12-0172. ROBERT W. THOMPSON Employee V. STATE OF ALASKA DEPARTMENT OF TRANSPORTATION AND PUBLIC FACILITIES (Self-Insured) Employer Defendant.
Court | Alaska |
Alaska Workers Compensation Decisions
2012.
Workers' Compensation Board
12-0172.
ROBERT W. THOMPSON Employee V. STATE OF ALASKA DEPARTMENT OF TRANSPORTATION AND PUBLIC FACILITIES (Self-Insured) Employer Defendant
ALASKA WORKERS' COMPENSATION BOARDP.O. Box
115512 Juneau, Alaska 99811-5512ROBERT W. THOMPSON, Employee, Applicant V. STATE OF ALASKA,
DEPARTMENT OF TRANSPORTATION AND PUBLIC FACILITIES (Self-Insured) Employer
DefendantAWCB Case Nos. 200518802, 200906207,
200916196 (M)AWCB Decision
No. 12-0172Filed with AWCB Anchorage, Alaska
on September 25, 2012FINAL
DECISION AND ORDERRobert Thompson's (Employee) claims for benefits for work
injuries occurring on September 22, 2005, March 31, 2009 and September 17,
2009, were heard on August 15, 2012. The hearing date was selected at a
December 15, 2011 prehearing conference. Attorney Joseph Kalamarides represents
Employee, who appeared and testified. Assistant Attorney General Patricia Huna
represents the State of Alaska (Employer or State). John Ballard, M.D.
testified telephonically. The record was held open to receive Employee's
supplemental affidavit of attorney fees and any opposition thereto. The record
closed when the board next met on August 28, 2012.
ISSUES
Employee contends his September 22, 2005 work injury was a
substantial factor in his disability and need for medical treatment for his
left knee, including total left knee arthroplasty, and he is entitled to
benefits under the Act. Employee further contends the September 17, 2009 work
injury was the substantial cause of his disability and need for continuing
medical treatment for his left knee, including total left knee arthroplasty,
and he is entitled to benefits under the Act.
Employer contends the 2005 work injury was not a substantial
factor, nor was the September 17, 2009 injury the substantial cause of
Employee's disability and need for continuing medical treatment for his left
knee, including a total left knee arthroplasty. Employer contends Employee's
degenerative knee condition caused his need for total left knee arthroplasty,
and no further benefits are due.
1. Was the September 22, 2005 work injury a substantial
factor in Employee's disability and continuing need for medical treatment for
his left knee, including total left knee arthroplasty
2. Were Employee's work activities, including the
September 22, 2005 and September 17, 2009 work injuries, the substantial cause
of Employee's disability and need for medical treatment for his left knee,
including total left knee arthroplasty?
3. Is Employee entitled to medical benefits for his
left knee, including total knee arthroplasty?
4. Is Employee entitled to a PPI rating for his left
knee injury?
5. Is Employee entitled to TTD? If so, for what
periods?
Employee contends his March 31, 2009 and September 17, 2009
work injuries were, either individually or together, the substantial cause of
his disability and need for medical treatment for his back, including spinal
fusion. Employer contends the long-standing degenerative condition in
Employee's back, not the work injuries, is the substantial cause for his
disability and need for medical treatment for his back, including spinal
fusion, and no further benefits are due.
6. Was either or both the March 31, 2009 or
September17, 2009 work injuries the substantial cause of Employee's disability
and need for further medical treatment for his back?
7. Was either or both the March 31, 2009 or
September17, 2009 work injuries the substantial cause of Employee's need for
spinal fusion?
8. Is Employee entitled to medical benefits for his
back?
9. Is Employee entitled to a PPI rating for his back
injury?
10.Is Employee entitled to TTD? If so, for what
periods?
Employee contends he is entitled is a reemployment benefits
eligibility evaluation. Employer contends Employee was previously rehabilitated
and returned to work in the same or similar occupation and is thus precluded
from receiving further reemployment benefits.
11.Is Employee entitled to a reemployment benefits
eligibility evaluation?
Employee contends he is entitled to actual and reasonable
attorney fees and costs should he prevail. Employer contends Employee should
not prevail and attorney fees and costs should not be awarded.
12. Is Employee entitled to an award of attorney fees?
If so, in what amount?
FINDINGS OF FACT
A preponderance of evidence establishes the following facts and
factual conclusions relevant to Employee's left knee claims:
1) On June 17, 1993, Employee injured his left knee while
jogging. He reported having also injured it during athletic play in December,
1992. On examination by orthopedic surgeon Thomas P. Vasileff, M.D., Employee
reported left knee pain, with popping and locking on flexion and extension.
