Veco Alaska, Inc. v. State, Department of Labor, Division of Workers' Compensation, Second Injury Fund

189 P.3d 983, 2008 Alas. LEXIS 110, 2008 WL 2853632

• Court: Alaska Supreme Court
• Decided: July 25, 2008
• Docket: SS-12163
• Status: Published

Opinions

OPINION

FABE, Chief Justice.

I. INTRODUCTION

Cornelius "Buck" Huizenga worked at VECO for approximately eleven years in a number of positions. Before beginning his VECO employment, he sustained a back injury while working for another employer. He reinjured his back at his VECO job while moving some timbers. He then had three surgeries and ultimately was confined to a wheelchair. VECO paid his workers' compensation benefits and petitioned the Second Injury Fund for partial reimbursement. The Fund denied both that Huizenga had a qualifying preexisting condition and that VECO had established by a written record that it knew Huizenga had such a preexisting condition. The Alaska Workers' Compensation Board found that VECO had not produced written records from which it could reasonably be inferred that VECO had prior knowledge of Huizenga's qualifying impairment. Because the Board applied a standard that was too restrictive in evaluating whether VECO satisfied the written record requirement, we reverse the Board's decision denying VECO's petition and remand the case to the Board for further proceedings.

II. FACTS AND PROCEEDINGS

Cornelius Huizenga has a congenital condition diagnosed as achondroplastic dwarfism. The condition is characterized by defects in bone formation and results in short stature. Another consequence of Huizenga's achon-droplasia is his narrow spinal canal, which means that arthritic changes occur in him at a relatively early age.

In December 1988 Huizenga was working for a private contractor when he fell from a stepladder, landing on his back and left hip area. He was diagnosed with "Iumbar spinal stenosis-diastematomyelia with bilateral radiculopathy." ¹ As a result of this injury, he had L8, L4, and L5 laminectomies and bilateral neural foraminotomies at the S1, L5, and L4 nerve roots in January 1989.² Huiz-enga received a twenty-two percent permanent partial impairment rating due to this injury.

Huizenga began working for VECO the summer following this back surgery. He worked for VECO at different locations over the next several years. On April 30, 1996, and again on October 1, 1997, Huizenga completed health questionnaires for VECO. His answers to both health questionnaires disclosed that he had a prior back injury and surgery, that he had never been advised to limit his activities in any way, and that he did not have arthritis. His response to the see-ond questionnaire provided the following details about his back surgery: "Back operation, compression 5 lower vertebrae, Decl.] 21, 1987, Dr. Voke."³

In January 1999 Huizenga began work for VECO as an equipment operator at the Port of Anchorage. On October 15, 2000, he rein-jured his back at work⁴ He was dragging several timbers that weighed about thirty pounds each when "something let go" in his back, and he began to experience pain. At first Huizenga simply took over-the-counter pain medication. But about a week following the accident, he was hospitalized because he could not move his legs. On October 24, 2000, Huizenga again had back surgery to relieve pressure on his nerves. This time the surgery involved laminectomies of T12, L1, L2, and L8, as well as a partial L4 laminectomy, decompression of conus cauda equina, and foraminotomies at L1-2, L2-8, and T1I2-L1.⁵ He was discharged from the hospital about four weeks later in a wheelchair after having spent several weeks in rehabilitation therapy.

Huizenga remained unable to walk, and on March 11, 2002, he underwent a spine fusion surgery in Colorado. He developed complications and was readmitted to the hospital for a fourth surgical procedure in late March 2002.

On June 24, 2008, Dr. Susan Klimow gave Huizenga a permanent partial impairment rating. Huizenga was then in a wheelchair and could stand only by using a walker. Dr. Klimow indicated that she had to take into account Huizenga's prior twenty-two percent permanent partial impairment rating in determining his whole person impairment. She stated, "His new whole person impairment rating is 57%."

Dr. Edward Voke, Huizenga's orthopedic surgeon in Anchorage, stated in an affidavit submitted to the Alaska Workers' Compensation Board that the combined effects of Huizenga's 2000 injury and his preexisting arthritis produced a disability that was substantially greater than the injury that would have resulted from the 2000 injury alone. Dr. Klimow later signed an affidavit concurring with this assessment.

