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Carter v. B & B Const., Inc.

Supreme Court of Alaska

December 19, 2008

Freddie L. CARTER, Appellant,
v.
B & B CONSTRUCTION, INC., and Providence Washington Insurance Company, Appellees.

Page 1151

Michael A. Stepovich, Fairbanks, and Allen F. Vacura, Fairbanks, for Appellant.

Constance Cates Ringstad, McConahy, Zimmerman & Wallace, Fairbanks, for Appellees.

Before : FABE, Chief Justice, MATTHEWS, EASTAUGH, and CARPENETI, Justices.

OPINION ON REHEARING

EASTAUGH, Justice.

I. INTRODUCTION

Freddie Carter was injured on the job in 1992. Since then he has suffered from a series of health problems and is currently unable to work. He appeals the Alaska Workers' Compensation Board's denial of his request for Permanent Total Disability (PTD) benefits and its refusal to grant him additional reemployment benefits. He also appeals the superior court's denial of his claim for additional interest, attorney's fees, and costs. Because substantial evidence did not support the board's decision that Carter is not entitled to PTD benefits and because Carter is entitled to additional interest on his reemployment benefits, we reverse and remand.

II. FACTS AND PROCEEDINGS

In August 1992 Freddie Carter suffered two injuries to his neck and left shoulder while performing heavy lifting for his employer, B & B Construction, Inc. After the second injury Carter filled out an occupational injury report and in September B & B began paying Carter Temporary Total Disability (TTD) benefits.

Carter was first treated for his neck injuries by Dr. Robert Dingeman, who requested an MRI of Carter's cervical spine. The MRI showed large herniated disks at the C5-6 and C6-7 levels and slight disk bulging and posterior osteophytosis at the C3-4 level. Dr. Dingeman referred Carter for an evaluation

Page 1152

and probable surgery with Dr. John Joosse.

In October Dr. Joosse operated on Carter to fuse his neck vertebrae. Eleven days after the surgery Dr. Joosse reported that Carter was doing well and that he " could do desk light duty work." In December Dr. Joosse reported that " [t]he C5-6 level appears solidly fused. The C6-7 is a little bit delayed in its solid fusion. There is no evidence, however, for graft collapse, and clinically everything looks good." Dr. Joosse stated that by the end of the month Carter would probably be able to return to work, starting " at medium duty and progressing as he improves." Dr. Joosse also noted that Carter said he was having ulcer symptoms.

In January 1993 Carter injured his lower back while shoveling snow. Dr. Joosse diagnosed this injury as an " acute lumbar strain" that he doubted was related to Carter's previous work-related injury. B & B controverted both Carter's claim regarding his lower back condition and his continued receipt of TTD benefits from his 1992 injury.

On April 2, 1993 Dr. Joosse concluded that Carter's condition was stable and that he would be able to work except for his lower back pain. Dr. Joosse later gave Carter's cervical condition a Permanent Partial Impairment (PPI) rating of ten percent, whole person impairment.

On April 27, 1993 Carter requested a reemployment benefits eligibility evaluation. Because he made his request more than ninety days after he gave B & B notice of his injuries, he indicated that he would later submit a written statement that explained the unusual and extenuating circumstances that prevented him from filing in a timely manner. On May 4, 1993 (one week after Carter's request) the Alaska Division of Workers' Compensation informed Carter that it could not act on Carter's request until Carter submitted his written statement of unusual and extenuating circumstances. The division also stated that it could not act on Carter's request because it believed, mistakenly, that Carter had been released to return to work.

In June 1993 Carter filed an application for adjustment of claim with the Alaska Workers' Compensation Board, requesting relief that included (1) TTD benefits from February 15, 1993 to the then-present date; (2) PPI benefits; (3) medical costs relating to his January 1993 injury to his lower back; and (4) review of what he referred to as the division's " decision" regarding his eligibility evaluation request.

Later that month Dr. Edwin Lindig, Carter's new treating physician, reported that Carter's symptoms were essentially unchanged and that his neck problem was his " main disabling factor." Between June 1993 and February 1994 Dr. Lindig consistently reported that Carter had not been released for work and needed vocational rehabilitation.

