2008-115. Larry J. Winkelman Appellant vs. Wolverine Supply Inc. and Alaska Insurance Guaranty Association Appellees.

• Case Date: August 25, 2009
• Court: Alaska

Alaska Workers Compensation Decisions 2009. Workers' Compensation Appeals Commission 2008-115. Larry J. Winkelman Appellant vs. Wolverine Supply Inc. and Alaska Insurance Guaranty Association Appellees Alaska Workers' Compensation Appeals Commission Larry J. Winkelman, Appellant, vs. Wolverine Supply Inc. and Alaska Insurance Guaranty Association, Appellees.Decision No. 115 August 25, 2009AWCAC Appeal No. 08-030 AWCB Decision No. 08-0169 AWCB Case No. 199623284Final Decision Appeal from Alaska Workers' Compensation Board Decision No. 08-0169, issued September 19, 2008, at Anchorage, Alaska by southcentral panel members Darryl Jacquot, Chair, Patricia Vollendorf, Member for Labor, and Robert Weel, Member for Industry. Appearances: Larry Winkelman, pro se, appellant. Michael Budzinski, Russell, Wagg, Gabbert and Budzinski, P.C., for appellees Wolverine Supply Inc. and Alaska Insurance Guaranty Association. Commission proceedings: Appeal filed October 16, 2008. Notice of Default issued November 12, 2008. Notice and instruction to file affidavit with affiant's signature and notary's signature issued November 13, 2008. Order denying appellant's motion for fee waiver and transcript at commission expense based on indigence, but permitting use of recording in lieu of transcript, issued January 7, 2009. Instruction to file briefs issued January 27, 2009. Appellee's motion to accept late-filed brief granted April 14, 2009. Appellant's motion to allow testimony of Dr. Swanson at oral argument denied April 30, 2009. Oral argument on appeal presented May 29, 2009.Commissioners: Philip Ulmer, Jim Robison, Kristin Knudsen.This decision has been edited to conform to technical standards for publication. By: Kristin Knudsen, Chair. Jim Robison, Appeals Commissioner, concurring. Larry Winkelman entered into a settlement agreement with his employer, Wolverine Supply Inc. and its insurer (collectively referred to as Wolverine). The agreement provided that Winkelman did not waive entitlement, if any, to future medical benefits for a back condition under the Alaska Workers' Compensation Act (Act), but that Wolverine did not waive its right to contest liability for future medical benefits. Winkelman appeals a board decision denying him all further medical care and refusing to set aside the agreement. The commission upholds the board's decision denying a request to set aside the settlement agreement. However, because the order, denying all further medical care, does not conform to the decision text, which discusses specific disputed medical care, the commission modifies the order. Winkelman did not learn until the day of hearing argument on appeal that a material medical record he alleges he filed was not actually in the record at the time the board reached a decision, so the commission remands the case to the board with instructions for further proceedings. 1. Factual background and board proceedings. Larry Winkelman was working as a plumber when he injured his back falling down some stairs in 1996.(fn1) He was 46 years old at the time of the injury.(fn2) Appellant moved to Minnesota and came under the care of Thomas Balfanz, M.D., and David Freeman, M.D. Wolverine paid temporary disability compensation, permanent partial disability compensation, and 18 months of retraining as a machinist.(fn3) In October 2000, four years after the injury, Winkelman settled his claim.(fn4) Winkelman was represented by Chancy Croft, an experienced workers' compensation attorney.(fn5) He accepted $35,000 in

full and final settlement and payment of all compensation, regardless of its nature, including compensation for temporary total disability, temporary partial disability, permanent partial impairment, permanent total disability, penalties, interest, costs, or reemployment benefits to which the employee might be presently due or might become due at any time in the future pursuant to the terms and provisions of the Alaska Workers' Compensation Act.(fn6)

Part of the settlement stated:

The parties agree that the employee's entitlement, if any, to future medical benefits for his neck and low back condition under the Alaska Workers' Compensation Act is not waived by the terms of this agreement, and that the right of the employer to contest liability for future medical benefits is also not waived by the terms of this agreement. However, the parties agree to waive all medical benefits related to the employee's dental problems.(fn7)

