mild
pain," with increased function. Dr. Krull released her to work without restrictions and
said she was medically stable as of that date. He said there was no permanent
impairment from the injury, but he did note that "she ha[d] severe arthritic change in the
medial compartment of her knee that may warrant joint replacement at some point in the
future."
Butts returned to Dr. Krull in mid-August 2012 with pain in both knees.
She told Dr. Krull that her right knee had begun to hurt "a lot" about two months prior
to the appointment and the pain was increasing; she "attribute[d] the symptoms to
2 Viscosupplementation involves "intra-articular injections of hyaluronic
acid"; the hyaluronic acid "reduc[es] the friction of the joint." Francisco J. Estades-
Rubio, et al., Knee Viscosupplementation: Cost-Effectiveness Analysis between
Stabilized Hyaluronic Acid in a Single Injection versus Five Injections of Standard
Hyaluronic Acid, INT 'L J. MOLECULAR SCI., Mar. 17, 2017, at 1, 2,
https://doi.org/10.3390/ijms1800658.
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overuse" from her left knee condition. Dr. Krull treated the pain with
viscosupplementation. He did not impose work restrictions at that time, but scheduled
an MRI and planned further viscosupplementation.
The MRI report diagnosed a complex tear of the medial meniscus, a
"[m]oderate sprain" of the medial collateral ligament, and degenerative changes in all
compartments of the right knee, "most pronounced within the medial compartment."
Dr. Krull recommended arthroscopic surgery for the meniscus tear, with possible
3 Dr. Krull thought the right knee complaints "appear[ed] to be
microfracture surgery.
at least partially related to her current [workers' compensation] claim." He performed
arthroscopic surgery on the right knee in early October 2012 and treated the meniscus
tear. The cartilage problem he had planned to treat with microfracture "was not a
discrete lesion but appeared to be more representative of early arthrosis," so he was
unable to perform the planned treatment. The State began to pay TTD as of the date of
surgery.
At her first visit to Dr. Krull after right knee surgery, Butts reported
decreased pain. She reported decreased pain again at a late November visit, and she was
released to light duty work at that time. The light duty restriction was continued in
January; by late February, however, Butts reported she was no longer improving, and
mild swelling and tenderness were observed. Another MRI was scheduled, and that MRI
indicated that the medial meniscus tear was back or had never completely resolved.
Butts decided to have another arthroscopic surgery on her right knee, and a second right
3 Microfracture is a surgical technique used to repair cartilage. NATIONAL
INSTITUTES OF HEALTH , Medline Plus , Knee microfracture surgery,
https://medlineplus.gov/ency/article/007255.htm (last visited Apr. 17, 2020). "A small
pointed tool called an awl is used to make very small holes in the bone near the damaged
cartilage." Id. The holes are called microfractures; they "release cells from [the] bone
marrow that can build new cartilage to replace the damaged tissue." Id.
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----------------------- Page 6-----------------------
knee surgery was performed in April 2013. One month before surgery, Dr. Krull noted
that Butts's "worsening arthritic changes . . . may preclude return to 100%."
Following the second right knee surgery Butts initially reported decreased
pain and was referred to aquatic physical therapy. About six weeks later, Butts reported
more pain; she was again treated with viscosupplementation and was taken off work.
Butts received more viscosupplementation the following month, and the State paid TTD
through November 2, 2013. Butts's employment with the State ended when she
exhausted her Family and Medical Leave Act leave, but the exact date is unclear.
The State scheduled an employer's medical evaluation (EME) with
Dr. Keith Holley, an orthopedic surgeon, in November 2013. Dr. Holley diagnosed a left
knee contusion related to the work injury, but he thought Butts suffered from age-related
osteoarthritis in both knees. In Dr. Holley's opinion Butts's knee condition was "solely
due to advanced osteoarthritis, the substantial cause of which is exogenous obesity and
age-related degenerative changes in the knee." Dr. Holley thought the work injury was
the substantial cause of Butts's need for limited medical care immediately after the fall,
but he thought her work-related injury should have resolved within two months. He did
not think Butts needed further medical care for her work injury. The State stopped
paying TTD based on Dr. Holley's opinion that Butts had reached medical stability with
respect to the work injury.
Butts gave a copy of the EME report to Dr. Krull, who wrote a letter in
response. Dr. Krull agreed with parts of the report: he agreed that (1) Butts's main
problem was osteoarthritis; (2) she was obese; and (3) she "likely ha[d] some age-related
degenerative changes." But Dr. Krull emphasized that Butts had no symptoms prior to
her fall at work and had not previously been diagnosed with osteoarthritis. Dr. Krull
wrote that Butts's "work injury is the significant contributor to her current state." At this
point Butts's knee treatment became dormant because Dr. Krull recommended total knee
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replacement and Butts thought it would be best if she tried to lose weight before
proceeding with knee replacement surgery.
