*1 not violate vagueness and therefore does Final- right process of law. to due LMLC’s rationally have found
ly, BOAA could proposed applies to LMLC’s
that MSB 17.60 per- use that a conditional
use and therefore required.
ismit AFFIRM the therefore
court’s decision. COMPANY CONSTRUCTION
OSBORNE Insurance/AIAC, Co.,
and Alaska
Appellants,
v. JORDAN, Appellee.
Kenneth
No. S-6105.
Supreme of Alaska. Court
Sept. 1995.
Rehearing Denied Oct. *2 appealed.1 supe-
and Osborne We affirm the rior decision. court’s II. AND FACTS PROCEEDINGS Injury A. The employed opera- Jordan was as a baekhoe during tor for Osborne the summer of 1989 project Wainwright. at a at Fort injured alleges on, he his lower around, 15,1989, lifting by compac- jvhile tor out ditch of a at work for Osborne. report anyone He did not to and continued to work. at one time attempted report inju- claimed that he ry report injuries but instructed not Wayne supervisor, his immediate father), (appellee’s project super- visor, Worley. denial, Following their James statement, claiming Jordan retracted his he should have said Osborne want too many injuries reported.
Worley injuries learned of Jordan’s when job he went to the site to find a back hoe and operator job: digging for small there, got [W]hen I I him off motioned got machine and when he off the machine walking ways he was bent I over side Porcello, Pletcher, Weinig, Tasha M. Mos- happened asked him what had to him— Merriner, Anchorage, Appellants. er & for you happened what and he said —he told Therrien, P.C., Fairbanks, Valerie M. for [he] me had hurt back. I his And Appellee. asked him how he did it and then he said moving helping he was—was a la- — C.J., RABINOWITZ, MOORE, Before compactor footing. borer move out MATTHEWS, COMPTON and EASTAUGH, JJ. machine, got stooped He off the he was OPINION limping over he was real stiff. MOORE, Chief Justice. having surgery, And had back he didn’t
I. INTRODUCTION problem might— have to me what tell (indiscernible). Kenneth Jordan a workers’ compen- filed against employer, sation claim his former (Osborne). Company Osborne Construction at away can look a man —a man’s walk- Compensation Alaska
The Workers’ Board it, you’ve can —if you and I had ever (the Board) claim, finding denied Jordan’s know it. presented that Osborne had substantial affir- father, statutory pre- Wayne, mative evidence to rebut the told Jordan also what sumption compensability job and that at the His occurred site. father told Board, ponderance thought just “I pulled evidence indicated that Jor- muscle dan’s was not work-related. su- in his This back.” belief was corroborated perior court reversed the Board’s decision when continued and “after his son to work insurer, Co., co-appellant 1. Osborne’s Alaska in this case. Insurance/AIAC weeks, through to calf. The date of the stopped limping.” Jor- lower back two about March,” “beginning of working at accident stated as the Fort Wain- dan continued “carrying listed as furni- job atten- and the cause was wright and did seek medical form to Up ture.” “on the laid off October 1989. References tion. He was compensation” job” injury in- job, he felt he continue and “workers’ the end *3 signed the operator: surance left blank. Jordan to as an were work Fairbanks, returning form. After Jordan working. thought I still I continue sought Spaulding, Dr. Frank from treatment hurting, and my leg quit I felt better Once DC, began and a series of treatments. The get My thought I would I better. Spaulding’s intake Dr. office also forms from get going was that I assumption indicated that condition arose after improved I had and I had fact better —in furniture,” again “moving and he answered having leg pain. improved without job questions concerning on the negative. in the The compensation workers’ Diagnosis and Treat- B. The Medical through seeking chiropractic efforts at relief ment manipulation were unsuccessful. physician a first consulted concern- Jordan in That pain March 1990. ing lower May sought an evaluation in Jordan next Ha, Young orthopedic physician, Dr. sur- Lindig, orthopedic 1990 from Dr. Edwin Fairbanks, geon following made the chart surgeon the Fairbanks Clinic. Once at notes: again, patient intake Jordan stated young developed rather This fellow who “moving form that arose after his condition pain in his onset of left side of the sudden May, February.” Later in Jordan consult- goes down buttock which the back Vrablik, George orthopedic ed Dr. another way thigh down to calf. The all the surgeon Clinic. at the Fairbanks Jordan