On May 11, 2004, VECO filed a "Petition to Join Second Injury Fund and Claim for Reimbursement" with the Board.⁶ VECO alleged that it had met the statutory requirements for reimbursement. Nichola Lienhart, an employee in VECO's risk management department, filed an affidavit averring that VECO had written knowledge that Huizenga had arthritis before his October 2000 injury. In support, she attached Huizenga's two completed health questionnaires. As additional support, VECO submitted Dr. Voke's affidavit, in which Dr. Voke stated that Huiz-enga's answers to the October 1, 1997 health questionnaire "would have alerted a reasonable employer to the presence of arthritis in his lower spine on October 1, 1997 because that condition is closely related to his postoperative condition ten years earlier."

The Second Injury Fund, through its administrator, filed an answer that disputed whether VECO had established by written record knowledge of a qualifying preexisting condition and whether Huizenga in fact had a qualifying preexisting condition.

On August 19, 2004, Dr. Klimow signed an affidavit stating that the information Huizen-ga provided on his October 1, 1997 health questionnaire would have alerted a reasonable employer to arthritis in Huizenga's lower spine. Dr. Voke and Dr. Klimow both testified via deposition at the hearing on VECO's petition to join the Second Injury Fund. Before the hearing Huizenga stated in an affidavit that he did not know he had arthritis before the litigation regarding the Second Injury Fund.

The Board held a hearing on VECO's petition on January 6, 2005. The only witness to testify in person at the hearing was Huizen-ga, who again affirmed that he did not know that he had arthritis when he answered the 1996 and 1997 health questionnaires. The sole issue before the Board was, as the Board saw it, whether VECO's prior knowledge of Huizenga's arthritis could fairly and reasonably be inferred from the written records VECO had produced.⁷

The Board decided that Huizenga's answers to VECO's health questionnaires were not a written record from which prior knowledge of Huizenga's arthritis could fairly and reasonably be inferred. In so deciding, the Board found that Huizenga had not been told until September 2004 that he had arthritis. It concluded that Huizenga's disclosure that he had a prior back injury and surgery was an insufficient written record, as a matter of law, to establish that VECO knew about Huizenga's arthritis. The Board also found that the two doctors who testified for VECO had reached their conclusions based on their knowledge of Huizenga's medical records, not his health questionnaires; it further determined that VECO had not shown by a preponderance of the evidence that it had knowledge of a qualifying preexisting condition.

VECO appealed to the superior court, arguing that the Board erred as a matter of law in reaching its ultimate conclusion; after independently reviewing the evidence, the superior court affirmed the Board's ruling.

VECO appeals.

III DISCUSSION

A. Standard of Review

When the superior court acts as an intermediate court of appeals in a workers' compensation case, we directly review the Board's ruling.⁸ Whether VECO established by a written record its knowledge of Huizen-ga's preexisting impairment turns on a question of statutory interpretation involving no agency expertise.⁹ We review issues of statutory interpretation under the independent judgment standard, "adopting 'the rule of law that is most persuasive in light of precedent, reason, and policy.' " ¹⁰

The dissent argues that the proper standard of review for this case is the substantial evidence test. If we were reviewing only the Board's factual determinations, this might be the correct standard of review. But we are reviewing the legal standard the Board used here to evaluate the evidence, not simply its determinations of weight or other factual findings. Also, the Board decided as a matter of law the record was insufficient.

B. The Board Applied a Standard that Was Too Restrictive.

1. The Second Injury Fund

The Second Injury Fund "was created to encourage employers to hire and retain partially disabled employees." ¹¹ The Second Injury Fund reimburses qualifying employers for workers' compensation benefits paid to disabled employees after 104 weeks if an employee's preexisting permanent physical impairment, combined with his subsequent injury, "results in compensation liability substantially greater than [what] would have resulted had the preexisting condition not existed." ¹² To be eligible for reimbursement from the Fund, the employer is required to establish by written records that it had knowledge of the employee's permanent physical impairment before the subsequent injury occurred and that it retained the employee after it acquired that knowledge.¹³ The Alaska Workers' Compensation Act contains a list of conditions that are presumptively disabling, as well as a provision that covers conditions that are not listed.¹⁴ Although the employer's written record need not contain the exact medical terminology of the statute, it must contain adequate information to support a reasonable inference that the employee suffered from a qualifying impairment.¹⁵

