Tolbert v. Alascom, Inc.

• Decision Date: 19 March 1999
• Docket Number: No. S-8038,S-8038
• Citation: 973 P.2d 603
• Parties: Daretha TOLBERT, Appellant, v. ALASCOM, INC., Appellee.
• Court: Alaska Supreme Court

Page 603

973 P.2d 603

Daretha TOLBERT, Appellant, v. ALASCOM, INC., Appellee.

No. S-8038.

Supreme Court of Alaska.

March 19, 1999.

Charles W. Coe, Anchorage, for Appellant.

Shelby L. Nuenke-Davison, Davison & Davison, Inc., Anchorage, for Appellee.

Before MATTHEWS, Chief Justice, COMPTON, EASTAUGH, FABE, and BRYNER, Justices.

OPINION

BRYNER, Justice.

Daretha Tolbert filed four workers' compensation claims against her employer, Alascom, Inc., alleging work-related injuries to her hands. The Alaska Workers' Compensation Board denied these claims, finding that Tolbert either had shown no compensable injury or had failed to prove that her injuries were work related. The superior court affirmed. As to three of the claims, we conclude that Tolbert presented sufficient evidence to raise a presumption of work-related injuries and that Alascom failed to rebut this presumption.

I. FACTS AND PROCEEDINGS

A. Tolbert's Original Claim

Daretha Tolbert began working for Alascom in 1982 as a telephone operator. Her job required at least some repetitious use of a keyboard, although the parties dispute how much keyboarding was involved. Between 1982 and 1989, she developed bilateral carpal tunnel syndrome, requiring her to undergo multiple carpal tunnel release surgeries. Tolbert sought to recover workers' compensation for what she maintained was a job-related impairment.

The Board found that her claims were barred by AS 23.30.100(a) and (d) as a result of her delay in notifying Alascom that her injuries were job related. The superior court affirmed the Board's decision in July 1991; we affirmed the superior court's holding in March 1992.

B. Tolbert's Subsequent Claims in 1992-1994

Although our March 1992 decision affirming the denial of Tolbert's original claim barred her from any potential recovery based on her existing carpal tunnel syndrome, it did not bar her from claiming benefits for subsequent work-related incidents that aggravated her condition or caused new injuries to her hand. Between 1992 and 1994, Tolbert filed four claims with the Board, alleging that her continued work with Alascom aggravated her existing hand condition or otherwise hurt her hands.

In one claim, Tolbert reported a mishap at work in June 1992 in which an opening door slammed against her right hand. In three other claims, she asserted that repetitive hand movements required by her keyboarding job caused her to experience pain, numbness, and swelling in her hands in February of 1993 and on June 1 and 14, 1994. In these latter claims, Tolbert alleged permanent impairment in the form of tendinitis or aggravation of her carpal tunnel syndrome; she sought reimbursement for medical care related to these problems and benefits for temporary total and permanent partial disability. Following a hearing, the Board denied all of her claims. The superior court affirmed. Tolbert appeals.

II. DISCUSSION

A. Standards of Review

When the superior court has acted as an intermediate court of appeal, we review the merits of the administrative agency's decision without deference to the superior court's decision. ¹ We review questions of law involving agency expertise under the "reasonable basis" test ² and those not involving any particular expertise under the substitution of judgment standard. ³ And we review determinations of fact by an administrative agency under the "substantial evidence" standard, ⁴ but consider "[t]he question of whether the quantum of evidence is substantial [to be] a legal question." ⁵

B. The Board Did Not Err in Denying Tolbert's Claim for the 1992 Injury.

Tolbert alleged that her right hand was injured in June 1992 by an opening door. She sought compensation for medical payments and an award of benefits for permanent partial disability. The Board held that Tolbert had raised a presumption of compensability as to this claim by showing that she had suffered either a contusion or a possible aggravation of tendinitis; the Board further found that Alascom had failed to overcome this presumption. The Board nevertheless declined to award Tolbert any benefits, concluding that she had failed to produce sufficient evidence to support an award.

1. The Board did not err in denying medical benefits to Tolbert.

The only evidence Tolbert presented to prove medical expenses stemming from her June 1992 injury consisted of her own testimony; she offered little more than a recounting of the money she owed to certain medical providers. But Alascom's claims adjuster denied having ever received any of Tolbert's medical bills. While the Board viewed the adjuster's testimony as credible, it found Tolbert's testimony both vague and lacking in documentary support. The Board further determined that, because Tolbert failed to submit the bills to Alascom at all, much less in the form required by 8 Alaska Administrative Code (AAC) 45.082(d), and, independently, because she failed to submit such bills to the Board, it lacked sufficient evidence upon which to base an award of medical benefits.

