2010-130. Lowe's HIW Inc. and Specialty Risk Services Appellants vs. Pamela G. Anderson Appellee.
Case Date | March 17, 2010 |
Court | Alaska |
Alaska Workers Compensation Decisions
2010.
Workers' Compensation Appeals Commission
2010-130.
Lowe's HIW Inc. and Specialty Risk Services Appellants vs. Pamela G. Anderson Appellee
Alaska Workers' Compensation Appeals
Commission Lowe's HIW, Inc., and
Specialty Risk Services, Appellants, vs. Pamela G. Anderson,
Appellee.Decision No.
130 March 17,
2010AWCAC Appeal No. 09-018 AWCB Decision No. 09-0097 AWCB
Case No. 200305373Final Decision
Appeal from Alaska Workers' Compensation Board Decision No.
09-0097 issued May 19, 2009, at Anchorage, Alaska by southcentral panel members
Linda Cerro, Chair, Don Gray, Member for Industry, Howard Hansen, Member for
Labor.
Appearances: Patricia Zobel, DeLisio Moran Geraghty and Zobel,
P.C., for appellants Lowe's HIW, Inc., and Specialty Risk Services. Michael J.
Jensen, Law Offices of Michael J. Jensen, for appellee Pamela G.
Anderson.
Commission proceedings: Appeal filed June 2, 2009. Appellants'
motion for stay pending appeal heard June 23, 2009, and granted in part by
commission order issued July 23, 2009. Appellants' motion for an extension of
time to file an opening brief granted, and both parties allowed an additional
five pages, on August 13, 2009. Parties' stipulation to procedural facts
accepted September 21, 2009. Appellee's motion for extension of time granted
September 22, 2009. Oral argument on the appeal presented November 13, 2009.
Notice of delayed decision given February 11, 2010. Notice of appointment of
chair pro tempore given March 1, 2010. Commissioners: David Richards,
Stephen T. Hagedorn, Kristin Knudsen. By: Kristin Knudsen, Chair pro tempore.
1. Introduction.
Pamela Anderson had severe degenerative disc disease and a
history of prior low back pain. She worked as a kitchen designer for Lowe's
HIW, Inc., a large hardware and home building supply store. She had the onset
of severe low back pain when lifting and rotating a 50-pound cabinet on April
4, 2003. She experienced low back pain again on May 22, 2003, when reaching for
a clip board. After her 2003 injuries at Lowe's, she was paid various medical
benefits and compensation voluntarily, but disputes arose about medical
treatment, reemployment benefits, and permanent disability compensation.
Ultimately, Lowe's formally conceded liability for the low back injuries,
medical treatment, and paid permanent partial impairment compensation to
Anderson based on an impairment rating of 22 percent. After her 2003 injuries,
Anderson also discovered she had serious pre-existing degenerative disc
disease, spinal stenosis, and myelopathy in her cervical spine (neck). She
claimed the 2003 injuries aggravated or accelerated these conditions so as to
result in disability and need for medical care. Lowe's contested liability for
the cervical spine injury, treatment, and disability. Anderson also claimed an
increase in her permanent impairment rating of 12 percent based on another
rating. In a 100-page decision, the board ruled Anderson's 2003 injuries so
aggravated, accelerated, or combined with her pre-existing spinal disease as to
be a substantial factor in bringing about a compensable disability and need for
medical treatment of her neck.(fn1) It ordered Lowe's to pay temporary total
disability compensation (TTD) from July 1, 2007, "until she attains medical
stability."(fn2) In addition, the board ordered payment of increased permanent
partial impairment compensation (PPI) in a lump sum concurrent with the TTD
owed for the neck injury.(fn3) Lowe's appeals.
Lowe's argues that the board ignored the workers' compensation
statutes when it ordered the payment of a lump sum of PPI concurrent with the
payment of TTD for the same injury, despite Anderson's participation in a
reemployment plan under AS 23.30.041.(fn4) Anderson opposes and argues that the
board had substantial evidence to support a finding that she was entitled to a
higher impairment rating. Anderson does not oppose the argument that the board
cannot direct payment of a lump sum of PPI during reemployment, but she
contends that she is entitled to payment of a lump sum of PPI if one part of
her body is rated, even if she is still receiving TTD during treatment for
another part of her body.
