THEODORE D. MORRISON, Petitioner,
v.
ALASKA INTERSTATE CONSTRUCTION INC. and SKW ESKIMOS, INC., Respondents.
Petition for Review from the Alaska Workers' Compensation
Appeals Commission. No. 17-007
Appearances: Joseph A. Kalamarides, Kalamarides &
Lambert, Anchorage, for Petitioner.
Michelle M. Meshke, Russell Wagg Meshke & Budzinski,
Anchorage, for Respondent Alaska Interstate Construction,
Inc. Colby J. Smith, Griffin & Smith, Anchorage, for
Respondent SKW Eskimos, Inc.
Before: Bolger, Chief Justice, Winfree, Stowers, Maassen, and
Carney, Justices.
OPINION
Bolger, Chief Justice.
I.
INTRODUCTION
A
worker had surgery on his right knee in 2004 after injuring
it at work. He returned to work after the surgery and did not
consult a doctor about that knee for almost ten years, until
he again injured it in 2014 while working for a different
employer. Following the 2014 injury he sought to have
arthroscopic surgery as his doctor recommended. His 2014
employer disputed its liability for continued medical care,
and the worker filed a written claim against the 2014
employer. The Alaska Workers' Compensation Board joined
the earlier employer to the claim and decided, after a
hearing, that the 2014 work injury was the substantial cause
of the worker's current need for medical care, requiring
the 2014 employer to pay the cost of treatment for the right
knee. The 2014 employer appealed to the Alaska Workers'
Compensation Appeals Commission, which decided the Board
misapplied the new compensability standard and remanded the
case to the Board for further proceedings. The employee
petitioned this court for review of the Commission's
decision, and we granted review. We reverse the
Commission's decision and reinstate the Board's
award.
II.
FACTS AND PROCEEDINGS
Theodore
Morrison injured his right knee while working for SKW
Eskimos, Inc. on St. Paul Island in 2004. After
Morrison's physician diagnosed meniscus tears, Morrison
underwent arthroscopic surgery that removed parts of both his
lateral meniscus and medial meniscus. Morrison was released
to work shortly after the surgery, but his physician
indicated Morrison might later need treatment "for
posttraumatic osteoarthritis." SKW Eskimos paid Morrison
all workers' compensation related to the 2004 right knee
injury.
From
Morrison's perspective, the 2004 surgery was successful:
he testified that he returned to work after the surgery and
performed all of his job duties without significant problems
until he injured his right knee in 2014 while working for
Alaska Interstate Construction, Inc. He described doing heavy
labor from 2004 to 2014, including working on ladders and
lifting as much as 90 to 110 pounds. He said he did not
see a doctor about his right knee during this time
period "[b]ecause there was nothing wrong with it, as
far as [he] was concerned." His testimony is supported
by a lack of medical records related to his right knee from
February 2005, when he had his last postoperative visit,
until August 2014.
In late
August 2014 Morrison was working for Alaska Interstate
Construction at a seasonal job on the North Slope when he
twisted his right knee while descending a ladder. He said he
thought he had reached the ground but had actually stepped on
a piece of angle iron, and when he turned to get off the
ladder, he twisted his knee because his boot got caught. He
felt a pinch in his right knee and noted some swelling; he
reported the injury that day but did not miss work. The
physician assistant who examined him at the camp clinic
diagnosed a knee strain and prescribed conservative care.
Morrison was allowed to return to work with "activity as
tolerated." About a week later, Morrison again visited
the camp clinic because he still had some pain and was unable
to kneel; the physician assistant recommended continued
conservative care and suggested he have an orthopedic
evaluation before returning to work on the Slope.
Morrison
consulted with his doctor, Dr. Dale Trombley, in late
September. Dr. Trombley recommended that Morrison use an
"elastic sleeve" on the knee and prescribed
medication. Dr. Trombley released Morrison to work, but told
him that if he still experienced pain after his three-week
rotation on the Slope, Morrison should "check in"
with Dr. Trombley so he could refer Morrison for an MRI.
Morrison visited Dr. Trombley again in November, indicating
his knee had "finally been feeling like it [was] getting
better," even though he still had some discomfort when
he climbed stairs. Dr. Trombley observed no swelling or
tenderness in the knee and released Morrison to work without
restrictions. Dr. Trombley warned Morrison "that months
or even years from now, as a result of this injury, he may
end up having a return of pain, discomfort and limited range
of motion due ... to meniscus injury."
Morrison returned to Dr. Trombley for his right knee pain in
late March 2015, when he told the doctor that the mild pain
he had six months before had not resolved and his limping
seemed to cause discomfort in his back. Dr. Trombley's
examination of the knee showed "tenderness on the medial
aspect, especially with outward twisting of the foot."
Dr. Trombley referred Morrison for an MRI.
