Appellants appeal from a compensation order entered by the Alaska Workmen's Compensation Board and subsequently affirmed by the superior court. In its order the Board found that appellant Gusta Vereen, Jr. (hereinafter referred to as claimant) sustained a compensable accidental injury which arose out of and in the course of his employment resulting in claimant's temporary total disability. The Board also concluded that an assessment of a 10% penalty against appellant Morrison-Knudsen Company, Inc. (claimant's employer) for failure to pay compensation was appropriate.
Appellants attack the Board's compensation order on the grounds that claimant failed to file a timely claim for compensation; that the Board's finding of temporary total disability is not supported by substantial evidence; and that there was no basis in the record for the assessment of a 10% penalty. Appellants' contentions will be separately treated.
AS TO THE TIMELINESS OF CLAIMANT'S CLAIM FOR COMPENSATION
AS 23.30.100(a) of the Alaska Workmen's Compensation Act provides:
Limitation periods pertaining to notice of injury, such as that contained in our compensation act, have been held to possess the dual purpose of enabling
No issue as to the timeliness of claimant's notice of injury is presented by this appeal. The question here is whether or not claimant timely filed a claim for compensation within the period prescribed by AS 23.30.105(a). This section of our compensation act provides:
The purpose of AS 23.30.105(a)'s limitation as to the filing of a compensation claim is to "protect the employer against claims too old to be successfully investigated and defended."
In the proceedings held before the Board, Morrison-Knudsen filed a motion to dismiss on the grounds of claimant's noncompliance with the provisions of AS 23.30.105 (a).
On appeal, the superior court, on March 19, 1965, entered a Memorandum Opinion and Order which affirmed in all respects the Board's favorable determination of claimant's application for compensation. As to the issue under consideration the superior court concluded that claimant had timely complied with AS 23.30.105(a)'s mandate on two separate grounds. First, on the basis of several letters which had been introduced into evidence before the Board, the superior court determined that claimant had filed a claim for compensation within two years of the date of the employer's last payment of compensation to claimant. (Note: The evidence is undisputed that claimant sustained an accidental injury on July 14, 1960, and that subsequent thereto his employer voluntarily paid compensation until October 15, 1960.) Secondly, the superior court further concluded that claimant had filed a claim for compensation within two years after he first acquired "knowledge of the nature of his disability and its relation to his employment."
The evidence in regard to this issue discloses that claimant sustained an accidental injury on July 14, 1960, while employed by Morrison-Knudsen as a laborer in Fairbanks, Alaska. Claimant sustained an injury to his back while lifting a large timber and then shortly thereafter lifting a bag of cement. As a result of this injury claimant was hospitalized for two weeks under the care of Dr. Paul B. Haggland. While hospitalized, claimant was placed in traction and received diathermy treatment for low back sprain. Subsequent to his release from hospitalization, claimant was periodically treated by Dr. Haggland until
After being discharged from Dr. Haggland's care, claimant left Alaska to visit his parents in South Carolina and thereafter visited his relatives in the State of Connecticut. On January 20, 1961, during his visit in Connecticut, claimant again experienced back trouble which resulted in twelve days' hospitalization under the care of Dr. Frank Serena. Claimant was again placed in traction and given physiotherapy treatments. Dr. Serena continued to treat claimant until June 9, 1961. In a report dated June 22, 1961, Dr. Serena stated in part that:
Additionally, the record discloses that at the May 16, 1963, hearing before the Board claimant testified that he didn't know what his disability was until approximately July of 1961. The record further shows that claimant filed an application for adjustment of claim (dated February 25, 1963) with the Board in February 1963. On the basis of the foregoing, we have concluded that the Board and the superior court could have properly concluded that claimant's February 25, 1963, application for adjustment of claim was filed within two years after claimant had (or a reasonable person in claimant's position should have acquired) "knowledge of the nature of his disability and its relation to his employment and after disablement."
