Jones v. Alaska Workmen's Compensation Board
Jones v. Alaska Workmen's Compensation Board
Concurring Opinion
concurring.
Neither the briefs filed in this case nor the opinion addresses an issue, which I believe must be resolved — whether Jones is entitled to compensation for the period that his temporary total disability attributable to his employment overlaps the period during which he would not otherwise have been available for employment due to the non-work related surgery. Few cases address this issue.
In Electronic Associates, Inc. v. Heisinger, 111 N.J.Super. 15, 266 A.2d 601 (1970), an employee who quit her job because of pregnancy was required to undergo surgery to her wrist because of a job related disability. The court held that her reason for terminating employment, namely her pregnancy, was unrelated to the employment. Id. at 604. Since her right to receive wages ceased before the onset of her disabling occupational disease, she suffered no wage loss, and the court concluded that she was not entitled to temporary disability compensation. Id.
Subsequently, in Tamecki v. Johns-Manville Products Corp., 125 N.J.Super. 355, 311 A.2d 20 (1973), the court took the same position in a case very similar to that of Jones. Tamecki, who had completed his first year of college, was injured while working during the summer. The injury necessitated emergency surgery. In September, he returned to college as a full time student. During the next year, he had to undergo reconstructive surgery several times. He was awarded temporary disability benefits for this period until he returned to school, but the appellate court refused to
With all due respect to the New Jersey court which decided Tamecki,
. Different considerations may be applicable where, as in Electronic Associates, an employee terminates employment for non-work related reasons before the onset of any disability. It is not necessary for us to pass on that question. But see Vetter v. Alaska Workmen's Comp. Bd., 524 P.2d 264, 266-67 (Alaska 1974).
Opinion of the Court
OPINION
After Kenneth Jones suffered a severe attack of angina pectoris
On December 20, 1976, Jones was employed by Fluor Alaska, Inc. (“Fluor”) near Valdez as a crane operator on the pipeline. Because of a strike by Teamsters’ bus drivers, Jones and his co-workers were forced to walk about two miles uphill to their job site. The weather was cold and the footing
Evidence and testimony introduced at the Board hearing showed that Jones had had a lengthy history of heart trouble, beginning in 1970. In June, 1975, after increasingly frequent occurrences of chest pain, he was admitted to Stanford. An angiography (vessel analysis) indicated his underlying problem, but Jones apparently declined surgery at that time. He was instead put on a program of “medical management,” with extensive medication and instructions to see his doctor in Alaska once a month. Between his hospitalization and the incident at issue here, Jones seems to have had no major heart problems.
Jones submitted a timely claim for workmen’s compensation, which was controverted by Fluor’s compensation insurance carrier, Alaska Pacific Assurance Co. (“AL-PAC”). He claimed temporary total disability from December 20, 1976, to some unspecified time no earlier than the Board hearing date, August 18, 1977. Four months after the hearing the Board denied Jones’ claim. On September 7, 1978, Judge Buckalew affirmed. This appeal followed.
The medical evidence before the Board was essentially uncontradicted. All three doctors
Jones has cited us to numerous cases which he claims support his position that the cost of his bypass surgery and his resulting disability are both compensable. All of those cases are distinguishable. In Hawkins v. Green Associated, 559 P.2d 118 (Alaska 1977), we upheld a Board finding that Hawkins’ spinal fusion operation and subsequent disability were compensable, even though Hawkins had been scheduled for this surgery before his on-the-job injury. But that decision rested on the fact that the injury aggravated his back problem, so that he could no longer postpone the surgery. Sufficient medical evidence here showed no such aggravation. In Hartford Accident & Indemnity Co. v. Thurmond, 527 S.W.2d 180 (Tex.Civ.App. 1975), the court did approve a jury decision holding compen-sable bypass surgery to correct severe occlusive disease of the arteries, and the disability resulting from that surgery. But the medical testimony in that case was far more favorable to the claimant than that involved here. Thus, the claimant’s medical expert explicitly testified that Thurmond’s need for surgery arose out of the industrial accident, Id. at 189, notwithstanding Thurmond’s history of heart problems. And even the carrier’s expert conceded that angina and coronary insufficiency may cause
The last group of cases, however, does firmly support Jones’ claim that his December 20 angina attack was by itself temporarily disabling. See Canning v. State Department of Transportation, 347 A.2d 605 (Me. 1975); Seals v. Potlatch Forests, Inc., 151 So.2d 587 (La.App. 1963).
REVERSED and REMANDED.
. One doctor testifying in this case described angina pectoris as “just a fancy word for pain” in the chest. He explained that it arises “when there is a lack of sufficient oxygen and fuel supply to the heart muscle,” due to the heart’s need for extra fuel and/or the diminishing of normal circulation because of hardening of the arteries.
. Thornton v. Alaska Workmen’s Compensation Bd., 411 P.2d 209, 210 (Alaska 1966). See also, 1 Larson, The Law of Workmen’s Compensation, § 12.20 at 3-276 (1978).
. Dr. Rhyneer, who treated Jones in Anchorage after his evacuation; Dr. DeBusk, a doctor at Stanford; and Dr. Isaak, Jones’ doctor in Ke-nai. Dr. Rhyneer’s deposition was before the Board, as were letters from all three doctors to Jones’ attorney.
. In Seals the employer presented testimony much like Dr. Rhyneer’s here, that each attack of angina is a “self limited thing” resulting in no damage to the vessels or heart absent an infarct (heart attack). 151 So.2d at 590.
. Indeed, in one case, Wheeler v. Indus. Comm’n, 382 P.2d 675 (Ariz. 1963), the claimant was awarded six months of disability benefits for “temporary aggravation of his pre-existing coronary artery disease.” Id. at 677.
. We realize that this determination will necessarily be somewhat speculative, but we find that an equitable resolution of this case requires it. Because this question was not clearly presented in the previous proceedings, the Board may wish to receive additional evidence.
Reference
- Full Case Name
- Kenneth W. JONES, Sr., Appellant, v. ALASKA WORKMEN’S COMPENSATION BOARD, Fluor Alaska, Inc., and Alaska Pacific Assurance Company, Appellees
- Cited By
- 8 cases
- Status
- Published