In April 1994 Dr. James Foelsch performed a follow-up neurological evaluation of Carter. Dr. Foelsch diagnosed Carter with chronic neck pain " without evidence of radiculopathy[[1]] or myelopathy." [2] Dr. Foelsch also diagnosed Carter with probable peripheral neuropathy[3] but suggested that this was related to Carter's alcohol intake instead of his neck or lower back pain.

On September 9, 1994 the board ruled that (1) Carter was not entitled to TTD benefits beyond April 2, 1993, when Dr. Joosse reported that Carter's cervical condition had stabilized; (2) Carter was entitled to PPI benefits according to his ten-percent PPI rating; and (3) Carter's lower back condition was non-work-related and thus non-compensable. The board also stated that the division properly " concluded [that Carter] waited too long to request reemployment benefits and denied [him] eligibility" because he failed to provide unusual and extenuating circumstances

Page 1153

to justify his untimely request. On October 6, 1994 Carter sent the division a written explanation of unusual and extenuating circumstances.

In September 1995 Carter petitioned the board for rehearing and modification of the board's September 9, 1994 ruling on his eligibility evaluation request because, he asserted, that ruling was based on a mistake of fact. Carter specifically argued that the board mistakenly characterized the division's May 4, 1993 letter to Carter as a conclusive denial of his eligibility evaluation request. After the board denied his petition for rehearing Carter appealed to the superior court. On March 13, 1998 the superior court found that the division's May 4, 1993 letter was not a final decision and reversed and remanded to the board for reconsideration of Carter's eligibility evaluation request.

In August 1999 the division, after receiving Carter's case on remand from the board, decided that Carter was entitled to an eligibility evaluation because he had sufficiently demonstrated unusual and extenuating circumstances that prevented him from requesting his evaluation on time. After B & B unsuccessfully appealed this decision to both the board and the superior court, Carter asked the division to assign him a rehabilitation specialist to perform his eligibility evaluation. On December 27, 2001 the division assigned Carter a rehabilitation specialist and on April 2, 2002 it found Carter to be eligible for reemployment benefits.

In the interim period between Carter's 1995 petition for rehearing and the April 2002 determination that he was eligible for reemployment benefits, Carter experienced significant medical difficulties. In January 1996 he suffered a seizure and was admitted to the hospital, where he suffered a second seizure. In December 1996 he was admitted to the intensive care unit of the hospital because of an onset of type I diabetes. Then in April 1998 he was again hospitalized, this time because of dyspnea [4] complaints. Carter was treated by Dr. Kendrick Blais, who diagnosed him at discharge with (1) pulmonary emboli,[5] (2) deep vein thrombosis in his right calf, [6] (3) diabetes, (4) hypercholesterolemia,[7] (5) status post anterior fusion C5-C6 and C6-C7, (6) generalized tonic-clonic seizures, and (7) chronic gastritis.[8]

On October 25, 1999 Carter experienced a syncopal episode [9] at his home and was taken to the emergency room. When he was discharged eight days later he was diagnosed with (1) pulmonary embolus; (2) deep vein thrombosis; (3) Barrett's esophagus,[10] including Schatzki ring, [11] pyloric gastritis, and duodenal polyps; [12] (4) anemia,[13]

Page 1154

iron deficiency ; [14] (5) type II diabetes; (6) essential benign hypertension; [15] (7) seizure disorder; (8) hyperlipidemia/hypertriglyceridemia; [16] (9) chronic pain related to degenerative joint disease of the cervical spine; and (10) chronic low back pain with left radiculopathy.

In January 2000 Dr. Blais wrote in an " Application for Medical Cancellation of Student Loan Debt" form for Carter that " [c]hronic pain prevents constant employment. Multiple medical problems. Pulmonary embolus has caused permanent respiratory injury." Dr. Blais also stated that Carter was permanently disabled with a rating of " 50% or more." At around the same time, Dr. Foelsch filled out an identical form, but he diagnosed only Carter's neck pain, left-sided numbness, and cervical spondylosis[17] and stated that Carter was totally and permanently disabled. Dr. Foelsch explained that Carter was ...


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