Beginning in 2014 Butts's back became the focus of her medical care. On
the day of the injury Butts told her massage therapist she had been having low back pain
for a "few weeks" and that the fall at work caused mid- and low-back pain. Butts later
complained of pins-and-needles pain in her leg, which Dr. Krull thought might be related
to back problems, so he referred her to Dr. Steven C. Humphreys for evaluation of her
4 at L4-L5 and some disc
back in October 2013. An MRI showed spondylolisthesis
bulging at several levels. Dr. Humphreys thought the back pain might be related to the
knee injury because an abnormal gait could aggravate Butts's back condition.
Dr. Humphreys referred Butts to a pain management doctor, but that treatment provided
only minimal relief. Dr. Humphreys recommended that Butts have knee replacement
surgery before considering back surgery. The State filed a controversion of all benefits
related to Butts's low back in July 2014.
Butts filed a written workers' compensation claim in September 2015
seeking an unspecified period of TTD, permanent partial impairment (PPI), and
unspecified medical benefits. She said both her knees and her low back were injured by
the fall, and she set out a relatively detailed explanation of her injury theory. The State
filed a controversion of all benefits the following month.
Butts had a total left knee replacement in May 2016, followed by a total
right knee replacement in September 2016. Dr. Holley conducted a records review and
in September wrote a second EME report; his conclusions did not change. The parties
4 Spondylolisthesis is "[f]orward movement of the body of one of the lower
lumbar vertebrae on the vertebra below it, or on the sacrum." Spondylolisthesis,
STEDMAN'S MEDICAL DICTIONARY (28th ed. 2005).
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----------------------- Page 8-----------------------
stipulated to a second independent medical evaluation (SIME), and Dr. Robert Langen,
an orthopedic surgeon, did the evaluation.
The SIME report agreed with Dr. Holley's assessment for the most part.
Dr. Langen thought the March 2011 injury resulted in a contusion to Butts's left knee
that resolved rather quickly, and he thought her other problems were caused by her
obesity and age-related degenerative changes that preexisted the injury. He did not think
the fall permanently aggravated her degenerative conditions. When asked to "evaluate
the relative contribution of different causes," Dr. Langen wrote that with respect to her
knees, her preexisting degenerative changes and her obesity were the causes of her knee
pain. He thought her back pain was related to "a progression of previously existing
conditions."
The Board held a hearing on Butts's claim in May 2017. Butts and
Dr. Krull testified at the hearing, and the Board had the depositions of Dr. Holley,
Dr. Krull, and Dr. Humphreys. Butts testified about the injury, the impact it had on her
life, and her understanding of her diagnoses and medical care.
Dr. Krull's testimony sets out Butts's theory of compensability, so we
provide a detailed summary of it. Dr. Krull testified that he changed his diagnosis of
Butts's work-related injury from a contusion to something more serious after the left
knee MRI showed she had an osteochondral defect, which he said was "an injury to the
bone and cartilage surface." Dr. Krull said that "[a] traumatic injury to the cartilage
would be the classic mechanism" of an osteochondral defect. He said that degeneration
can also cause osteochondral defects, but osteochondral lesions like Butts's "typically
describe . . . a focal type of cartilage injury." Because Butts had a kissing lesion when
her knee was flexed to 90 degrees, Dr. Krull thought the most likely explanation for the
cartilage damage was a traumatic injury that happened when Butts had her knee bent,
which he thought was consistent with her falling on her knee at work.
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Dr. Krull further testified that Butts's x-rays taken shortly after the accident
showed no "significant radiographic arthritic changes" in her left knee. He indicated that
"[p]lain x-rays are a better tool for assessing arthritis" and said her follow-up x-rays from
November 2013 showed "very obvious signs of arthritis in the knee." Dr. Krull thought
the trauma to Butts's left knee started an arthritic process that progressed rapidly because
of her age and the injury mechanism. Dr. Krull acknowledged that osteoarthritis can
have a "spontaneous onset" and said there was no "overwhelmingly popular answer as
to what causes" a spontaneous onset. He also indicated Butts had predisposing factors
that could have contributed to her knee pain.
With respect to the right knee, Dr. Krull said that during recovery from the
left knee surgery, Butts likely put additional stress on her right knee. Dr. Krull thought
the added stress on the right knee likely caused a meniscus tear that required the right
knee arthroscopic surgery. He agreed that degenerative meniscus tears can happen
spontaneously, but he said an injury was a more common cause. Dr. Krull testified that
another possible cause of Butts's right knee meniscus tear was "degeneration and her
obesity adding to that." Dr. Krull deferred to Dr. Humphreys with respect to the low
back condition.
