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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. McGahuey v. Whitestone Logging, Inc. (10/21/2011) sp-6610
Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska, 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
CALVIN L. McGAHUEY, )
) Supreme Court No. S-13742
Appellant, )
) Alaska Workers' Compensation
v. ) Appeals Commission No. 08-022
)
WHITESTONE LOGGING, INC. ) O P I N I O N
and ALASKA TIMBER )
INSURANCE EXCHANGE, ) No. 6610 - October 21, 2011
)
Appellees. )
)
Appeal from the Alaska Workers' Compensation Appeals
Commission, Kristin S. Knudsen, Commission Chair.
Appearances: Calvin L. McGahuey, pro se, Crescent City,
California, Appellant. Patricia L. Zobel, DeLisio Moran
Geraghty & Zobel, P.C., Anchorage, for Appellees.
Before: Carpeneti, Chief Justice, Fabe, Winfree, Christen,
and Stowers, Justices.
STOWERS, Justice.
I. INTRODUCTION
A worker was involved in a fight in a logging camp bunkhouse. He did not
file a report of injury related to the fight for over a year. When he finally filed a report
of injury, he alleged that he had injured his hip, lower back, and ear in the fight. His
employer controverted benefits because he did not give timely notice of the injury. The
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worker then alleged that he had verbally informed his supervisor of the injuries. After
a hearing, the Alaska Workers' Compensation Board determined that the worker's claim
was barred because he did not give his employer timely notice of the injury. The Board
performed an alternative analysis assuming the worker had given timely notice and
decided that the claim was not compensable. The Alaska Workers' Compensation
Appeals Commission affirmed the Board's decision. Because the Commission correctly
determined that substantial evidence in the record supports the Board's decision on the
compensability of the claim, we affirm the Commission's decision.
II. FACTS AND PROCEEDINGS
Calvin McGahuey worked for Whitestone Logging, Inc. on Afognak Island,
near Kodiak, during the first half of 2004. He worked on a boom boat and also
performed general work around the camp. In March 2004 he was involved in a fight in
the bunkhouse. According to McGahuey one or two of his co-workers attacked him in
his room. McGahuey said that one of them slammed him into a table, injuring his back,
and that to escape he had to jump out of a window that was 14 feet off the ground,
injuring his hip. McGahuey went to the cook's house; the cook directed him to Mike
Knudsen, one of the camp supervisors. McGahuey said that he was limping visibly after
the fight and that he reported the injury to several people in the camp, including John
Rivers, another camp supervisor; Joe Bovee, an employee of a different company whom
McGahuey considered a supervisor; and Knudsen.
Rivers investigated the fight for Whitestone. Rivers was the camp manager
of Whitestone's Afognak logging camp from the beginning of 2004 to May 2004; he was
also the only qualified EMT in the camp at the time of the fight. Rivers's investigation
showed that McGahuey had talked on a shared telephone for what his bunkmates thought
was too long. One of them disconnected the phone and cut off McGahuey's
conversation. After "words were exchanged" a fistfight began, during which McGahuey
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was pushed into another bunkhouse resident, who "joined the fray." McGahuey "either
exited through a window or claimed he exited by a window." Rivers did not discipline
McGahuey for the incident but gave written warnings to the other two men "for fighting
in the bunkhouse and for being intoxicated."
Rivers talked to McGahuey as part of the investigation either the night of
the fight or the next day. At that time, Rivers observed that McGahuey's "face was red
in places so it looked like he had been involved in a fist fight but nothing real severe."
According to Rivers, McGahuey "complained about being sore" but did not tell him
about any injuries to his back or hip. Rivers stated that he observed McGahuey walking
the day after the fight and McGahuey was not limping. McGahuey returned to work the
day after the fight; he missed no work after the altercation.
McGahuey went to a doctor in Kodiak on May 25 for an ear problem. The
medical record from the visit did not show that McGahuey reported the fight or any
complaints related to it. The doctor treated McGahuey for impacted earwax. On June 4
Whitestone laid McGahuey off work so he could attend to certain family obligations, and
McGahuey returned to California. He filed a report of injury for his earwax problem in
August, and Whitestone paid for the May doctor visit because the doctor thought the
problem could be work related.
The first medical chart note that recorded McGahuey mentioning low back
pain from the fight at Whitestone was a medical history form for chiropractic care dated
April 4, 2005. On this form, McGahuey wrote that he had been in a work-related
accident and had reported the accident to his employer but not to workers' compensation.
He described his condition as "lower back injury and hip after the fight on the job" and
reported pain that got worse with bending and working.
