Morrison v. Alaska Interstate Construction Inc.

          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 ...