told persistent quite rather disturb- pain is hurt Dr. Vrablik that he had first his back ability things.... ing in terms of his to do work,” moving.” “at later “while Dr. then days ago pain eight This started about scan, revealed, a Vrablik ordered CT basketball and furni- time, for the that Jordan had first herniated although an hour he does not ture about spine, discs at of his lumbar L3- three levels any specific recall incident in which he L4, L4-L5, Dr. Vrablik and L5-S1. recom- any although he did pain feel some discom- fill mended that Jordan out “workman’s back. fort his lower comp paperwork.” filing This led to the [sic]2 Late October 1989 he had back Injury 5, on June Report formal pulling plate compactor up a pain after opinion a second June Jordan received slope at his work for Con- from Brown, Dr. George orthopedic another However, Company. he did not struction surgeon Dr. Brown in Fairbanks. confirmed any leg pain and he not lose have diagnosis. Dr. With Dr. Vrablik’s Vrablik from his work. time vacation, per- out of Dr. town Brown added.) (Emphasis Dr. Ha concluded that decompression formed three-level laminec- disc, suffering from a herniated Jordan tomy. quickly Jordan recovered from the likely L4-L5. He most at recommended months, surgery. accept- In less than two treatment and instructed Jor- conservative job temporary with Fairbanks improve. if dan to return Borough North Star School District as follow-up for a did not return visit. substitute custodian. sought chiroprac- next relief from two He 1990, Subsequent parties April surgery, tic clinics. In while on vacation to the en- Oklahoma, perma- tered that Jordan’s stipulation Jordan consulted Dr. G.F. into a impairment rating, wife New nent based on Ameri- Palmer. filled out the Preliminary Question- Information can Medical Association Guidelines Perma- Patient Impairment, problem nent should be 21.5% of the naire and described August. month was 2. The correct stipulation, compensable. majori- man.3 Prior to the Os- was not The
whole Fu, an Anchorage ty asked Dr. Robert concluded that was not borne a credible surgeon, impair- that, result, orthopedic to rate Jordan’s witness as a the medical Fu to supporting Osborne also asked Dr. state an reports ment. his claim also were not opinion they as to the of Jor- work-relatedness credible since were based on what Jor- disability. reported physicians. dan’s In a letter Osborne’s dan had to the counsel, that, Dr. Fu stated based on the separate third board wrote a member history given him the records dissenting opinion. He wrote: provided, which Osborne the start of his back particularly do not find it surprising trouble was while work- suffering sharp that someone back discom- Osborne, aggra- initially fort would ascribe to the subsequent moving *4 vated furniture. vigorous activity. most recent it Once is apparent injury profound that the is more Compensation The Workers’ Claim C. assumed, originally than the search for the initially accepted Jordan’s claim underlying cause of the condition would of compensation paid benefits for workers’ necessity Regretta- become more intense. (TTD) temporary disability total and medical bly, employee’s the reliability lack of 7,1990 9,1990, from June costs to October at this ease makes the determination of the light time for which Jordan was released ca[u]se more difficult for ev- duty medically work as under stable AS eryone physicians, concerned: the the em- 23.30.265(21). 1991, January In Jordan filed insurer, ployer and the and the board. Application Adjustment Claim re- nutshell, persuaded by I am a Dr. Brown’s questing hearing a the before Board. Os- opinion that claim employee’s simply the controverting filed an borne answer the ben- the facts explana- fits better than alternate requested by grounds efits employee’s tions. I would attempt find the that his back condition not work-related. heavy compactor move a dirt industrial likely the most cause his herniated disc. hearing before the Board held on a 17, consequence, As find 1991, would his claim December but was concluded. compensable. 4, February the Board When reconvened 1992, panel one of the three members the appealed the Board’s decision to considering present. Jordan’s claim was not superior the court. The court re- remaining proceeded
The two members versed the Board and remanded with instruc- 23.30.005®, hear the case under AS compensable. to find tions Jordan’s claim permits two of panel the three members to appeals this decision. quorum. constitute a Order, February
In a
III.
