2008-070. Charles E. Martin Appellant vs. Nabors Alaska Drilling Inc. and Northern Adjusters Inc. Appellees.

Case Date:February 13, 2008

Alaska Workers Compensation Decisions


Workers' Compensation Appeals Commission


Charles E. Martin Appellant vs. Nabors Alaska Drilling Inc. and Northern Adjusters Inc. Appellees

Alaska Workers' Compensation Appeals Commission Charles E. Martin, Appellant, vs. Nabors Alaska Drilling, Inc., and Northern Adjusters, Inc. Appellees.Decision No. 070 February 13, 2008AWCAC Appeal No. 07-016AWCB Dec. Nos. 07-0079 and 07-0111AWCB Case Nos. 199908379 and 200226229Final Decision and Order

Appeal from Alaska Workers' Compensation Board Decision No. 07-0079, issued on April 9, 2007, by the southcentral panel at Anchorage, Rosemary Foster, Designated Chair, Dave Kester, Member for Industry, Patricia Vollendorf, Member for Labor, and Alaska Workers' Compensation Board Decision No. 07-0111, issued on reconsideration May 4, 2007, at Anchorage, Rosemary Foster, Designated Chair, Patricia Vollendorf, Member for Labor, and Dave Kester, Member for Industry.

Appearances: Charles Martin, pro se, appellant. Richard Wagg, Russell, Wagg, Budzinski, and Gabbert, for appellees, Nabors Alaska Drilling, Inc., and Northern Adjusters, Inc.

Commissioners: John Giuchici, Philip Ulmer,Kristin Knudsen.This decision has been edited to conform to technical standards for publication.

By: Kristin Knudsen, Chair.

Charles Martin suffered a low back injury in his employment as a toolpusher in 1999. In July 2002, he made a motorcycle trip from Alaska to southern California, where he was injured when a car struck him as he was stopped at a traffic light. Martin claimed that the injuries he suffered to his neck and knees in that traffic accident were covered by the Alaska Workers' Compensation Act because (1) he was on his way to an appointment for treatment of his back injury when the traffic accident occurred and (2) he would not have made the trip to California, and thus been in the accident, but for his 1999 work injury. The board denied his claim and Martin appeals. We agree that the board essentially applied the correct legal analysis to the claim for coverage of the 2002 traffic accident and we conclude the error in the board's analysis is harmless. We affirm the board's decision. Nabors Alaska Drilling, Inc., (Nabors), petitioned the board for enforcement of a lien for the treatment it provided to Martin after the traffic accident from the settlement Martin received from the traffic accident under AS 23.30.015. Because we concluded Martin's injuries in the 2002 traffic accident were not caused by his 1999 work injury, we also conclude the board may not direct reimbursement from the third party settlement for those injuries under AS 23.30.015, although we agree that the employer is subrogated to the extent of amounts paid by the employer as medical expenses related to determining whether Martin's work injury had been aggravated by the traffic accident and for treatment of aggravation of the 1999 work injury caused by the 2002 traffic accident. Because application of the correct legal principles does not require a remand to the board for further findings of fact, we modify the board's order.

Factual background.

We do not make findings of fact when reviewing the record below. In this case, many of the significant facts are not disputed; rather, the parties dispute the legal effect of events they agree occurred.

Martin injured his lower back in May 1999 while working for Nabors. His left leg was numb, and he had severe low back pain. He was seen by Thomas Vasileff, M.D., shortly afterwards. A Magnetic Resonance Imaging (MRI) scan revealed a herniated disc at the L4-5 level, spinal stenosis, and left lateral recess narrowing. Dr. Vasileff scheduled and performed a left L4-5 discectomy.

After the surgery, Martin continued to have low back pain. He also developed right leg pain. Dr. Vasileff ordered another MRI scan which showed a possible fragment to the left at the L4-5. In 2000, a second MRI scan showed desiccation and narrowing of the L4-5 disc and protrusion of the L4-5 disc to the left, but otherwise a normal L3-4 disc. Martin was referred to Dr. Peterson for another opinion regarding surgery.