Not all causes of permanent physical impairment qualify for reimbursement from the Second Injury Fund. To be considered a permanent physical impairment for Second Injury Fund purposes, the condition must be listed in the statute or fall within the statute's general provision.¹⁶ An employer need not show that a listed condition is in fact a hindrance to employment for a specific employee; if the condition is one covered by the Second Injury Fund statute, a permanent physical impairment exists as a matter of law.¹⁷ Permanent impairment for purposes of Second Injury Fund reimbursement is different from permanent impairment for receipt of permanent partial impairment benefits.¹⁸ A qualifying condition for Second Injury Fund purposes need not be work related; in fact, some qualifying Second Injury Fund conditions are congenital, such as muscular dystrophies.¹⁹ VECO does not allege that Huizenga had any condition other than arthritis that might qualify as a physical impairment for purposes of Second Injury Fund reimbursement.²⁰

2. The written record requirement

In Sea-Land Services, Inc. v. State, Second Injury Fund, we construed the written record requirement as follows: "[An employer is entitled to reimbursement from the Second Injury Fund if it produces a written record from which its prior knowledge of the employee's qualifying disability can fairly and reasonably be inferred."²¹ We identified two purposes for the written record requirement: (1) it protects the Fund against spurious or collusive claims by demonstrating that the employer actually knew of the preexisting condition, and (2) it eliminates the need to litigate whether the employer had knowledge of the preexisting condition.²²

The issue presented in this appeal is whether VECO's knowledge that Huizenga has a permanent impairment as defined in AS 23.80.205 can fairly and reasonably be inferred from the written record VECO presented to the Second Injury Fund and the Board. The Board held that it could not, based in part on its interpretation of our prior cases. VECO urges us to overturn the Board's findings and conclusions of law, arguing that the Board applied an incorrect standard and misconstrued the evidence. The State asks us to affirm the Board, asserting that the Board's decision is legally correct and supported by substantial evidence.

The Board construed our prior cases and the relevant statute as requiring VECO to show not only that his employer knew that Huizenga suffered from a permanent physical impairment, but also had knowledge of the specific physical impairment he suffered from, i.e., arthritis. Thus, the Board found that "the employer's written record that the employee had prior back injuries and surgeries, and nothing more, does not reasonably connote a preexisting arthritic condition and therefore is insufficient as a matter of law to establish the employer's written notice of a preexisting qualifying disability." It also stated that Huizenga's denial that he had arthritis and his description of his back surgery "negate[d] any argument" by VECO that it had written notice of an arthritic condition. This goes beyond what we have previously held an employer must show to obtain reimbursement from the Second Injury Fund and what we believe the correct standard is.

By requiring VECO to present evidence that showed unequivocally that VECO knew Huizenga had arthritis rather than simply a permanent impairment, the board imposed a requirement that exceeds what we have previously held an employer must show to obtain reimbursement from the Second Injury Fund.²³ This strict standard is one that most employers would likely not be able to meet based on information from employee-based questionnaires Employees may not fully understand their medical conditions or may misconstrue a doctor's advice or opinions. Here, for example, Huizenga denied that he knew he had arthritis before the Second Injury Fund litigation, even though the doctors who treated him testified that his medical records indicated the presence of an arthritic condition. As Huizenga told the Board, "I'm just not a doctor-type person. I just don't know what these terms mean, you know, like the arthritis." We are concerned that the standard the Board used here cere-ates the wrong incentive for employers: it could discourage employment or retention of any employee who appears to have an impairment unless the impairment can easily and explicitly be pinned to a specific cause listed in AS 28.80.205(d)(1). Because one of the purposes of the Second Injury Fund is to encourage employment and retention of employees with physical impairments,²⁴ the stringent standard used by the Board is contrary to the purpose of the Fund.

