2007-062. Guys With Tools Ltd. d/b/a The Bush Pilot and Alaska National Insurance Co. Appellants vs. Sandra M. Thurston Appellee.

• Case Date: November 08, 2007
• Court: Alaska

Alaska Workers Compensation Decisions 2007. Workers' Compensation Appeals Commission 2007-062. Guys With Tools Ltd. d/b/a The Bush Pilot and Alaska National Insurance Co. Appellants vs. Sandra M. Thurston Appellee Alaska Workers' Compensation Appeals CommissionGuys With Tools, Ltd., d/b/a The Bush Pilot, and Alaska National Insurance Co., Appellants, vs. Sandra M. Thurston, Appellee.Decision No. 062 November 8, 2007AWCAC Appeal No. 06-039 AWCB Decision No. 06-0323 AWCB Case No. 200217586Final Decision and Order Appeal from Alaska Workers' Compensation Board Decision No. 06-0323, issued December 6, 2006, by the northern panel at Fairbanks, Alaska, Fred G. Brown, Chair, Debra G. Noram, Member for Industry, and Damien Thomas, Member for Labor. Appearances: Nora Barlow, DeLisio, Moran, Gerahhty and Zobel, P.C., for appellants Guys with Tools, Ltd., and Alaska National Insurance Co. Robert M. Beconovich, Robert M. Beconovich, L.L.C., for appellee Sandra M. Thurston.Commissioners: Jim Robison,Philip Ulmer,and Kristin Knudsen.Thiis decision hias been edited to conform to technical standards for publication. By: Kristin Knudsen, Chair. This appeal concerns an employee who suffered a disabling work-related knee injury and subsequently developed an unrelated disabling disease. The board, relying on Providence Washington v. Fish(fn1) treated the later-developed disease in the same manner as a pre-existing condition when analyzing the employer's liability for the employee's present disability. On review, we conclude the board erred in failing to apply the test dictated by the Alaska Supreme Court in Estate of Ensley v. Anglo Alaska Constr. Inc(fn2) We also conclude the board erred in failing to decide two questions presented to it for decision: whether Thurston was entitled to compensation for a back injury and whether she made an excessive change of physician. However, we reject the argument that an excessive change requires exclusion of the physician's reports from the record. We remand to the board with instructions to rehear the case on the record. Factual background. We summarize the facts pertinent to our decision. The appellant, Guys With Tools, Inc., operated the Bush Pilot bar in the Fairbanks International Airport, where Sandra Thurston was employed as a bartender. Thurston slipped on some spilled coffee and injured her left knee on August 17, 2002. She sought treatment on August 23, 2002 from Fairbanks Urgent Care. She was given a referral to Sports Medicine, but instead she saw Dr. Vrablik, who had previously treated her left knee.(fn3 )She began treatment by Dr. Vrablik on September 9, 2002. He prescribed physical therapy and a brace. On December 5, 2002, Dr. Vrablik reported she complained of back pain that he "cannot relate . . . to a work injury." He noted that she had preexisting spondylosis, but that her gait was altered by the brace. He ordered an MRI (Magnetic Resonance Imaging) scan of the spine that showed a "small left-sided disc protrusion at L4-5 without evidence of canal or nerve root compromise" and "spondylosis at L5-S1."(fn4) By February 3, 2003, Dr. Vrablik ordered an MRI scan of the knee to determine if knee surgery may be needed. On March 3, 2003, he reported that the MRI scan shows "more damage to the anterior horn of the lateral meniscus and a small medial meniscus tear."(fn5) He recommended arthroscopic surgery. The employer's medical examiner, Dr. Neumann, concurred in this recommendation on April 16, 2003.(fn6) He also agreed that the back condition, probably a strain related to increased activity using the knee brace, had resolved.(fn7) In May 2003, Thurston changed her attending physician to David Witham, M.D., who worked at the Tanana Valley Medical-Surgical Group. He also believed she had a potential meniscus tear. On June 16, 2003, he performed a left lateral meniscectomy, in which he removed a torn portion of the anterior lateral meniscus and shaped the remaining portion to a "smooth curvilinear stump."(fn8) Although an earlier MRI had shown a medial meniscus tear as well, Dr. Witham found an intact medial meniscus on examination in the surgery.(fn9) By August 12, 2003, he had recorded that Thurston "approaches fixed and stable point and probably could undergo independent medical examination for permanent partial disability rating."(fn10) Thurston was diagnosed with nonwork-related lung cancer shortly afterwards. She was treated by Dr. Carroll for her cancer. She complained to him of back pain, and he referred her for an X-ray on January 8, 2004. It was unchanged from an X-ray taken in October 1997. Thurston did not return to Dr. Witham until April 2004, when Dr. Witham indicated her knee was stable and could be rated.