TheBoard'sdecision first consideredwhatinjuries Butts had suffered. The
Board indicated that Butts "contend[ed] her work injury . . . caused compensable injuries
to her left knee, right knee[,] and low back." The Board said the presumption of
compensability applied to this question and found that Butts had attached the
presumption through her own testimony and that of Drs. Krull and Humphreys. The
Board moved to the second stage and decided the State had rebutted the presumption
with the opinions of Drs. Holley and Langen that Butts's knee osteoarthritis and her low
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back condition were the result of preexisting conditions that were not aggravated by the
work-related fall.
At the third stage, the Board analyzed each alleged injury separately,
beginning with the left knee. The Board decided Butts had shown that her fall at work
was the substantial cause of her disability and need for medical treatment through
May 10, 2012, the date Dr. Krull said she was medically stable after her left knee
arthroscopic surgery. The Board gave more weight to Dr. Krull's opinion that the knee
pain was related to work at least through the left knee arthroscopic surgery. The Board
did not clearly adopt Dr. Krull's causation theory, saying with respect to his testimony
about the kissing lesion that "[h]e did not need to go that far" because Butts needed to
show that her work injury was the substantial cause only of her need for medical
treatment, not of the underlying condition.
The Board said the "knee specialists" all agreed the arthroscopic surgery
was reasonable and necessary treatment, even if they did not agree on causation. The
Board said Butts had "proven her left knee work injury continued to arise out of and in
the course of her employment and continued to be compensable through at least
August 31, 2011," the date of the arthroscopic surgery on that knee. After briefly
summarizing Butts's care through May 10, 2012, the Board noted Dr. Krull's statement
about medical stability and his recommendation that Butts's " 'severe arthritic changes'
in her left knee 'may warrant knee replacement at some point in the future.' "
The Board then considered that Butts had gone "over two months without
any left knee treatment" when she returned to Dr. Krull's care in August 2012
complaining of pain in both knees. The Board decided that as of August 16, 2012,
Dr. Holley's and Dr. Langen's opinions about causation were entitled to more weight.
It therefore decided that after Dr. Krull's initial determination of medical stability in May
2012, Butts's left knee injury was not compensable.
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Turning to the right knee, the Board observed that Butts had not fallen on
her right knee and had mentioned it only once from March 2011 until August 2012. It
determined that the "facts support ordinary degeneration as the substantial cause of
subsequent right knee treatment." It gave more weight to Dr. Holley's and Dr. Langen's
opinions and decided Butts had not proved by a preponderance of the evidence that her
right knee condition was compensable.
With respect to Butts's low back condition, the Board observed that Butts
was a recreational weight lifter and had complained in February 2011 about back pain
from doing squats. The Board discussed Dr. Humphreys' opinion that Butts may have
aggravated her spondylolisthesis through limping after her work injury as well as
Dr. Holley's and Dr. Langen's opinions that her low back condition was degenerative.
The Board noted periods of time when Butts had no back pain complaints, and it decided
that the existence of "gaps" in her symptoms was "consistent with gradual degenerative
progression relating to spondylolisthesis." The Board decided that any work-related
aggravation of the spondylolisthesis was temporary and ceased being compensable at the
same time her left knee condition reached medical stability.
After deciding what Butts's work-related injuries were, the Board
considered the benefits she sought. It determined she was not eligible for additional TTD
or medical benefits because the State had paid benefits through the date of medical
stability for the injuries the Board decided were work-related. The Board said Butts
could obtain a valid PPI rating for the left knee condition it had found compensable and
seek modification as long as she met the standard for it.
Butts appealed to the Commission. She contended that the Board did not
apply the presumption analysis "to each injury individually" and erred as a matter of law
"in failing to order all treatment from an injury which it deemed compensable," as
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required by AS 23.30.095. She argued the Board erred "by making findings of fact
without medical opinions to support" them and by considering improper factors.
The Commission affirmed the Board's decision. The Commission first
decided that there was only one work injury, "the fall from the ergonomic chair." It
wrote that "the presumption analysis does not apply here to the question of whether there
was a work injury, because all parties agree Ms. Butts fell out of her chair at work." The
Commission thought the Board had properly applied the presumption analysis to issues
of medical treatment, but the Commission went through its own presumption analysis.
The Commission saw no legal error in the Board's analysis and decided that substantial
evidence in the record supported the Board's decision. The Commission refused to
consider Butts's constitutional challenge to the 2005 causation standard and rejected
Butts's arguments that the Board had incorrectly considered prohibited factors when
comparing causes to reach its conclusion about compensability. Butts appeals.