1992 Decision and
DISCUSSION
hearing
two
panel
the
members of the
the
compensa
Under
workers’
Alaska’s
they
agree
claim announced that
could not
statute,
employee’s
presumed
tion
is
compensable.
whether Jordan’s claim was
23.30.120(a)(1).
compensable.
to be
The
AS
They decided to submit
recorded
the
testimo-
statutory
application
of this
in
4,1992,
ny
February
hearing
the
to the
a three-step analysis.
volves
Louisiana Pa
deciding
third member to review
cast the
Koons,
1379,
Corp. v.
P.2d
816
1381
cific
vote.4
(Alaska 1991)
curiam). First,
(per
the em
“preliminary
In a second
ployee
Decision and Order issued
must establish a
link”
31, 1992,
disability
the
member of
employ
absent
between the
and his or her
record,
having
panel,
Id.
link
preliminary
reviewed the
decided ment.
Once this
has
rejected
stipulation
recently approved
procedure
3. The Board
in a Deci-
We
such
10, 1991,
and Order dated
sion
ing
December
hold-
Plumbing Heating,
v. Beeson
&
869 P.2d
Schmidt
parties
by
agreement
that the
1170,
(Alaska 1994).
im-
1177-79
order,
pede
prerogative
the Board's
if it so
elected,
independent
its own
medical evaluation
23.30.095(k).
under AS
play-
employee either
by the
condition arose
established,
employer’s burden
“it
been
moving furniture.”
coming
basketball
for-
to overcome
inju-
ward with substantial
superior court reversed
(quoting Bur-
Id.
related.”
ry
not work
present
board, observing
“the evidence
Smallwood,
312,
P.2d
v.
gess Constr. Co.
initially
Osborne, namely that
1981)).
(Alaska
still
While
moving and basketball
to the furniture
cited
proof, the burden
bears the burden
culprits of his back
potential
playing as the
to the
shifts
with evidence
going forward
possibility
leg pain, does not exclude
Anchorage v.
Municipality
employer.
lifting
experienced after
1991).
(Alaska
If
Carter,
culprit.”
somehow the
compactor was
successfully rebuts the
law,
disability
agree. Under Alaska
compensability, the
sumption of
injury is still
arising
non-work-related
after a
prove
employee must
all
drops out
if
work-related
compensable
an earlier
by preponderance
the case
elements of
to the
substantially contributed
Koons,
Although expert medical
is
evidence
employee’s
injury
to conclude that the
1980
always necessaiy
statutory
to rebut the
disability.
subsequent
did not cause his
Id.
presumption, something
proof
more than
aof
See,
(rejecting
employee’s
at 870-72
the
injury
required.
non-work-related
is
produce
employer
required
that the
was
Wolfer,
e.g.,
871-72.
In
P.2d at
expert
rebut
the
medical evidence to
employee
became
after
disabled
he col
sumption
compensability).
evidence,
“This
lapsed
tightening
at work
overhead
upon,
if
tends to
the
relied
show that
October
sought
bolt in 1980. The
to rebut
incident,
change
type
the
compensability by pre
the
employee]
do,
aggravate
work
[the
senting
suggesting
circumstantial evidence
injury.”
original
his
Id. at
872.
thus
employee’s
disability
had actu
concluded that
the circumstantial evidence
ally
injury.
caused
an earlier
been
presented by
employer, coupled
with the
employer’s
We summarized the
employee’s
concerning
own statements
his
follows:
condition,
back
created a reasonable infer-
(1)[The
disabling
employee] suffered a
injury
merely
ence that
the 1980
was
injury in
[The
back
December 1979.
em-
“flare-up”
injury.
earlier
testified,
ployee]
deposition
both in his
and
Id.
hearing,
at his
that since
his back
Turner,
recurrently
him
bothered
whenever he en-
Under
Osborne has
Wolfer
gaged present
manual labor.
failed to
sufficient affirmative evi-
sumption only attaches once
claimant has
the work-relatedness of
to rule out
denee
link”
present-
“preliminary
between the
The sole evidence
established a
Jordan’s
injury
employment.
to show that Jordan’s disabili-
If a claimant’s
and the
unreliable,
injury
ty
testimony
totally
not related to
1989 work
this link
proved
was
(1)
experienced
leg
However,
sudden
would
where
not be established.
evidence,
basketball
corroborating
lower back
there is
as in this
February
case,
clearly
furniture
the link is
established.