Tolbert argues that she did not fail to comply with 8 AAC 45.082(d), because that subsection only governs the form and not the time of submission of medical bills to the employer. According to Tolbert, the Board should have left the hearing record open to allow Tolbert to submit her medical bills in proper form. Alascom replies that Tolbert has waived the right to submit these bills by failing to request either a continuance of the hearing or that the record remain open so that medical bills could be submitted. We conclude that the record supports the Board's ruling that Tolbert failed to present sufficient evidence on this issue.

A presumption of compensability applies to all workers' compensation claims; ⁶ if the presumption remains unrebutted, the Board must find that the claim is compensable. ⁷ The worker is thus freed from having to prove (1) that "but for" the employment the disability would not have occurred, and (2) that reasonable persons would regard the employment as a cause of the injury and attach responsibility to it. ⁸ But the presumption of compensability does not free an injured worker from the burden of introducing evidence as to the extent of the injury and the amount of medical expenses. ⁹ Allocation of this burden to the claimant makes sense because the extent of injury and amount of medical expenses are unique in each case, and the worker often has greatest access to such information. ¹⁰ Because medical expenses are not presumed, a claimant has the burden of proving them by a preponderance of the evidence. ¹¹

Tolbert failed to meet this burden. Although she testified that she owed certain medical professionals money, she failed to link these debts to treatment of the 1992 injury. From the time of injury in June 1992 to her hearing in June 1995, she had ample time to gather this evidence. Despite this three-year interval, she obtained no documentation of her medical expenses. At the time of the hearing, Tolbert's counsel expressed belief that the bills either had already been placed in the record or were in Alascom's possession. But even after discovering otherwise, Tolbert's counsel failed to submit the bills or even to request that the record remain open to accommodate later submission. Instead, counsel opted to proceed with Tolbert's testimony as the only evidence on expenses. ¹²

We conclude that, given these circumstances, the Board did not abuse its discretion by failing to order sua sponte that the record remain open for Tolbert to submit her medical bills.

2. The Board did not err in denying Tolbert's claim of permanent partial impairment.

Tolbert argues that the Board's refusal to award permanent partial impairment (PPI) benefits for the June 1992 incident is not supported by the record. But the experts who testified about the incident agreed that its effects were only temporary and did not aggravate Tolbert's carpal tunnel syndrome. Tolbert's own physician, Dr. Lipke, testified that the 1992 injury caused a contusion. He also testified that the contusion could lead to tendinitis, but he never attributed Tolbert's tendinitis to this incident, and he described her tendinitis as intermittent and recurring, rather than permanent. In fact, Dr. Lipke expressly testified that tendinitis translates into no PPI rating under the American Medical Association Guides to the Evaluation of Permanent Improvement. ¹³ Yet such a rating is a prerequisite to an award of PPI benefits. ¹⁴ Given Dr. Lipke's testimony, we conclude that the Board's refusal to award Tolbert PPI benefits is supported by substantial evidence.

C. The Board Erred in Denying Tolbert's 1993 and 1994 Claims.

1. The testimony concerning Tolbert's carpal tunnel syndrome and tendinitis

Tolbert filed one claim in February 1993 and two claims in June 1994, asserting that the repetitious keyboarding she performed for Alascom was causing swelling, numbness, and pain in her hands and arms. Tolbert initially asserted that these symptoms were caused by aggravation of her pre-existing carpal tunnel syndrome. ¹⁵ Ultimately, however, she was able to present little evidence to support this theory. But she did present considerable evidence indicating that the problems she experienced stemmed from work-related episodes of tendinitis.

At the hearing on her claims, Tolbert described suffering from work-related problems with her hands on February 22, 1993, June 1, 1994, and June 14, 1994. She presented extensive expert testimony suggesting that the problems she experienced were work related. Dr. Lipke, Tolbert's treating physician and primary witness, testified about carpal tunnel syndrome and tendinitis, describing the differences between the two conditions. According to Dr. Lipke, carpal tunnel is the narrow passageway in the wrist between the wrist bones and the transverse carpal ligament. The flexor tendons and the median nerve must pass through this tunnel to reach the fingers....