KEVIN J DENINO v. YUKON FLATS SCHOOL DISTRICT
ALASKA WORKERS' COMPENSATION BOARD
P.O. Box 115512
Juneau, Alaska 99811-5512
KEVIN J DENINO,Employee,
Applicant,
v.
YUKON FLATS SCHOOL DISTRICT,
Employer,
and
ALASKA PUBLIC ENTITY INSURANCE,
Insurer,
Defendants. / )
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) / FINAL DECISION AND ORDER
AWCB Case No. 200206420
AWCB Decision No. 07-0022
Filed with AWCB Fairbanks, Alaska
on February 14, 2007
We heard the employee’s claim for temporary total disability (“TTD”) benefits, medical benefits, and permanent partial impairment (“PPI”) benefits, in Fairbanks, Alaska on January 11, 2007. The employee represented himself. Attorney Michael Budzinski represented the employer. We agreed to consider additional corroborating documentation filed by the employee, within the scope of 8 AAC 45.112(e), and closed the record when we could review the full record on January 18, 2007.
ISSUES
(1) Is the employee entitled to medical benefits, under AS 23.30.095(a)?
(2) Is the employee entitled to TTD benefits, under AS 23.30.195?
(3) Is the employee entitled to PPI benefits, under AS 23.30.190?
CASE HISTORY AND SUMMARY OF THE RELEVANT EVIDENCE
The medical and documentary record in this case is very large. We here recite only those records, testimony and facts relevant and necessary to resolving the employee’s claim.
The employee began working for the employer as a science and physical education teacher in September 2001 in the remote community of Fort Yukon, Alaska. The employee sublet a cabin from the employer, one of a number of dwelling units rented by the employer for its teachers. In the hearing on January 11, 2007, the employee testified that he passed out upon entering his cabin when he returned from a Christmas break in January 2002. He testified he came to almost immediately upon hitting the floor, and crawled to his bed where he slept for half an hour. He testified he passed out several times while trying to raise himself from his bed. He testified he eventually crawled out through his arctic entryway, and was revived by the cold winter air. He opened his doors to allow the cabin to air, and had no further difficulty upon returning into the building. He testified he later developed persistent flu-like symptoms.
He who testified that in late February 2002 he suffered a similar episode upon entering into his cabin and suffered incontinence. When he attempted to wash, he discovered that he was out of propane. He expressed concern that his propane tank was emptying faster than it should. In April 2002, he again passed out upon entering his cabin. He testified he could smell propane. Upon going outside to inspect the propane bottle, he discovered that there was a crack in the outdoor portion of the gas line. He reported the cracked line to the employer, and the employer's maintenance man eventually repaired it and repaired cook stove regulator.
The employee testified a fellow teacher suggested he may have suffered from carbon monoxide poisoning. The employee completed a Report of Occupational Injury or Illness on April 18, 2002, asserting long-term carbon monoxide poisoning with fainting and headache symptoms.[1] The employer filed a Controversion Notice dated May 24, 2002, denying all benefits for failure to timely report the injury, and because the injury did not arise out of the course of employment.[2]
The employee testified he finished the 2001 - 2002 school year, then returned to his home in San Diego, California. On June 16, 2002, the employee sought an evaluation for chronic carbon monoxide poisoning from the urgent care clinic of the San Diego Veterans’ Administration hospital, where he had been treated for asthma and pulmonary conditions since 1999.[3] On June 16, 2002, the employee reported being concerned about carbon monoxide poisoning.[4] The arterial blood gas test report was within normal limits.[5] The employee underwent pulmonary function tests on July 30, 2002, which revealed lung function within normal range, with minimal obstructive ventilatory defect.[6] On August 18, 2002, the employee was assessed to be depressed, and was referred to psychiatric consultation.[7]
Professor David Penney, Ph.D., of the Wayne State University Physiology Department, responded to an inquiry by the employee’s former attorney on August 13, 2002, indicating the carbon monoxide exposure described by the employee could have resulted in death.[8] He felt the symptoms reported by the employee are consistent with carbon monoxide poisoning.[9]
The employee filed a Workers’ Compensation Claim, dated August 29, 2002, asserting he had been exposed to carbon monoxide fumes and was suffering headaches, blurred vision, shortness of breath, impaired cognition, short term memory problems, chest pain, sleep problems, anxiety, mild depression, deafness, and joint pain.[10] The employee claimed PPI benefits, medical benefits, transportation costs, attorney fees, and costs.[11] The employer filed an Answer on September 17, 2002, denying the employee's claimed benefits.[12]
The employee testified he worked for the Puyallup School District for the 2002 - 2003 school year, and for the beginning of 2003 - 2004 school year. A dispute developed with his school administration, and he did not finish the 2003 – 2004 school year.