Dr. Peterson felt surgery could be performed, but did not advise it without further study.(fn1) Dr. Vasileff did not recommend further surgery by himself.(fn2) However, at Dr. Peterson's referral, Martin sent his records to Jens Chapman, MD, at the University of Washington for his opinion.(fn3) Dr. Chapman did not recommend surgery until Martin lost weight, quit tobacco, and was not taking muscle relaxants and narcotics.(fn4) Dr. Vasileff and Dr. Peterson referred Martin to Dr. Levine, who did more studies.(fn5) At some point, Martin asked for a referral to the Mayo Clinic.(fn6) Martin developed a problematic relationship with Dr. Vasileff and Dr. Levine, and transferred his care to Dr. Chisholm, thus changing his attending physician in February 2002.(fn7)

In 2002, Dr. Chisholm referred Martin to Dr. Chandler for evaluation and consideration of nerve ablation to address his persistent pain.(fn8) Dr. Chandler saw Martin in June 2002 and reported that Martin was a candidate for a discectomy and probable fusion.(fn9) Dr. Chisholm saw Martin again on August 6, 2002.(fn10) Between seeing Dr. Chandler in June and Dr. Chisholm in August, Martin drove his 2002 Harley Davidson Sportster(fn11) motorcycle to California.(fn12) He told his physicians he was "taking a trip to see his family."(fn13) He traveled alone, without another driver accompanying him in another vehicle.(fn14) He planned to see if he could find a physician who could do other forms of surgery.(fn15) In addition, he planned to see a physician in Oregon, in an appointment arranged by his attorney, Mr. Curry.(fn16) He testified to the board:
Dr. Chisholm gave me a three-month supply of meds, pain meds. Dr. Chandler had ordered an ortho-track traction belt that I could strap on and pump up to take the weight off my body. And I went looking for a doctor. I think he said at one time to find a golden scalpel to fix my back. I was not receiving any help from the doctors here in Alaska. They were actually doing more damage than good. The documentation will prove that.

While in California, I had seen two doctors a day a part and was on my way to my sister's house to continue up to Oregon to see the specialist that Mr. Curry had setup the appointment for me and I was rear-ended. . . . I chose to go by motorcycle for that trip [because] the employer had told me they would help me get to a doctor, a specialist, somebody to fix my back, and they didn't. . . . And at the time, money was tight. It was more comfortable for me to ride that motorcycle than sit stiff in a truck.(fn17) It's easier to pull off the highway if I have to stop. . . . I felt like I would be able to see more doctors - I'd have more freedom if I had a means of transportation.(fn18)

On July 25, 2002, Martin saw Curtis Spenser, M.D., who recommended decompression and fusion at the L4-5, preceded by a discogram to "see whether he would be able to withstand a free floating fusion."(fn19) He saw William Dillon, M.D., on July 26, 2002, who deferred treatment recommendations pending review of diagnostic tests.(fn20) He would not give Martin a recommendation until a myelogram and contrast enhanced CT scan was obtained to rule out the possibility of arachnoiditis.(fn21)

The next day, July 27, 2002, while stopped at a light on Whittier Boulevard in Whittier, California, Martin was struck by a car sometime after 5:00 p.m.(fn22) He was taken to the emergency room at Presbyterian Intercommunity Hospital in Whittier. Steven Chin, M.D., evaluated him there, and a number of X-rays and a CT scan of the cervical spine were taken.(fn23) He was discharged early on July 28, 2002.(fn24)

On Martin's return to Alaska, he saw Dr. Chisholm on August 6, 2002, who referred him for another MRI scan.(fn25) The scan was interpreted by Dr. Chisholm as showing changes from the previous scan in April 2002.(fn26) Dr. Chandler, who saw Martin on September 6, noted that Martin's back condition was worse, and referred him to Dr. Peterson for surgery.(fn27) On October 22, 2002, Dr. Peterson, at Martin's request, referred him to Dr. Delamarter in Santa Monica, California,(fn28) for evaluation of experimental disc replacement surgery.(fn29) Martin filed a claim,(fn30) and, after a second independent medical examination,(fn31) the board heard his claim for medical benefits and transportation to have an evaluation by Dr. Delamarter as agreed in a pre-hearing conference on February 19, 2003.(fn32) The board denied the claim in an interlocutory decision May 2003.(fn33) Later that year, Martin went to California and had the surgery done.(fn34) Ultimately, Nabors reimbursed those expenses.(fn35)

Martin filed a complaint in California against the woman who struck him.(fn36) In addition to aggravation of his back injury, he claimed his neck was injured and his knee was injured.(fn37) He was represented in that action and obtained a $100,000 settlement.(fn38) Nabors approved the settlement and notified Martin it had a lien on the settlement.(fn39) The settlement has not been disbursed.

The proceedings before the board.

Martin filed a petition to release the settlement proceeds and determine that Nabors had no lien on the settlement.(fn40) The parties agreed that the board should hear Martin's petition and Nabors's defense that, although the 2002 traffic accident was not in the course of employment, Nabors was entitled to a lien on the settlement for expenses it was required to pay as a result of aggravation of the work-related back injury.(fn41)

At hearing, the board had some difficulty defining the issues presented by the parties, as reflected in this exchange between the hearing officer and the parties at the beginning of the hearing:
MS. FOSTER: So basically the issues that we're talking about here today, I'm looking at Mr. Wagg's brief, whether there's a valid lien...

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