2008-090. Tire Distribution Systems Inc. and Travelers Property Casualty Company of America Appellants vs.David M. Chesser, Appellee.

• Case Date: October 10, 2008
• Court: Alaska

Alaska Workers Compensation Decisions 2008. Workers' Compensation Appeals Commission 2008-090. Tire Distribution Systems Inc. and Travelers Property Casualty Company of America Appellants vs.David M. Chesser, Appellee Alaska Workers' Compensation Appeals Commission Tire Distribution Systems, Inc., and Travelers Property Casualty Company of America, Appellants, vs. David M. Chesser, Appellee.Decision No. 090 October 10, 2008AWCAC Appeal No. 07-045 AWCB Decision No. 07-0345 AWCB Case No. 200505635 Final Decision Appeal from Alaska Workers' Compensation Board Decision No. 07-0345, issued on November 16, 2007, by northern panel members Damian J. Thomas, Member for Labor, and William Walters, Chair. Appearances: Randall J. Weddle, Holmes, Weddle and Barcott, for the appellants Tire Distribution Systems, Inc., and Travelers Property Casualty Company of America. Robert M. Beconovich, LLC, for appellee, David M. Chesser. Commission proceedings: Appeal filed November 30, 2007. Appellants' motion for partial stay pending appeal heard December 12, 2007; Order granting appellants' motion for a partial stay and setting the amount of a supersedeas bond issued December 17, 2007. Appellee's motion for extension of time to file brief granted by the chair April 1, 2008. Appellee's second motion for extension of time to file brief granted by the commission panel May 2, 2008. Oral argument on appeal presented July 15, 2008; additional supplemental briefing completed July 22, 2008.Commissioners: David W. Richards,(fn1) Philip Ulmer,Kristin Knudsen.This decision has been edited to conform to technical standards for publication. By: Kristin Knudsen, Chair. This appeal arises from a board decision awarding compensation for an injury to the worker's cervical spine while he was stacking tires at a training facility in Iowa. The appellants contend that the board's decision lacks substantial evidence to support it because the medical evidence against causation was not contradicted by the evidence relied on by the board. The appellants also argue that the board's decision reflects factual errors in its assessment of the evidence. Finally, the appellants contend that the presumption of compensability never attached, because the appellee presented no medical evidence of a causal link between the training center incident and the injury. The appellee opposes and contends that the commission is bound to accept the credibility assessment of the board as to the weight of the medical evidence. This appeal requires the commission to decide if there is substantial evidence in light of the whole record to support the board's decision. The commission must also decide if medical opinion evidence on causation must be opposed by contrary medical opinion evidence to allow the board to find that the preponderance of the evidence favors causation. The appellants' argument rests on the assumption that the board failed to analyze this claim as one requiring medical evidence to raise the presumption of compensability, that is, that "before the presumption attaches, some preliminary link must be established between the disability and the employment, and that in claims 'based on highly technical medical considerations' medical evidence is often necessary in order to make that connection."(fn2) The question whether a claim is based on "highly technical medical considerations" is a mixed question of fact and law. The commission determines that, although the issue is close in this case, the board did not find that the claim was based on highly technical medical considerations; therefore, medical evidence was not required to attach the presumption of compensability. The commission concludes there was sufficient evidence to support the board's findings of fact and affirms the board's decision. 1. Factual background. David Chesser worked as a tire retread technician for Tire Distribution Systems. He was sent to Muscatine, Iowa for training at the Bandag Tire Corporate Training Center. He reported that on March 15, 2005, he was stacking tires to a height of eight tires. He testified he felt a "pop" in his neck. The next morning, he awoke with much worse pain. He went to a local emergency room where he was seen by Jeffrey Allgood, M.D. and advised to undergo an MRI and to see a specialist. He returned to Fairbanks where he saw physician assistant Tom Wilson on March 19, 2005. A March 22, 2005, MRI revealed multi-level spondylosis, degenerative disc disease and a left disc herniation at C-6-7. He was referred to