VECO argues that the written record requirement is met when there is enough evidence in the written record "to tempt the employer to discriminate against an employee on the basis of a qualifying condition under AS 23.30.205(d)." In looking at what the employer needs to show to qualify for Second Injury Fund reimbursement, we previously held that the written record does not need to contain the exact medical terminology describing the condition.²⁵ As Larson notes in his treatise:

It is clear that the employer does not have to know exactly what the employee's prior condition is in medical terms. If the employer, who was the claimant's mother, knew that something was troubling the employee about his bones, she did not need to know also that it was Paget's disease. And if the employer, a brewmaster, knew of the permanency of claimant's previous shoulder injury, but did not know "what the trouble was," the employer had sufficient prior knowledge.[²⁶]

The written record requirement does not dispense with an employer knowledge requirement, as the dissent suggests.²⁷ One purpose of the written record standard-providing evidence of employer knowledge ²⁸ -addresses the problems of litigation time and cost that Larson identifies with an actual knowledge standard,²⁹ but it does not waive employer knowledge.

As we noted above, the underlying purpose of the Second Injury Fund is to encourage employers to hire workers who are known to suffer from a permanent physical impairment.³⁰ In order to prevent employers from claiming knowledge of a permanent physical impairment opportunistically after a subsequent injury, the legislature imposed a written record requirement.³¹ This purpose is satisfied if the employer's written record shows a preexisting permanent impairment that could reasonably be due to one of the conditions listed in AS 23.30.205(d)(1), even if the employer cannot precisely identify the specific medical condition. In other words, if the written record shows that an employee had a permanent or chronic condition that could be a hindrance to employment, the written record requirement would be satisfied. This construction of the written record requirement is substantially the same as the Arizona appellate court's construction of a similar statute.³² If an employee disclosed that she had "knee problems" and had undergone knee surgery and a laminectomy, the written record would be satisfied, even though the employer did not know the specific reason for the laminectomy or knee problems.³³ Or if an employee takes sick leave over the years for back problems and this is recorded in the employer's files, the employer shows that it had knowledge of the impairment, even if the employer does not know that the employee had degenerative disk disease.³⁴ If an injury happens after the employer acquires knowledge of the permanent condition, the Second Injury Fund should reimburse the employer so long as the underlying impairment is in fact one of the conditions listed in the statute and the other statutory requirements are met.³⁵

Although the dissent cautions that the term "back problems" lacks precision, this is the type of information that an employee is likely to give to his employer. We specifically held in Sea-Land Services that the written record did not need to use exact medical terminology.³⁶ If an employer is aware of an employee's medical problems and records them in everyday language, that employer still satisfies the written record requirements.³⁷

The dissent may misunderstand our statement that the purpose of the written record requirement is satisfied when the record shows an impairment that could reasonably be due to a condition listed in the statute. Reasonableness in construing the employer's written record is required by the test in Sea-Land Services and is not a foreign notion in determining the meaning of a written record.³⁸ The written record need not show that an underlying cause of the impairment was, in fact, a condition listed in AS 23.30.205. Whether such a causal relationship existed may be demonstrated at the hearing by any acceptable evidence. Further, our statement is not concerned with a causal relationship between the preexisting condition and the subsequent injury³⁹ but is meant to clarify the standard an employer must meet to qualify for Second Injury Fund reimbursement.

Because the health questionnaires are the only written records that VECO alleges it had before the October 2000 injury, the question whether VECO's knowledge of a permanent impairment satisfies the written record requirement turns on what conclusions can be drawn from those health questionnaires.⁴⁰ Because the Board is charged with evaluating evidence in compensation proceedings,⁴¹ we must remand the case to the Board. Although Huizenga told VECO that he had back surgery involving "compression" and "[five] lower vertebrae," he also checked the box on the questionnaire showing that he had never been advised by a health care provider to limit his activities in any way. The Board will need to decide in the first instance whether the written record VECO relied on, showing that Huizenga had a prior back injury and surgery, supports a fair and reasonable inference that Huizenga had a preexisting back condition that was a permanent physical impairment. If the Board determines that such an inference can be made, then the written record requirement should be considered met, and the Board can determine whether VECO has satisfied the other statutory requirements for Second Injury Fund reimbursement.

What the employee or his doctors understood the questionnaire to mean is evidence that the Board may choose to consider, but the statutory standard is the employer's knowledge, not the knowledge of either the employee or his physicians.⁴² The Board may choose here to weigh the testimony of Drs. Klimow and Voke in determining what inferences an employer could reasonably draw from the answers to the health questionnaire, but expert testimony is not necessary to demonstrate what a reasonable inference might be. Unless VECO can demonstrate that it had Huizenga's medical records in its possession at some time prior to the 2000 injury, the contents of the medical records discussed by the doctors in their depositions cannot serve as a written record showing VECO's pre-injury knowledge.

