Jespersen v. Tri-City Air
| Jurisdiction | Alaska,United States |
| Parties | JAY JESPERSEN, Appellant, v. TRI-CITY AIR and ALASKA INSURANCE GUARANTY ASSOCIATION, Appellees. |
| Decision Date | 03 May 2024 |
| Court | Alaska Supreme Court |
| Docket Number | S-18526,7698 |
Appeal from the Alaska Workers' Compensation Appeals Commission No. 21-006
Richard L. Harren and H. Lee, Law Offices of Richard L Harren, P.C., Wasilla, for Appellant.
Vicki A. Paddock, Meshke Paddock & Budzinski, Anchorage, for Appellees.
Before: Maassen, Chief Justice, and Carney, Borghesan Henderson, and Pate, Justices.
A pilot injured in an airplane crash in 1985 asked the Alaska Workers' Compensation Board to award him medical benefits for a 2016 spinal surgery and subsequent treatment as well as for diabetes treatment ancillary to his spinal treatment.
At the final hearing the Board excluded the testimony of the pilot's biomechanics expert because his witness list did not conform to Board regulations. Based on the evidence presented, the Board concluded the 1985 injury was not a substantial factor in the pilot's spinal problems and denied his claim.
The Alaska Workers' Compensation Appeals Commission affirmed the Board's decision, concluding that substantial evidence in the record supported the Board's decision and that the Board had not abused its discretion in its procedural rulings. The pilot appeals, arguing that the Commission's conclusions about substantial evidence and abuse of discretion were erroneous. We affirm the Commission's decision.
Jay Jespersen was employed by Tri-City Air when the small plane he was piloting crashed near Quinhagak in November 1985. Jespersen sustained a number of injuries in the crash, including several rib fractures and a vertebral compression fracture at L5.[1] Jespersen underwent treatment in Bethel at the U.S. Public Health Service hospital for a short time, recovered on his own at a friend's house in Bethel, and then returned to his home in Minnesota. In Minnesota he first received treatment from a medical doctor but later changed to chiropractic care because he did not feel he was improving under the doctor's care. Jespersen saw Dr. C. M. Carney, D.C., as well as his son, Dr. Michael Carney, D.C. In June 1987 Dr. Michael Carney diagnosed Jespersen with "early degenerative disc disease of L-5, S-1." Jespersen recovered sufficiently to work as a pilot in Minnesota beginning in June 1987.
Jespersen subsequently returned to Alaska, working for Sourdough Outfitters; he and his wife bought Brooks Range Aviation in 1994. They owned and operated the business for many years, with Jespersen working as a pilot as well as a mechanic. Jespersen and his wife spent about seven months per year in Alaska, two to three months in Arizona, and the balance of time in transit or in Minnesota.
The administrative record contains no medical records from June 1987 to August 2007, even though medical records generated later indicate that Jespersen received substantial medical care during this 20-year period. In August 2007 Jespersen went to an emergency room in Fairbanks because of a cough and weight loss. He reported that he had been taking a steroid for osteoarthritis and fibromyalgia.[2] No medical records show when Jespersen was diagnosed with osteoarthritis and fibromyalgia, which body parts were affected by the osteoarthritis, or what prompted the fibromyalgia diagnosis. During this hospital visit Jespersen was diagnosed with diabetes.[3]
In early September 2014 Jespersen returned to the emergency room in Fairbanks after he had an episode in which he lost feeling in both legs for about 30 minutes. According to hospital records, he reported that during the previous week he had felt "weakness" in both lower legs, but that day he "progressively suddenly felt both of his legs giving out" as he was walking in his yard. He fell to the ground but gradually regained sensation in both legs and was taken to the emergency room. Jespersen underwent multiple tests, but the emergency room doctors were unable to identify a cause of his loss of feeling. Jespersen was discharged because he reported being back to his baseline; he was told to follow up for further testing. Imaging studies of the lumbar spine at the time showed "[n]o evidence of lower thoracic or lumbar cord compressing lesion" but did show a disc protrusion at L5-S1 "causing mild to moderate bilateral foraminal narrowing." A study of his thoracic spine showed "small disc protrusions."