(2)
failed to mention his 1989 work
Resler v.
Osborne also cites
Universal Ser-
intake
injury
his medical
forms when
vices,
1989),
P.2d 1146
for the
sought medical
for his
subsequently
attention
lack of
proposition that a claimant’s
credibili-
This alone
not constitute
pain.
does
evidence,
ty, coupled
other
is sufficient
with
prob-
substantial evidence
Jordan’s back
presumption.
As
overcome the
work-related;
entirely rea-
lem
it is
observes,
correctly
issue
this
“[t]he
before
onset
layperson
for a
associate the
sonable
much
court is narrowed to how
additional
physical
his most
with
recent
sudden
evidence,
with
lack of
in combination
Furthermore,
activity.
undisputed
it is
support
credibility,
required to
the board’s
is
told Dr. Ha about his 1989
An
facts of
conclusion.”
examination
him
consulted
in March 1990.
when he first
Resler
instructive. Resler claimed that
(where
Wolfer,
EASTAUGH, Justice, with whom Ha, did return Jordan to Dr. but in Justice, COMPTON, joins dissenting. Palmer, D.C., April 1990 Dr. visited G.F. for majority opinion concludes Os “pains through back lower to calf.” Jordan’s present borne Construction Co. failed to suf patient filled out preliminary wife the new ficient out affirmative evidence to rule questionnaire, information which Jordan work-relatedness signed. Employed By:” Under “Patient Jor- therefore failed to overcome the named dan Osborne. Under “Date of Acci- compensability. I respectfully dissent be Illness,” wrote, dent/Beginning of Jordan descriptions cause Jordan’s and when how “Beginning response of March.” In to “How radiating leg pain began, found in Jor _Auto it occur? Collision_On-the-job records, dan’s medical constitute “affirmative _ Other,” “Other,” Jordan wrote next to Veco, evidence” under Inc. v. “Carrying furniture.” After “PLEASE IN- (Alaska 1985). DICATE WHICH KIND OF INSURANCE majority of the Board concluded that _ HAVE: YOU GROUP INSURANCE available medical the em- “[t]he records of _ BLUE SHIELD WORK- CROSS/BLUE ployee’s chiropractors visits to the and to Dr. _ ER’S COMPENSATION AUTO INSUR- implicitly Ha March 1990 all indicate _ _ ANCE IN- MEDICARE PERSONAL employ- that this back condition arose _ OTHER JURY INSURANCE Jor- ee either furni- basketball or dan checked “OTHER INSURANCE.” Thus, ture.” the Board found the medical month, Later Jordan visited the records to be substantial affirmative evidence Clinic, Spaulding Chiropractic pa- whose new that Jordan’s condition was not work-related. form tient information reveals similar infor- It therefore concluded that two-page mation. filled out the infor- overcome the mation form. Under “WHAT ARE YOUR agree with that conclusion. (AREAS PAIN)?— MAIN PROBLEMS OF experienced back long?” how Jordan wrote “lower working Osborne. He did not leg left weeks.” Under “HAVE YOU —5 occurred, report it when seek im- HAD SIMILAR ACCIDENTS/INJURIES?” treatment, mediate medical or lose time Jordan checked “NO.” Under “PLEASE work. CIRCUMSTANCES,” DESCRIBE THE Young “moving 1990 Jordan visited Dr. Jordan wrote furniture.” *8 complaining Ha sudden onset radiat- stated that “DATE OF THE ACCI- pain leg; pain in his left had started DENT OR BEGINNING OF ILLNESS” earlier, shortly played ACCIDENT, about a week he after was “3-13-90.” Under “IF _ _ basketball and moved DID furniture. He re- IT HOW OCCUR? AUTO ON _ cently OTHER,” moved from one to another. residence THE JOB Jordan checked state, Dr. Ha’s the visit type notes of “This what “OTHER.” Under of insurance days eight ago by, started about after was the case covered Jordan selected basketball and about an furniture “GROUP INSURANCE” and “PERSONAL INJURY,” although any specific hour he does recall than rather “WORKER’S COM- any although incident in which he had reported PENSATION.” He also that he employed did feel by he some discomfort in his “Osborn [sic] Const.” lower Having weighing 6. to concluded Osborne failed of the evidence to if the determine presumption, preponder- proved by need we not consider the next has all elements a claimant step compensation analysis in the workers' of the ance evidence. —the