Gregory Polston, M.D., of Advanced Pain Centers of Alaska. On April 7, 2005, Chesser gave written notice of an injury to his left arm. Dr. Polston referred Chesser to Davis Peterson, M.D., who diagnosed C-7 radiculopathy and a C-5-6 herniation. He recommended a fusion with bone allograft from the fifth through seventh cervical vertebrae. On May 25, 2005, Dr. Peterson performed this surgery. John Swanson, M.D., evaluated Chesser on August 9, 2005, for an employer medical evaluation. Dr. Swanson discussed Chesser's multiple pre-existing conditions, and noted Dr. Allgood's report of neck numbness appearing the morning of March 17, 2005. Dr. Swanson's opinion was that Chesser suffered a spontaneous herniation of the cervical disc in the night while he was asleep. Dr. Swanson reviewed Dr. Allgood's records and supplemented his report on October 12, 2005, indicating he was confirmed in his belief that Chesser suffered a spontaneous cervical herniation in his sleep. Dr. Swanson also testified in his deposition that lifting weight does not cause stress to the neck so that stacking tires or lifting the tires could not have caused the herniation of the cervical disc. On November 17, 2005, Dr. Peterson, after receiving warning that the source of Chesser's bone graft provided tainted graft material, reported that Chesser was diagnosed with hepatitis C. At his request John Petrini, M.D., examined Chesser and reviewed his records. Dr. Petrini opined that Chesser's hepatitis C infection resulted from a bone graft from an infected bone donor. 2. Proceedings before the board. Chesser filed a report of injury to his arm on April 7, 2005. Tire Distribution Systems initially paid compensation and medical benefit. It filed a Controversion Notice on April 3, 2006, based on Dr. Swanson's evaluation. Chesser filed a Workers' Compensation Claim on March 9, 2007, for injury to his neck and arm and for hepatitis C contracted through surgery for the neck injury. The employer controverted and answered the claim April 17, 2007, asserting the injury did not arise out of and in the course of the employment. The board heard the claim on September 26, 2007. The only issue for the board to decide was whether the injury arose out of and in the course of the employment. Cindy Peterson and Mary Bollinger testified Chesser denied he was injured during the training in Iowa. Frank Ortiz and Roy Schnedler testified that they were instructors at the Bandag Tire Instruction Center and did not remember Chesser stacking tires or telling them that he hurt himself while he was stacking tires. Schnedler testified he took Chesser to the emergency room but that Chesser did not tell him he had been injured at the Center. Schnedler testified another student told him that Chesser said he hurt himself throwing tires. Four other students testified they had no memory of Chesser stacking tires or saying he had injured himself. William Creese testified he was a student with Chesser and that he remembered Chesser stacking the tires. After stacking the tires, Creese testified, Chesser told him that he (Chesser) should not have done that. He testified Chesser tried to play darts later in the evening, but it was too painful. In the hearing, Ronald Kramer testified he has worked for Tire Distribution Systems for many years. He testified that before the trip to Iowa, Chesser was strong and physically fit. After the injury, he had a difficult time doing the work. Tammy Chesser, Chesser's wife, testified Chesser called her from Iowa to say he had hurt himself loading tires. She testified that, when she picked him up at the airport on his return, she had to carry his luggage for him. Chesser testified at hearing that he barrel-stacked tires eight to ten tires high at Tire Distribution Systems. He testified that large operations have machines to stack tires. He testified one of the instructors at the Center asked him to show how manual stacking is done. He testified he felt a "pop" in his neck while he was stacking the tires. He testified he had trouble playing darts that evening. He testified that he had much worse pain in the morning and asked to go to the emergency room. He testified his neck problems persisted after the surgery. He testified Dr. Petersen warned him that a criminal enterprise had sold the hospital bone grafts from cadavers infected with hepatitis C and other infectious diseases. He tested positive for hepatitis C, but he has shown no signs of other infections. 3. The board's decision. The board's decision was issued November 16, 2007.(fn3) The board identified the main issue for decision as: "Is the employee entitled to benefits under the Alaska Workers' Compensation Act for his...