III. STANDARD OF REVIEW
In a workers' compensation appeal from the Commission, we review the
5 We use our independent judgment to decide questions of law
Commission's decision.
that do not involve agency expertise.6 We independently evaluate the Commission's
conclusion that substantial evidence supports the Board's decision, which "necessarily
requires us to independently review the record and the Board's factual findings."7
IV. DISCUSSION
A. The Board Correctly Identified Butts's Injuries.
A central issue in this case is the compensability of what Butts contends are
5 Burke v. Raven Elec., Inc. , 420 P.3d 1196, 1202 (Alaska 2018).
6 Smith v. CSK Auto, Inc. , 204 P.3d 1001, 1007 (Alaska 2009).
7 Id.
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three separate injuries to different body parts. We first set out statutory provisions
relevant to her arguments.
An "injury" in the Act is an "accidental injury . . . arising out of and in the
course of employment, and an occupational disease . . . that arises naturally out of the
8 TheAct
employment or that naturallyor unavoidably results froman accidental injury."
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."9 Under
AS 23.30.120(a)(1), in a workers' compensation proceeding "it is presumed, in the
absence of substantial evidence to the contrary, that the claim comes within the
provisions of [the Act]." Alaska Statute 23.30.010(a) provides in pertinent part:
[C]ompensation or benefits are payable under this chapter for
disability . . . or the need for medical treatment of an
employee if the disability . . . or the employee's need for
medical treatment arose out of and in the course of the
employment. To establish a presumption under
AS 23.30.120(a)(1) that the disability . . . or the need for
medical treatment arose out of and in the course of the
employment, the employee must establish a causal link
between the employment and the disability . . . or the need for
medical treatment. . . . When determining whether . . . the . . .
disability or the need for medical treatment arose out of and
in the course of the employment, the board must evaluate the
relative contribution of different causes of the disability . . .
or the need for medical treatment. Compensation or benefits
under this chapter are payable for the disability . . . or need
for medical treatment if, in relation to other causes, the
employment is the substantial cause of the disability . . . or
need for medical treatment.
8 AS 23.30.395(24).
9 AS 23.30.095(a).
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We have previously observed that the definition of "injury" in the Act "is
10
not a true definition" but "is a delimitation of injuries covered by the statute." The
parties agree that under our precedent, a work-related accident can give rise to multiple
11 But they dispute the number of injuries Butts
injuries as that term is used in the Act.
suffered and whether the agencies properly identified the injuries.
Butts argues that (1) she had three distinct injuries as that term is defined
in AS 23.30.395(24); (2) she was entitled to a presumption analysis with respect to each
injury; and (3) neither the Board nor the Commission properly applied the presumption
analysis to the "injury" question. The State maintains the Commission correctly decided
that the fall at work was the only injury, asserting that what Butts calls "injuries" are not
separate injuries but are "symptoms caused by the workplace injury." The State
contends the agencies both properly analyzed Butts's claim.
Butts presented the following injury theory to the Board: her "initial injury
was a kissing lesion in her left knee," followed by her "right knee meniscal tears and her
12 Dr. Krull laid out this injury theory in a letter to
bilateral symptomatic osteoarthritis."
Butts's attorney and in testimony before the Board. He testified that the fall caused
cartilage damage in the left knee - the kissing lesion - which led to a dramatic
worsening of any preexisting osteoarthritis in that knee, which in turn caused the need
10 Second Injury Fund v. Arctic Bowl , 928 P.2d 590, 594 (Alaska 1996).
11
See, e.g., Alaska Pac. Assurance Co. v. Turner , 611 P.2d 12, 15 (Alaska
1980) (reversing Board decision that back injury was not compensable when it arose out
of earlier work-related accident); Cook v. Alaska Workmen's Comp. Bd., 476 P.2d 29,
35 (Alaska 1970) (holding that a later injury can be compensable if an earlier
compensable injury is a substantial factor contributing to the later injury).
12 Before the Board Butts argued she had a compensable low back condition
due to changes in her gait that stemmed from knee pain. Her brief before us does not
discuss the compensability of the back injury, so we do not discuss it.
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for a left knee replacement. With respect to the right knee, Dr. Krull indicated that Butts
"favor[ed]" the left knee after she fell, which put additional stress on the right knee and
led to the meniscus tear that ultimately caused Butts's dramatically worsened
osteoarthritis and need for a right knee replacement surgery. The State's theory, in
contrast, was that Butts's sole injury was a contusion to her left knee that resolved in
about two months.
