ALASKA WORKERS' COMPENSATION BOARD



ALASKA WORKERS' COMPENSATION BOARD

P.O. Box 115512

Juneau, Alaska 99811-5512

| |) | |

| |) | |

|GLENN W. POTTER, |) | |

|Employee, |) |FINAL DECISION AND ORDER |

|Respondent, |) | |

| |) |AWCB Case No. 200610107, 200423261 |

|v. |) | |

| |) |AWCB Decision No. 08-0205 |

|STAR ELECTRIC, INC., |) | |

|Employer, |) |Filed with AWCB Fairbanks, Alaska |

| |) |on November 4, 2008 |

|and |) | |

| |) | |

|REPUBLIC INDEMNITY CO. OF AMERICA, |) | |

|Insurer, |) | |

| |) | |

|and |) | |

| |) | |

|AMERICAN INTERSTATE INSURANCE CO., |) | |

|Insurer, |) | |

|Petitioners. |) | |

| |) | |

| |) | |

We heard the employer’s Petition for a Board Order Dismissing the Employee’s Claim, in Fairbanks, Alaska on September 25, 2008. The employee represented himself. Attorney Michael Budzinski represented the employer and its insurer Republic Indemnity Company of America (“Republic”). Attorney Colby Smith represented the employer and its insurer American Interstate Insurance Co. (“American Interstate”). We permitted the filing of post-hearing briefs, and closed the record when we next met, October 9, 2008.

ISSUE

Did the employee’s osteonecrosis (also known as avascular necrosis) condition arise in the course and scope of his work under AS 23.30.395(24), and shall we dismiss the employee’s claim, with prejudice?

CASE HISTORY AND SUMMARY OF THE RELEVANT EVIDENCE

The employee injured his right knee while working for the employer as an electrician on December 28, 2004.[1] He saw Physician Assistant (“PA-C”) Jerry Vance at the Sports Medicine Fairbanks Clinic on the same day. PA-C Vance determined the employee had hyper extended the knee, and assessed acute tendinitis of the quadriceps and patella.[2] PA-C Vance prescribed a Medrol Dose Pack, Toradol, and Vicodin, and restricted the employee from work.[3] On December 30, 2004, PA-C Vance found the employee’s condition resolving, and directed him to continue his medications and exercise, and to limit his activities for 7 to 10 days.[4]

The employee began to develop hip discomfort in March or April 2005.[5] The symptoms persisted, and on September 12, 2005, he saw PA-C Christopher Fucci who ordered an MRI[6] and provided Kenalog and Lidocaine injections to the right hip.[7] Orthopedic surgeon Mark Wade, M.D., evaluated the employee and treated him conservatively for certain back problems and hip discomfort beginning October 25, 2005.[8] On referral, orthopedist Larry Pedegana, M.D., evaluated the employee in Seattle, who found x-rays of his hips to show only mild degenerative changes.[9] Dr. Pedegana recommended evaluation by a rheumatologist.[10]

Rheumatologist Peter Mohai, M.D., had an MRI taken of the employee’s hips on February 16, 2006.[11] On February 17, 2006, Dr. Mohai diagnosed bilateral avascular necrosis, more symptomatic on the right, and recommended core decompression surgery.[12] Dr. Mohai noted the employee confirmed heavy alcohol use, which the physician suspected was a significant contributing factor, and counseled immediate cessation.[13] Dr. Pedegana referred the employee to internal medicine specialist Gary Schuster, M.D., of the Swedish Medical Center. On February 23, 2006, Dr. Schuster confirmed the bilateral avascular necrosis.[14] Dr. Schuster noted the employee’s alcohol consumption was a risk factor for the condition, but felt the avascular necrosis was not likely related to the several days’ dose of steroids he had taken.[15]

The employee submitted a Report of Occupational Injury or Illness dated May 15, 2006, indicating that he was prescribed steroids for his December 28, 2004 knee injury and developed osteonecrosis.[16]

Dr. Pedegana performed bilateral core decompression surgery on March 3, 2006.[17] The employee’s hip condition deteriorated, and on July 13, 2006 he discussed total hip replacement with orthopedic surgeon Douglas Prevost, M.D.[18] Dr. Prevost performed total left hip replacement surgery on August 29, 2006;[19] and total right hip replacement surgery on November 17, 2006.[20]