McGahuey filled out and signed a report of injury form, dated
April 6, 2005, regarding the fight. Whitestone received the form in early May and filed
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a notice of controversion on June 16; the controversion said that Whitestone had not
received timely notice of the injury, that McGahuey was intoxicated at the time of injury,
and that the fight did not occur in the course and scope of employment. McGahuey did
not submit other medical records showing he received continuing care for back pain.
McGahuey underwent a medical examination on October 12, 2005, before
beginning to work for Simpson Timber Company in California. In his medical history,
McGahuey responded "not lat[ely]" to the question whether he was bothered by back
pain. He also reported that he had not sought medical treatment for back pain and did
not have a medical history of "persistent back pain" or "significant back injury." Notes
from the evaluation indicated that McGahuey could lift 100 pounds and carry that weight
20 feet.
On December 7, McGahuey was treated for lower back pain related to his
work at Simpson; his doctor diagnosed a lumbar strain and ordered modified work for
a week. An x-ray of the lumbar spine dated December 10 showed mild degenerative
changes but was otherwise normal. McGahuey also sought chiropractic care; the
chiropractor released him to regular duty work on December 12. Imaging studies from
March 2006 of McGahuey's lower back, right hip, and brain were all normal.
McGahuey filed a written workers' compensation claim in Alaska on
February 1, 2006, seeking $10,000 in medical costs and $10,000 in transportation costs.
Whitestone controverted benefits, raising the same defenses it raised before. McGahuey
amended his workers' compensation claim at a prehearing conference to include
temporary total disability (TTD) and unfair or frivolous controversion.
The Board held a hearing on McGahuey's claim on October 11, 2006. The
employer and insurer were represented by the department manager for the Alaska Timber
Insurance Exchange, and McGahuey represented himself. McGahuey testified about the
fight, his injuries, and his verbal report of the injuries. The manager summarized
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Whitestone's investigation of the fight and testified that Whitestone did not receive
timely notice of injuries. In its November 2006 decision, the Board dismissed
McGahuey's claim because he did not give the employer timely formal notice of the
injury; it also found that none of the statutory excuses for a late-filed report applied.
McGahuey appealed to the Alaska Workers' Compensation Appeals
Commission. The Commission determined that the Board failed to apply the necessary
1
presumption analysis and failed to make adequate findings, so it reversed the Board's
decision and remanded the case to the Board for rehearing.
The Board held a second hearing on McGahuey's claim on April 24, 2008.
At the second hearing, Whitestone was represented by counsel who presented several
witnesses who testified about the investigation of the fight, their observations of
McGahuey after the fight, the lack of notice Whitestone had of an injury, and the
prejudice Whitestone suffered as a result of the late-filed notice. McGahuey testified that
he reported "the matters" to Bovee and Rivers. McGahuey said he knew he was injured
when he returned to California; he described his injury as "muscle tissue damage" to
explain the lack of findings on imaging studies. McGahuey stated that the first time he
knew he could not work because of his Alaska injuries was after he aggravated the injury
working for Simpson.
Whitestone presented testimony from Rivers; Ronald Johnson, a camp
manager at Afognak; Janelle Lepschat, an office worker at the Afognak camp; and
Pamela Scott, the claims manager for its compensation carrier. Scott testified that she
1
AS 23.30.120(a) creates a presumption that "sufficient notice of the claim
has been given" as well as a presumption that a claim is compensable. See DeYonge v.
NANA/Marriott, 1 P.3d 90, 94 (Alaska 2000) (citations omitted) (applying presumption
analysis to compensability of claim). In its first decision, the Board did not mention
these presumptions.
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had not seen any medical reports taking McGahuey off work except for a note related to
the Simpson injury. She testified that Whitestone had been prejudiced by McGahuey's
late-filed notice because it was "no longer a . . . viable company" and it could not get an
accurate medical evaluation because so much time had elapsed before the report of
injury.
Rivers testified about his investigation of the fight. According to Rivers,
McGahuey did not report injuring his hip or back; Rivers said he would have sent
McGahuey to Kodiak "as soon as a plane was available" if McGahuey had reported a
back injury. Rivers did not "notice anything either verbal or non-verbal which would
have indicated that [McGahuey had] sustained any kind of injury." Rivers said he was
surprised when McGahuey filed the notice of injury because "generally when someone
injures their back, it's an immediate pain or some indication that would cause them to say
something to a supervisor."
