Egemo v. Egemo Const. Co., No. S-8960.

CourtSupreme Court of Alaska (US)
Writing for the CourtMATTHEWS, Chief Justice.
Citation998 P.2d 434
Decision Date14 April 2000
Docket NumberNo. S-8960.
PartiesDennis EGEMO, Appellant, v. EGEMO CONSTRUCTION COMPANY, CNA Insurance Company, and Northern Adjusters, Appellees.

998 P.2d 434

Dennis EGEMO, Appellant,
v.
EGEMO CONSTRUCTION COMPANY, CNA Insurance Company, and Northern Adjusters, Appellees

No. S-8960.

Supreme Court of Alaska.

April 14, 2000.

Rehearing Denied May 2, 2000.


998 P.2d 435
Chancy Croft, Debra Fitzgerald, Chancy Croft Law Office, Anchorage, for Appellant

Timothy A. McKeever, William W. Whitaker, Holmes, Weddle & Barcott, Anchorage, for Appellees.

998 P.2d 436
Before MATTHEWS, Chief Justice, EASTAUGH, FABE, BRYNER, and CARPENETI, Justices

OPINION

MATTHEWS, Chief Justice.

I. INTRODUCTION

Dennis Egemo was involved in a work-related accident in 1967 that deformed his left leg. In 1995 a doctor recommended that he have surgery to correct the deformity. Egemo had surgery in 1998. The Workers' Compensation Board ordered medical benefits for the surgery but not time-loss benefits. Egemo was required to file his claim within two years of his knowledge of the disability, his knowledge of the disability's relationship to his employment, and after disablement. The Board concluded that Egemo had not timely filed under this standard. The superior court affirmed.

We reverse the superior court's decision and remand for a determination of time-loss benefits, because Egemo filed within two years of his disablement.

II. FACTS AND PROCEEDINGS

A. Facts

In 1967 Dennis Egemo, an employee of Egemo Construction Company, was injured in a work-related accident. He experienced multiple injuries, including compression fractures in his back, fracture of the right fibula, and fracture of the left tibia and fibula.

Dr. George von Wichman put Egemo's left leg in a cast, but the tibia healed out of alignment, resulting in a varus deformity.1 When the cast was removed, the varus deformity was within an acceptable alignment.

Egemo experienced snapping and pain in his left leg, for which he had surgery in 1968. Dr. von Wichman warned Egemo that he would probably have severe or acute arthritis in the areas of the injuries. Egemo received time-loss and medical benefits from the workers' compensation carrier pursuant to a settlement agreement.

Between 1968 and 1996 Egemo had back, knee, and leg problems, but did not file for medical or time-loss benefits, although he knew that the carrier would have paid them.

On December 1, 1987, Egemo consulted Dr. J.S. Pucelik regarding his knee problems. Dr. Pucelik diagnosed arthritis of both knees, chondromalacia,2 chondrocalcinosis,3 a possible tear in the right knee, and a malunion of the tibial fracture causing arthritis. Dr. Pucelik recommended an arthroscopy4 of both knees and noted "[I] will not do an osteotomy5 of the tibia right now. [Egemo] can't miss the time off of work and I don't know whether I want to do it anyway."

Egemo consulted two other doctors about his knees in 1987 and 1988. Both doctors diagnosed degenerative arthritis and chondrocalcinosis of both knees. In February 1988 Egemo had arthroscopic surgery on his knees. The post-operative diagnosis was degenerative disease and a tear on the right knee. Following this surgery, Egemo took time off to recuperate, and then returned to work.

Beginning in 1989 Egemo experienced a series of back problems requiring multiple surgeries. He continued to experience back pain, as well as pain in his ankle and foot. The ankle and foot pain had been present since the accident in 1967 but slowly worsened over the years.

On August 4, 1995, Egemo consulted Dr. David Lang about the pain in his left foot and ankle. Dr. Lang noted that the pain was caused by the varus deformity from the 1967 accident and recommended an osteotomy.

998 P.2d 437
He suggested that Egemo get a second opinion. Dr. Bryan Den Hartog concurred with Dr. Lang in all relevant respects

Egemo saw Dr. Edward James about his back pain in late September of 1995. Dr. James agreed that Egemo needed an osteotomy, but recommended that his back be fixed first.