The insurer Republic issued a Controversion Notice on August 21, 2006, denying all benefits to the employee because his underlying injury to his knee occurred on December 28, 2004, long before Republic began to provide workers’ compensation coverage for the employer.[21] The insurer American Interstate, issued a Controversion Notice on March 29, 2007, denying all benefits to the employee, asserting no medical evidence related the employee’s hip complaints to his knee injury, because Dr. Schuster’s report indicated the steroid dose was not likely a cause, and because he failed to sign and return releases.[22]

Orthopedic Arthritis Surgeon David Hungerford, M.D., Professor of Orthopedic Surgery at Johns Hopkins evaluated the employee’s medical records on November 13, 2007.[23] Dr. Hungerford indicated the most likely cause of the employee’s osteonecrosis was his alcohol consumption.[24] He reported that the employee’s dose from the Medrol Dose Pack was a total of 105 mg over a 6-day period.[25] He indicated one case had been reported in the medical literature of 700 mg of prednisone over a 10-day period causing osteonecrosis, but the medical consensus is that the minimum dosage of steroids to cause osteoarthritis is 2,000 mg over a 30-day period.[26]

The employee filed a Workers’ Compensation Claim,[27] dated August 2, 2006, asserting he developed osteonecrosis as a result of the steroids used to treat his work-related knee injury.[28] The employee claimed “intermittent” temporary total disability (“TTD”) benefits, permanent partial impairment (“PPI”) benefits (“pending”), medical benefits (totaling “$63,000+, to date”), transportation costs (totaling “$15,000+”), and a compensation rate adjustment.[29]

The insurer American Interstate, issued a Controversion Notice on January 4, 2008, denying all benefits to the employee based on the report of Dr. Hungerford.[30] The insurer American Interstate filed a Petition for a Board Order Dismissing the Employee’s Claim, dated January 4, 2008.[31] The insurer Republic filed a Petition for a Board Order Dismissing the Employee’s Claim, dated January 22, 2008.[32] Based on Dr. Hungerford’s report, both Petitions asserted the necrosis is likely related to the employee’s heavy alcohol use, and likely not related to his use of Medrol Dose Packs[33] It asserted no medical evidence had been received to link the osteonecrosis to work injury, and argued the employee’s claim should be dismissed[34]

In a Prehearing Conference on April 29, 2008, the employee stated he was withdrawing his claim without prejudice, but the insurers requested the hearing be set to determine whether the employee’s claim should be dismissed with, or without prejudice.[35] In a Prehearing Conference on June 16, 2008, the Board Designee set Republic’s Petition for a Board Order Dismissing the Employee’s Claim for hearing on September 25, 2008.[36]

At the hearing on September 25, 2008, the employee filed a letter from Carl Thomas, M.D., dated July 21, 2008.[37] In the letter, Dr. Thomas indicated steroid use and heavy alcohol use are reported to account for more than 90 percent of all cases of osteonecrosis.[38] Although the employee had been using alcohol, he had been doing so for a long time.[39] Dr. Thomas indicated the injected and oral steroids were the only precipitating factor for the osteonecrosis, and were most likely the cause of his condition.[40] Republic and American Interstate objected to the consideration of Dr. Thomas’ letter because it had not been timely filed in the record at least 20 days before the hearing, as required by 8 AAC 45.120(f)&(i).

At the hearing, the employee filed a copy of medical information sheet that came with the Medrol Dose Pack, which under “Adverse Reactions” lists “Aseptic necrosis of femoral and humeral heads.” Republic and American Interstate objected to the consideration of the medical information sheet because no foundation had been laid for its authenticity, and because it had not been timely filed in the record at least 20 days before the hearing, as required by 8 AAC 45.120(f)&(i).

At the hearing, Dr. Hungerford testified steroid correlate with 30 to 40 percent of osteonecrosis cases, but that the threshold for causation is probably at 2,000 mg in a month. He testified that at dosages of 3,000 mg in a month, 15 to 20 percent of patients will develop the condition. He testified that a single Medrol Dose Pack course would have only .05 of the minimum threshold dose, and there is no possibility of a causative relationship. He testified that 400 cc of alcohol, 2 beers, a day are a risk factor for osteonecrosis. He testified the condition is almost unknown in Islamic countries, where alcohol is forbidden.

