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Bauder v. Alaska Airlines8/2/2002
Dr. Boettcher's report and ratings and Dr. Laurnen's report were sufficient to raise the presumption that Mr. Bauder had a 25% work-related impairment. But the Board also found Dr. Hadley's testimony rebutted the presumption at least as far as the rate of the impairment. To resolve this conflict, the Board ordered another medical examination and found Dr. Smith's 15% rating, after considering the entire medical record, persuasive.
Alaska Statute 23.30.122 provides that the Board is the sole evaluator of the credibility and weight of witnesses, including medical testimony and reports. The Board's findings of credibility and weight are conclusive even if conflicting evidence exists.
The only question for the court is whether there is substantial evidence supporting the Board's conclusion. Even though there is conflicting medical testimony, the Board acted reasonably in trying to resolve the medical disagreement. Ordering another medical examination allowed a third doctor to review the record, examine Mr. Bauder and reach an independent conclusion. Dr. Smith's report and conclusion are relevant factors that a reasonable mind might accept as adequate to support the Board's conclusion.
Mr. Bauder argues, however, that the Board should have awarded him the 25% permanent partial impairment benefit as of October 4, 1996, when Dr. Boettcher first rated him. But a rating for permanent impairment is governed by AS 23.30.190. This statute requires among other things that the injury be "partial in character but permanent in quality[.]" When Dr. Boettcher evaluated Mr. Bauder on October 4, 1996, he wrote:
I do not believe [Mr. Bauder's] claim should be closed at this time. He has significant impairment, namely the chronic back pain and the neurologic deficit in his right leg which can be successfully treated by successful surgery. I believe he should be reevaluated by Dr. Laurnen and reoperation should strongly be considered. Due to his pain and neurologic deficit, I believe he is unable to perform any type of work at this time and this condition is permanent until successful surgery is accomplished.
Based on this, Dr. Boettcher's October 4, 1996 rating was, at best, premature because Mr. Bauder's impairment was not "permanent in quality."
On June 5, 1997, Dr. Boettcher re-evaluated Mr. Bauder and again assigned him a 25% impairment rating. Mr. Bauder argues that the Board erred in failing to adopt Dr. Boettcher's second rating. The adjuster, under 8 AAC 45.052(c), submitted a request to cross-examine Dr. Boettcher about this report. But Mr. Bauder never made Dr. Boettcher available for cross-examination, and the Board did not err by declining to adopt Dr. Boettcher's June 5, 1997 rating. Nonetheless, contrary to Mr. Bauder's assertion that the Board excluded Dr. Boettcher's report, the Board specifically stated that it "accept the hearsay evidence concerning Dr. Boettcher's opinion into the record for the purpose of explaining and supplementing other medical evidence in the reports of Drs. Hadley and Laurnen."
Mr. Bauder also argues that the Board failed to consider and apply the statutory time limits for the controversion of permanent impairment benefits. Mr. Bauder correctly argues that although the administrator filed controversions on December 29, 1995 and July 1, 1997, it did not controvert Mr. Bauder's impairment rating until September 12, 1997. This is almost a year after Dr. Boettcher's first rating and over three months after Dr. Boettcher's second rating.
Under AS 23.30.155(d), the employer has 21 days after the date of learning of a doctor's impairment rating to pay that amount or to controvert the n
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