ARCTEC Alaska, Appellant,
v.
Joseph Traugott, Appellee.
Decision No. 249
AWCAC Appeal No. 17-015
AWCB Decision No. 17-0103
AWCB No. 201309316
Alaska Workers’ Compensation Appeals Commission
June 6, 2018
Final
decision on appeal from Alaska Workers’ Compensation
Board Final Decision and Order No. 17-0103, issued at
Fairbanks, Alaska, on August 29, 2017, by northern panel
members Ronald P. Ringel, Chair, and Jacob Howdeshell, Member
for Labor.
Commission
proceedings: Appeal filed September 12, 2017, with motion for
stay; motion for stay granted November 2, 2017; briefing
completed February 7, 2018; oral argument held on February
23, 2018.
Robert
J. Bredesen, Hillside Law Office, LLC, for appellant, ARCTEC
Alaska.
Eric
Croft, The Croft Law Office, for appellee, Joseph Traugott.
Commissioners: James N. Rhodes, S. T. Hagedorn, Deirdre D.
Ford, Chair.
FINAL DECISION
Deirdre D. Ford, Chair.
1.
Introduction.
Appellee,
Joseph Traugott, was diagnosed with diabetes in 2002 and,
subsequently, developed several medical issues. Appellant,
ARCTEC Alaska (ARCTEC), hired Mr. Traugott in March 2013. In
May 2013, he developed a small blister in the middle arch of
his right foot, which he believes was caused by standing on
ladders at work. The blister healed, but he then developed a
crack on the same foot for which in July 2013 he was
hospitalized for cellulitis of the foot. Following a series
of interlocutory decisions and orders, the Alaska
Workers’ Compensation Board (Board) issued a final
decision and order on August 29, 2017, finding Mr.
Traugott’s need for ongoing medical treatment was
substantially caused by his work with ARCTEC.[1] ARCTEC timely
appealed contending the Board applied an incorrect legal
standard. The Alaska Workers’ Compensation Appeals
Commission (Commission) heard oral argument on February 23,
2018. The Commission now reverses the Board’s
decisions, finding the Board erroneously applied an incorrect
interpretation in looking at whether Mr. Traugott’s
work for ARCTEC was “in relation to other causes . . .
the substantial cause of the . . . need for medical
treatment” as stated in AS 23.30.010(a).
2.
Factual background and proceedings.2
Mr.
Traugott was diagnosed with diabetes in 2002.[3] On August 9,
2004, Mr. Traugott reported a sore on his toe that was
healing. A photograph of what appeared to be an open sore on
Mr. Traugott’s right big toe has a notation stating
“old blister from shoes.”4 On February 7, 2005,
the medical record noted Mr. Traugott’s toe had
“completely healed over from 8/04.”[5] Mr. Traugott,
on April 25, 2005, reported an infection on his left big
toe.6
By
September 22, 2005, Mr. Traugott complained of a right big
toe infection, which began five days earlier, and he was
placed on oral antibiotics.7 Mr. Traugott saw Patrick
Crawford, D.P.M., on October 3, 2005, who reported that while
working in Alaska, Mr. Traugott had a callus that broke down,
developing a neurotrophic ulcer on his right big toe, but
with no evidence of bony involvement.8 The October 26,
2005, chart note indicated Mr. Traugott’s right big toe
was better, but needed debridement.9
On
January 5, 2006, Mr. Traugott’s right big toe ulcer was
found to be infected with streptococcus.10 Mr. Traugott was
seen in follow up for his right big toe after someone had
stepped on it, on January 9, 2006. The toe appeared infected,
and Mr. Traugott was placed on oral
antibiotics.11 The right big toe was healed by
March 8, 2006.12
On
September 6, 2006, Dr. Crawford diagnosed possible Charcot
foot (Charcot neuroarthopathy) in Mr. Traugott’s right
foot.13
Mr.
Traugott was diagnosed with neuropathy on August 11,
2007.14 Neuropathy, or peripheral
neuropathy, is a disruption in the function of peripheral
nerves, commonly due to diabetes. It most often involves
nerves related to sensation or proprioception.[15] When a
person develops neuropathy, their skin stops producing the
oils that lubricate the skin and they do not sweat. Because
they do not feel damage to the skin, they are at risk of skin
ulcers.16 Mr. Traugott, on October 15, 2008,
reported continued pain in both feet, some of which was
determined to be nerve-related.17
On
February 4, 2010, an x-ray revealed evidence of joint
destruction in Mr. Traugott’s right foot. Dr. Crawford
diagnosed Charcot neuroarthopathy in Mr. Traugott’s
right mid-foot. He noted that the second toe on Mr.