The employer filed a Petition on January 6, 2003, requesting that we denying all claims of the employee based on findings that the employee did not file a timely report and injury under AS 23.30.100, and based on findings that his medical condition did not arise out of the course and scope of his employment.[13]
Pulmonologist Vernon Nessan, M.D., evaluated the employee on December 19, 2002. Dr. Nessan found mild obstructive airway disease, post carbon monoxide poisoning.[14] On November 5, 2003, the employee sought a psychological evaluation with Steven Klein, Ph.D., of the Allenmore Psychological Associates, reporting panic attacks, depression, and suicidal ideation.[15] The psychological testing indicated depression, and he began psychotherapy.[16] He continued treating there through June 21, 2004.[17]
On referral from the employee’s treating physician, John Dillard, M.D., the employee was evaluated by psychologist Howard Lloyd, Ph.D., on May 3, 2004. Dr. Lloyd noted the employee claimed difficulties with concentration and multi-tasking.[18] Dr. Lloyd reported that the testing he administered indicated the employee’s intellectual functioning was within normal range, but showed some impairment of encoding and retrieval of novel information, as well as slowed processing of executive mental functioning.[19] He noted depression.[20] He felt the symptoms could be due, in part, to carbon monoxide exposure.[21] Dr, Lloyd recommended continued psychotherapy and a psychiatric evaluation.[22]
The employee filed another Workers’ Compensation Claim, dated January 12, 2004, asserting he was suffering muscle and joint pains, diarrhea, short term memory loss, mood swings, and the depressive phobias.[23] He claimed PPI benefits and medical benefits.[24] The employer filed a Controversion Notice dated February 18, 2004, denying all benefits for failure to timely report the injury, and because the injury did not arise out of the course of employment.[25] The employee filed a Request for Eligibility Evaluation for Reemployment Benefits on February 18, 2004.[26]
The employer filed an Answer on September 29, 2005, denying the employee's claimed benefits.[27] The employer also asserted the employee failed to timely request a hearing and his claims should be barred under AS 23.30.110(c).[28]
At the request of the employer, neuropsychologist Larry Friedman, Ph.D., evaluated the employee on October 20, 2004.[29] In his report, Dr. Friedman noted the employee’s neurocognitive functioning had deteriorated markedly since Dr. Lloyd’s evaluation in the spring of 2004.[30] Dr. Friedman felt the progressive deterioration so long after the possible exposure was not consistent with carbon monoxide poisoning.[31] Dr. Friedman believed the employee’s symptoms had no organic basis, but were functional, arising from his conflicts and difficulties at work.[32] He felt the employee could return to his work as a teacher.[33]
At the request of the employer, toxicologist Brent Burton, M.D., evaluated the employee on October 21, 2004. In his report, Dr. Burton noted the carbon monoxide exposure episodes reported by the employee were not believable and probably contrived, that propane does not have the toxic properties described by the employee, and that there was no probable source of carbon monoxide in his cabin, as described.[34]
Also at the request of the employer, psychiatrist Eric Goranson, M.D., evaluated the employee on October 22, 2004. In his report, Dr. Goranson found the employee’s behavior dramatic and that he used a contrived speech impediment.[35] He found the employee’s reported myriad of symptoms were not consistent with carbon monoxide poisoning and made no medical sense.[36] He diagnosed the employee to be suffering Conversion Disorder and mixed Personality Disorder, conditions unrelated to carbon monoxide poisoning.[37]
On January 23, 2005, psychologist Penny Tanner, Ph.D., diagnosed mood instability, and suggested investigation of possible mood disorder, bipolar disorder, and attention deficit disorder.[38] She recommended possible anti-depressant medication.[39]
At the employee’s request, on March 1, 2005, neuropsychologist Laura Dahmer-White, Ph.D., evaluated the reports of Drs. Lloyd and Friedman, agreeing with Dr. Lloyd that the employee exhibited some difficulties with speech processing and higher level attention.[40] She agreed with Dr. Friedman that functional rather than organic features produced the employee’s symptoms.[41] Dr. Dahmer-White recommended psychotherapy to address the employee’s underlying anxiety.[42]
At our request, psychiatrist Ronald Early, M.D., evaluated the employee on March 14, 2005.[43] In his report, Dr. Early indicated the black-outs with sudden coming-to, as described by the employee, were not consistent with carbon monoxide exposure.[44] He believed the employees blacking–out episodes were related to anxiety, tachycardia, and panic related syncope.[45] He found no evidence of toxic exposure.[46] Dr. Early diagnosed Depressive Disorder, Anxiety Disorder, probable Mixed Personality Disorder, and a variety of psychosocial stressors.[47] Dr. Early recommended the employee return to teaching, be prescribed medication for his mood disorder, and engage in psychotherapy.[48]