An affidavit appended to the agreement signed by the employee includes this statement: "No representations or promises have been made to me by the employer or carrier which have not been set forth in this document."(fn8) The settlement was approved by the board on October 23, 2000.(fn9) In 2005, a dispute arose regarding payment of massage and pool therapy. Winkelman submitted a list of massage therapy appointments from January 10, 2005, to November 29, 2005, for reimbursement.(fn10) After Wolverine controverted reimbursement,(fn11) Winkelman submitted a note from Dr. Freeman that said:

Mr. Winkelman suffers from chronic pain of his upper back that does require massage and pool therapy for his continued activities of daily living. It is likely that he will never be without this necessity. If you should require any further information, please feel free to contact me.(fn12)

On January 12, 2006, Winkelman filed a claim for temporary total disability, permanent total disability, penalty, and interest, as well as medical and transportation benefits.(fn13) Wolverine asked for an employer medical examination, which was performed June 5, 2006, by John Swanson, M.D.(fn14) He opined that massage and pool therapy for the remainder of appellant's life was "neither reasonably effective nor necessary for the process of recovery from the lumbar strain since it was resolved by 04/12/97."(fn15) The board sent Winkelman to a second independent medical examination by Paul Puziss, M.D.(fn16) Dr. Puziss also opined that appellant was medically stable and that "[t]reatment recommended by Dr. Freeman, including ongoing lifetime massage and pool therapy or other modalities, clearly are unreasonable and are not going to be effective, nor are they necessary for the process of recovery, . . . The treatment . . . is not an acceptable medical option [in] this case."(fn17) The board heard the claim on April 17, 2008.(fn18) Winkelman appeared telephonically.(fn19) The board found that Winkelman did not assert that there was any misrepresentation by an agent of the employer or duress.(fn20) The board found that Winkelman's belief that he was promised medical benefits, including massage and pool therapy, for life was a mistake on his part.(fn21) The board concluded the settlement agreement could not be set aside.(fn22) The board then considered the claim for medical benefits.(fn23) It applied the presumption analysis, finding that Winkelman raised the presumption of compensability, and finding Wolverine rebutted the presumption.(fn24) The board then required Winkelman to prove his claim for medical benefits was compensable by a preponderance of the evidence.(fn25) The board found he had not done so. It found that Dr. Freeman's opinion was entitled to little weight, and that the opinions of Dr. Puziss and Dr. Swanson were more credible.(fn26) The preponderance of the evidence, the board found, "supports our conclusion that the employee's ongoing massage and pool therapy for his low back or cervical complaints are no longer related to his 1996 strain."(fn27) The board found Winkelman was not credible.(fn28) The board concluded that the "claims related to his ongoing medical benefits (massage and pool therapy), for his 1996 injury must be denied and dismissed."(fn29) In its order the board wrote, "The employee's claim for continued medical treatment, massage and pool therapy is denied and dismissed."(fn30) 2. Standard of review. The commission must uphold the board's findings of fact if substantial evidence in light of the whole record supports the findings.(fn31) The commission does not consider evidence that was not in the board record when the board's decision was made.(fn32) A board determination of the credibility of testimony of a witness who appears before the board is binding upon the commission.(fn33) However, the commission must exercise its independent judgment when reviewing questions of law and procedure within the Act.(fn34) The question whether the quantum of evidence is substantial enough to support a conclusion in the contemplation of a reasonable mind is a question of law.(fn35) If a provision of the Act has not been interpreted by the Alaska Supreme Court, the commission draws upon its specialized knowledge and experience of workers' compensation to adopt the "rule of law that is most persuasive in light of precedent, reason, and policy."(fn36) 3. Discussion. a. The board's finding that medical treatment in the form of massage and pool therapy is not reasonable and necessary medical treatment is supported by substantial evidence. On appeal, Winkelman does not challenge the board's determination that the presumption of compensability was overcome by the opinions of Dr. Puziss and Dr. Swanson, which directly contradict Dr. Freeman's opinion that the massage and pool therapy are necessary and reasonable medical treatment for the injury.(fn37) He asserts that the board did not carefully evaluate the evidence and the "facts the board chose to use are half truths at best...