The Commission identified the fall as the injury and wrote that the
presumption did not apply to the injury question "because all parties agree Ms. Butts fell
out of her chair at work." The Commission's decision and the State's argument here
merge two related but distinct concepts: an accident and an injury. Injury is damage or
13 "accidental injury," one term used in AS 23.30.395(24), is "[a]n injury resulting
harm;
14 That an accident can happen without
fromexternal, violent, and unanticipated causes."
an injury is illustrated by a sample phrase in the definition of "injury": "escaped from
15
the accident without injury."
Butts's arguments, on the other hand, merge two other distinct but related
concepts in workers' compensation: injury and medical treatment. She asserts that after
deciding her left knee condition was initially compensable, "the Board did not address
whether the presumption was then raised for her subsequent left and right knee
replacement surgeries." But surgeries are not injuries; they are medical care. Medical
13 Injury, T HE AMERICAN HERITAGE DICTIONARYOFTHE ENGLISH LANGUAGE,
https://ahdictionary.com/word/search.html?q=injury (last visited Apr. 14, 2020).
14 Accidental Injury , BLACK 'S LAW DICTIONARY (11th ed. 2019).
15
Injury, THE AMERICAN HERITAGE DICTIONARYOFTHE ENGLISH LANGUAGE,
https://ahdictionary.com/word/search.html?q=injury (last visited Apr. 14, 2020).
-15- 7465
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care is only compensable if the injury itself is compensable. 16 If the Board decides an
injury is not compensable, the Board does not need to apply the presumption analysis to
determine whether medical treatment for that injury is compensable.
Theparties agree, as theCommissionnoted, thatButts suffered aworkplace
fall; this was the underlying, work-related accident. But the parties disagreed about what
injuries resulted from the accident. The State contended the accident caused only a
contusion that resolved shortly afterward. Butts, in contrast, argued that the accident
caused an initial injury of a kissing lesion in her left knee followed by several related but
distinct conditions that "naturally or unavoidably result[ed] from [this] accidental
17
injury."
Even if the Commission misunderstood Butts's arguments, the Board
recognized the injury theory Butts proposed, and it appropriately considered the injuries
separately when it analyzed the evidence. Indeed, a majority of the Board's legal
analysis is devoted to the issue it identified as "What are Employee's compensable
injuries?" The Board considered Butts's claims for specific benefits only after it
identified her compensable injuries.
The Board consolidated its discussion of attaching and rebutting the
presumption of all of the injuries, but it is evident that the Board considered each
"injury" separately even in this part of its decision because it wrote that Butts had
attached the presumption "with her testimony, and medical opinions fromDrs. Krull and
Humphreys." These two doctors' treatment did not overlap: Dr. Krull treated Butts's
knees, not her back, and Dr. Humphreys treated her back, not her knees. And at the third
stage of the analysis, the Board provided a detailed discussion of each alleged injury, the
16 AS 23.30.095(a).
17 AS 23.30.395(24).
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evidence it found relevant to the work-relatedness of that injury, and the weight it
assigned to that evidence. The Board did not identify precisely what Butts's injury to her
left knee was, mentioning her "difficulties," "symptoms," "pain," and "issues." Given
the parties' agreement that the work-related accident caused some injury, we cannot say
this was erroneous. We therefore conclude that the Board appropriately considered the
knee injuries and the back injury as distinct injuries and used the presumption analysis
individually for each alleged injury.
B. The Commission Correctly Concluded That The State Rebutted The
Presumption.
Buttsargues thattheCommission erred in concluding that theStaterebutted
the presumption. She summarizes the legal tests for rebutting the presumption and
claims the State did not meet them because neither Dr. Holley's nor Dr. Langen's
opinion addressed Dr. Krull's theory that the fall caused a kissing lesion, a theory which
she claims the Board adopted. The State responds that Dr. Holley's and Dr. Langen's
opinions only needed to provide an alternative explanation for Butts's continuing knee
complaints that excluded work; it maintains that the opinions did so by positing that
Butts's preexisting arthritis was the cause of all her ongoing complaints after the left
knee contusion resolved.
The Board, when considering which of Butts's injuries were work related,
decided Dr. Holley's and Dr. Langen's opinions that (1) the only work-related injury
Butts suffered was a left knee contusion and (2) Butts's other knee complaints were
caused by preexisting arthritic changes were adequate to rebut the presumption for all
of Butts's alleged injuries. The Commission affirmed the Board's decision. We agree
with the Commission that the State provided sufficient evidence to rebut the
presumption.
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Butts's argument before us fails to recognize that at the first two stages of
18
the presumption analysis, the evidence is considered in isolation and is not weighed.
