2008-093. Denise O'Hara Appellant vs. Carr-Gottstein Foods Safeway Inc. Appellee.

Case DateDecember 04, 2008
CourtAlaska
Alaska Workers Compensation Decisions 2008. Workers' Compensation Appeals Commission 2008-093. Denise O'Hara Appellant vs. Carr-Gottstein Foods Safeway Inc. Appellee Alaska Workers' Compensation Appeals CommissionDenise O'Hara, Appellant, vs. Carr-Gottstein Foods Safeway Inc. Appellee.Decision No. 093 December 4, 2008AWCAC Appeal No. 07-048 AWCB Decision No. 07-0348 AWCB Case No. 200622259Final Decision Appeal from Alaska Workers' Compensation Board Decision No. 07-0348, issued November 16, 2007, by northern panel members Fred G. Brown, Chair, and Jeff Pruss, Member for Labor. Appearances: Robert M. Beconovich, Law Offices of Robert M. Beconovich, LLC, for appellant Denise O'Hara; Robert L. Griffin, Griffin and Smith, for appellee Carr-Gottstein Foods Safeway, Inc. Proceedings: Appeal filed Monday, December 17, 2007. Appellant's request for extension of time to file brief granted February 27, 2008. Appellant's second request for extension of time to file brief granted April 3, 2008. Appellee's request for extension of time granted May 13, 2008. Oral argument presented September 3, 2008. Notice of record deficiency and order reopening record for supplementation issued November 28, 2008. Supplemental transmittal of record received December 2, 2008.Commissioners: Jim Robison, Philip Ulmer,Kristin Knudsen.This decision has been edited to conform to technical standards for publication. By: Kristin Knudsen, Chair. Denise O'Hara appeals the board's denial of her claim for workers' compensation and medical benefits for a back injury she claims occurred December 5, 2006, when she lifted some water buckets at a Carrs Safeway store in Fairbanks. She argues the presumption of compensability was not overcome by evidence that she had symptoms consistent with a left-sided herniation of an intervertebral disc before December 5, 2006, because the herniation was not documented by an MRI scan until after the injury. She contends that the reports of expert physicians are not substantial evidence on which the board could rely to find the work injury did not occur. Finally, she contends that the board failed to apply the Supreme Court's holding in DeYonge v. NANA/Marriott, 1 P.3d 90 (Alaska 2000). This appeal requires the commission to determine whether there was sufficient evidence to overcome the presumption that an employee's claim comes within the provisions of the Alaska Workers' Compensation Act. In doing so, we examine whether the board had evidence that, if believed, could support a conclusion that (1) eliminated the reasonable possibility that the work on December 5, 2006, was the substantial factor in the disability and need for medical treatment; or (2) affirmatively established some other cause that, if believed, would eliminate the reasonable possibility that work was the substantial cause of the disability and need for medical treatment. The commission determines that the board correctly applied the three-part presumption analysis. The commission concludes that the board had sufficient evidence to rebut the presumption in a physician's testimony that the employment injury on December 5, 2006, was probably not the substantial factor in bringing about the need for treatment and the disability, but that the herniated disc occurred earlier, when she developed symptoms of left-sided radiculopathy. After reaching the third step of the presumption analysis, the board rejected the appellant's testimony and accepted the evidence the appellant's symptoms of left-sided radiculopathy appeared before December 5, 2006. The board's findings regarding the credibility of witnesses who appear before the board are binding on the commission. The commission concludes there was substantial evidence in light of the whole record on which a reasonable mind might rely to conclude that lifting the bucket on December 5, 2006, was not the substantial factor in the need for surgical treatment of the injury and the resultant disability. The board's decision is affirmed. 1. Background facts and board proceedings. Denise O'Hara worked as a florist manager at a Carrs Safeway store in Fairbanks. She suffered a low back injury in 2001 while working for the same employer.(fn1) She testified she did not recall what kind of treatment she had for this injury, how long she received treatment, or exactly where her back hurt.(fn2) She did recall having pain in the right leg after the 2001 injury.