2010-140. Linda S. Rockstad Appellant vs. Chugach Eareckson Support Services Zurich American Insurance Co. and NovaPro Risk Solutions Appellees.

• Case Date: November 05, 2010
• Court: Alaska

Alaska Workers Compensation Decisions 2010. Workers' Compensation Appeals Commission 2010-140. Linda S. Rockstad Appellant vs. Chugach Eareckson Support Services Zurich American Insurance Co. and NovaPro Risk Solutions Appellees Alaska Workers' Compensation Appeals CommissionLinda S. Rockstad, Appellant, vs. Chugach Eareckson Support Services, Zurich American Insurance Co., and NovaPro Risk Solutions, Appellees.Decision No. 140 November 5, 2010AWCAC Appeal No. 10-008AWCB Decision Nos. 09-0195 and 10-0015AWCB Case No. 200320305Final Decision Appeal from Alaska Workers' Compensation Board Decision No. 09-0195, issued at Anchorage on December 16, 2009, and Alaska Workers' Compensation Board Decision No. 10-0015, issued at Anchorage on January 22, 2010, by southcentral panel members Linda M. Cerro, Chair, Patricia Vollendorf, Member for Labor, and Linda Hutchings, Member for Industry. Appearances: Linda S. Rockstad, Mary I. Thoeni, non-attorney representative, for appellant, Linda S. Rockstad; Robert J. Bredesen, Russell, Wagg, Gabbert and Budzinski, P.C., for appellees, Chugach Eareckson Support Services, Zurich American Insurance Co., and NovaPro Risk Solutions. Commission Proceedings: Appeal filed February 8, 2010; briefing completed July 29, 2010; oral argument on appeal presented September 1, 2010. Commissioners: David Richards,Stephen T. Hagedorn, Laurence Keyes, Chair.By: Laurence Keyes, Chair. 1. Introduction. The employee, appellant, Linda S. Rockstad (Rockstad), pursued a workers' compensation claim against her employer, appellee, Chugach Eareckson Support Services (CESS), with an injury date of August 4, 2003. Following a hearing on September 16 and 17, 2009, the Alaska Workers' Compensation Board (board) issued a Decision and Order (DandO) in which it denied Rockstad's claim.(fn1) The board found that, except for a temporary aggravation of a pre-existing right wrist condition, her employment with CESS was not a substantial factor in causing the medical conditions of which Rockstad complained.(fn2) Thereafter, in response to Rockstad's request for reconsideration, the board issued a Final Decision and Order on Reconsideration and Modification (DandORandM).(fn3) In the DandORandM, it ruled against Rockstad on all of the assertions of error raised in her request.(fn4) In this appeal to the commission, Rockstad questions the board's rulings on certain issues that were addressed in the DandO and in the DandORandM. Paraphrased, those issues are: 1) whether AS 23.30.122 is constitutional; 2) whether the board made mistakes of fact or mistakes of law in concluding that Rockstad was not entitled to any further benefits after September 2003; and 3) whether the board failed to recognize that CESS withheld or destroyed evidence.(fn5) We affirm the board in respect of all three of these issues. As for the third issue, we adopt its decision.(fn6) 2. Factual background. Rockstad claimed she was injured on August 4, 2003, while working for CESS on Shemya Island.(fn7) In February 2003, the employer-run clinic on the island diagnosed lateral epicondylitis as a result of her complaints of elbow pain due to washing dishes.(fn8) She also reported occasional right wrist pain.(fn9) She next reported to the medical clinic for complaints related to her right wrist on May 27, 2003.(fn10) Rockstad was diagnosed with de Quervian's (DQ) tenosynovitis in her right wrist and prescribed Naporoxen and ice packs for pain relief.(fn11) A few months later, on August 4, 2003, she returned to the clinic to report increased right thumb and wrist pain since beginning an administrative job requiring typing and computer work.(fn12) The clinic's notes indicated that Rockstad reported experiencing mild intermittent right thumb and wrist pain for 10 years.(fn13) She was prescribed a thumb splint and more painkillers, and received recommendations that her work station be modified and that she see an orthopedic surgeon.(fn14) At a follow-up clinic visit on August 9, 2003, Rockstad reported that she was "feeling much better."(fn15) During her time off, Rockstad saw Dr. Kase in Anchorage.(fn16) He ordered physical therapy, prescribed Motrin and a thumb splint, and recommended a steroid injection for pain in November or December if her symptoms persisted.(fn17) Rockstad attended three sessions of physical therapy before returning as scheduled to Shemya.(fn18) The board record does not reflect any further medical treatment for Rockstad's right elbow or right wrist during the remainder of her CESS employment, although she did go to the Shemya clinic two more times, once for a vaccination and once for sinusitis.