Because the evidence at the second stage is viewed in isolation, the Board could not
compare Dr. Holley's and Dr. Langen's causation analysis to that of Dr. Krull. It is
therefore immaterial whether the alternative explanation in Dr. Holley's and
Dr. Langen's reports addressed Dr. Krull's theory of the kissing lesion because at the
second stage there would be no indication the Board would give Dr. Krull's opinion any
weight. To rebut the presumption the employer needs to show the Board that it has
sufficient evidence to raise a factual issue about the work-relatedness of the injury,
making a hearing on the claim necessary.19 Dr. Holley's and Dr. Langen's opinions
provided an alternative explanation that, if believed, would lead to the conclusion that
20 The
Butts's continuing knee complaints had a cause unrelated to the work accident.
doctors identified the same cause - preexisting degenerative changes - as the cause
of all of Butts's conditions except the initial left knee contusion. Viewed in isolation,
without weighing these opinions, they were sufficient to rebut the presumption that Butts
suffered any work-related injury beyond the left knee contusion.
18 McGahuey v. Whitestone Logging, Inc. , 262 P.3d 613, 620 (Alaska 2011).
19 We have not determined how (if at all) the 2005 amendments changed the
rebuttal stage of the presumption analysis when there is a preexisting condition. See Huit
v. Ashwater Burns, Inc. , 372 P.3d 904, 919 (Alaska 2016). We do not need to decide
that question here because the doctors' opinions rebutted the presumption under the pre-
2005 standard. See id. at 917 (summarizing pre-2005 presumption analysis).
20 Cf. McGahuey, 262 P.3d at 620 (setting out rebuttal standards).
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C. The Commission Correctly Concluded That Substantial Evidence In
The Record Supported The Board's Decision.
1. The Board acted within its authority in weighing the medical
evidence.
Butts contends that the Board's decision is not supported by substantial
evidence. A prominent part of Butts's argument here is that the Board must accept in its
entirety either of two conflicting causation theories presented to it, and, based on our
precedent about unrebutted medical testimony,cannot"create[]itsown medicalopinion"
whendecidinga claim's compensability. Butts asserts that theBoard adopted Dr. Krull's
opinion that the fall caused a kissing lesion. She reasons that the Board was then
required to adopt the entirety of Dr. Krull's causation theory as to all of her alleged
injuries; in her view the Board erred because its analysis combined parts of Dr. Krull's
opinions and "the incompatible conclusion[s]" of Drs. Holley and Langen, thereby
inventing its own medical opinion.
The State answers that the Board fulfilled its role as the fact finder when
it assigned weight to the different medical opinions and distinguishes the cases Butts
relies on. Noting that the Board's findings "are subject to the same standard of review
as a jury's finding in a civil action," 21 the State analogizes the Board's evaluation of the
medical testimony here to that permitted by a civil jury instruction, which informs jurors
they "may believe all, part, or none of the testimony of an expert witness."22
21 AS 23.30.122.
22
Marsingill v. O'Malley, 128 P.3d 151, 160 n.48 (Alaska 2006) (quoting
Alaska Civil Pattern Jury Instruction 2.10 (rev. 1999)).
-19- 7465
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At the third stage of the presumption analysis, the Board weighs the
23
evidence to determine whether a claim is compensable.
Under the new causation
standard, the Board is required to consider all possible causes of the disability or need
24
for medical care and decide which among the factors identified is the most important.
Here, the Board conducted a detailed, individualized inquiry about each body part Butts
allegedly injured to evaluate Butts's claim that she suffered a work-related injury to that
body part.
As a factual matter, Butts misreads the Board's decision: the Board did not
adopt Dr. Krull's opinion that the fall caused the kissing lesion. The Board mentioned
Butts's "difficulties," "symptoms," and "pain," but it never decided Butts suffered a
kissing lesion from the fall. The Board noted Dr. Krull's opinion about the kissing
lesion, but it said Dr. Krull "did not have to go that far, as the work injury only had to
be the substantial cause of the 'need for medical treatment,' not the substantial cause of
the underlying condition itself." While the Board did not make an exact finding about
the extent of Butts's initial injury to her left knee, all doctors agreed she had suffered
some work-related injury and that the treatment Dr. Krull provided was reasonable and
necessary, even if Drs. Holley and Langen did not think the treatment was related to the
work injury. The Board simply decided that Dr. Krull's opinions about Butts's knee
condition through the time he initially declared her to be medically stable were the most
persuasive for that period of time.
Butts acknowledges that we have written, "When medical experts disagree
about the cause of an employee's injury, we have held that as a general rule 'it is
23 McGahuey, 262 P.3d at 621.
24 Morrison v. Alaska Interstate Constr. Inc., 440 P.3d 224, 237-39 (Alaska
2019).
