2009-126. Martin Church Appellant vs. Arctic Fire and Safety and Alaska National Insurance Co. Appellees.
Case Date | December 31, 2009 |
Court | Alaska |
Alaska Workers Compensation Decisions
2009.
Workers' Compensation Appeals Commission
2009-126.
Martin Church Appellant vs. Arctic Fire and Safety and Alaska National Insurance Co. Appellees
Alaska Workers' Compensation Appeals
Commission Martin Church,
Appellant, vs. Arctic Fire and Safety and Alaska National Insurance Co.,
Appellees.Decision No.
126 December 31,
2009Appeal No. 09-013 AWCB Decision No. 09-0051 AWCB Case No.
200224913Final Decision
Appeal from Alaska Workers' Compensation Board Decision No.
09-0051, issued at Fairbanks, Alaska, on March 12, 2009, by northern panel
members Fred Brown, Chair, Debra Norum, Member for Industry, and Jeff Pruss,
Member for Labor.
Appearances: Martin Church, pro se, appellant.
Theresa Hennemann, Holmes, Weddle and Barcott, PC, for appellees Arctic Fire
and Safety and Alaska National Insurance Co.
Commission proceedings: Appeal filed April 13, 2009. Request
for extension of time to file transcript granted on May 26, 2009. Appellant's
request for extension of time to file brief granted on July 1, 2009. Oral
argument on appeal presented November 10, 2009.Appeal Commissioners: Philip Ulmer, Jim
Robison,Kristin Knudsen.By: Jim Robison, Appeals Commissioner.
Martin Church suffered an injury while lifting a fire
extinguisher at his job for Arctic Fire and Safety. Church appeals the board's
decision denying his claim for temporary total disability, permanent partial
impairment, transportation costs, medical costs, attorney fees and costs, all
of which were related to surgery to remove a bone spur (osteophyte) from his
thoracic spine.
The board concluded that Church's 2002 work injuries were not
"a substantial factor" in his need for thoracic surgery. On appeal, Church
contends that his work injuries caused the thoracic spur either to develop or
to become symptomatic, necessitating the surgery. Church argues that the board
improperly concluded that Dr. John Swanson's Employer Medical Evaluation (EME)
constituted substantial evidence that permitted Arctic Fire and Safety to rebut
the compensability presumption, applied the wrong test of causation to his
claim, and lacked substantial evidence to conclude that Church failed to prove
his case by a preponderance of the evidence. He also argues that the board
abused its discretion in limiting a Second Independent Medical Examination
(SIME) to a records review only.
Arctic Fire and Safety counters that Dr. Swanson relied on the
correct causation standard in his report and considered whether Church's work
injuries caused his underlying condition to become symptomatic. Arctic Fire
argues the board correctly applied the "a substantial factor" test to Church's
claim and had "overwhelming" evidence to support that Church failed to prove
his claim. Lastly, Arctic Fire argues the board did not abuse its discretion in
limiting the SIME to a file review.
The parties' contentions require the commission to decide
whether the board applied the correct legal standards and whether the board had
substantial evidence to conclude that (1) the employer rebutted the
compensability presumption and (2) Church did not prove his claim by a
preponderance of the evidence. Because we conclude substantial evidence
supports the board's decision, the board applied the proper standard of
causation, and the board did not abuse its discretion in limiting the SIME, we
affirm.