Lowe's argues that the board's determination that Anderson's
cervical spine was injured in the course of her employment in 2003 and the
award of TTD is the result of a flawed analysis of the evidence. Lowe's argues
the board improperly placed the burden of proof on the employer's physicians to
disprove the employee's claim. Lowe's also argues that the board erred in
directing payment of TTD until Anderson "attains medical stability" because,
while TTD may not be paid after medical stability is reached, TTD is based on
the temporary total incapacity to earn wages, not the need for medical
treatment. Finally, Lowe's asserts the board's comments regarding its witnesses
indicate an animus against Lowe's. Anderson argues that the board did not
require Lowe's to disprove her case and that the board's recitation of the
presumption analysis reveals it understood and applied the law correctly.
Anderson concedes that the board made an erroneous procedural finding regarding
the witness's testimony, but she argues that the board's statement does not
reveal bias or hostility toward the witness or the appellants.
The parties' contentions require the commission to decide if a
lump sum of PPI is payable concurrently with TTD for the same injury, during
the reemployment planning process. The commission holds that the board's order
for payment of a lump sum of PPI in the circumstances presented by this case
violated the provisions of AS 23.30.041 and reverses the order of concurrent
payment. The commission must decide if there is a "presumption of medical
instability," on which the board's analysis rested. Although the commission
determines the board's analysis was faulty on this point, the board's error
does not require reversal. The commission must decide if the board's decision
that Anderson suffered a compensable injury to her neck is supported by
substantial evidence and is based on a correct understanding of the law. Here,
the commission determines that the board's decision is not sufficiently well
articulated on certain points for the commission to intelligently review the
board's findings and determine if the board fairly considered the parties'
medical evidence. The commission determines that the board's consideration of
the evidence may have been tainted by improper inferences drawn from a
witness's testimony. The commission remands the case for further findings by
the board, but, because the evidence in the record is sufficient to support
board findings in favor, or against, the claim, the commission does not require
the board to rehear the case on remand.
2. Factual background.
Anderson worked as a kitchen specialist for Home Depot when she
suffered a back injury in June 1999. She was treated by a chiropractor and was
released to return to work before the end of July 1999, but she continued to
receive care. She was referred to John Duddy, M.D. A magnetic resonance imaging
(MRI) scan in January 2000 showed she had a large protruding disc in her lower
back at the L3-4 level, smaller bulges at three other lumbar levels, and
bilateral facet arthropathy at L4-5 and L5-S1. Although she had reported pain
between her shoulders, and some neck pain, an MRI was not done of her cervical
spine. She was discharged from physical therapy in April 2000, and in December
that year, she started working as a kitchen designer for Lowe's. She sought no
further care for her neck or lower back until April 2003.
On April 4, 2003, she injured her low back lifting a cabinet
from counter height and turning to the left. She sought treatment from a
chiropractor, Ben Cain, D.C. Dr. Cain reported that his X-rays demonstrated
degenerative changes from C-4 through C-7 level in her neck, and at the L-3-4
in the lumbar spine. She continued to work until May 22, 2003, when she
experienced severe pain as she stood and reached for a clip board at work. A
lumbar MRI scan showed a central disc protrusion at L3-4, and spinal stenosis
due to degenerative changes from L-3 through L-5. She was taken off work by Dr.
Cain. Since then, she has undergone a series of treatments with varying
success, including surgery to fuse the L2-3 and L4-5 lumbar vertebrae with
cages and screws in November 2003, an anterior discectomy at L2-3 and L5-S-1,
and implantation of artificial discs at those levels in August 2005, surgery to
remove the hardware in February 2006, a total hip replacement in May 2007, and
two cervical surgeries in 2008, resulting in discectomy at C-4 through C-7, and
fusion at C6-7. She also began treatment for depression and anxiety in 2006,
including counseling and medication, which continued through the time of the
hearing. 3. Board proceedings.
Anderson filed a workers' compensation claim on June 24, 2003,
asking for TTD, medical benefits, transportation, and reemployment benefits,
and a penalty for a late report of injury.(fn5) She filed a second claim in
July for transportation costs for travel to medical appointments.(fn6) Lowe's
answered both claims in July, admitting liability for TTD from May 23, 2003,
medical benefits for an April 4, 2003, injury, and transportation costs.(fn7)
Lowe's paid Anderson TTD from May 22, 2003, through February 15, 2004;
temporary partial disability compensation (TPD) from then through August 28...
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