We disagree with the State's argument that our previous cases interpreting the written record requirement compel the result that the Board reached. Both cases are consistent with our holding today. In Sea-Land Services, Inc. v. State, Second Injury Fund, the only record was a physical examination report.⁴³ The report contained a box marked "yes" next to "head or spinal injuries" but no other information about the nature and extent of the injuries.⁴⁴ The report also indicated that the employee had no "[plermanent defect from illness, disease, or injury" and that his spine was "OK."⁴⁵ The parties agreed that the employer had actual knowledge of the employee's previous back surgery for a herniated disk.⁴⁶ We concluded that it could not reasonably be inferred from the written record that Sea-Land knew of the employee's permanent disability.⁴⁷ In Sea-Land Services, the written record contained no reference to surgery or to anything else that might indicate that the employee's previous injury had caused lasting damage.

In Alaska International Constructors v. State, Second Injury Fund, the employer had slightly more information.⁴⁸ Alaska International had a resume from the employee stating that he had been injured by a sheet of iron while working for a previous employer, that the injury had been corrected by surgery, and that he was released with no restrictions by his doctor to return to work.⁴⁹ Besides the resume in the employer's possession, the employee's union had a written record showing that the employee had suffered a back injury and had undergone three back surgeries.⁵⁰ In Alaska International, even though the union record did not mention arthritis, the State conceded that if the union records were imputed to the employer, the written record requirement would be satisfied.⁵¹ We determined that the union record could not be imputed to the employer.⁵² Although our opinion stated that the resume's reference to an injury failed to raise the inference that Alaska International knew of the employee's arthritis-and in this respect went too far-the focus of the inquiry did not need to be on the precise medical condition.⁵³ The resume's reference to an injury did not even identify the body part that had been injured and did not in any way indicate that the employee might have suffered a permanent impairment because of the injury.⁵⁴ The resume failed to raise an inference that the employer knew of any condition, not just arthritis, that might have caused the employee to have a permanent impairment. We noted, "The reference to [the employee's] injury could reflect any injury which is sufficiently severe to require surgery. One can not infer, without further information, that there will be a permanent impairment." ⁵⁵

In Huizenga's case, the employer had more information than the employers in either of our previous written record cases. Here, Huizenga told VECO that he had a back injury that required surgery and that it involved "compression" and the five lower vertebrae. The Board must determine whether VECO's knowledge that Huizenga had a permanent physical impairment can fairly and reasonably be inferred from this information and his other statements in the health questionnaires.

IV. CONCLUSION

For the reasons above, we REVERSE the decision of the superior court affirming the Board's decision and REMAND this case to the Board for further proceedings consistent with this opinion.

EASTAUGH, Justice, dissenting.

BRYNER, Justice, not participating.

1 . Spinal stenosis is a narrowing of the spaces in the spine; stenosis is linked to arthritis. Dias-tematomyelia is a congenital anomaly in which the spinal cord is split into halves by a bony body or fibrous band. Dortanp's Mroicar Dictronary 461 (28th ed.1994). Radiculopathy is a disease of the nerve roots. Id. at 1404.

2 . A laminectomy is the excision of the posterior arch of a vertebra. Id. at 898. A foraminotomy is an operation for removing the roof of the intervertebral foramina, done for the relief of nerve root compression. Id. at 650-51. The foramina are the holes where the nerves exit the spinal column as they extend into the extremities.

3 . Huizenga gave the wrong date for his surgery.

4 . VECO uses October 17, 2000 for the date of injury. The Board used October 15, 2000 in its decision.

5 . The conus medullaris is the cone-shaped lower end of the spinal cord at the level of the upper lumbar vertebrae. Dortanp's Itcustrateno Mrvicat Dictionary 374 (28th ed.1994). The cauda equina is the collection of spinal roots that descend from the lower part of the spinal cord and occupy the vertebral canal below the cord. Id. at 280.

6 . The Second Injury Fund partially reimburses employers for some workers' compensation benefits when they meet statutory requirements. AS 23.30.205.

7 . VECO asserted at the hearing that the Second Injury Fund no longer contested that Huizenga in fact had a qualifying physical impairment. The Board decision states that it does not address the other issues raised in the Second Injury Fund's answer.

