WOLLASTON v. SCHROEDER CUTTING INC (2002)

OPINION

Chris Wollaston was injured on June 27, 1996, when he stepped in a hole, landed on the ball of his right foot, and bent his toes sharply upward, feeling a tear in the back of his heel.   At the time of the injury he was working as a logger for Schroeder Cutting, Inc., at a logging camp at Hobart Bay. Wollaston could not work the next day and left camp the day after that.   He was treated for the injury on June 30, 1996, by Dr. Riederer, a family practitioner in Juneau.   Dr. Riederer diagnosed Wollaston as having a ligamentous injury-a mild to modest ankle sprain-with no evidence of fracture.   Dr. Riederer noted that Wollaston might “need [an] estimated 7-10 days off if modified work [was] not available.”

Wollaston moved to Texas where he was seen on August 1, 1996, and January 21, 1997, by Dr. Whittemore, an orthopedic specialist.   Dr. Whittemore diagnosed a sprain or stretching of the ligaments at the back of the ankle.   After the January 1997 visit, Dr. Whittemore noted some improvement but not to the extent that Wollaston could return to work as a logger.   Dr. Whittemore opined that Wollaston had a permanent partial impairment of four percent.

Wollaston had previously injured his right ankle on December 13, 1995, in a basketball game.   He jumped and came down on another player's foot, dislocating his ankle.   The dislocation was reduced at a hospital emergency room and the ankle was placed in a cast-splint device.   About two months later, on February 21, 1996, Wollaston returned to work as a logger for Schroeder Cutting in Hobart Bay. There is conflicting testimony concerning the extent of Wollaston's recovery from the December 1995 injury.   Wollaston and five witnesses testified that he was not limping and had no evident problems after the first injury.   But two employees of Schroeder Cutting and the company's owner testified that Wollaston walked with a limp from the time he returned to work until the time he left Hobart Bay in late June.

Wollaston sought lost time benefits from the date of the injury until September 9, 1996, when he went to work as a cabinet maker, and permanent partial disability benefits based on continuing problems with his ankle.   A hearing was held before the Workers' Compensation Board on September 15, 1998.

Dr. Whittemore's deposition testimony was presented at this hearing.   Dr. Whittemore testified based on his treatment of Wollaston and his review of the records of the earlier injury, that the June 1996 injury was a substantial factor in bringing about Wollaston's residual ankle disability.   He differentiated the June work-related injury from the December 1995 injury, noting that the ligaments that were stretched or torn in the work injury were different from those that were affected by the basketball injury.

Dr. Riederer also testified at the hearing.   He stated that when he observed Wollaston he did not anticipate that there would be any permanent adverse residual effects from the fall, and that his opinion was that the disability would last no more than ten days.

The board decided that the June 27, 1996 injury was compensable through July 7, 1996.   But the board also concluded “[b]ased on Dr. Riederer's testimony,” that after July 7, 1996, “the defendant had presented substantial evidence to overcome the presumption of compensability.”   The question presented in this appeal is whether Dr. Riederer's testimony constitutes substantial evidence ¹ rebutting the presumption of compensability for the period after July 7, 1996.   We answer this question in the negative.

Dr. Riederer's testimony was predictive based on a fixed past perspective.   He saw Wollaston only on June 30, 1996, and based on this visit predicted that the consequences of the June 27 injury would clear up in seven to ten days.   Dr. Riederer's testimony never progressed from predicting Wollaston's course of recovery from the perspective of the June 30 visit, to a current expression of opinion as to Wollaston's actual condition or its causes.   But he did make it clear that his June 30 prediction could be wrong and if it was a specialist should be consulted.²  He did not testify that Wollaston did not have longer lasting consequences caused by the work-related injury and thus did not contradict Dr. Whittemore's testimony that the work-related injury has had a residual effect.

 Under AS 23.30.120(a) a claim is presumed to be compensable.³  The burden is on the employer to prove noncompensability through substantial evidence.⁴  We held in Grainger v. Alaska Workers' Compensation Board that an employer can overcome the presumption of compensability “by presenting substantial evidence that either (1) provides an alternative explanation which, if accepted, would exclude work-related factors as a substantial cause of the disability;  or (2) directly eliminates any reasonable possibility that employment was a factor in causing the disability.” ⁵  We added in Big K Grocery v. Gibson that an employer may “rebut the presumption of compensability by presenting a qualified expert who testifies that, in his or her opinion, the claimant's work was probably not a substantial cause of the disability.” ⁶

 Dr. Riederer's testimony did not satisfy any of these formulations.   He did not exclude the June 1996 work-related injury as a cause of Wollaston's continuing problems.   Likewise he said nothing that directly eliminated any reasonable possibility that the work-related injury had consequences beyond July 7. Finally, Dr. Riederer did not testify that in his opinion Wollaston's disability is probably not attributable in any substantial way to the work-related injury.⁷

The presumption of compensability therefore has not been rebutted and thus the statutory presumption that Wollaston's claim is covered controls.   It follows that insofar as it terminated compensation as of July 7, 1996, the decision of the board must be reversed.⁸

REVERSED and REMANDED for remand to the board for further proceedings in accordance with this opinion.