Traugott’s right foot was a hammer toe.[18] Charcot
neuropathy or Charcot foot is a condition that occurs in a
small percentage of individuals with neuropathy. It appears
as inflammation in a joint or bone, and the foot gets red,
swollen, and looks infected, but there is no organism
present. During the inflammation stage, the bones begin to
crumble and fall apart. It is unknown why Charcot foot
occurs. A flare up of Charcot foot may lead to a deformity
causing an abnormal weight-bearing surface. These abnormal
weight-bearing surfaces are at additional risk of ulceration
because the skin breaks down very easily.[19] Hammer
toe can develop as a result of neuropathy. The damage to the
nerve causes an imbalance in the muscles of the toe, causing
the toe to curl.20
Dr.
Crawford, on May 2, 2011, noted Mr. Traugott’s hammer
toe had become infected and recommended surgery to correct
the condition.21 The chart note indicated on the same
day that Mr. Traugott had decreased sensation to touch in
both legs.22 Dr. Crawford, on May 5, 2011, stated
the infection in Mr. Traugott’s toe was a
staphylococcus infection.23 Dr. Crawford stated,
on May 16, 2011, he would schedule surgery to correct Mr.
Traugott’s hammer toes.24 However, due to
unrelated medical complications, the surgery on Mr.
Traugott’s toes was not performed until May 29, 2012,
when Dr. Crawford fused the joints in the second and third
toes on Mr. Traugott’s right foot using internal
fixation.25 On May 21, 2012, Mr. Traugott
reported the lesions on his toe had increased in size, and he
was diagnosed with a diabetic ulcer and bone infection
(osteomyelitis).26 On June 21, 2012, the infection in
Mr. Traugott’s second toe was found to be
staphylococcus.27 However, on July 23, 2012, Mr.
Traugott was released to work following the hammer toe
surgery.28 By August 3, 2012, Mr. Traugott had
a staphylococcus infection in his right third
toe.29
ARCTEC
hired Mr. Traugott in March 2013, and at the time of hiring
he was given a physical examination. He was approved for work
without restriction, but was notified he should consult his
doctor because his pulmonary function test was abnormal. Mr.
Traugott worked about three weeks at the Indian Mountain site
before being transferred to Tin City. While at Tin City, Mr.
Traugott primarily worked replacing heating and cooling
systems. The work was six days per week, at least 10 hours
per day. Most of the work was overhead, requiring him to
spend significant time standing on ladders. Mr. Traugott
testified standing on the ladders caused pressure on the
middle of his feet.30
In the
middle of May 2013, Mr. Traugott developed a blister, smaller
than the size of a dime, located in the middle of the arch of
his right foot toward the outside. He believed the blister
was caused by the pressure on his foot while standing on
ladders. Mr. Traugott did not seek medical attention and did
not report the injury. He treated the blister himself by
keeping it clean and did not use any antibiotics. The blister
healed and went away within a couple of weeks.[31]
On July
5, 2013, the skin on the sole of Mr. Traugott’s right
foot cracked open within an inch of where the blister had
appeared in May. There was a fetid discharge. Because there
are no medical facilities at Tin City, ARCTEC flew Mr.
Traugott to Nome the next day.32 He was hospitalized in
Nome with an initial diagnosis of cellulitis of the foot,
secondary to diabetes. He reported that, while he had no
recent injury to the foot, he had been experiencing foot
problems for about a week.33 Following its usual
practice to report all injuries whether compensable or not,
ARCTEC, on July 9, 2013, filed a report of occupational
injury or illness.34
Mr.
Traugott was discharged from Norton Sound Regional Hospital
on July 11, 2013, with a diagnosis of moderately severe
cellulitis. X-ray and CT scans showed a soft tissue ulcer
with no evidence of osteomyelitis, although the possibility
of osteomyelitis remained a concern. Wound and blood cultures
were negative, suggesting an anaerobic infection. The wound
was debrided, and Mr. Traugott was to...