2011-146. City of Seward and Alaska Municipal League/Joint Insurance Association Appellants vs. Cuno Hansen, Appellee.

• Case Date: January 21, 2011
• Court: Alaska

Alaska Workers Compensation Decisions 2011. Workers' Compensation Appeals Commission 2011-146. City of Seward and Alaska Municipal League/Joint Insurance Association Appellants vs. Cuno Hansen, Appellee Alaska Workers' Compensation Appeals CommissionCity of Seward and Alaska Municipal League/Joint Insurance Association, Appellants, vs. Cuno Hansen, Appellee.Decision No. 146 January 21, 2011AWCAC Appeal No. 10-012 AWCB Decision No. 10-0036 AWCB Case No. 200801640Final Decision Final decision on appeal from Alaska Workers' Compensation Board Decision No. 10-0036, issued at Anchorage on February 17, 2010, by southcentral panel members Linda M. Cerro, Chair, James Fassler, Member for Labor, and Robert Weel, Member for Industry. Appearances: Robert L. Griffin, Griffin and Smith, for appellants, City of Seward and Alaska Municipal League/Joint Insurance Association; Cuno Hansen, self-represented appellee. Commission proceedings: Appeal, Motion for Stay, and Motion for Exemption from Requirement of Posting Supersedeas Bond Pursuant to Alaska Rules of Appellate Procedure 204(d) filed February 24, 2010; no opposition to motions filed; Order on Motion for Exemption from Posting Supersedeas Bond issued on March 9, 2010; hearing on motion for stay held March 31, 2010; Order on Motion for Stay on Appeal issued April 2, 2010; briefing completed August 3, 2010; oral argument held November 10, 2010.Commissioners: Jim Robison, Philip Ulmer, Laurence Keyes, Chair.By: Laurence Keyes, Chair. 1. Introduction. The appellee, Cuno Hansen (Hansen), had right medial unicompartmental knee replacement surgery performed in March 2008. At issue in this appeal is the compensability of that surgery. Following a hearing on January 27, 2010, the Alaska Workers' Compensation Board (board) concluded that it was compensable.(fn1) We reverse. 2. Factual background and proceedings. Hansen injured his right knee in January 1999, while moving furniture in his home, and on March 2, 1999, treated with Richard R. Strohmeyer, M.D. He reported to Dr. Strohmeyer that "the knee swelled a lot right away, he could not walk for two weeks, and the swelling lasted for a month. . . . The knee pops a lot, it hurts in the back, it feels unstable, and it feels like it moves around."(fn2) Following x-rays, Dr. Strohmeyer diagnosed anterior cruciate ligament (ACL) deficiency right knee and possible mild degenerative joint disease. After Hansen indicated he wanted to avoid surgery and rehabilitate the knee, Dr. Strohmeyer "explained the natural history of the problem and the fact that reconstruction may be necessary."(fn3) On January 8, 2007, Hansen consulted Robert J. Hall, M.D.,(fn4) who recorded that his chief complaint was right knee pain and instability. Hansen provided a history that his knee had been unstable ever since he injured it in the incident Hansen reported to Dr. Strohmeyer. He reported episodes where his knee would give out, especially with pivoting activities. After x-rays were taken, Dr. Hall's diagnosis was ACL deficiency right knee. Dr. Hall "discussed with [Hansen] treatment alternatives of bracing versus reconstruction and the time required for postoperative rehabilitation. [Hansen] indicate[d] he most likely would like to have the knee reconstructed but would probably want to wait until fall."(fn5) On January 27, 2008, Hansen had a full body computed tomography (CT) scan performed by his daughter at a hospital in California where she worked as a radiology technician.(fn6) With respect to his knee, the findings were "moderate joint space narrowing involving the medial compartment of the right knee. On some images there is a suggestion of a bone-against-bone appearance consistent with moderately advanced degenerative joint disease."(fn7) On January 31, 2008, Hansen saw his family physician, Robert A. Reeg, M.D., regarding the findings on the CT scan, although Dr. Reeg did not have the result of the CT scan. Hansen reported to Dr. Reeg that he "has chronic right knee pain due to some significant degenerative changes that . . . he would like to discuss at a future visit."(fn8) Hansen telephoned Dr. Reeg on February 6, 2008, to request an orthopedic referral to W. Laurence Wickler, D.O. Dr. Reeg noted that Hansen "has a history of significant right knee pain. The patient has not been formally evaluated for this, however, he did bring a full body CT scan in the other day which does reveal significant joint space disease in the right knee."(fn9) Hansen saw Dr. Wickler on February 22, 2008, at which time, according to Dr. Wickler's medical records, Hansen reported "having difficulty with his knee intermittently now for about ten years. Over the ensuing ten years, he has had increasing pain [and] swelling with activity[.]"(fn10) After a physical examination and review of x-rays, Dr. Wickler diagnosed "[s]evere osteoarthritis, medial compartment, [right] knee."(fn11) As treatment options, Dr. Wickler recommended "arthroscopic lavage [flushing of the knee] as opposed to total knee arthroplasty [knee replacement surgery]" and referred Hansen to Timothy S. Kavanaugh, M.D., for further recommendations.(fn12) Hansen saw Dr. Kavanaugh on March 3, 2008.(fn13) Dr. Kavanaugh's chart note from that visit reads, in relevant part:

