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Municipality of Anchorage v. Devon12/2/2005
No. 5961
Before: Bryner, Chief Justice, Matthews, Eastaugh, Fabe, and Carpeneti, Justices.
I. INTRODUCTION
The main question presented in this appeal is whether the Alaska Workers' Compensation Board erred in denying the Municipality of Anchorage's petition for reimbursement of workers' compensation benefits paid to Samuel Devon. The municipality argues on appeal that: (1) the board lacked substantial evidence to dismiss its petition in light of surveillance tapes showing Devon engaging in activities allegedly at odds with his claims of injury, and (2) the board erred in admitting certain medical records without allowing an opportunity for cross-examination. Because the testimony of one of Devon's treating physicians provided substantial evidence for the board to conclude that Devon did not misrepresent his condition in a way that garnered him increased benefits, and because the superior court correctly concluded that any error associated with admission of the medical records was harmless, we affirm.
II. FACTS AND PROCEEDINGS
A. Facts
Samuel Devon began working for the Municipality of Anchorage in May 1993 and was employed as a refuse disposal technician. While employed by the municipality, Devon sustained four injuries: (1) on February 1, 1995 he reported neck pain from having to continuously look over his right shoulder while operating a bulldozer; (2) on April 25,1998 he injured his neck and upper spine after a sixteen-foot fall; (3) on October 19, 1999 he suffered pain in his neck after hitting three raised manholes while operating a grader; and (4) on January 20, 2001 he reported severe neck pain stemming from the vibration associated with operating a grader. After the 1998 fall, Devon had two surgeries: in June 1998 he had his C6 and C7 vertebrae surgically fused and in November of that year he had arthroscopic surgery on his right shoulder to remedy various problems, including a SLAP lesion, which is a tear in the cartilage of the shoulder joint.
In July 2000 Devon underwent a physical capacities evaluation (PCE) to determine whether he could continue to work as a heavy equipment operator. Devon was able to push and pull a 350-pound cart, although at 400 pounds he demonstrated severe scapular winging, and could lift thirty-five pounds above his shoulders. He was certified for medium work. The evaluation also noted that Devon had no strength above his shoulders and that his neck could not take any impact. Sometime after the PCE Devon was referred by his surgeon, Dr. Louis Kralick, to Dr. Michael Gevaert for a permanent partial impairment (PPI) rating; Dr. Gevaert conducted the evaluation in November 2000. Based on pain and decreased shoulder mobility, the shoulder surgery, the prior neck surgery, and related nerve damage, Dr. Gevaert assigned Devon a PPI rating of twenty-seven percent. The municipality paid Devon $36,500 based on this rating. Dr. Gevaert agreed that Devon could return to medium work, but noted that he risked reinjury if he was exposed to vibration. Devon returned to work on January 14, 2001.
After ten days of work, on January 24, 2001, Devon reported neck pain from the vibration associated with operating the grader. The same day Devon's request for reemployment benefits was denied. Within a few days, Devon requested and obtained notes from Drs. Gevaert and Kralick that restricted him from operating the grader but allowed him to operate other heavy equipment. Based on these notes, the Reemployment Benefits Administrator reconsidered Devon's application and granted him reemployment benefits on February 8, 2001. According to the municipality, Devon was paid $16,500 in temporary tot
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