2011-150. Esther J. Runstrom Appellant vs. Alaska Native Medical Center and Alaska National Insurance Co. Appellees.

Case Date:March 25, 2011
Court:Alaska
 
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Alaska Workers Compensation Decisions 2011. Workers' Compensation Appeals Commission 2011-150. Esther J. Runstrom Appellant vs. Alaska Native Medical Center and Alaska National Insurance Co. Appellees Alaska Workers' Compensation Appeals Commission Esther J. Runstrom, Appellant, vs. Alaska Native Medical Center and Alaska National Insurance Co., Appellees.Decision No. 150 March 25, 2011AWCAC Appeal No. 10-001 AWCB Decision No. 09-0186 AWCB Case No. 200713907Final Decision Final decision on appeal from Alaska Workers' Compensation Board Decision No. 09-0186, issued at Anchorage on December 4, 2009, by southcentral panel members Deirdre D. Ford, Chair, David Kester, Member for Industry, Patricia Vollendorf, Member for Labor. Appearances: Esther J. Runstrom, self-represented appellant; Richard L. Wagg, Russell, Wagg, Gabbert and Budzinski, P.C, for appellees, Alaska Native Medical Center and Alaska National Insurance Co. Commission Proceedings: Appeal filed January 4, 2010; briefing completed November 5, 2010; oral argument held February 3, 2011.(fn1)Commissioners: David Richards, Philip Ulmer, Laurence Keyes, Chair. By: Laurence Keyes, Chair. 1. Introduction. Following an employment-related incident that occurred on August 26, 2007, the appellant, Esther J. Runstrom (Runstrom), filed a workers' compensation claim dated August 13, 2009, against her employer, appellee, Alaska Native Medical Center, and its insurer, appellee, Alaska National Insurance Co. (collectively ANMC). Following a hearing on November 18, 2009, the Alaska Workers' Compensation Board (board) ruled that Runstrom was not entitled to temporary total disability (TTD) benefits after December 1, 2007, was not entitled to further counseling, and that ANMC did not unfairly or frivolously controvert benefits.(fn2) Runstrom appeals those rulings to the commission. We affirm the board in all respects. 2. Factual background and proceedings. Runstrom was working for ANMC as a patient care assistant when, on August 26, 2007, she was potentially exposed to human immunodeficiency virus (HIV) when fluid (sputum) from a patient's trachea splashed into her left eye.(fn3) She was immediately treated in the emergency room at ANMC with the prophylaxis Truvada, an antiviral, which was prescribed for her for 28 days.(fn4) Runstrom tested negative for HIV four times over the next nine months.(fn5) Runstrom did not work and was paid TTD benefits beginning September 3, 2007, through December 1, 2007.(fn6) Eric Goranson, M.D., a psychiatrist, performed an employer's medical evaluation (EME) of Runstrom on October 15, 2007, and produced a report that same day.(fn7) In his opinion, Runstrom was not medically stable, from a psychiatric standpoint, primarily related to pre-existing problems, and that she would benefit from behavioral therapy. He released her to work.(fn8) On November 6, 2007, Ellen Lentz, ANP, Runstrom's treating medical provider, agreed with Dr. Goranson's report and released her to work as of November 12, 2007, subject to the condition that Runstrom have no patient contact until December 1, 2007.(fn9) ANMC controverted ongoing TTD and temporary partial disability benefits on December 10, 2007, on the basis of Dr. Goranson's EME report.(fn10) Dr. Goranson examined Runstrom again on February 4, 2008, and concluded that, although she needed further counseling, the substantial cause of the need for counseling was her pre-existing, non-work-related personality factors.(fn11) 3. Standard of review. Pursuant to the provisions of AS 23.30.128(b), the commission is to uphold the board's findings of fact if they are supported by substantial evidence in light of the record as a whole. "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."(fn12) "The question whether the quantum of evidence is substantial enough to support a conclusion in the contemplation of a reasonable mind is a question of law"(fn13) and therefore independently reviewed by the commission.(fn14) The commission exercises its independent judgment in reviewing questions of law or procedure.(fn15) 4. Discussion. a. Applicable law. In the past, whether a workers' compensation claim was ultimately compensable involved the application of a three-step presumption of compensability analysis. The first step in the analysis was derived from a statute, AS 23.30.120(a)(1), which provides: "In a proceeding for the enforcement of a claim for compensation under this chapter it is presumed, in the absence of substantial evidence to the contrary, that the claim comes within the provisions of this chapter." On the basis of this statute, to attach the presumption, the employee had to establish a "preliminary link" between his or her disability, need for medical treatment, etc., and his or her employment.(fn16) If the employee attached the presumption, in the second step of the analysis, the employer could rebut the presumption with "substantial evidence to the contrary[.]"(fn17) As developed through case law, the employer's evidence would have to satisfy one or the other of two showings.(fn18) Third, if the employer rebutted the presumption, it dropped out and the employee had to prove all elements of his or her claim by a preponderance of the evidence.(fn19) The Alaska Workers' Compensation Act (Act), AS 23.30.001 - .395, was amended in 2005. The Act, as amended, applies to Runstrom's claim because the incident giving rise to it occurred in 2007. Prior to the 2005 amendments, AS 23.30.010, in its entirety, read: "Sec. 23.30.010. Coverage. Compensation is payable under this chapter in respect of disability or...

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