At the hearing, the employee argued there are documented cases of low dosage steroid use causing osteonecrosis, and that bilateral cases are most likely caused by steroids. He asserted his drinking had not been particularly heavy, and that many people drink much more heavily and never develop osteonecrosis. He argued the physicians are reluctant to admit that medicines they administer can result in such serious conditions. He argued that the condition is rare, and that medical science really does not understand the causes of osteonecrosis. He believes that science will eventually show that steroids, even in low doses, can cause the condition.

American Interstate argued the medical evidence is unanimous in ruling out the possibility that the prescription of Medrol Dose Pack could have caused that the employee’s condition. It also argued the medical evidence is unanimous that the employee’s excessive, long-term alcohol intake is the likely cause. It requested that we find the employee’s osteonecrosis is not related to his work, and the employer and American Interstate are not liable.

Republic argued no medical opinion links the employee’s condition with the treatment of his work injury to his knee. It argued the employee asserted that based on his belief the osteonecrosis arose from the prescribed steroids. The employer argued that there is no medical evidence to establish a preliminary link between his work and his condition, and that the presumption of compensability has not been raised. It argued Dr. Hungerford’s opinion that the steroid dose used by the employee could not have caused the condition is substantial evidence rebutting any possible presumption. The employer asserts that each of the physicians who have addressed the cause of the employee’s osteonecrosis attribute the condition to his alcohol consumption. It requested that we dismiss the employee’s claims for benefits related to his hips.

At the hearing, the employee submitted a copy of a Virginia Workers’ Compensation Commission decision in Belinda Tabitha Wray Webb v. Uttermost Co., VWC File No. 194-04-61, February 2, 2004, in which the Virginia Workers’ Compensation Commission affirmed a Deputy Commissioner determination that relied on a treating orthopedic surgeon’s opinion that doses of oral steroids and numerous steroid injections administered for the employee’s shoulder work injury resulted in osteonecrosis. Republic and American Interstate objected to the employee’s citing this decision at the last moment. We granted the parties a week to file supplementary briefs concerning the issues raised in the Virginia decision.

In his supplementary brief, the employee noted Ms. Webb developed osteonecrosis after only one brief treatment of steroids in the Virginia case. He argued his condition developed in a parallel way. Although no one fully understands the development of the condition, his body reacted to the steroid medication, and developed the condition within three months.

In their supplementary briefs, Republic and American Interstate argued Ms. Webb in the Virginia case had denied drinking alcohol and had no other causative risk factors for osteonecrosis than multiple courses of oral and injected steroids over more than a two year period. Consequently, they argued, the cases are factually distinct. They argued we cannot rely on a medical opinion in a reported case as a fact in the instant case. Additionally, in the instant case, several physicians affirmatively attributed the employee’s condition to alcohol consumption. They agued the Virginia case should be rejected as persuasive authority. They argued the evidence shows the employee’s condition is unrelated to his work injury.

We closed the record when we next met, October 9, 2008. We here consider Republic’s Petition for a Board Order Dismissing the Employee’s Claim.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The Alaska Workers' Compensation Act (Act) defines "injury" and "arising out of and in the course of employment." AS 23.30.395(24) provides, in part:

"injury" means accidental injury or death arising out of and in the course of employment, and an occupational disease or infection that arises naturally out of the employment or that naturally or unavoidably results from an accidental injury . . . .

AS 23.30.395(2) provides:

"arising out of and in the course of employment" includes . . . activities performed at the direction or under the control of the employer . . . .

Under the Alaska Workers' Compensation Act, an employer is required to pay compensation to an employee who suffers an injury “arising out of and in the course of employment,” regardless of fault. An injury has arisen “out of and in the course of employment” if it occurred during “activities performed at the direction or under the control of the employer” Injuries that have both work-related and non-work-related causes are deemed compensable[41] if a work-related incident or condition was “the substantial factor” in causing the injury.[42] AS 23.30.120(a) reads, in part: "In a proceeding for the enforcement of a claim for compensation under this chapter it is presumed, in the absence of substantial evidence to the contrary, that (1) the claim comes within the provisions of this chapter. . . ." The presumption attaches if the employee makes a minimal showing of a preliminary link between the claimed treatment or disability benefit and employment.[43] This presumption continues during the course of recovery from the injury and disability.[44] Also, a substantial aggravation of an otherwise unrelated condition imposes full liability on the employer at the time of the most recent injury that bears a causal relation to the disability.[45] If complications from the injury or treatment occur, the subsequent treatment would still be compensable, and the employer would still be liable for continuing medical benefits under AS 23.30.095(a).[46] The Alaska Supreme Court held "the text of AS 23.30.120(a)(1) indicates that the presumption of compensability is applicable to any claim for compensation under the workers' compensation statute."[47]