Unlike our previous compensation act which commenced the limitation period for filing a notice of claim from the date of "injury,"
Here the record discloses that claimant was a twenty-five year old laborer, had a twelfth grade education, and was a layman in respect to medical matters. There was substantial evidence in the record supporting the following: That claimant was injured on July 14, 1960, and was thereafter treated by Dr. Haggland who, on October 15, 1960, released claimant from his care as fit for work. That subsequent to his discharge claimant experienced further back difficulty in January of 1961 which resulted in hospitalization and treatment by Dr. Frank Serena. That it wasn't until
Thus, on the basis of the evidence adduced and reasonable inferences therefrom, the record supports the conclusion that claimant did not know (and a reasonable person would not have known prior thereto) until approximately June or July of 1961 "the nature of his disability and its relation to his employment." In short, after claimant was discharged by Dr. Haggland in October of 1960 as fit for work, he did not acquire knowledge of the nature of his disability and its relation to his employment of July 14, 1960, until approximately the time Dr. Serena rendered his report of June 22, 1961. The following portion of the court's opinion in Great American Indem. Co. v. Britton
AS TO THE ISSUE OF WHETHER THE BOARD'S FINDING OF TEMPORARY TOTAL DISABILITY IS SUPPORTED BY SUBSTANTIAL EVIDENCE
The Board in its Findings and Award of February 18, 1964, found that on July 14, 1960, claimant sustained an accidental injury to his back in the course of his employment which "caused temporary total disability that began on July 14, 1960, and has continued to the present date." As to the nature of claimant's injury, the Board found that:
Based in part on the foregoing, the Board concluded to award claimant compensation for temporary total disability
The Board's findings as to claimant's temporary total disability were subsequently affirmed by the superior court.
The evidence before the Board as to the nature of claimant's disability and its causal relation to the July 14, 1960, injury was conflicting. On review, it is not our province to weigh the evidence or to choose between competing inferences reasonably to be drawn from the evidence. Judge Holtzoff articulated this well established principle of review in compensation cases in Great American Indem. Co. v. Britton,
We have already alluded to Dr. Serena's report of June 22, 1961, in which he concluded that claimant's back condition was organic in nature, disabling, and causally related to the July 14, 1960, injury. Dr. Serena diagnosed claimant's condition as "that of a lumbosacral sprain, with herniated disc at lumbo sacral joint — left side." The Board also had before it the July 11, 1961, report of Dr. H. Howard Green, an orthopedic surgeon, in which it was stated:
In addition to the foregoing, there was also introduced into evidence the September 27, 1961, report of Dr. Frank Robinson, a neurosurgeon. Dr. Robinson's report stated in part:
We are of the opinion that the reports of these three physicians, together with claimant's testimony, establishes that there is substantial evidence in the record in support of the Board's finding of an organic injury to claimant caused by the July 14, 1960, accident.
Similarly, we are also of the opinion that there is substantial evidence supporting the Board's finding that claimant suffers from functional overlay, in the nature of conversion hysteria, caused by the July 14, 1960, accident. In this appeal, appellants concede that conversion hysteria (or traumatic neurosis) is compensable if causally related to the physical injury claimant suffered in July of 1960.
AS TO THE ASSESSMENT OF A 10 PER CENT PENALTY
The superior court affirmed the Board's imposition of a 10 per cent penalty but concluded that the penalty should commence from October 17, 1960. In its Memorandum Opinion, the superior court stated:
Claimant was released by Dr. Haggland on October 15, 1960, as able to resume work. The record does not substantiate a finding that appellants received a copy of Dr. Serena's report of June 22, 1961. Nor does the record support the superior court's conclusion that compensation was payable from October 17, 1960. In short, we are of the opinion that the record adduced below does not support the Board's imposition of a 10 per cent penalty pursuant to AS 23.30.155(e). Claimant's employer under the circumstances had
For the reasons expressed herein the Board's assessment of a 10 per cent penalty and the superior court's affirmance thereof is reversed. In all other respects the Board's compensation order and the superior court's affirmance thereof is affirmed.
In 1959 the legislature enacted a new compensation law. See SLA 1959, ch. 193. SLA 1959, ch. 193, § 12 became AS 23.30.105(a) upon codification. SLA 1962, ch. 42, § 6, amongst other changes, added the latent defect provision now contained in AS 23.30.105(a).
Compare Manthey v. Collier, 367 P.2d 884, 889 (Alaska 1962), in regard to the necessity on the part of the Board to make findings.
In 2 Larson, Workmen's Compensation § 78.41, Professor Larson writes at 260-63:
Note: Claimant did not argue in this appeal that the facts bring him within that portion of AS 23.30.105(a) which reads:
Dr. Wolfgang Klemperer also concluded that claimant's condition was organic. In a report dated September 22, 1964, he stated in part:
Dr. Ira O. McLemore's report of September 23, 1964, concluded in part:
The superior court admitted these three reports on the basis that AS 44.62.570(d) of the Administrative Procedure Act authorized the court to augment the record. This section provides:
Since we have determined that the Board's findings as to the organic nature of claimant's disability is supported by substantial evidence (exclusive of these three reports admitted by the superior court), we need not determine whether these reports were properly admitted by the superior court.