I respectfully dissent.   In my opinion, the board did not err in relying on Dr. Riederer's testimony in concluding that the employer successfully rebutted the presumption of compensability under AS 23.30.120(a).¹

1. The court's dismissal of Dr. Riederer's testimony as “predictive” is both factually incorrect and doctrinally troublesome.

Dr. Riederer testified that he did not observe the normal indicia of a serious ankle injury upon examining Wollaston seventy-two hours after the work-related accident.   He repeatedly testified that Wollaston's ankle was weight-bearing, and not discolored or swollen.   He further testified that while his physical examination revealed some tenderness on the inside of the ankle, it produced no objective indicia of the posterior ligament or tendon trauma that Wollaston claimed was the primary source of his permanent partial impairment.   Based on these clinical observations, Dr. Riederer diagnosed Wollaston with a ligamentous injury on the inside of the ankle/foot structure-a mild to modest ankle sprain.   There is nothing predictive or speculative about this diagnosis.

Further, there is nothing inherently insufficient about Dr. Riederer's estimation of Wollaston's likely recovery time.   Dr. Riederer thought Wollaston would fully recover within one to two weeks.   This estimation was based on Dr. Riederer's sound medical examination in combination with years of experience dealing with many types of ankle injuries of different levels of severity.   His opinion should not be dismissed simply because Wollaston did not return for a check-up.

The court, however, dismisses Dr. Riederer's prognosis as “predictive based on a fixed past perspective,” ² because Dr. Riederer's contemporaneous recovery estimation and subsequent testimony were based upon a single examination performed before Wollaston had fully recovered from his injury.   Many recovery prognoses made by original treating physicians would be subject to the same criticism.³  I think it is undesirable to reject such evidence.   Employees may not return for follow-up treatment or examination to the physicians who first treated them, or may still be in the early stages of recovery when they do so.   But the original physician's observations, diagnoses, and prognoses are closest in time to the injury and least likely to be influenced by litigation strategy.   By signaling that the board should disregard these physicians' analyses, the court unduly limits useful and relevant expert evidence of the employee's condition.   This restriction may increase litigation costs by forcing parties to hire additional experts rather than rely on the opinions of the original treating physicians.   And this limitation may disadvantage both employees and employers:  an opinion favorable to the employee's claim would be entitled to little weight when the board determines whether the employee has proved his claim by a preponderance of the evidence.

2. Dr. Riederer's testimony is sufficient to rebut the presumption of compensability.

Dr. Riederer's testimony fits seamlessly with the surrounding evidence.   Wollaston's non-work-related basketball injury-which occurred just seven months before his work-related injury-was tremendously destructive.   The X-ray report of the basketball injury indicated “a complete dislocation at the ankle joint w[ith] the foot at right angles to the tibia.” ⁴  The treating physician, Dr. Catalanello, characterized the basketball injury as being as serious an injury as one could sustain without tearing the ankle open.   Dr. Riederer testified that the basketball injury was “horrendous.”   Dr. Catalanello's emergency room report notes that he “warned patient that there is no guarantee that he will not experience a permanent dysfunction secondary to this lesion.”   The owner of Schroeder Cutting and two of his employees testified that Wollaston had still not recovered from the basketball injury when he returned to work over two months later.

Further, Wollaston's behavior after his work-related accident tends to confirm Dr. Riederer's diagnosis of a mild sprain.   Wollaston did not seek further medical treatment until about a month after visiting Dr. Riederer.   It is not surprising Wollaston did not return to Dr. Riederer because Wollaston had moved to Texas.   But if his work-related injury had in fact been serious, one would expect him to have seen some physician for treatment sooner than he did.

Taking Dr. Riederer's testimony in combination with the evidence of Wollaston's devastating prior injury and his behavior following his work-related injury, the board could reasonably conclude that the employer had rebutted the presumption of compensability either by providing an alternative explanation for Wollaston's disability-i.e., the basketball injury-or by “directly eliminat[ing] any reasonable possibility” that Wollaston's work-related injury was a “substantial cause of his disability” ⁵ beyond July 7, 1996.⁶

The court, however, faults Dr. Riederer's testimony for failing to explicitly opine that the work injury was not a substantial cause of Wollaston's disability.⁷  I think the board could permissibly disagree with the accuracy of this characterization of Dr. Riederer's testimony.⁸  But in any event, there can be no serious doubt that Dr. Riederer believed Wollaston's work-related injury was probably not the cause of any impairment beyond the estimated one-to-two-week recovery period.⁹  Requiring medical experts to mold their opinions to fit legal formulae is unlikely to improve the accuracy of their testimony.

Likewise, it is of little significance that Dr. Riederer did not stridently disagree with Dr. Whittemore's diagnosis of a posterior ligament injury or Dr. Whittemore's assessment of permanent impairment when given the opportunity to do so by Schroeder's attorney.   If anything, it may have bolstered his credibility before the board.

Because the court holds that Dr. Riederer's testimony was insufficient to rebut the presumption of compensability, it does not address whether substantial evidence supported the board's conclusion that Wollaston failed to prove his claim by a preponderance of the evidence.¹⁰  I would hold that the evidence discussed above is sufficient to support the board's ultimate decision as well as its decision that the presumption was rebutted.   I would therefore affirm the superior court's affirmance of the board's decision.

MATTHEWS, Justice.