Johnson testified that he was the camp manager for Whitestone from
February to November 2004. Johnson said McGahuey never reported that he had been
injured in the bunkhouse fight and noted that McGahuey had not missed work as a result
of the fight. Johnson indicated that he had never seen McGahuey limping or showing
physical signs of injury, nor did anyone report to him as camp manager that McGahuey
had made an injury claim. Lepschat, an office clerk at Whitestone's Afognak camp in
2004, testified that one of her responsibilities was completing report of injury forms and
that no one asked her to complete a report of injury form on behalf of McGahuey. She
also said that she drove McGahuey to retrieve some of his belongings before he left
Afognak in June 2004 and that he never told her he was leaving because of an injury.
In its decision after rehearing, the Board dismissed McGahuey's claim
because he had not filed a timely written notice of injury and Whitestone "did not receive
informal notice of the March 2004 injury." The Board found that McGahuey was not a
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----------------------- Page 7-----------------------
credible witness and that Whitestone's witnesses were credible. It applied a presumption
analysis to the notice question. The Board found that McGahuey "narrowly raised the
presumption [concerning] sufficient notice as to injuries claimed from the March 2004
altercation" and then concluded that he "failed to attach the presumption that he gave
notice to the employer of his March, 2004 alleged injury."
The Board then assumed in the alternative that McGahuey had attached the
presumption that he had given notice and decided that Whitestone had rebutted the
presumption because McGahuey missed no work from the time of the fight until the time
he left Afognak. It also found that Whitestone rebutted the presumption "on the notice
issue" through the testimony of Johnson and Lepschat. The Board then weighed the
evidence and decided that McGahuey had not proved by a preponderance of the evidence
that he had given timely notice of his injuries to Whitestone. The Board decided that
Whitestone "ha[d] established by a preponderance of the evidence that neither the
employer or its agent had knowledge of the injury." It found that McGahuey did not
show that his failure to give notice was excused and that Whitestone was prejudiced by
the lack of timely notice.
The Board then performed a second alternative analysis assuming that
McGahuey had given timely notice and evaluated his claims on the merits, using its
2
three-step presumption analysis. The Board decided that McGahuey had not presented
enough evidence to attach the presumption of compensability because of "his lack of
credibility." It then assumed in the alternative that he had attached the presumption and
found that Whitestone had rebutted the presumption by pointing out gaps in the medical
evidence and showing that McGahuey had a back condition prior to working for
Whitestone. Finally, the Board decided that McGahuey had not proved his claim by a
2
See DeYonge, 1 P.3d at 94 (summarizing presumption analysis).
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preponderance of the evidence because he was not credible and because the doctors who
thought the back and hip complaints were work related relied on McGahuey's self-
reported history when making the connection.
McGahuey again appealed to the Commission; this time the Commission
affirmed the Board's decision. The Commission decided that the Board had again erred
in applying the presumption analysis to the notice issue. But the Commission considered
this error harmless because of the Board's alternative analysis. The Commission first
found that McGahuey had produced enough evidence to attach the presumption of
sufficient notice to Whitestone and that Whitestone adequately rebutted the presumption.
The Commission then concluded that substantial evidence in the record supported the
Board's finding that McGahuey had not proved by a preponderance of the evidence that
he had provided timely notice to Whitestone or that he was excused from doing so. The
Commission also decided that substantial evidence in the record supported the Board's
finding that, assuming timely notice was given, McGahuey had not proved his injuries
were work related. McGahuey appeals.
III. STANDARD OF REVIEW
In an appeal from the Workers' Compensation Appeals Commission, we
3
review the Commission's decision. We apply our independent judgment to questions
4
of law that do not involve agency expertise. We independently review the
Commission's conclusion that substantial evidence in the record supports the Board's
3
Shehata v. Salvation Army, 225 P.3d 1106, 1113 (Alaska 2010) (citing
Barrington v. Alaska Commc'ns Sys. Grp., Inc., 198 P.3d 1122, 1125 (Alaska 2008)).
4
Id.
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findings, which "requires us to independently review the record and the Board's factual
5
findings."
IV. DISCUSSION
The Commission affirmed the second Board decision, concluding that
substantial evidence supported the Board's findings that: (1) McGahuey did not give
Whitestone timely formal notice of his injuries; (2) Whitestone did not have actual
knowledge of the injuries and was prejudiced by the lack of formal notice; and (3)
McGahuey "did not suffer a disabling injury to his hip, back, and ear in March 2004."
In reaching this conclusion, the Commission identified errors in the Board's application
of the presumption analysis but decided the errors were harmless. We agree with the
Commission that the Board erred in its application of the presumption analysis in this
case; we also agree that the errors were harmless.
