2010-130. Lowe's HIW Inc. and Specialty Risk Services Appellants vs. Pamela G. Anderson Appellee.

Case Date:March 17, 2010
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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