Morrison's
imaging studies were interpreted as showing mild to moderate
osteoarthritis, a medial meniscus tear, and some cartilage
loss. Dr. Trombley referred Morrison to an orthopedic doctor
after reviewing the imaging studies, and Morrison saw Dr.
Richard Garner. At that time Dr. Garner observed limitations
in Morrison's range of motion in his right knee and
suggested a second arthroscopic surgery. Morrison wanted to
have surgery as soon as possible so he could work through the
construction season.
Alaska
Interstate Construction arranged an employer's medical
evaluation (EME) with Dr. Charles Craven, Jr., an orthopedic
surgeon, who examined Morrison in April 2015. Dr. Craven
diagnosed Morrison as having osteoarthritis in his right
knee, but Dr. Craven's report concluded that the 2014
injury was not the substantial cause of Morrison's
current need for medical care. Dr. Craven diagnosed Morrison
as having suffered a right knee strain in the 2014 injury,
and he gave the opinion that Morrison recovered from that
injury in six to twelve weeks. Dr. Craven did not think
arthroscopic surgery was reasonable and necessary in any
event because of studies showing that this type of surgery
was no more effective than physical therapy.
Alaska
Interstate Construction controverted all benefits after Dr.
Craven wrote his report, and Morrison filed a written
workers' compensation claim seeking medical care and
temporary total disability (TTD) during his recovery from any
surgery. At the same time he filed the written claim,
Morrison asked the Board to order a second independent
medical evaluation (SIME) because Dr. Trombley disagreed with
Dr. Craven about causation and treatment.[1] Alaska Interstate
Construction agreed an SIME was needed, but it denied all
other parts of Morrison's claim.
Alaska
Interstate Construction asked Dr. Craven to consider
additional medical records for a supplemental EME report. The
additional records did not change Dr. Craven's analysis
with respect to the 2014 injury. But Dr. Craven added a new
opinion related to causation: Dr. Craven thought the surgery
following the 2004 right knee injury was a substantial factor
in causing or significantly accelerating Morrison's right
knee osteoarthritis, which made it a substantial factor in
the 2015 need for medical treatment. Alaska Interstate
Construction then asked the Board to join SKW Eskimos as a
party to the claim.[2] The Board evidently reopened the 2004
claim and joined the claims.[3] The Board also appointed Dr.
Floyd Pohlman as the SIME physician.
Dr.
Pohlman examined Morrison in April 2016 and reviewed many
medical records. The physical examination indicated Morrison
had some pain and a "questionable" test for a
meniscus tear. Dr. Pohlman diagnosed Morrison with a right
knee strain and moderate degenerative arthritis in his right
knee; he listed both as causes of Morrison's need for
medical treatment. He said the 2014 injury aggravated the
preexisting arthritis, "causing the . . . need for
treatment." He also thought the 2014 injury caused a
permanent change in the preexisting arthritis and further
gave the opinion that without the 2014 injury, "it is
not likely that the condition would have become symptomatic
on that date." Dr. Pohlman identified the 2014 twisting
injury as the substantial cause of the need for medical
treatment and recommended physical therapy as possible
additional treatment. Dr. Pohlman agreed with Dr. Craven that
surgery was not necessary at that time.
Morrison
was deposed twice, once by each employer. At his October 2015
deposition, Morrison testified about the 2014 accident and
said he had continued pain afterward even though he missed no
work as a result of it. He described limping a few months
after the accident but said he continued to work. He said he
stopped working for Alaska Interstate Construction around
Thanksgiving because he had "made [his] money for the
year and [he] was done." He indicated he had returned to
work in February 2015 and had worked at some projects from
then until the time of the deposition. He testified that he
had continuing pain in his right knee and still felt a pinch
in his knee when he twisted to the right or spun on the knee.
He continued to take medication for the knee and had been
unable to identify specific activities that triggered his
symptoms. He said he planned to work if he was able to find
something suitable.
At
Morrison's second deposition, taken about a year later,
he said he had experienced constant pain for 26 months and
thought the pain might be "a little worse" then, as
he was taking more aspirin. He had a prescription for
ibuprofen that he used when the pain was bad enough to make
him limp. He had continued his usual pattern of working only
as much as he felt necessary and had collected unemployment
from February to May 2016. He had worked for two employers at
different jobs in the year between the two depositions and
did not think this employment had impacted his knee pain.
Dr.
Craven testified by deposition. His opinions were overall
consistent with his report, although he provided more detail
about some issues. Dr. Craven described Morrison as
"straightforward," and he said Morrison "gave
full and maximal effort" during the examination and had
shown "absolutely no pain behaviors." Dr. Craven
considered the 2004 injury to be a substantial factor in
Morrison's current need for medical treatment because the
partial removal of the meniscus accelerated any minor
arthritic changes existing at the time of that injury. Dr.