In claims based on highly technical medical considerations, medical evidence is often necessary in order to make that connection.[48] In less complex cases, lay evidence may be sufficiently probative to establish causation.[49] In the instant case, the employee claims to be suffering a complex and poorly understood condition, secondary to the treatment of his work injury with steroids. We find this to be a highly technical area of medicine, and we conclude medical evidence is necessary to raise the presumption of compensability.

In the instant case, the employee testified in his deposition and in the hearing concerning his work injury to his knee and its treatment, and concerning his belief that the treatment triggered his osteonecrosis. Although Dr. Thomas’ letter “To Whom It May Concern” indicated his belief that the steroid treatment triggered the condition, this medical opinion was not submitted until the hearing, and under 8 AAC 45.120(i) and 8 AAC 45.052(c)(4) we cannot rely on that letter for our determinations.[50] We find that none of the other medical opinions in the record attribute the employee’s osteonecrosis to his steroid use or to his work in any way. We find the employee has failed to raise the presumption of compensability of his claim.[51]

Even if we find 8 AAC.45.120(f)&(i) did not prevent our reliance on the letter of Dr. Carlson and the Medrol Dose Pack medical fact sheet, and we found those records and the testimony of the employee as sufficient to raise the presumption of compensability, we would find the opinions of Drs. Schuster and Hungerford rebut that presumption. AS 23.30.010(a), provides, in part: “. . . A presumption may be rebutted by a demonstration of substantial evidence that the death or disability or the need for medical treatment did not arise out of and in the course of the employment.” There are two methods of overcoming the presumption of compensability: (1) presenting affirmative evidence showing that the employee does not suffer work-related injury; or (2) eliminating all reasonable possibilities that the injury is work-related.[52] "Since the presumption shifts only the burden of production and not the burden of persuasion, the evidence tending to rebut the presumption should be examined by itself." [53] Drs. Schuster and Hungerford indicated that that the Medrol Dose Pack used by the employee is not a sufficient dosage to cause osteonecrosis. We find these opinions are substantial evidence rebutting any presumption.[54]

Once the employer produces substantial rebuttal evidence, the presumption of continuing compensability for the claimed benefits drops out, and the employee must prove all elements of the case by a preponderance of the evidence.[55] "Where one has the burden of proving asserted facts by a preponderance of the evidence, he must induce a belief in the minds of the [triers of fact] that the asserted facts are probably true."[56] AS 23.30.010(a), provides, in part:

. . . When determining whether or not the death or disability or need for medical treatment arose out of the employment, the board must evaluate the relative contribution of different causes of the disability or death or the need for medical treatment. Compensation or benefits under this chapter are payable for the disability or death or the need for medical treatment, in relation to other causes, the employment is the substantial cause of the disability or death or need for medical treatment.

The Alaska Supreme Court decades ago defined the quantum of “substantial” in its decision Kessick v. Alyeska Pipeline Serv. Co., [57] in the context of workers’ compensation as such relevant evidence as a reasonable mind would accept in light of all the evidence to support a conclusion.[58] We interpret “the substantial cause” of AS 23.30.010(a) in light of the long line of Alaska Supreme Court cases interpreting “substantial” to mean a quantum of evidence a reasonable person could believe sufficient to assign responsibility for causation.[59] We interpret “the” substantial cause in the language of AS 23.30.010(a), in relation to other substantial causes, determining if the employment-related injury is the substantial cause which brings about the disability or death or need for medical treatment.[60]

Based on our review of the whole record, we find the great preponderance of the evidence, especially the records and opinions of Drs. Schuster and Hungerford, show that the administration of the Medrol Dose Pack to the employee for the treatment of the work injury to his knee is not a sufficient dosage to cause osteonecrosis. We find the preponderance of the available evidence indicates the employee’s condition is not caused, aggravated, or accelerated by the steroid medication used to treat his work injury.[61] We must conclude the employee has failed to prove his claim by the preponderance of the evidence, and we must grant Republic and the employer’s Petition to dismiss the employee’s August 2, 2006 Workers’ Compensation Claim.

