2007-060. Myung H. Walters Appellant Cross-appellee vs. Crazy Horse Inc. and Alaska National Insurance Company Appellees Cross-appellants.

• Case Date: October 22, 2007
• Court: Alaska

Alaska Workers Compensation Decisions 2007. Workers' Compensation Appeals Commission 2007-060. Myung H. Walters Appellant Cross-appellee vs. Crazy Horse Inc. and Alaska National Insurance Company Appellees Cross-appellants Alaska Workers' Compensation Appeals CommissionMyung H. Walters, Appellant, Cross-appellee, vs. Crazy Horse, Inc., and Alaska National Insurance Company, Appellees, Cross-appellants.Decision No. 060 October 22, 2007AWCAC Appeal No. 06-031AWCB Decision No. 06-0271AWCB No. 200104075Final Decision and Order Appeal and cross-appeal from Alaska Workers' Compensation Board Decision No. 060271, issued September 29, 2006, by the southcentral panel at Anchorage, Alaska, Rebecca Pauli, Chair, S. T. Hagedorn,(fn1) Member for Industry, and John A. Abshire, Member for Labor. Appearances: Myung H. Walters, pro se, appellant, cross-appellee.(fn2) Robert J. Bredesen, Russell, Wagg, Cooper and Gabbert, for appellees, cross-appellants Crazy Horse, Inc., and Alaska National Insurance Co.Commissioners: John Giuchici,Philip Ulmer,and Kristin Knudsen.This decision has been edtted to conform to technical standards for publication. By: Kristin Knudsen, Chair. Myung Walters appeals the board's denial of her claim for compensation for injuries suffered in a fight at work. We are bound by the board's finding that the appellant was not a credible witness. The board's findings were supported by substantial evidence in light of the whole record. We affirm the board's decision denying compensation and benefits. Crazy Horse appeals the denial of its petition for reimbursement of attorney fees under AS 23.30.250(b). We agree that the board must find the employee received some benefit under the Alaska Workers' Compensation Act to support a reimbursement order. The right to pursue a claim for workers' compensation is not such a benefit. The board did not engage in the four-step analysis required by Munccipaltty of Anchorage v. Devonn(fn3) so we vacate the order denying the petition and remand for rehearing of the petition on the record. Factual background. Myung Walters was a dancer at the Crazy Horse Saloon, an Anchorage club. On February 16, 2001, she and another dancer, Kerry Ford, got into a fight over tip money at the club in the early hours of the morning, about an hour before closing time.(fn4 )Walters was seen at the Providence Hospital emergency room on February 17, 2001 at around 3:00 a.m.(fn5) Walters worked the next two days. She was terminated from her employment at the end of her shift February 19, 2001.(fn6) She went to work shortly afterwards at another club. On February 21, 2001, Walters called the police to her house to document her injuries with photographs.(fn7) She explained in testimony that she called the police before seeing a doctor because she wanted to "make record of it first."(fn8) On February 22, 2001, she filed a report of occupational injury, listing her injuries as "Arm/Neck/Head/Breast. Left breast implant was punctured during the assault. Arm/neck/head badly hurts."(fn9) On February 23, 2001, Walters was seen again at the Providence Hospital emergency room, reporting that her left breast was smaller and felt heavy.(fn10) The examining physician reported her saline breast implant had failed and referred her to a plastic surgeon for repair. Walters went to Seattle, where implants in both breasts were replaced on May 16, 2001.(fn11) Before the fight, Walters had been seeing Dr. Como, a chiropractor. She had been treated for "pelvic torque" on February 13, 2001, including treatment directed at the L5 vertebra.(fn12) She continued to be treated by Dr. Como,(fn13) as well as Won Shil Park, M.D.,(fn14) until sometime in 2004 when records indicate she was referred by William Erickson, ANP,(fn15) to Lawrence Kropp, M.D., an anesthesiologist, with a diagnosis of "low back pain with disc degeneration for several years."(fn16) Dr. Kropp treated her for "displaced intervertebral disc" and "lumbar radiculopathy."(fn17) Dr. Kropp referred her for an MRI scan, which on September 22, 2004, revealed the bilateral pars defect(fn18) that Walters claimed was caused by the February 16, 2001 fight. Board proceedings. Walters filed a claim for benefits on April 4, 2001,(fn19) which was controverted by the employer on April 20, 2001 on the grounds that the fight did not arise out of and in the course of employment and that any injuries were the result of Walters's willful intent to injure another employee.(fn20) The board heard Walters's claim on June 3, 2003. The board determined that the fight between Walters and Ford was work-related and therefore any injuries incurred in the fight were compensable. However, the board also stated that

Both the emergency room medical report and the police report noted scratches on the employee's face and on her right leg near her knee. She had a red mark on her right bicep and complained of head pain. The employer does not dispute that these injuries were the result of the altercation. Because we concluded the altercation with Felony was within the course and scope of employment, and we find the employee has attached the presumption of compensability with regard to the injuries noted in the emergency room report.

However, the employee's allegation that her breast implant was damaged in the in the course and scope of her employment to be based on highly technical medical considerations. The breast implant deflation was not noted until several days after the altercation. The only evidence linking the altercation and the breast implant is the employee's testimony. The emergency room report contains no mention of pain or contusion to the breast. We find that it is incumbent upon the employee to come forward with medical evidence to establish the injury arose out of or in the course of the work related altercation. At this time we can not find this injury to be work related.

Similarly, we find the employee's allegation that she was paralyzed and could not walk as a result of the altercation, to be based on highly technical medical considerations and not established by the record before us at this time. The employee finished up the last few minutes of her shift before driving herself to the emergency room. She worked her next two shifts. Neither the emergency room report nor the police report note either of these conditions. Therefore, at this time, we do not find these conditions, if present, to be work related.(fn21)

After instructing the parties to "attempt to resolve" the claim for benefits, the board reserved jurisdiction to "resolve disputes" regarding Walters's claim for benefits.(fn22) On August 19, 2005, Walters filed a new claim for compensation, seeking temporary total disability compensation and permanent disability compensation for arm, neck and back injuries as well as the breast implant replacement.(fn23) The employer answered and controverted the claim, asserting that her work was not a substantial factor in bringing about the claimed injury or disability.(fn24) On January 17, 2006, the employer filed a petition asking that the board make

a finding of fraud regarding the lower leg condition under A.S. 23.30.250(a) and (b). Employer requests repayment of attorneys fees in accordance with A.S. 23.30.250(b). The employee made false and misleading statements for the purpose of obtaining workers' compensation benefits. . . . employee's left lower leg pain is related to a metal sign which fell on her leg while at Nordstroms on May 18, 2002.(fn25)

After a series of prehearing conferences in which Walters was informed of procedures and discovery rights, the board heard Walters's claim for compensation on July 26, 2006. Walters was the only witness. She testified at length regarding...