8 . Alyeska Pipeline Serv. Co. v. DeShong, 77 P.3d 1227, 1231 (Alaska 2003).

9 . Sea-Land Servs., Inc. v. State, Second Injury Fund, 737 P.2d 793, 795 (Alaska 1987); see also Alaska Int'l Constructors v. State, Second Injury Fund, 755 P.2d 1090, 1091 (Alaska 1988).

10 . Bloom v. Tekton, Inc., 5 P.3d 235, 237 (Alaska 2000) (quoting Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979)).

11 . Sea-Land Servs., Inc., 737 P.2d at 795 (citing Employers Commercial Union Ins. Group v. Christ, 513 P.2d 1090, 1093 (Alaska 1973)).

12 . Alaska Int'l Constructors, 755 P.2d at 1092.

13 . AS 23.30.205(c).

14 . AS 23.30.205(d).

15 . Sea-Land Servs., Inc., 737 P.2d at 795.

¹⁶

17 . Christ, 513 P.2d at 1093-94.

18 . Compare AS 23.30.190(b) with AS 23.30.205(d).

¹⁹

20 . As previously noted, Huizenga has achondro-plasia. At oral argument before us, VECO stated that Huizenga's achondroplasia is legally irrelevant to its Second Injury Fund claim.

²¹

22 . Id.

23 . Id. (holding that "[the writien record need not contain the exact medical terminology").

24 . Christ, 513 P.2d at 1093.

²⁵

26 . 5 Artuur Larson & Lex K. Larson, Larson's Workers' Compensation Law § 91.03[3] (2000) (citations omitted). Notwithstanding the views of the dissent, Larson's discussion of the level of knowledge that an employer must have logically applies both to jurisdictions where knowledge may be established by any form of proof and to jurisdictions, such as Alaska, where knowledge may be established only by written records. See Sea-Land Servs., Inc., 737 P.2d at 795 (stating that written record requirement provides evidence that employer actually knew of preexisting impairment).

²⁷

²⁸

29 . Larson & Larson, supra note 26 at § 91.03[5]. According to Larson, a written record standard is a way "to cut down on controversy about employer knowledge." Id. at § 91.03[6].

³⁰

31 . Sea-Land Servs., Inc., 737 P.2d at 795 (citing U.S. Pipe & Foundry Co. v. Caraway, 546 S.W.2d 215, 219 (Tenn.1977)).

32 . Special Fund Div. v. Indus. Comm'n of Ariz., 182 Ariz. 341, 897 P.2d 643, 649 (App.1994); Country Wide Truck Serv. v. Indus. Comm'n of Ariz., 181 Ariz. 410, 891 P.2d 877, 879 (App.1994).

33 . Special Fund Div., 897 P.2d at 649.

34 . Denton v. Sunflower Elec. Coop., 12 Kan.App.2d 262, 740 P.2d 98, 103 (1987); see also Country Wide Truck Serv., 891 P.2d at 879 (holding that written record showing that claimant had lumbar laminectomy and posterior cervical fusion sufficient to show employer knew of employee's preexisting disabling condition}.

35 . AS 23.30.205.

36 . Sea-Land Servs., 737 P.2d at 795.

37 . See Christ, 513 P.2d at 1092 (holding that written record requirement met by notation on personnel evaluation that employee's loss of arm did not slow his work).

38 . Sea-Land Servs., 737 P.2d at 795 (holding that written record requirement satisfied if prior knowledge of disability can be inferred fairly and reasonably).

39 . The qualifying condition does not need to cause the new injury. The qualifying condition, in combination with the subsequent injury, need only produce a disability that is greater than what would have resulted from the subsequent injury alone. AS 23.30.205(a).

40 . Huizenga's medical records indicate that he was diagnosed with arthritis before October 2000, but nothing in the appellate record suggests that VECO had those medical records at or before the time of Huizenga's injury.

41 . AS 23.30.122.

⁴²

43 . 737 P.2d at 795.

44 . Id. at 795-96.

45 . Id. at 796.

46 . Id. at 794.

⁴⁷

48 . 755 P.2d 1090, 1091-92 (Alaska 1988).

⁴⁹

50 . Id. at 1091.

51 . Id. at 1092 n. 6.

52 . Id. at 1093.

53 . Id. at 1094.

⁵⁴

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