[Hansen] presents today with a history of right knee pain that is fairly severe in nature. He attributes it all to an injury that occurred at work on 2/5/08. He apparently twisted the knee in a fall and he has had severe pain ever since. Prior to this, he states that he did have about a ten year history of knee pain, but it was nothing that he could not deal with with simple anti-inflammatories.

X-rays taken today . . . of the right knee, show fairly severe degenerative changes of the right knee, as evidenced by severe joint space narrowing, subchondral sclerosis and osteophyte formation. It appears isolated to the medial compartment.(fn14)

IMPRESSION: Osteoarthritis, right knee, medial compartment, with work-related acceleration of the condition.(fn15)

Hansen had filed a Report of Occupational Injury or Illness in which he claimed "he twisted his right knee on 2/5/08 while in the course and scope of his employment as a lineman for the City of Seward."(fn16) On March 11, 2008, Dr. Kavanaugh responded to a written inquiry from the adjuster for the appellant, the City of Seward (Seward), filling in a form indicating that the February 5, 2008, work incident was the substantial cause of Hansen's right knee condition and need for treatment.(fn17) On March 14, 2008, John Ballard, M.D., performed an Employer's Medical Evaluation (EME) of Hansen.(fn18) In his report of the same date, Dr. Ballard noted "Dr. Kavanaugh's impression was osteoarthritis of the right medial compartment, with work-related acceleration of the condition."(fn19) Elsewhere in his report, he indicated: "Mr. Hansen denies previous injuries to his right knee. He states that ten years ago he saw a doctor for his right knee which was painful and it was better after two days."(fn20) Dr. Ballard stated: "I believe the injury of February 5, 2008, was a right knee strain which has combined with his underlying arthritic condition to cause a temporary aggravation of his underlying medial joint arthritis."(fn21) Later in his report, Dr. Ballard opined:

I believe that after four to six weeks and after appropriate treatment, any effects of the knee strain will have dissipated and the substantial cause of his right knee condition at that time will go back to his pre-existing osteoarthritis for which he had sought symptomatic treatment in the past, as documented in Dr. Wickler's note and also on x-rays taken in January 2007.(fn22)

Dr. Ballard concluded: "I do not believe the recommended [knee replacement] surgery by Dr. Kavanaugh is reasonable or necessary at this time. I would recommend, as it relates to the effects of this injury, that Mr. Hansen have a course of physical therapy over a three to four week period, along with a trial of anti-inflammatory medications and possibly viscosupplementation [gel injections to treat osteoarthritis]."(fn23) On March 31, 2008, Dr. Kavanaugh performed medial unicompartmental knee replacement surgery on Hansen's right knee.(fn24) Dr. Ballard performed a post-operative, follow-up EME on May 30, 2008.(fn25) In his report of even...