-20- 7465
----------------------- Page 21-----------------------
undeniably the province of the Board and not this court to decide who to believe and
25
who to distrust.' "
Nothing distinguishes her case from cases where the Board weighed
conflicting medical testimony about causation. We agree with the State that none of the
cases Butts cites supports her argument. Those cases concern the Board's rejection of
an employee's medical evidence when the employer had presented no medical evidence
26 findings that were unsupported by any medical opinion,27 or the Board's
in opposition,
failure to apply the presumption of compensability correctly.28 Here the State provided
a medical opinion that rebutted the presumption. No case Butts cites held that the Board
is limited in its interpretation of conflicting medical evidence. The Board cited specific
medical opinions to support each of its material findings, and it correctly applied the
presumption analysis.
Butts characterizes the medical evidence as showing two diametrically
opposed causation theories, but in fact Dr. Krull agreed with several of Dr. Holley's
25 AT & T Alascom v. Orchitt , 161 P.3d 1232, 1243 (Alaska 2007) (quoting
Bradbury v. Chugach Elec. Ass'n , 71 P.3d 901, 909 (Alaska 2003)).
26 Wade v. Anchorage Sch. Dist., 741 P.2d 634 (Alaska 1987) (holding that
mental injury claim was compensable when employer offered no medical evidence to
rebut presumption), overruled by statute as recognized in Kelly v. State, Dep't of Corr.,
218 P.3d 291, 298 (Alaska 2009); Kessick v. Alyeska Pipeline Serv. Co., 617 P.2d 755,
758 (Alaska 1980) (holding that injury was compensable when employer offered no
medical evidence contrary to employee's doctor).
27 Rogers Elec. Co. v. Kouba, 603 P.2d 909, 911-12 (Alaska 1979) (holding
that Board's finding was not supported by testimony of either doctor who testified).
28 Alaska Pac. Assurance Co. v. Turner , 611 P.2d 12, 14 (Alaska 1980)
(holding that the record had "no substantial evidence" that injury was not compensable);
Fireman's Fund Am. Ins. Cos. v. Gomes, 544 P.2d 1013, 1016 (Alaska 1976) (holding
that in absence of substantial evidence that death was not work related, employee's
murder at work was compensable death).
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----------------------- Page 22-----------------------
opinions. He agreed, for example, that obesity and age-related degenerative changes
were "contributing factors" to Butts's overall condition. He also agreed that
osteoarthritis can become symptomatic spontaneously and that meniscus tears can be
degenerative. The causation analysis Dr. Krull set out at the hearing did not account for
his May 2012 opinion, which the Board apparently found persuasive, that Butts had
reached medical stability and had no permanent impairment related to her fall at work.
The Board did not create a medical opinion, as Butts contends. The Board
relied on specific medical evidence to craft its legal decision about which of Butts's
conditions were compensable. This is consonant with the Board's assigned role in the
workers' compensation system: under AS 23.30.122 the Board is the finder of fact
whose duty it is to hear and weigh evidence, make findings based on that evidence, and
apply the law to those findings. The Board did precisely what it was required to do here,
and substantial evidence supports its decision.
2. The Board was not legally required to order additional medical
care.
Butts argues that AS 23.30.095(a) and Phillip Weidner & Associates, Inc.
29 required the Board to order the State to pay for her two knee replacement
v. Hibdon
surgeries as a matter of law. The foundation of her argument is the Board's decision to
find her left knee arthroscopic surgery compensable. She characterizes the remaining
treatment for both her knees as a continuing course of care, and she maintains that the
entirety of the treatment was therefore compensable as a matter of law because it was all
30 And because
treatment that "the nature of the injury or process of recovery require[d]."
Dr. Krull noted on May 10, 2012, that her "severe arthritic change in the medial
29 989 P.2d 727 (Alaska 1999).
30 AS 23.30.095(a).
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----------------------- Page 23-----------------------
compartment . . . may warrant joint replacement at some point in the future," she
contends that her left knee replacement surgery comes within the "more stringent benefit
31
requirements" for treatment within the first two years following an injury.
The State argues that AS 23.30.095(a) does not apply because it had
controverted Butts's claim. According to the State, "[w]here an employer has
controverted benefits, AS 23.30.095(a) does not apply because it only sets a standard for
appropriate care when employers do not dispute that an employee's need for care is work
related."
Neither party's argument is correct. Alaska Statute 23.30.095(a) provides:
The employer shall 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. . . . It shall
be additionally provided that, if 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.