(fn11) He did not perform impairment ratings; he suggested to the adjuster that Thurston see Dr. Cobden, Dr. Tamai, or Dr. Joosse.(fn12) The adjuster sent her to Dr. Joosse, who examined her on June 7, 2004. He found she was medically stable, and merited a 1 percent impairment rating for the knee injury.(fn13) Thurston developed left leg pain in 2005. She had a Doppler examination to rule out deep vein thrombosis, which revealed popliteal cysts in the knee joint.(fn14) Dr. Carroll referred her back to Dr. Witham, who saw her on August 30, 2005. He ordered a MRA (Magnetic Resonance Arthography) of the left knee, which was done on October 26, 2005. It confirmed that a previous cyst had grown larger, and that she had generalized cartilage thinning, joint space narrowing, and degenerative spurring.(fn15) However, there were no new tears of the lateral meniscus shown. On December 21, 2005, Thurston began treatment by Dr. Cobden at the Advanced Pain Centers of Alaska, initially for back pain and knee pain. He diagnosed an internal derangement of the left knee and referred her for another lumbar spine MRI scan. The MRI scan showed no significant change from previous MRI studies.(fn16 )Dr. Cobden referred Thurston to Dr. Slonimski, who performed a left sacroiliac injection. In August 2006, another MR Arthrogram(fn17) of the knee was done, which showed no popliteal cyst, degeneration of the medial meniscus, possible strain of the anterior cruciate ligament or mixoid degeneration, tricompartmental bony spurring and chondromalcia of the patella.(fn18) Dr. Cobden's last medical advice was given July 27, 2006; he thought she may need a brace, but he would not suggest surgery until he had seen more MRI studies.(fn19) Board proceedings. The adjuster paid temporary total disability compensation from October 3, 2002, through April 12, 2004.(fn20) Thurston filed a workers' compensation claim on July 25, 2003, seeking the "maximum penalty" against the insurer and temporary total disability compensation from September 25, 2002, forward. On August 4, 2003, Guys With Tools controverted her claim, and answered the claim for temporary total disability between September 25, 2002, and October 2, 2002, noting that she was not authorized to leave work until October 3, 2002.(fn21) Thurston did not file an affidavit of readiness for hearing within two years of the date her July 25, 2003, claim was controverted. Instead, on February 22, 2006, Thurston filed a new workers' compensation claim against Guys With Tools.(fn22) In addition to temporary total disability compensation after April 12, 2004, she sought permanent total disability compensation from October 27, 2003, forward, permanent impairment compensation, medical costs, a penalty, and interest.(fn23) She claimed that her "knee repair surgery has failed" and that she is "permanently totally disabled due to a work related injury and ongoing cancer treatment [and] other medical problems that are not work related."(fn24) Guys With Tools answered Thurston's claim on March 24, 2006,(fn25) and controverted her claim with specificity on June 7, 2006.(fn26) Thurston filed an affidavit of readiness for hearing on April 17, 2006.(fn27) In a pre-hearing conference on August 9, 2006, the parties agreed to schedule the hearing on Thurston's February 2006 claim for October 12, 2006.(fn28) The parties agreed the disputed benefits were: permanent total disability compensation from October 27, 2003, through the present, medical costs, transportation costs, penalty, interest, and attorney fees.(fn29) The prehearing conference summary noted Guys With Tools addition of an "unauthorized of [sic] change of physician to the defenses" and an objection to inclusion [in the board's record] of Dr. Cobden's medical records.(fn30) Thurston's counsel also asserted that she "was going to have a knee replacement" and would be incurring additional medical costs.(fn31) Arguments presented to thie board. Thurston defined the legal issue before the board as whether the employment was a substantial factor in her current left knee and lumbar spine "conditions."(fn32) She asserted Dr. Cobden's statement that "because her medial meniscus was injured and them [sic] removed by surgery it [the employment injury] has resulted in the degeneration of the medial joint compartment"(fn33) was evidence of a "simple cause and effect relationship."(fn34) Thurston also asserted that there was an "obvious connection" between her knee injury and her cancer.(fn35) The two conditions combined to render her permanently and totally disabled. She also argued that the employer failed to overcome the presumption that she was permanently, totally disabled because it failed to demonstrate that there was a labor market...