ORDER

1. The employer and insurer Republic’s Petition for a Board Order Dismissing the Employee’s Claim is granted.

2. The employee’s Workers’ Compensation Claim under AS 23.30.105 and AS 23.30.110(a), dated August 2, 2006, is dismissed, with prejudice.

Dated at Fairbanks, Alaska this 4th day of November, 2008.

ALASKA WORKERS' COMPENSATION BOARD

/s/ William Walters

William Walters, Designated Chairman

/s/ Debra Norum

Debra G. Norum, Member

/s/ Jeff Pruss

Jeffrey P. Pruss, Member

APPEAL PROCEDURES

This compensation order is a final decision. It becomes effective when filed in the office of the Board unless proceedings to appeal it are instituted. Effective November 7, 2005 proceedings to appeal must be instituted in the Alaska Workers’ Compensation Appeals Commission within 30 days of the filing of this decision and be brought by a party in interest against the Board and all other parties to the proceedings before the Board. If a request for reconsideration of this final decision is timely filed with the Board, any proceedings to appeal must be instituted within 30 days after the reconsideration decision is mailed to the parties or within 30 days after the date the reconsideration request is considered denied due to the absence of any action on the reconsideration request, whichever is earlier. AS 23.30.127

An appeal may be initiated by filing with the office of the Appeals Commission: (1) a signed notice of appeal specifying the board order appealed from and 2) a statement of the grounds upon which the appeal is taken. A cross-appeal may be initiated by filing with the office of the Appeals Commission a signed notice of cross-appeal within 30 days after the board decision is filed or within 15 days after service of a notice of appeal, whichever is later. The notice of cross-appeal shall specify the board order appealed from and the grounds upon which the cross-appeal is taken. AS 23.30.128

RECONSIDERATION

A party may ask the Board to reconsider this decision by filing a petition for reconsideration under AS 44.62.540 and in accordance with 8 AAC 45.050. The petition requesting reconsideration must be filed with the Board within 15 days after delivery or mailing of this decision.

MODIFICATION

Within one year after the rejection of a claim, or within one year after the last payment of benefits under AS 23.30.180, 23.30.185, 23.30.190, 23.30.200, or 23.30.215, a party may ask the Board to modify this decision under AS 23.30.130 by filing a petition in accordance with 8 AAC 45.150 and 8 AAC 45.050.

CERTIFICATION

I hereby certify that the foregoing is a full, true and correct copy of the Final Decision and Order in the matter of GLENN W. POTTER employee / applicant; v. STAR ELECTRIC INC., employer, REPUBLIC INDEMNITY CO. OF AMERICA; and AMERICAN INTERSTATE INSURANCE CO, insurers / defendants; Case Nos. 200610107, 200423261; dated and filed in the office of the Alaska Workers' Compensation Board in Fairbanks, Alaska, on November 4th, 2008.

Laurel K. Andrews, Admin Clerk III

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[1] Report of Occupational Injury or Illness, January 27, 2005.

[2] PA-C Vance chart note, December 28, 2004.

[3] Id.

[4] PA-C Vance chart note, December 30, 2004.

[5] Employee dep. At 32.

[6] Magnetic resonance imaging study.

[7] PA-C Fucci chart note, September 12, 2005.

[8] Dr. Wade medical records, October 25, 2005 through December 22, 2005.

[9] Dr. Pedegana Chart Note, February 6, 2006.

[10] Id.

[11] Dr. Mohai medical report, February 17, 2006.

[12] Id.

[13] Id.

[14] Dr. Schuster medical report, February 23, 2006.

[15] Id.

[16] Report of Occupational Injury or Illness, signed May 15, 2006 by the employee, signed May 23, 2006 by the employer.

[17] Dr. Pedegana medical report, March 3, 2006.

[18] Dr. Prevost medical report, July 13, 2006.

[19] Dr. Prevost medical report, August 29, 2006.

[20] Dr. Prevost medical report, November 17, 2006.

[21] Controversion Notice, filed August 29, 2006.