In April 1997 Egemo saw Dr. Stephen Ekrich, who noted that the ankle pain was caused by the malunion of his tibia. He recommended realignment using the Ilizarov technique rather than an osteotomy.6

In September 1997 Dr. Douglas Smith examined Egemo at the request of the Workers' Compensation hearing officer. Dr. Smith concluded that Egemo's left leg condition was caused by the 1967 accident and that the malunion of his left tibia was contributing to pain in the left knee and ankle. When asked whether Egemo should have had the osteotomy in 1988, Dr. Smith indicated that it "would have been reasonable to consider straightening the angulation" but that "[w]hether it was necessary or not would depend upon really the opinion of Mr. Egemo and his surgeon." Dr. Smith felt that the left knee problems were somewhat exacerbated by the accident but that it had no effect on his right knee.

Egemo was also evaluated by independent medical examiner Dr. Michel Gevaert in September of 1997. Dr. Gevaert found that Egemo's knee and ankle pain were caused by the malunion of the tibia and recommended surgery using the Ilizarov technique. He concluded that the 1967 accident was not a significant cause of Egemo's knee problems.

Egemo had surgery on his left leg, using the Ilizarov technique, on February 10, 1998.

B. Proceedings

On October 14, 1996, Egemo filed an Application for Adjustment of Claim. Egemo sought payment of medical bills, temporary total disability beginning on June 26, 1996, attorney's fees, and interest from Egemo Construction Company, CNA Insurance Company, and Northern Adjusters (collectively "CNA"). CNA advised Egemo and the Board at the pre-hearing conference that it considered the leg surgery to be compensable.

On October 16, 1997, the Workers' Compensation Board held a hearing in this case. At this hearing, Egemo argued that CNA's voluntary agreement to pay for medical benefits entitled Egemo to time-loss benefits. At that point, CNA had not paid Egemo's medical benefits for his varus deformity surgery.

Egemo filed a second Application for Adjustment of Claim on November 24, 1997, seeking medical expenses for the surgery, attorney's fees, and time-loss benefits. CNA did not pay Egemo's bills while awaiting the Board's decision.

The Board issued its opinion in December 1997. The Board awarded Egemo medical benefits for treatment relating to the varus deformity but denied him temporary disability compensation for the time period he would be disabled as a result of the surgery. CNA began paying Egemo's medical bills on January 19, 1998.

Egemo appealed the Board's decision to deny time-loss benefits for the varus deformity surgery. The superior court affirmed the Board's decision. This appeal followed.

III. STANDARD OF REVIEW

Aleck v. Delvo Plastics, Inc. sets out the appropriate standard of review in this case:

Because the superior court acted as an intermediate court of appeals in this case, we do not defer to its decision. Instead, we independently review the merits of an administrative determination. We will substitute our judgment for that of the Board in reviewing questions of law and statutory interpretation. In particular, we
998 P.2d 438
review de novo a ruling on the appropriate statute of limitations.7

However, the determination as to when Egemo learned of his disability is a question of fact, which we generally review under the substantial evidence standard.8 Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."9

The burden of proof is on CNA to establish the affirmative defense of failure to file a timely claim.10 The failure to comply with a statute of limitations is a disfavored defense.11 We resolve ambiguities about the meaning of the Workers' Compensation Act in the employee's favor.12

IV. DISCUSSION

CNA successfully argued before the Board that Egemo's claim was barred by the statute of limitations provision in AS 23.30.105(a), which provided in 196713 that:

The right to compensation for disability under this chapter is barred unless a claim for it is filed within two years after the employee has knowledge of the nature of his disability and its relation to his employment and after disablement. However, [the maximum time for filing the claim in any event other than arising out of an occupational disease shall be four years from the date of injury, and]14 the right to compensation for death is barred unless a claim therefor is filed within one year after the death, except that if payment of compensation has been made without an award on account of the injury or death, a claim may be filed within two years after the date of the last payment. It is additionally provided that, in the case of latent defects pertinent to and causing compensable disability, the injured employee has full right to claim as shall be determined by the board, time limitations notwithstanding.15

Based on this provision, the Board concluded that Egemo's claim was untimely, as more than two years had passed since he knew of the disability and its relation to employment.