X-ray results were normal. Dr. Vasileff diagnosed left medial meniscus tear.
(Anchorage Fracture and Orthopedic (AFOC) chart note, June 21, 1993).
2) On June 24, 1993, Dr. Vasileff performed an arthroscopic
evaluation of Employee's left knee, observing "a small tear of the posterior
horn of the medial meniscus." He reported Employee's anterior cruciate
ligament, lateral meniscus and patellofemoral compartment were intact. Dr.
Vasileff performed a partial medial meniscectomy to repair the small medial
meniscus tear. (Procedure Report, June 24, 1993).
3) On August 9, 1993, Employee was released to return to full
heavy duty work refueling planes for Butler Aviation. (AFOC chart note, July 7,
1993; AFOC release to work, July 26, 1993).
4) On September 17, 1998, while employed as a hostler with the
Municipality of Anchorage, Employee injured his lower back while lifting and
dumping 55 gallon waste barrels into a dumpster. (Report of Occupational
Injury, September 21, 1998). The events surrounding Employee's September 17,
1998 back injury and resulting surgery are more fully set forth below where
Employee's back injuries are more specifically addressed, but are noted here to
aid continuity. Employee qualified for and participated in a reemployment plan
and received reemployment stipend benefits until May 4, 2002. Beginning June 1,
2002, he worked as a truck driver on Alaska's north slope and in
Anchorage.
5) On March 22, 2005, Employee completed an Applicant Profile
on the State of Alaska's online employment site Workplace Alaska. The Applicant
Profile did not ask Employee for a health history, nor whether he previously
suffered injury to any body part. (Id.). In accordance with
the Federal Motor Carrier Safety Regulations (Title 49 CFR Parts 382 and 383)
and Alaska Statute AS. 28.33 et seq., Employee was later asked
to complete a Certification of Employment as a Commercial Motor Operator. The
required form allowed the State to receive otherwise confidential information
from previous employers for whom Employee operated a commercial motor vehicle.
Employee disclosed in the release that he had previously injured his back while
employed for the Municipality Transit Department, and had undergone surgery and
rehabilitation. (Certification of Employment as a Commercial Motor Operator,
April 15, 2005, contained in Employee's Personnel File, submitted as Employer
Exhibit). There is no evidence Employee falsified his application for
employment or other employment forms. (Workplace Alaska Applicant Profile,
3/22/2005; Federal Motor Carrier release form; Experience, observation,
judgment, facts of the case and inferences therefrom).
6) On May 9, 2005, Employee began employment as a Laborer with
the State. (Report of Occupational Injury, September 26, 2005).
7) On September 22, 2005, in the course of his employment,
Employee injured his left knee while pushing and pulling a lawn mower on uneven
slopes. (Report of Occupational Injury, September 26, 2005).
8) The medical records demonstrate that following his recovery
from the 1993 knee surgery, Employee neither reported nor received medical care
for any left knee symptoms until the September 22, 2005 work injury. (Medical
records).
9) On September 23, 2005, Employee sought care in the emergency
room (ER) at Alaska Regional Hospital. X-ray views revealed mild degenerative
changes, which the ER physician characterized as "unremarkable." The physician
diagnosed knee contusion, possible knee strain, placed Employee in a knee
brace, and instructed him to follow-up with Dr. Vasileff. (ER Note, September
23, 2005).
10) On September 26, 2005, Employee returned to Dr. Vasileff
who reported: "He has an old history of having arthroscopic medial meniscectomy
12 years ago and was doing quite well." (Physician's Report, Dr. Vasileff,
September 26, 2005). Dr. Vasileff obtained further x-rays which revealed "mild
narrowing of the medial compartment of the left knee with minimal
patellofemoral disease." (Physician's Report, Report of X-Rays, September 26,
2005). Dr. Vasileff prescribed physical therapy (PT), which Employee attended
from September 29, 2005 until discharge on October 21, 2005. (AFOC PT
Notes).
11) On January 4, 2006, Employee returned to Dr. Vasileff
complaining of continuing pain, catching and locking in his left knee. Magnetic
resonance imaging (MRI) revealed a complex tear in the posterior horn of the
medial meniscus, including a vertical component, with moderate to severe
articular cartilage degenerative change in the medial tibiofemoral compartment,
mild articular cartilage degenerative change in the lateral compartment, and
mild to moderate patellofemoral chondromalacia. (MRI Report, January 4, 2006...
To continue reading
Request your trial