[22] Controversion Notice, filed April 2, 2007.

[23] An employer’s medical evaluation (“EME”), under AS 23.30.095(e).

[24] Dr. Hungerford EME report, November 13, 2007.

[25] Id.

[26] Id.

[27] Under AS 23.30.105 and AS 23.30.110(a).

[28] Workers Compensation Claim, filed on August 7, 2006.

[29] Id.

[30] Controversion Notice, filed January 7, 2008.

[31] Petition filed January 7, 2008.

[32] Petition filed January 24, 2008.

[33] Petitions dated January 4, 2008 and January 22, 2008.

[34] Id.

[35] Prehearing Conference Summary, April 29, 2008.

[36] Prehearing Conference Summary, June 16, 2008.

[37] Dr. Thomas letter To Whom It May Concern, dated July 31, 2007.

[38] Id.

[39] Id.

[40] Id.

[41] See Doyon Universal Services v. Allen, 999 P.2d at 768.

[42] AS 23.30.010(a).

[43] Olson v. AIC/Martin J.V., 818 P.2d 669, 675 (Alaska 1991).

[44] Id. at 675.

[45] Peek v. SKW/Clinton, 855 P.2d 415, 416 (Alaska 1993); 5 A. Larson & L. Larson, Larson’s Workers' Compensation Law, § 90.01 (2005).

[46] Kodiak Oilfield Haulers v. Adams, 777 P.2d 1145, 1149 (Alaska 1989); Toporowski v. Subway of Fairbanks, Inc., AWCB Decision No. 00-0043 (March 9, 2000).

[47] Meek v. Unocal Corp., 914 P.2d 1276, 1279 (Alaska 1996).

[48] Burgess Const. Co. v. Smallwood, 623 P.2d 312 (Alaska 1981).

[49] Veco, Inc. v. Wolfer, 693 P.2d 865, 871 (Alaska 1985).

[50] 8 AAC 45.120 provides, in part:

(f) Any document, including a compensation report, controversion notice, claim, application for adjustment of claim, request for a conference, affidavit of readiness for hearing, petition, answer, or a prehearing summary, that is served upon the parties, accompanied by proof of service, and that is in the board's possession 20 or more days before hearing, will, in the board's discretion, be relied upon by the board in reaching a decision unless a written request for an opportunity to cross-examine the document's author is filed with the board and served upon all parties at least 10 days before the hearing. The right to request cross-examination specified in this subsection does not apply to medical reports filed in accordance with 8 AAC 45.052; a cross-examination request for the author of a medical report must be made in accordance with 8 AAC 45.052.

(i) If a hearing is scheduled on less than 20 days' notice or if a document is received by the board less than 20 days before hearing, the board will rely upon that document only if the parties expressly waive the right to cross-examination or if the board determines the document is admissible under a hearsay exception of the Alaska Rules of Evidence.

Also, 8 AAC 45.052(c) provides, in part:

(4) If an updated medical summary is filed and served less than 20 days before a hearing, the board will rely upon a medical report listed in the updated medical summary only if the parties expressly waive the right to cross-examination, or if the board determines that the medical report listed on the updated summary is admissible under a hearsay exception of the Alaska Rules of Evidence.

[51] Burgess Const. Co. v. Smallwood, 623 P.2d 312 (Alaska 1981).

[52] DeYonge v. NANA/Marriott, 1 P.3d 90, 96 (Alaska 2000); Grainger v. Alaska Workers' Compensation Board, 805 P.2d 976, 977 (Alaska 1991).

[53] Veco, Inc. v. Wolfer, 693 P.2d at 871.

[54] DeYong, 1 P.3d at 96; Grainger, 805 P.2d at 977.

[55] Wolfer, 693 P.2d at 870.

[56] Saxton v. Harris, 395 P.2d 71, 72 (Alaska 1964).

[57] 617 P.2d 755 (Alaska 1980). See, also, Doyon Universal Services v. Allen, 999 P.2d at 770-771.

[58] Id. at 757.

[59] See, e.g., Iversen v. Terrasond, LTD, AWCB Decision No. 07-0350 (November 19, 2007) at 15-17; Carswell v. Anchorage School District, AWCB Decision No. 07-0267 (September 4, 2007) at 8-9.

[60] Id.

[61] Wolfer, 693 P.2d at 870.

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