A. Notice
Alaska Statute 23.30.100(a) requires that written notice of an injury or
death be given to the employer and the Board within 30 days of the date of injury or
6
death. If written notice is not given as required, the claim is barred. Alaska Statute
23.30.100(d) provides that failure to give notice can be excused when either: (1) the
employer had actual notice of the injury and was not prejudiced by lack of written notice
or (2) the Board determines that notice could not be given "for some satisfactory reason."
The Commission affirmed the Board's findings that McGahuey did not give timely
formal notice and that Whitestone did not have actual notice and suffered prejudice as
a result.
5
Smith v. CSK Auto, Inc., 204 P.3d 1001, 1007 (Alaska 2009).
6
See AS 23.30.100(d) (setting out circumstances when failure to give notice
does not bar a claim).
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We conclude that the Commission and the Board both erred in failing to
identify when the 30-day period for giving written notice began, but that the error was
7
harmless. The Board and the Commission both analyzed the compensability of
McGahuey's claim, and because we decide that the ultimate resolution of the claim was
8
correct, any errors in consideration of the notice issue were harmless.
We held in Cogger v. Anchor House that the 30-day period for giving
9
written notice "can begin no earlier than when a compensable event first occurs." The
date the 30-day period begins to run is important not only in determining whether formal
notice was timely but also in assessing prejudice to the employer if notice was late. For
example, in Dafermo v. Municipality of Anchorage a worker first complained about eye
problems in 1985 or 1986, but doctors did not link the symptoms to his work with
10 11
computers until September 1991. He filed a report of injury in November 1991.
Although we held that his notice of injury was late, we decided that the employer was
not prejudiced by failure to give timely notice because prejudice could only be measured
7
We agree with the Commission that any informal notice McGahuey gave
to Bovee of his injuries was not notice to Whitestone. Bovee did not work for
Whitestone. Even if he had, we have held that informal notice of an injury to a coworker
does not give notice to an employer under AS 23.30.100. Cogger v. Anchor House, 936
P.2d 157, 161 (Alaska 1997).
8
Carlson v. Doyon Univeral-Ogden Servs., 995 P.2d 224, 228 (Alaska
2000).
9
936 P.2d at 160.
10
941 P.2d 114, 115-16 (Alaska 1997).
11
Id. at 116.
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----------------------- Page 11-----------------------
from October 1991, and there was no evidence that the employer was prejudiced by a 30-
12
day delay in notification.
Neither the Commission nor the Board made a specific finding about when
the 30-day period began to run in McGahuey's case. Without knowing when the 30-day
limitations period began to run, we cannot assess whether the notice of injury was late
or whether, if it was late, the employer suffered prejudice. But because the Commission
correctly evaluated the Board's findings and conclusions on the compensability of
McGahuey's claim, this error was harmless.
B. Compensability Of McGahuey's Injuries
The Board performed an alternative analysis, assuming that McGahuey had
given timely notice, and looked at the merits of his claim. McGahuey's claim was for
medical treatment for his back and hip, in 2005 and afterwards, as well as medical
13
treatment for a lump near his ear. The Commission reviewed the Board's
compensability analysis and affirmed the Board's decision. McGahuey asserts that the
Board and Commission erred in finding that his claim was not compensable. Whitestone
argues that the Commission correctly concluded that substantial evidence in the record
supported the Board's findings.
In a workers' compensation case, the Board uses a three-step presumption
14
analysis to evaluate the compensability of a worker's claim. At the first step, the
employee must attach the presumption of compensability by establishing a link between
12
Id. at 117-19.
13
McGahuey made a claim for TTD, but it is not clear during what period of
time McGahuey thought he was eligible for TTD.
14
Smith v. Univ. of Alaska, Fairbanks, 172 P.3d 782, 788 (Alaska 2007)
(citing Bradbury v. Chugach Elec. Ass'n, 71 P.3d 901, 905 (Alaska 2003)).
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15
his employment and the injury. "For purposes of determining whether the claimant has
established the preliminary link, only evidence that tends to establish the link is
16
considered - competing evidence is disregarded." The Board "need not concern itself
17
with the witnesses' credibility" when "making its preliminary link determination."
In this case, the Board improperly considered McGahuey's credibility when
it examined the evidence at the first stage of the analysis. Relying on dicta in Osborne
18
Construction Co. v. Jordan, the Commission wrote that it was "a close question
whether the [B]oard erred in determining that McGahuey failed to raise the presumption
of compensability because of 'his lack of credibility to effectively raise the
presumption.' " To the extent the Commission suggested that the Board could consider
credibility at the first stage, it was mistaken. We have repeatedly stated that the Board
19
cannot consider credibility at the first stage of the presumption analysis. We agree with
the Commission, however, that any error the Board made was harmless because the
Board did an alternative analysis, assuming that McGahuey had attached the
presumption.