Egemo argues that the Board erred as a matter of law in this determination because he lacked disablement until the 1998 surgery.16 CNA offers three responses. First, Egemo was disabled by his varus deformity prior to the surgery, beginning when he was told that he needed the surgery. Second, the Board found that Egemo was disabled in 1988 from the knee surgery. Third, Egemo filed his claim before disablement, since he filed in 1996, even though the statute requires that he file after disablement. These arguments are addressed in turn.

A. The Varus Deformity

Egemo argues that for an employee to have...

To continue reading

Request your trial
5 practice notes
  • Murphy v. Fairbanks N. Star Borough, Supreme Court No. S-17530
    • United States
    • Supreme Court of Alaska (US)
    • September 3, 2021
    ...Claims for medical treatment are governed by a different limitations framework. AS 23.30.095(a) ; see also Egemo v. Egemo Constr. Co. , 998 P.2d 434, 440 (Alaska 2000) ("[N]ew medical treatment entitles a worker to restart the statute of limitations for medical benefits."). New medical trea......
  • Groom v. State, No. S-11882.
    • United States
    • Supreme Court of Alaska (US)
    • October 26, 2007
    ...of the claim in which all parties in interest are given reasonable notice and opportunity to be heard. 32. See Egemo v. Egemo Constr. Co., 998 P.2d 434, 441 (Alaska 33. Id. 34. Cf. Vaska v. State, 135 P.3d 1011, 1019 (Alaska 2006): We recognize of course that an appellate court ordinarily h......
  • Garrison v. Dixon, No. S-8916
    • United States
    • Supreme Court of Alaska (US)
    • March 30, 2001
    ...1998) (quoting O'Callaghan v. State, 920 P.2d 1387, 1388 (Alaska 1996)). 10. Alaska R.App. P. 204(a)(6). 11. Egemo v. Egemo Constr. Co., 998 P.2d 434, 441 (Alaska 12. Alaska R. Civ. P. 82(b)(2) provides: (2) In cases in which the prevailing party recovers no money judgment, the court shall ......
  • Murphy v. Fairbanks N. Star Borough, S-17530
    • United States
    • Supreme Court of Alaska (US)
    • September 3, 2021
    ...[21]Claims for medical treatment are governed by a different limitations framework. AS 23.30.095(a); see also Egemo v. Egemo Constr. Co., 998 P.2d 434, 440 (Alaska 2000) ("[N]ew medical treatment entitles a worker to restart the statute of limitations for medical benefits."). New medical tr......
  • Request a trial to view additional results
5 cases
  • Murphy v. Fairbanks N. Star Borough, Supreme Court No. S-17530
    • United States
    • Supreme Court of Alaska (US)
    • September 3, 2021
    ...Claims for medical treatment are governed by a different limitations framework. AS 23.30.095(a) ; see also Egemo v. Egemo Constr. Co. , 998 P.2d 434, 440 (Alaska 2000) ("[N]ew medical treatment entitles a worker to restart the statute of limitations for medical benefits."). New medical trea......
  • Groom v. State, No. S-11882.
    • United States
    • Supreme Court of Alaska (US)
    • October 26, 2007
    ...of the claim in which all parties in interest are given reasonable notice and opportunity to be heard. 32. See Egemo v. Egemo Constr. Co., 998 P.2d 434, 441 (Alaska 33. Id. 34. Cf. Vaska v. State, 135 P.3d 1011, 1019 (Alaska 2006): We recognize of course that an appellate court ordinarily h......
  • Garrison v. Dixon, No. S-8916
    • United States
    • Supreme Court of Alaska (US)
    • March 30, 2001
    ...1998) (quoting O'Callaghan v. State, 920 P.2d 1387, 1388 (Alaska 1996)). 10. Alaska R.App. P. 204(a)(6). 11. Egemo v. Egemo Constr. Co., 998 P.2d 434, 441 (Alaska 12. Alaska R. Civ. P. 82(b)(2) provides: (2) In cases in which the prevailing party recovers no money judgment, the court shall ......
  • Murphy v. Fairbanks N. Star Borough, S-17530
    • United States
    • Supreme Court of Alaska (US)
    • September 3, 2021
    ...[21]Claims for medical treatment are governed by a different limitations framework. AS 23.30.095(a); see also Egemo v. Egemo Constr. Co., 998 P.2d 434, 440 (Alaska 2000) ("[N]ew medical treatment entitles a worker to restart the statute of limitations for medical benefits."). New medical tr......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT