Raab v. Parker Drilling

• Decision Date: 13 December 1985
• Docket Number: No. S-681,S-681
• Citation: 710 P.2d 423
• Parties: Maynard G. RAAB, Appellant, v. PARKER DRILLING and Armco Insurance Group, Appellees.
• Court: Alaska Supreme Court

Page 423

710 P.2d 423

Maynard G. RAAB, Appellant, v. PARKER DRILLING and Armco Insurance Group, Appellees.

No. S-681.

Supreme Court of Alaska.

Dec. 13, 1985.

Chancy Croft, Anchorage, for appellant.

Michael A. Budzinski, Stone, Waller & Jenicek, Anchorage, for appellees.

Before RABINOWITZ, C.J., BURKE, MATTHEWS, COMPTON, and MOORE, JJ.

OPINION

PER CURIAM.

The decision of the superior court affirming the decision of the Alaska Worker's Compensation Board is AFFIRMED for the reasons expressed in the opinion of the superior court set forth in the appendix.

APPENDIX

OPINION

This matter is before the court on an appeal by Maynard G. Raab of the Decision and Order of the Alaska Worker's Compensation Board (AWCB) dated November 22, 1983, denying his claim for additional compensation. IT IS HEREBY ORDERED that the Decision and Order of the AWCB is AFFIRMED.

On June 27, 1979, Maynard Raab was injured while working for Parker Drilling Company as a floor hand in Toonalik, Alaska. As a result of this injury, appellant was treated by Dr. Richard Garner, who operated to repair a torn biceps tendon in Raab's right arm. On April 30, 1980, Dr. Garner gave Raab a 7% whole-body permanent partial disability rating.

As a result of this injury, a compromise and release agreement settling Raab's worker's compensation claim was executed by Raab. This agreement, which was approved by the AWCB on August 28, 1980, released the carrier and Parker Drilling from any liability for "future development, progress and results" of Raab's right arm and shoulder problem.

At some point after the settlement agreement was approved, appellant began experiencing subluxations and/or dislocations of his right shoulder. He was examined by Dr. Garner who expressed the opinion that the shoulder dislocation problem was not related to the June, 1979 incident. Raab then consulted Dr. Edward Voke who expressed the opinion that the shoulder dislocation problem was a progression of Raab's biceps injury. Dr. Voke consulted with Dr. J. Paul Dittrich who assisted Dr. Voke in operating on Raab's right shoulder to treat the dislocation problem. It was Dr. Dittrich's opinion that the shoulder dislocation problem was not related to the bicep tendon injury of June, 1979.

On March 18, 1982, Raab filed a worker's compensation claim against both Parker Drilling and RG&B Contractors, Raab's employer in July, 1981 when his shoulder dislocation problem became disabling. He asserted that his shoulder dislocation disability was a result of the injury caused by the incident of June, 1979, or was caused by his employment with RG&B. Raab later dropped his claim against RG&B Contractors and, on February 24, 1983, filed a second application for benefits naming only Parker Drilling. Raab asserted a claim for temporary total disability benefits from July 16, 1981 through the present, and asserted a claim for permanent partial disability for dates to be determined, along with medical costs and attorney's fees. Raab also requested that the AWCB set aside the compromise and release agreement executed by Raab and Parker Drilling.

A hearing was held on Raab's claim on August 17, 1983 before the AWCB. Both Raab and Dr. Voke appeared and testified. At the hearing, Dr. Voke opined that Raab's condition was the result of a tear of the rotator cuff capsule which surrounds the right shoulder joint. Dr. Voke arrived at this opinion on the morning of the hearing after a telephone consultation with a specialist at the University of Texas medical school. Neither Dr. Garner nor Dr. Dittrich testified at the hearing. Evidence of their medical opinion was submitted in the form of depositions, letters, and reports. Consequently, neither doctor was present at the hearing to respond to Dr. Voke's "rotator cuff" theory.

At the conclusion of the hearing, the parties agreed that briefs would be filed within 30 days of the hearing. On November 22, 1983, the Board entered an order denying Raab's worker's compensation claim on the basis that he did not prove by a preponderance of the evidence that his shoulder dislocation problem was related to his industrial injury of June, 1979. The Board further found that the other issues raised by the parties were moot. Raab appeals that order of the Worker's Compensation Board.

The first issue raised by appellant is whether the Board erred in its application of the statutory presumption found in AS 23.30.120(a)(1) which provides:

In a proceedings for enforcement of a claim for compensation under this chapter it is presumed in the absence of substantial evidence to the contrary, that (1) the claim comes within the provision of this chapter ...

Appellant claims that Dr. Voke's testimony regarding the rotator cuff tear was sufficient to trigger the statutory presumption set forth above. Having established the preliminary link necessary to operation of the presumption of compensability, appellant argues that the appellees were required to come forward with evidence to overcome that presumption and that appellees failed to do so. Appellant argues that appellees were required to come...