12-0172. ROBERT W. THOMPSON Employee V. STATE OF ALASKA DEPARTMENT OF TRANSPORTATION AND PUBLIC FACILITIES (Self-Insured) Employer Defendant.

CourtAlaska
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...

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