Craven thought Morrison probably had suffered symptoms of
right knee arthritis prior to the 2014 injury but had not
perceived them as such; he attributed this to what he
described as a stoic personality. Dr. Craven indicated that
even if a person has osteoarthritis, he would not treat that
condition until the person shows symptoms.
Dr.
Craven insisted that the right knee would have become
symptomatic at some point because of its condition, and he
agreed that twisting injuries can cause arthritis to become
symptomatic even if they do not cause the arthritis itself.
He acknowledged that he was "not in a position to
refute" Morrison's pain reports, and when asked by
SKW Eskimos' attorney whether Morrison's subjective
pain symptoms "would be the substantial cause, weighing
them only, for the need for further treatment," Dr.
Craven agreed that "if subjective symptoms are the only
thing that... substantiate[] a substantial cause, then
yes."
Dr.
Pohlman testified both by deposition and at the later Board
hearing. Dr. Pohlman testified that the 2004 injury and
related surgery were the substantial cause of Morrison's
osteoarthritis and the 2014 injury was not the substantial
cause of the arthritic condition itself.[4] But Dr. Pohlman
indicated in his deposition that it was "hard to
answer" a question about which injury was the
substantial cause of Morrison's continuing need for
medical treatment. He appeared to agree with Dr. Craven that
without the 2004 injury and the osteoarthritis that resulted
from the meniscus surgery, the 2014 injury would likely have
resolved in a few weeks or months. But Dr. Pohlman also
thought the 2014 injury had to have changed
something or Morrison would not have become
symptomatic at that point. When asked whether the 2014 injury
"result[ed] in any pathological changes in the condition
of the knee," Dr. Pohlman answered, "I can't
say." In terms of which injury was responsible for the
need for medical treatment, Dr. Pohlman said,
"[I]t's not one [injury] or the other. He had to
have osteoarthritis. The 2014 injury aggravated it and made
it symptomatic.....I wouldn't say one is responsible and
one isn't. They both are." Like Dr. Craven, Dr.
Pohlman testified that doctors treat osteoarthritis only when
it is symptomatic.
With
respect to treatment options, Dr. Pohlman also thought
arthroscopic surgery was probably not indicated because
Morrison's symptoms did not suggest that surgery would
improve the knee pain. Dr. Pohlman suggested a course of
physical therapy, which had not been tried, and thought
viscosupplementation (injecting hyaluronic acid into the
joint) might be an option if the pain increased. He also said
a knee replacement might be indicated in the future as the
osteoarthritis progressed and pain increased. Dr. Pohlman
accepted that Morrison had in fact been symptom-free in the
interval between the 2004 surgery and the 2014 injury. Dr.
Pohlman testified that he had treated patients who had no
symptoms at all, twisted their knee, and on examination were
found to need a total knee replacement because they had
"bone-on-bone" contact.
The
Board held a hearing on Morrison's claim for continuing
medical treatment in December 2016. At the hearing Dr.
Pohlman gave an estimate of how he would allocate causation
of the injury if he were in an apportionment jurisdiction,
saying that he would allot about 80% to 90% to the 2004
injury and 10% to 20% to the 2014 injury. One Board panel
member asked Dr. Pohlman whether a person with osteoarthritis
would require treatment "if there wasn't a
triggering event in cases like this." Dr. Pohlman said
the question was "unanswerable" and reiterated that
he had "seen people that have completely worn out knees
with bone-on-bone contact [who] didn't have any
symptoms."
Morrison
testified briefly at the hearing, again describing the
injuries and the progression of medical treatment following
the 2014 accident. He agreed he was having right knee
problems that began in 2014 and said he wanted to have the
knee "fixed if possible." He affirmed that he had
not had pain in the right knee from 2005 to 2014.
The
Board decided that the 2014 injury was the substantial cause
of Morrison's current need for medical treatment. The
Board first noted that Morrison had attached the presumption
that his need for medical treatment was compensable and that
each employer had rebutted the presumption that it was liable
by identifying the other employer as the cause of the need
for medical treatment. The Board gave greater weight to the
medical opinions of Dr. Pohlman and Dr. Craven than to Dr.
Trombley's opinion letter because they had
"performed comprehensive medical records reviews."
The Board found Dr. Pohlman and Morrison credible. The Board
discussed prior cases, including DeYonge v.
NANA/Marriott, where we applied to workers'
compensation a rule from occupational disability cases that a
permanent aggravation of symptoms can be a compensable
injury, [5] and a Commission decision that had applied
DeYonge to a post-2005 injury.[6] It also discussed
another Board decision that had determined an injury could be
the substantial cause of a need for medical treatment even if
a preexisting condition might significantly
contribute.[7] The Board said the last injurious exposure
rule[8]
had not been abrogated to the extent that "it still
operates to prevent apportionment of liability of injury
among employers."