394 to eliminate May orthopedic cient affirmative evidence Jordan saw another of Jordan’s See surgeon, Lindig, Dr. Edwin who noted in work-relatedness (concluding Wolfer, P.2d at that the history his condition 693 872 medical Jordan’s rebutted the com- February.” “moving in arose by evi- pensability presenting circumstantial and written accounts The Jordans’ oral dence, coupled with the state- Ha, in Drs. the records of memorialized condition, regarding to create a ments Palmer, Spaulding not mention do new “reasonable inference” that relationship 1989 between his injury). “merely flare-up” a of the earlier employed radiating him in pain that led seek treatment to history Although the was insuffi- medical Instead, they affirmatively deny a work-rela- compel a to conclusion that Jordan’s cient expla- tionship non-employment and offer work, a radiating pain was to his it not related radiating pain originated. nation for how his presumption. to was sufficient overcome fairly person find from A reasonable Additionally, Assur- assuming Alaska Pacific (Alaska that in suffered a that evidence 1990 Jordan ance v. 611 P.2d Co. problem medical which was different new 1980), applies, this also evidence is sufficient problem from or more severe than the permit a that the conclusion work-related experienced employ- in 1989 of his as result injury was not a factor” contrib- “substantial Further, current manifestation of ment. in uting to the noted March 1990. condition problem his medical of three Id. at 14. —herniations radiating pain, instead lumbar discs—was Having concluded that these medical rec non-radiating pain told Dr. Ha presump sufficient ords were to rebut experienced job he had six months tion, proceed I would to review third before. analysis, in stage of the which it Board’s history The medical memorialized these weighed all the and concluded adequate accounts is relevant evidence proven by prepon Jordan had his claim support a conclusion that the ra- reasonable of the Because substan derance evidence.1 diating pain experienced supports that conclusion of tial evidence recent, originated non-work-related Board, I would reverse and remand with “such activities. Substantial evidence is rele- instructions reinstate the Board’s decision might evidence as mind vant a reasonable rejecting and order claim. See Res adequate accept support a conclusion.” Inc., Services, ler v. Universal Foodland, B Gillispie v. B & 1989) (Alaska (upholding Board’s deter 1994) added). (emphasis Os- prove employee mination that failed to presentation borne’s of Jordan’s ac- evidence, preponderance consid counts was therefore sufficient to rebut the credibility ering that lacked cou presumption of Board testimony). pled with witnesses’ permissibly relied on substantial evidence affirmatively supports permissibly Thus, non-employment explanation. I dis- majority’s agree with the conclusion that un- present
der Osborne failed to suffi- opinions compensation 1. The Board denied ben- the later medical which were based on workers' Jordan, finding preponderance “self-serving of the events efits to version Instead, *9 symptoms.” the Board found Jordan’s the evidence indicates that Jordan’s condition history, version of as reflected in subsequent employ- initial "arose from incidents to his ment, reports, credible. scope first medical to be more and not in the course and testimony power work.” The Board [B]oard found "The has the sole to determine inconsistency credibility finding by credible. It was “troubled witness. time, concerning employee's history weight accorded over the contra- to be [B]oard testimony, testimony including testimony dictions between his and that other witness's witnesses, misrepresentation reports, is even if the evidence his admitted conclusive Therefore, unemployment conflicting contrary susceptible related to insurance.” conclu- rely upon the Board AS concluded that it could not sions.” 23.30.122.