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Osborne Construction Co. v. Jordan9/15/1995
[No. 4259 - September 15, 1995]
Appeal from the Superior Court of the State of Alaska, Fourth Judicial District, Fairbanks, Dale O. Curda, Judge.
EASTAUGH, Justice, with whom COMPTON, Justice, joins, dissenting.
I. INTRODUCTION
Kenneth Jordan filed a workers' compensation claim against his former employer, Osborne Construction Company (Osborne). The Alaska Workers' Compensation Board (the Board) denied Jordan's claim, finding that Osborne had presented substantial affirmative evidence to rebut the statutory presumption of compensability and that the preponderance of evidence indicated that Osborne's injury was not work-related. The superior court reversed the Board's decision and Osborne appealed. We affirm the superior court's decision.
II. FACTS AND PROCEEDINGS
A.The Injury
Jordan was employed as a backhoe operator for Osborne during the summer of 1989 at a project at Fort Wainwright. Jordan alleges that he injured his lower back on, or around, August 15, 1989, by lifting a compactor out of a ditch while at work for Osborne. He did not report the injury to anyone and continued to work. Jordan at one time claimed that he attempted to report the injury but was instructed not to report injuries by his immediate supervisor, Wayne Jordan (appellee's father), and by the project supervisor, James Worley. Following their denial, Jordan retracted his statement, claiming he should have said Osborne did not want too many injuries reported.
Worley learned of Jordan's injuries when he went to the job site to find a back hoe and operator for a small digging job: hen I got there, I motioned him off the machine and when he got off the machine he was walking bent over side ways and I asked him what had happened to him -- what happened to you and he said -- he told me that had hurt his back. And I asked him how he did it and then he said that he was -- was moving -- helping a laborer move a compactor out of a footing.
He got off the machine, he was stooped over and he was limping and was real stiff. And having had back surgery, he didn't have to tell me what his problem might -- for (indiscernible).
I can look at a man -- a way a man's walking and I can -- if you've ever had it, you know it.
Jordan also told his father, Wayne, what had occurred at the job site. His father told the Board, "I thought he just pulled a muscle in his back." This belief was corroborated when his son continued to work and "after about two weeks, he stopped limping." Jordan continued working at the Fort Wainwright job and did not seek medical attention. He was laid off in October 1989. Up to the end of the job, he felt he could continue to work as an operator:
I thought I could still continue working. Once my leg quit hurting, I felt better and I thought that I would get better. My assumption was that I was going to get better and I had improved -- in fact I had improved without having the leg pain.
B. The Medical Diagnosis and Treatment
Jordan first consulted a physician concerning lower back pain in March 1990. That physician, Dr. Young Ha, an orthopedic surgeon in Fairbanks, made the following chart notes:
This young fellow who developed rather sudden onset of pain in his left side of the buttock which goes down the back of the thigh all the way down to the calf. The pain is rather persistent and quite disturbing in terms of his ability to do things. . . . This pain started about eight days ago after playing basketball and moving furniture about an hour although he does not recall any specific incident in which he had any pain altho
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