This statutory subsection sets out an employer's substantive obligations under the Act;
those obligations are unaffected by a controversion. A controversion is a procedural
mechanism that an employer uses to tell the Board and an injured worker that it contests
32 The worker can then file a claim if she wishes to
the compensability of a benefit.
obtain Board review, and the Board can determine compensability of medical care by
applying AS 23.30.095(a).
31 Hibdon, 989 P.2d at 731.
32
AS 23.30.155; see Harris v. M-K Rivers, 325 P.3d 510, 518 (Alaska 2014)
(describing purpose of controversion).
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----------------------- Page 24-----------------------
In Hibdon we interpreted AS 23.30.095(a) as limiting the Board's
discretion to direct an employee's choice of medical care within the first two years
33 We did not deem the employer's controversion of proposed care
following an injury.
determinative of the employee's rights in Hibdon ; in fact, we said, "It would be unjust
to allow an employer to avoid the more stringent benefit requirements owed to injured
employees in the first two years following an injury by simply controverting a claim and
delaying the employee's medical treatment beyond the two years."34 In Hibdon we
considered the date the employee was ready to undergo the treatment and the date the
written claim for medical care was filed when we discussed application of the two-year
limit in AS 23.30.095(a).35
With respect to Butts's arguments, neither the statute nor Hibdon permits
a claimant to transform a prediction, made within the first two years after an injury, that
a worker may need a joint replacement at an undetermined future time into an immediate
claim for medical care. In Hibdon the claimant's doctor "was prepared to proceed" with
surgery one year and eight months after a compensable injury, but the doctor would not
schedule the surgery at that time because the employer's compensation carrier would not
authorize it.36 After the employer controverted the surgery, the employee filed, one year
and ten months after the accidental injury, a written claim.37 We considered the date the
claimant filed her written claim for surgery to be the important date for purposes of
33 989 P.2d at 731.
34 Id.
35
Id. at 730-31.
36 Id.
37 Id. at 730.
-24- 7465
----------------------- Page 25-----------------------
applying the statute, even though by the time we heard the case over five years had
elapsed since the accident. 38
Butts's case is plainly different from the facts of Hibdon . No doctor was
ready to proceed with knee replacement surgery by March 2013, two years after Butts's
fall; indeed Butts had not yet undergone the second right knee arthroscopic surgery by
then. And the State did not controvert medical care in the first two years after the
accident. Butts's written claim was filed in September 2015, more than four years after
the accident. Nothing in Hibdon compels a legal result different from the Commission's
decision.
Butts's remaining arguments related to AS 23.30.095 are not persuasive
because the Board determined that the injuries the medical care was intended to treat
were not compensable. The Board considered her claim that her right knee condition
was an "injury" as defined in AS 23.30.395(24) and rejected that claim because it gave
more weight to Dr. Holley's opinion that the condition was caused by age-related
degenerative changes and obesity. The same is true for her left knee complaints after
May 10, 2012, the date Dr. Krull initially determined she was medically stable from the
effects of the injury: the Board decided her left knee condition, including the worsening
osteoarthritis, was not compensable after that date because her preexisting degenerative
changes were a more important cause of her knee condition than her work-related
accidental injury. If the conditions requiring treatment were not compensable injuries,
the State had no obligation under AS 23.30.095(a) to furnish medical care to treat them.
D. Butts Waived Her Constitutional Claims.
Butts argued beforetheCommission, andargues here, thatas applied toher,
the causation standard adopted in 2005 violates her right to equal protection under both
38
Id. at 731, 733.
-25- 7465
----------------------- Page 26-----------------------
the United States Constitution and the Alaska Constitution. We decline to consider these
arguments because they are inadequately briefed.
Butts summarizes cases and principles related to state and federal equal
protection analysis, but she does not explain how those principles apply to her case. She
39 nor does
does not, for example, identify the governmental purpose of AS 23.30.010(a),
she identify the groups she claims are similarly situated but treated disparately.40 Points
on appeal that are inadequately briefed are considered waived.41 Because we cannot
discern the legal theory Butts advances to support her constitutional claims, we do not
address them.
V. CONCLUSION
We AFFIRM the Commission's decision.
39 See San Antonio Indep. Sch. Dist. v. Rodriguez , 411 U.S. 1, 55 (1973)
(setting out rational-basis standard under federal equal protection analysis, including
identification of a legitimate state purpose).
40 See Glover v. State, Dep't of Transp., Alaska Marine Highway Sys.,
175 P.3d 1240, 1257 (Alaska 2008) (observing that threshold requirement in Alaska
equal protection challenge is existence of classification that treats similarly situated
people disparately).
41 Casciola v. F.S. Air Serv., Inc., 120 P.3d 1059, 1062 (Alaska 2005).
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