The
Board decided that the 2014 injury had caused a permanent
increase in Morrison's right knee symptoms. It reasoned
that because the doctors agreed medical treatment of
arthritis is based on symptoms, the 2014 injury was the
substantial cause of Morrison's current need for medical
treatment even though the doctors were not able to say
whether Morrison's right knee was itself damaged after
the 2014 injury. It ordered Alaska Interstate Construction to
pay for medical care related to Morrison's right knee and
pay both SKW Eskimos' and Morrison's attorney's
fees.[9]
Alaska
Interstate Construction appealed to the Commission, arguing
that the Board had erred legally in its application of
DeYonge to the case because DeYonge
predated the adoption of "the substantial cause" as
a compensability standard. Alaska Interstate Construction
conceded that the 2005 amendments "may not prohibit an
award of benefits based on increased symptoms," but it
nonetheless contended that "[t]he application of
DeYonge to the current legal causation standard
needs to be reevaluated." It contended that the Board
erred by focusing on the 2014 injury as the injury that
"triggered" Morrison's symptoms and alleged the
Board failed to weigh the different causes and determine
which one predominated.
Morrison
argued in response that the Board had correctly applied
Commission precedent to the case, specifically citing
City of Sewardv. Hansen, [10] which he argued had
rejected the idea thai DeYonge was not viable after
the 2005 amendments. In response to Alaska Interstate
Construction's argument that "the substantial
cause" had to be at least a 51% cause, he quoted a
letter about the 2005 amendments from the Department of Law
to the governor that said, "Because 'the substantial
cause' is determined in relation to employment and other
causes, it follows that the employment may be 'the
substantial cause' but not necessarily 'more than 50
percent.'" He argued that because Dr. Pohlman had
testified that "doctors do not do surgery on a knee
until there is pain," the 2014 injury, which caused
Morrison's arthritic right knee to become painful, was
the substantial cause of Morrison's current need for
medical treatment.
SKW
Eskimos agreed with Morrison that the Board had correctly
applied the law, contending that DeYonge remained
valid after adoption of "the substantial cause" as
a standard for compensability. SKW Eskimos argued that the
medical testimony at the hearing was contrary to Alaska
Interstate Construction's interpretation of the evidence.
SKW Eskimos also maintained that the Board had properly
applied the last injurious exposure rule.
The
Commission reversed the Board's decision and remanded the
case for the Board "to examine in further detail the
relationship between the first (2004) injury and the second
(2014) injury to determine the substantial cause for any
ongoing medical treatment." The Commission discussed
both legal and factual reasons for its decision.
The
Commission identified "keeping workers' compensation
insurance premiums affordable for employers" as "an
important purpose" of the 2005 amendments. The
Commission concluded that the legislature intended to
contract coverage under the Alaska Workers' Compensation
Act (Act) when it changed the causation standard. It then
summarized cases related to aggravations, including
DeYonge, and others related to the last injurious
exposure rule. The Commission wrote, "The question that
remains is whether an increase in symptoms meets the
definition of 'the substantial cause' or whether the
underlying condition must be changed before the increase in
symptoms becomes 'the substantial cause.' "
The
Commission thought the Board had "ignored" Dr.
Pohlman's testimony about apportionment and also said
that "hastening the need for treatment does not
necessarily make it the substantial cause." The
Commission interpreted Dr. Pohlman's testimony as
"seemingly agree[ing that] the substantial cause for
treatment of the underlying condition was the 2004
injury."
The
Commission concluded its discussion as follows:
The Board erred in relying on pre-2005 case law for the
proposition that an onset of symptoms following the 2014
injury is sufficient to define it as the substantial cause
for all ongoing medical treatment without following the
requirement of AS 23.30.010(a) to weigh all relevant causes.
A remand is necessary for the Board to weigh all factors
before determining which injury is the substantial cause of
future and ongoing medical treatment.
We
granted Morrison's petition for review of the
Commission's decision.
III.
STANDARD OF REVIEW
In an
appeal from the Commission, we review the Commission's
decision and not the Board's.[11] "We apply our
independent judgment to questions of law that do not involve
agency expertise, including issues of statutory
interpretation" and "interpret a statute
'according to reason, practicality, and common sense,
considering the meaning of the statute's language, its
legislative history, and its purpose.'
"[12]
IV.
DISCUSSION
This
case presents questions related to the 2005 amendments to the
Act. The Act creates a presumption that a claim falls within
the Act's coverage.[13] Before 2005, application of this
presumption followed a three-step analysis developed through
case law.[14] In 2005 the legislature modified the
standard for compensability of injuries and set out steps for
the Board to use in evaluating compensability.[15] This case
involves only the last step of the compensability analysis:
no party has raised an issue related to attaching or
...