1. Factual background and proceedings.
Martin Church injured his right shoulder lifting a fire
extinguisher while working for Arctic Fire and Safety.(fn1) He filed a claim
indicating he was injured on December 10, 2002,(fn2) but he testified that the
initial shoulder injury occurred on August 15, 2002(fn3) and that the shoulder
slipped out again at work on December 10, 2002.(fn4) Church testified that the
injury was "underneath his shoulder blade,"(fn5) and that "[i]t felt like
something was out in my back."(fn6)
Dr. Robert McAfee, a chiropractor, initially treated Church by
adjusting a rib that kept slipping out, but the rib continued to pop out
again.(fn7) McAfee also noted in December 2002 that Church had continuing pain
in his "right mid back" and neck.(fn8)
McAfee eventually referred him to Dr. George Vrablik for an
orthopedic evaluation after Church reported that he had "no lasting relief"
from the chiropractic treatment.(fn9) Michael Weber, a certified physician's
assistant, treated Church at Dr. Vrablik's office.(fn10) According to Weber's
notes, Church described the injury as a pop in his upper back and explained
that the pain radiates up his neck and down his right arm.(fn11) Over the next
few months, a variety of medications and cervical epidurals did not provide
lasting pain relief for Church.(fn12) In March 2003, Weber's notes indicated
that "Church's pain still goes through the posterior shoulder down along the
medial scapular border and he feels some tingling in the biceps with a heavy
feeling in the right arm."(fn13)
On June 17, 2003, Church reported two incidents to Weber in
which he felt a popping in his upper thoracic spine region, once while changing
his daughter and once while golfing. The pain after these popping incidents was
described as "radiating . . . through the axilla under the nipple line around
to the anterior chest. . . . any kind of deep breathing or any kind of motion
with the right shoulder causes increased discomfort."(fn14) Weber ordered an
MRI (magnetic resonance imaging scan) of his thoracic spine, which was done in
July 2003.(fn15) Weber noted the MRI "shows normal anatomy throughout the
entire thoracic spine. No source for the patient's pain."(fn16)
Church was referred to Dr. Nancy Cross in September 2003 to
help pinpoint and manage the source of his ongoing pain complaints.(fn17) She
described his chief complaints as "right neck, scapula and rib pain."(fn18) In
her initial assessment, she diagnosed degenerative disc disease of the thoracic
spine, possible slipped rib syndrome and thoracic facet symptoms.(fn19) Under
her care, Church tried physical therapy, a thoracic epidural, pain medications,
and other treatments.(fn20)
Dr. Cross eventually ordered a thoracic MRI done in April 2004
that showed an osteophyte(fn21) at level T6-T7 that was putting pressure on a
nerve root.(fn22) The physician that interpreted the April 2004 MRI, Dr.
Jeffery Zuckerman, also looked at the film from the July 2003 thoracic MRI and
concluded that the osteophyte was visible in 2003 but was not read out, i.e.,
not identified in the report.(fn23) Church also had a thoracic CT (computed
tomography scan) done in July 2004 that confirmed the findings in the April
2004 MRI.(fn24)
Dr. Cross referred Church to a couple of neurosurgeons.(fn25)
The first, Dr. Louis Kralick, recommended Church continue conservative
treatment, noting:
Church has continued arm and shoulder pain as his main complaint. These are directly related to the injury he sustained when moving about equipment as a consequence of his job related activities in August 2002. I don't feel that he has any specific findings or symptoms to go along with the degenerative changes noted at the T6-7 foraminal area on CT imaging. These findings are associated with other degenerative changes from T9 to T11 and may have predated his injury.(fn26)The second neurosurgeon, Dr. Stephen Papadopoulos in Arizona, recommended surgery to remove the osteophyte.(fn27) He cautioned Church that the surgery probably would not improve his right shoulder pain, which was "possibly . . . due to pathology in the brachial plexus."(fn28) In the meantime, Church filed a claim in June 2004 to receive medical costs, temporary total disability benefits (TTD), permanent partial impairment (PPI) and other benefits related to thoracic surgery.(fn29) In this claim, Church noted the original injury date was August 15, 2002, the injured body part was the "shoulder," and stated that a "bone chip is causing continuing pain and nerve injury."(fn30) Arctic Fire and Safety controverted all benefits in June and July 2004, relying on an employer medical evaluation conducted on May 19, 2004, by Dr. John Ballard.(fn31) Dr. Ballard stated that Church "seems to have suffered a cervical and thoracic strain as a result of the lifting incident, but when seen by Dr. McAffee [stet] on January 7, 2003, he was noted to have symptoms which had returned to pre-injury status."(fn32) He diagnosed cervical spondylosis, chronic right posterior scapular pain and T6-T7 right neural foraminal narrowing secondary to facet degenerative changes at T7, all of which pre-existed the 2002 work exposure.(fn33) Ballard concluded Church's "work simply caused a temporary aggravation of [the] underlying chronic condition which lasted for a three-to-four-month period. Any of his symptoms from that time forward were due to preexisting changes. There is no evidence in any of the workup that was done that showed any acute changes . . . ."(fn34) Dr. Papadopoulos operated on Church and removed the osteophyte on November 16, 2004.(fn35) Church spent six weeks recuperating with family in Arizona before returning to Fairbanks.(fn36) Church sought transportation costs from Fairbanks to Arizona, medical costs related to the surgery, TTD for the six weeks of recovery time, PPI for the thoracic injury, and attorney fees and costs.(fn37) Although Dr. Cross advised that it could take up to two years for the nerve pain to resolve after the surgery, Church had "no pain back there" as of three or four months after the surgery.(fn38)...
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