(fn19) Rockstad testified that she had "good days" and "bad days" in terms of the pain in her right wrist and right elbow while employed by CESS.(fn20) She claimed that she continued to seek treatment for these problems at the Shemya clinic from September 2003 until her employment with CESS ended in April 2004 and asserted that CESS must have withheld or destroyed these medical records.(fn21) Co-worker Sharry Christianson testified that Rockstad used ice packs and took medications for her condition up until Rockstad left CESS,(fn22) and that it seemed Rockstad "got worse and worse and worse[.]"(fn23) She also testified that Rockstad went to the clinic "at least three times" after an alleged October 2002 assault, but did not specify whether Rockstad went to the clinic between September 2003 and April 2004.(fn24) Supervisor Mary McCully testified that over five or six months, Rockstad "kept complaining about the pain in her arms" but she could not recall the exact dates.(fn25) McCully left her employment with CESS about six months before Rockstad did(fn26) and she did "not know how often [Rockstad] was treated at the clinic."(fn27) Rockstad quit CESS in April 2004 to take a data-entry job at Nye Toyota.(fn28) On a pre-employment health questionnaire, Rockstad acknowledged that she was "injured on the job and needed surgery. Had surgery on my left wrist."(fn29) She made no mention of any problems with her right wrist or right elbow.(fn30) McCully, Rockstad's former supervisor at CESS and her supervisor while Rockstad worked at Nye, testified that "[Rockstad] appeared to be better . . . I remember the pain that [Rockstad] was in on the island. I did not see that type of excruciating pain in her face or in her movements when I interviewed her for the [Nye] position."(fn31) Nevertheless, Rockstad's condition forced her to quit after only working two months at Nye and being absent "quite a bit . . . due to pain in her wrists"(fn32) or "probably half."(fn33) However, Rockstad's personnel file at Nye documented only four absences from work, including two for unspecified illnesses, one for a family emergency, and one for unspecified reasons.(fn34) On June 28, 2004, Rockstad went to the emergency room (ER) complaining of right wrist pain. The report noted "Patient has evidence of positive Finkelstein test consistent with de Quervain's tenosynovitis, . . ."(fn35) She was prescribed painkillers and told to follow up with Dr. Kase.(fn36) On July 5, 2004, Dr. Kase recommended surgery for DQ tenosynovitis of the right wrist and a steroid injection for lateral epicondylitis of the right elbow.(fn37) On July 13, 2004, he performed a release of the right first dorsal wrist compartment and performed a partial release of the transverse carpal ligament, as well as the steroid injection.(fn38) His operative notes also mention a diagnosis of "mild carpal tunnel syndrome."(fn39) On September 30, 2004, Dr. Kase noted that Rockstad was developing a ganglion cyst in the tendon sheath.(fn40) He ultimately recommended another surgery to remove the suspected cyst and to release her right first dorsal compartment again through a different incision site.(fn41) However, Dr. Kase did not perform this surgery and he stopped treating Rockstad.(fn42) At his deposition, Dr. Kase declined to express an opinion as to whether any of Rockstad's conditions were work-related, although he did note that DQ "tends to be more common in people who perform repetitive activities with their wrist and hands."(fn43) Rockstad saw Dr. George Siegfried twice in September 2004 and February 2005.(fn44) Dr. Siegfried concluded that Rockstad was still suffering from DQ in her right wrist and referred her to Dr. Michael McNamara.(fn45) Dr. Siegfried expressed no opinion on causation.(fn46) On May 11, 2005, Dr. McNamara performed a repeat DQ release, noting he found and released an accessory tendon sheath in the first dorsal compartment. He also performed a right lateral epicondylectomy with debridement.(fn47) Post-surgical notes documented that Rockstad reported feeling "70% improved at this time than she did before surgery" and had no numbness or tingling.(fn48) Dr. McNamara's PA-C, Robert Thomas, concluded that she was medically stable four months after her surgery, on September 20, 2005.(fn49) After the surgery done by Dr. McNamara, the medical records indicated that Rockstad's first complaint of medial (rather than lateral) elbow pain arose during an occupational therapy session.(fn50) PA-C Thomas examined her on August 9, 2005, and observed that "patient is nontender to palpation at the medial epicondylar area. Where her point of tenderness is at appears to be more in the belly muscle of the common flexors."(fn51) He concluded she had a "[c]ommon flexor muscle strain" and prescribed more occupational therapy.(fn52) On...