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Cowen v. Wal-Mart6/25/2004
I. INTRODUCTION
Jackie Cowen, claiming that her employment caused her left breast saline implant to deflate, sought workers' compensation benefits from her employer, Wal-Mart. The Alaska Workers' Compensation Board rejected her claim. We affirm the superior court's affirmance of the board's decision because we conclude that the opinions of two physicians were substantial evidence permitting the board to conclude that Cowen's work activities did not cause her implant to deflate.
II. FACTS AND PROCEEDINGS
At the time of her injury, Jackie Cowen was employed as a Direct to Store Delivery Associate at Wal-Mart, where her job duties included loading and unloading freight, tracking merchandise, and emptying boxes. She has a history of fibrocystic breast disease for which she had undergone a bilateral mastectomy and multiple breast implant surgeries. On March 1, 2000, she felt lethargic and nauseated when she returned home at the end of her shift. She worked the next day and informed her store manager on March 3 that her left breast implant had collapsed. Although she stated in her Report of Occupational Injury that she had hit her left breast while lifting a box, she answered "maybe" on the attached questionnaire to the question of whether anything had struck her body.
Cowen informed her family physician, Derek Hagen, D.O., of her condition on March 2, 2000. Dr. Hagen referred her to plastic surgeon Sarah Troxel, M.D., who examined Cowen on March 6. At that time, Cowen denied any knowledge of trauma to her breast. Dr. Troxel confirmed leakage and deflation of Cowen's left breast implant, but found no evidence of chest area bruising.
Dr. Troxel referred Cowen to George Siegfried, M.D. Dr. Siegfried has performed implant surgery since 1973 and performs approximately forty implant surgeries per year. Dr. Siegfried examined Cowen on March 14, 2000. His October 24, 2000 affidavit expressed his opinion that Cowen would remember the kind of trauma necessary to induce acute implant deflation. He also thought that a blow sufficient to cause an implant to deflate would probably cause the scar tissue around the implant to bruise, even after multiple breast surgeries. He stated that it was not possible that lifting boxes of merchandise and bumping them against the breast caused Cowen's implant to deflate. He stated his opinion that the deflation was most likely due to natural wear caused by continuous abrasion. He stated that anything that would cause the pectoralis muscle to move would contribute to implant failure.
Cowen revisited Dr. Hagen on March 20, 2000. She complained of cough, congestion, body aches, and anxiety associated with the deflation. Dr. Hagen expressed his opinion in a letter dated May 5, 2000 that Cowen's job duties directly caused her breast implant to deflate. He later stated in his deposition that he based his opinion on what Cowen told him had happened at work. Although he doubted that fluid from the implant directly caused her symptoms, he thought that the deflation's effect on Cowen's emotional state affected her pulmonary condition.
Cowen filed a worker's compensation claim on April 12, 2000. She alleged that her left breast implant had deflated due to trauma that occurred while she was performing her regular job duties. Wal-Mart and its insurer controverted and answered her claim, asserting that the breast implant deflation was not work-related. Cowen, when deposed, testified that she could not recall any specific event at work that could have caused the implant to deflate.
At Wal-Mart's request, Cowen was evaluated by another physician, Ajit Arora, M.D., who declined to offer his opinion re
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