Jespersen sought medical care in Arizona for neck and back pain in February 2016. He told the provider his neck and back pain began with the airplane crash. Imaging studies showed a "broad-based disc bulge and superimposed central disc protrusion" at L5-S1, as well as foraminal stenosis.[4] The Arizona medical records report a diagnosis of degenerative disc disease; the doctor opined that Jespersen's pain in "the neck and back [was] due to a comb[ination] of cervical spondylosis, thoracic and cervical degeneration"[5] and that Jespersen had "lumbar degeneration that [was] causing [left extremity] paresthesia." He was treated with epidural steroid injections in his cervical spine and at L5-S1. He also had medial branch blocks and radiofrequency ablation at several levels of the lumbar spine, including L5, for "lumbar spondylosis."
In June 2016 Jespersen sought care in Alaska for an "[e]xacerbation of low back pain"; he was "unable to put any weight on his left lower extremity due to weakness." A chart note from this time indicates Jespersen "had back issues for over 32 years after he was involved in an airplane crash." Imaging showed a "[m]oderate disc bulge" at L5-S1, "eccentric to the left." The radiology report stated, "Multiple levels of lumbar spine degenerative change are seen, which are worst at the L5-S1 level."
Jespersen received care from Dr. Paul Jensen, who recommended "an L5-S1 complete laminectomy with central decompression and diskectomy."[6] The surgery was performed in July 2016, and a few days later Jespersen reported a return of feeling in part of his foot.
Jespersen recovered well from the surgery, but the following year he had a recurrent disc problem at L5-S1. Dr. Jensen recommended a microdiskectomy in May 2017, but Jespersen wanted to try steroid injections first so as not to take time off during the summer. In July Jespersen again consulted with Dr. Jensen's office, reporting that the pain was worse and limited his activities; he was given medication. Jespersen later obtained an opinion from Dr. Jensen for use in this litigation that identified the 1985 airplane crash as a substantial factor in causing the need for the 2016 surgery and for post-surgery care.
The medical records dated after 2017 in the administrative record are relatively scant, but those records demonstrate that Jespersen had continuing problems with his diabetes as well as neck and back pain. A 2019 MRI taken in Fairbanks indicated a right disc protrusion that "abut[ted] both S1 nerve roots." Jespersen saw a chiropractor in Arizona, and it appears the chiropractor referred him to a surgeon for his neck complaints, as well as some vision problems.
In late 2020 and early 2021, Jespersen was in Minnesota for an extended period, apparently because of the COVID-19 pandemic. While there he sought care at the Mayo Clinic for multiple concerns, including low back pain and radicular symptoms as well as diabetes. At a January 2021 neurosurgery consult a physician suggested the possibility of another decompression at L5-S1 or possibly a fusion surgery. A surgeon told Jespersen his diabetes was problematic and he needed to control his blood sugar levels; the doctors suggested Jespersen should return in three months, but Jespersen stated he would likely be in Alaska at that time.
Tri-City Air[7] paid compensation following Jespersen's injury in 1985 until June 1987, when Jespersen returned to work. Jespersen filed a claim for additional compensation in October 1987. This claim resulted in a compromise and release agreement that explicitly left open future medical care; the Board approved the settlement in 1988. The claim was dormant until December 2016, when Dr. Jensen's office filed a workers' compensation claim for medical costs because Jespersen's "commercial insurance" had denied a claim for the surgery "due to an open work comp case." Tri-City Air answered and denied the claim. It also filed a controversion notice, citing the lack of medical evidence tying Jespersen's 2016 surgery to the 1985 crash.
Tri-City Air arranged for Jespersen to be seen by Dr. R. David Bauer for an employer's medical evaluation (EME) in March 2017. Dr. Bauer listed three diagnoses related to the 1985 airplane crash and four diagnoses not substantially caused by or aggravated by the crash. Dr. Bauer thought the need for surgery in 2016 was the result of degenerative disc disease; he specifically opined that the L5 fracture was not a substantial factor in causing the disc herniation that prompted the surgery. Dr. Bauer's report noted that Jespersen's fracture was of the "superior endplate" of L5 and "did not result in any damage to the L5-S1 disc." Dr. Bauer cited several studies, including studies about the interaction between spinal fractures and disc degeneration, to support his opinion that the L5 fracture Jespersen suffered was not a substantial factor in the L5-S1 disc's later degeneration. After receiving Dr. Bauer's report, Tri-City Air filed another controversion notice.
Jespersen filed a workers' compensation claim of his own in January 2018, seeking disability benefits in addition to medical and transportation costs. The claim alleged that the "progressive effects of [the] original injury combined with the...
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