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Apone v. Fred Meyer, Inc.

Supreme Court of Alaska

March 19, 2010

James APONE, Appellant,
v.
FRED MEYER, INC., Appellee.

Page 1022

[Copyrighted Material Omitted]

Page 1023

James Apone, pro se, Anchorage.

Erin K. Egan, Russell, Wagg, Gabbert & Budzinski, Anchorage, for Appellee.

Before: FABE, Chief Justice, EASTAUGH, CARPENETI, WINFREE and CHRISTEN, Justices.

OPINION

CARPENETI, Justice.

I. INTRODUCTION

An attendant at a self-service gas station sought workers' compensation benefits, alleging that his exposure to fumes and exhaust at work caused him to be disabled. His employer denied the compensability of the claim. After a hearing, the Alaska Workers' Compensation Board decided that the employee had not established his claim by a preponderance of the evidence and denied it. The superior court affirmed the board. Because substantial evidence in the record supports the board's findings and because the board did not commit legal error in its treatment of the employee's experts, we affirm the board's decision.

II. FACTS AND PROCEEDINGS

James Apone worked at the self-service Fred Meyer gas station on Abbott Road in Anchorage beginning in early 2002. His duties included assisting customers, cleaning the pumps and any spills that occurred, operating the cash register, and stocking items in the kiosk near the pumps. He experienced numerous physical symptoms, which he attributed to his work environment. Apone left work on December 22, 2002, because he was ill; he felt dizzy, short of breath, nauseous, and faint. At home, he had chills and was short of breath; he testified that after " many hours" he passed out. He returned to work the next day, and after a few hours, he felt the same symptoms he had experienced the day before. He was sick for the next few days.

Apone sought medical care from Dr. T. Noah Laufer, M.D., on December 26, 2002. Dr. Laufer noted that Apone had " had a very stressful last year" [1] but also stated that Apone's symptoms " would fit with fume or exhaust related symptoms." Dr. Laufer asked Apone to " avoid exposure to fumes and exhaust at work until it [was] clear what [had] caused his symptoms." Apone filed a report of injury with Fred Meyer on December 30, 2002. That same day, Dr. Laufer told Fred Meyer that Apone needed to avoid exposure to gas fumes or exhaust. Fred Meyer paid temporary total disability (TTD) benefits to Apone for about four months.

To assess Apone's condition, Dr. Laufer first ordered a cardiac stress test, which was essentially normal. Apone apparently told Dr. Laufer that he became short of breath, with wheezing and coughing, after the stress test. Dr. Laufer noted the possibility of reactive airway disease (asthma) and ordered a methacholine challengepulmonary function test. The test result was mostly normal; there was slight evidence of airway reactivity at the maximum concentration of methacholine.

Beginning in February 2003 Apone consulted with Dr. Richard Newman, a chiropractor. Dr. Newman diagnosed Apone with an " intolerance reaction to gasoline fumes" as well as " xiphoid-sternal strain-inflammation syndrome" [2] and cellulitis. Dr. Newman noted that even though Apone had previously been treated for chest pain and respiratory problems, Apone now also suffered from nausea, headache, and mental disorientation. Dr. Newman began treatment that included " musculo-skeletal, electro-neural and herbal approaches." Apone was later seen by Dr. Jeanne Bonar, M.D., who ordered thyroid tests; the results were essentially normal,

Page 1024

although one test showed that Apone might have early subacute thyroiditis. Dr. Bonar referred Apone to Dr. Lee Schlosstein, M.D., a rheumatologist, who diagnosed Apone with fibromyalgia and " desaturation with activity of uncertain significance." [3]

In March 2003 Dr. Brent Burton, M.D., a specialist in toxicology and occupational medicine, conducted an employer's independent medical evaluation (EIME) for Fred Meyer. Dr. Burton concluded that Apone did not have a work-related injury. He attributed Apone's symptoms to probable depression or anxiety with somatic complaints. Fred Meyer filed a controversion notice on April 22, 2003, relying on Dr. Burton's report. On April 25, 2003, Apone filed a workers' compensation claim requesting TTD, permanent partial impairment benefits, medical and transportation costs, penalties, and a second independent medical evaluation (SIME). Fred Meyer filed an answer denying Apone's claim.

The parties stipulated to an SIME. Dr. Timothy Craven, M.D., a specialist in occupational medicine, was the SIME physician. Dr. Craven examined Apone and diagnosed him with chronic fatigue syndrome and " [p]ossible somatic complaints related to psychiatric disorder." Dr. Craven found no evidence that work-related exposure to gasoline or fumes caused Apone's symptoms. He also stated that Apone's work " did not aggravate, accelerate, or combine with a preexisting condition to produce the need for medical treatment or the disability."

Apone continued his treatment with Dr. Newman, who rated Apone as having a thirty-five percent whole person impairment. In September 2004 Dr. Newman noted that Apone had failed to improve as expected over the previous several months and recommended that Apone be referred to a facility that dealt exclusively with environmental illness.

The parties attended a prehearing conference on October 14, 2004, shortly before the hearing on Apone's claim. At the prehearing conference, Fred Meyer raised concerns that the diagnoses made by Dr. Newman were " beyond his expertise," and Apone asked for a continuance " to allow him to obtain an expert witness on toxic exposure." The prehearing conference ...


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