At our request, toxicologist Thomas Martin, M.D., also evaluated the employee on March 21, 2005. In his report, Dr. Martin indicated that if the employee had actually been exposed to carbon monoxide of sufficient concentration to render him unconscious, to crawl to bed and sleep in that environment would have been lethal.[49] If there had been an excess of propane in the air, the employee would readily have been able to smell it.[50] More probably than not, he felt the employee did not suffer from carbon monoxide poisoning, hypoxic encephalopathy from an oxygen deficient environment, or propane asphyxiation.[51] Dr. Martin believed some of the employee’s symptoms resulted from underlying depression and anxiety disorders, and some from an underlying somatization disorder or malingering.[52] He felt these conditions were not related to, or aggravated by, his work with the employer.[53]
The employee filed an amended Workers’ Compensation Claim, dated August 28, 2006, additionally claiming to TTD benefits from June 17, 2004 through the date of the claim.[54] The employer filed a Controversion Notice on September 13, 2006, denying TTD benefits on the same bases as the earlier Controversions.[55] The employee filed and Affidavit of Readiness for Hearing on September 21, 2006.[56] The employer filed an Amended Answer on September 29, 2006, again denying the employee's claimed benefits for failure to timely report the injury, and because the injury did not arise in the course of work.[57]
In a Prehearing Conference on October 9, 2006, the Board Designee set the employee's claims for hearing on January 11, 2007.[58] The employee's claims were identified as TTD benefits, PPI benefits, and medical benefits.[59]
On August 29, 2006, the employee filed an extensive “Medical Report on Kevin J. DeNino.”[60] This consisted of selections from Internet articles on carbon monoxide poisoning, the August 13, 2002 letter by Dr. Penney, statements by the employee, statements of commendation and attestation to character, pleadings from the employee’s file, and an analysis of the employee’s symptoms, concluding he suffers chronic carbon monoxide poisoning and is in need of treatment for that condition. This report was signed by Dr. Diller on August 23, 2006. In the hearing, the employee testified he had researched and compiled the report for Dr. Diller, with the doctor’s corrections, because Dr. Diller does not have a computer.[61]
Dr. Burton’s deposition was taken on December 18, 2006. In the deposition, Dr. Burton testified consistently with his report.
In the hearing, Dr. Goranson testified he believes the employee suffers a conversion disorder, which is a long-standing personality disorder, not related to his work in Fort Yukon. He testified the employee’s recitation of his exposures and his continuing symptoms simply do not make sense, medically.[62]
At the hearing on January 11, 2007, the employee testified concerning the history of the incidents resulting in unconsciousness, and concerning the conditions of his cabin and its major heating and cooking appliances. He testified concerning his conflict with a former teacher, the owner of his rental cabin, over the employee’s appointment as basketball coach. He testified the cabin owner told him he had “winterized” the cabin before his first feinting episode. He testified his stove had produced a large amount of soot, indicating partial combustion and carbon monoxide. He testified the employer’s repairman later had to repair the regulator because it was not functioning properly.
The employee testified the employer had arranged his housing, and deducted the monthly rate from his pay. He testified he previously had no cognitive or speech problems, no mental disorder, and no memory problems, but that these faculties had all deteriorated following his toxic exposure. He testified he tried to continue working for a year and a half after his exposure, but his concentration and cognitive abilities are no longer adequate for teaching. He testified his symptoms include dizziness, joint pains, headaches, explosive diarrhea and related hemorrhoids, gagging, and respiratory distress.
At the hearing, and in his brief, the employee argued that he was injured as a result of a faulty regulator, which exposed him to carbon monoxide over an extended period of time, resulting in carbon monoxide poisoning. He argued he worked for the employer in a remote site, and that all of his activities should be considered to occur within the course and scope of his employment, in accord with the Alaska Supreme Court decision in Doyon Universal Services v. Allen.[63] He argued he had lived in an employer-provided facility, within the meaning of AS 23.30.395(2), and his injury should be considered to have occurred in the course and scope of his work. He argued he promptly reported his injury once he had diagnosed it from the school’s science books. He argued the employer had improperly resisted a number of his discovery requests, and he timely requested a hearing as soon as his record was adequate.