(fn3) In the summer of 2006, the appellant was off work while recuperating from surgery unrelated to her employment.(fn4) During this time, a deck and river rock rimmed water feature was installed in her home garden. The appellant, her former boyfriend, and her parents all testified that she did not work on the installation of this feature. On September 15, 2006, the appellant saw Dr. Stinson complaining of pain in her low back and radiculopathy down her left leg.(fn5) Dr. Stinson reported that the appellant said increased physical activity in her backyard building a "rock waterfall" led to the recurrence of lumbar pain and pain going down her left leg.(fn6) He gave the appellant a steroid injection. The appellant returned to Dr. Stinson on October 12, 2006.(fn7) She completed a pain diagram showing pain in the lower back and going down the left leg.(fn8) Dr. Stinson recorded that she reported pain in her left foot and toes.(fn9) On December 5, 2006, the appellant went to the emergency room with complaints of back pain.(fn10) The hospital records contain no report of work-related onset of the pain. An MRI showed a left-sided disc herniation at the L4-5 vertebral interval "severely narrowing the neural foramen and canal at that level" as well as a "[m]ild right-sided focal protrusion at L2/3."(fn11) The next day, the appellant saw David Witham, M.D., an orthopedic surgeon. Dr. Witham reported the appellant said she had developed severe left leg pain approximately a month ago; there is no report of a work-related injury.(fn12) The appellant saw Dr. Stinson on December 8, 2006; he again gave her a steroid injection.(fn13) His notes do not record an account of a work-related injury. On December 11, 2008, the appellant saw Keith Gianni, M.D.(fn14) Dr. Gianni's record for the visit contain no mention of a relationship between work and the low back pain. On December 28, 2008, Dr. Gianni recorded that the appellant was having a difficult time at work because of the holidays and a co-worker who was not helping her.(fn15) The workers' compensation report of injury was completed by Carrs Safeway on January 18, 2007.(fn16) Carrs Safeway controverted all benefits on January 19, 2007.(fn17) O'Hara had lumbar discectomy surgery in Seattle on February 23, 2007. She had a second surgery in Fairbanks.(fn18) O'Hara filed a workers' compensation claim on February 16, 2007, seeking temporary disability compensation from February 19, 2007 and on-going, medical benefits, a permanent partial impairment compensation, penalties, interest and attorney fees.(fn19) A timely answer was filed,(fn20) and an amended controversion filed.(fn21) O'Hara filed an affidavit of readiness on April 23, 2007.(fn22) One prehearing conference was held, that set the date of hearing for October 11, 2007.(fn23) 2. The board's decision. The board identified the issues before it as (1) whether O'Hara's claim was entitled to a presumption of compensability; (2) whether the claim was barred for failure to file a notice of injury within 30 days;(fn24) and (3) "whether the substantial cause of [O'Hara's] need for treatment and disability arose at work or at home."(fn25) The board's decision reviewed the evidence and testimony presented at the hearing on October 11, 2007.(fn26) It then reviewed the three-step presumption analysis,(fn27) citing the Alaska Supreme Court's holding in Tolbert v. Alascom, Inc., that the presumption of compensability is not overcome by medical testimony "if it simply points to other possible causes of an employee's injury or disability, without ruling out work related causes."(fn28) The board's application of the three-step analysis to the facts was brief. First, it found that the appellant had raised the presumption: The employee, her friends, family and a co-worker testified that she injured herself at work and indicated they believe this is the substantial cause of her current condition. Based on this testimony, we find the employee has established a presumption of compensability, and the employer must submit substantial evidence to overcome the presumption.(fn29) The board then found that Carrs Safeway had provided substantial evidence that would overcome the presumption, and briefly summarized that evidence: At hearing, the employer submitted the testimony and medical opinion of Dr. Marble that the employee's symptoms are consistent with a herniation occurring in the fall of 2006, prior to her alleged date of injury...

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