If the presumption attaches, the second step of the presumption analysis
provides that an employer may rebut the presumption by presenting substantial evidence
15
Id.
16
Tolbert v. Alascom, Inc., 973 P.2d 603, 610 (Alaska 1999).
17
Resler v. Universal Servs., Inc., 778 P.2d 1146, 1148-49 (Alaska 1989).
18
904 P.2d 386, 392 (Alaska 1995).
19
Excursion Inlet Packing Co. v. Ugale, 92 P.3d 413, 417 (Alaska 2004);
DeYonge v. NANA/Marriott, 1 P.3d 90, 95 (Alaska 2000); Carlson v. Doyon Universal-
Ogden Servs., 995 P.2d 224, 228 (Alaska 2000); Tolbert, 973 P.2d at 610; Resler, 778
P.2d at 1148-49.
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that: (1) provides an alternative explanation which would exclude work-related factors
as a substantial cause of the disability, or (2) directly eliminates any reasonable
20
possibility that employment was a factor in causing the disability. The Board looks at
21
the evidence to rebut the presumption in isolation, without weighing it.
The Board found that Whitestone rebutted the presumption of
compensability by showing that: (1) McGahuey "did not complain about his back and
relate his back condition to the March 2004 altercation until he saw doctors in late 2005
and 2006"; (2) McGahuey "had a back condition during the four years prior to the March
2004 injury"; (3) McGahuey failed to report an injury to his hip and back in May 2004,
22
when he saw the doctor in Kodiak; and (4) no physician "independently" connected
his work and his back pain, relying instead on McGahuey's reports.
The Commission correctly decided that the Board's conclusion - that
Whitestone rebutted the presumption - was supported by evidence in the record.
Whitestone presented evidence that McGahuey had been treated for low back pain in
2002 and possibly earlier. A preexisting back condition alone might not eliminate any
reasonable possibility that his employment with Whitestone was a factor in causing later
20
Smith v. Univ. of Alaska, Fairbanks, 172 P.3d 782, 788 (Alaska 2007)
(citing Bradbury v. Chugach Elec. Ass'n, 71 P.3d 901, 906 (Alaska 2003)).
21
Stephens v. ITT/Felec Servs., 915 P.2d 620, 624 (Alaska 1996) (citing Veco,
Inc. v. Wolfer, 693 P.2d 865, 869 (Alaska 1985)).
22
We recognize that McGahuey indicated that he reported fight-related
injuries to the Kodiak doctor. But the medical record from the visit did not show
complaints related to any fight-related injuries. Examining the chart notes in isolation
supports Whitestone's contention that McGahuey did not discuss any fight-related
injuries with the doctor in May 2004.
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23
back pain. But a preexisting back condition together with the lack of contemporaneous
complaints of back pain or evidence of a home-treatment regimen is adequate evidence
to support a conclusion that the back pain McGahuey reported in April 2005 - more
than a year after the fight - was not caused by the fight, particularly when the imaging
studies from 2005 and 2006 were normal.
As to the hip condition, Whitestone presented evidence that McGahuey was
not limping in the days following the injury and that he did not report hip pain near the
time of the fight. A March 2006 MRI of McGahuey's hip was normal. This evidence
supports the conclusion that any need for medical treatment of McGahuey's hip in 2005
and later was not related to his employment at Whitestone. Finally, with respect to the
lump near McGahuey's ear, at least two doctors indicated in their chart notes that it was
not work related. These opinions were adequate evidence to rebut the presumption of
24
compensability.
If an employer rebuts the presumption of compensability, at the third step
of the analysis the burden shifts to the employee to prove his claim by a preponderance
25
of the evidence. At the third stage, the Board was permitted to weigh the evidence and
26 27
consider McGahuey's credibility. The Board alone can determine witness credibility.
23
See Burgess Constr. Co. v. Smallwood, 623 P.2d 312, 315 (Alaska 1981)
(holding that a preexisting condition does not disqualify a claim if the employment
aggravated the condition to produce injury or disability).
24
Smith, 172 P.3d at 788 (citing Bradbury, 71 P.3d at 906).
25
Id.
26
Steffey v. Municipality of Anchorage, 1 P.3d 685, 691 (Alaska 2000) (citing
Stephens v. ITT/Felec Servs., 915 P.2d 620, 627 (Alaska 1996)).
27
AS 23.30.122.
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----------------------- Page 15-----------------------
Because the Board found that McGahuey was not credible, the Commission
correctly concluded that substantial evidence in the record supported the Board's
decision. The only links between McGahuey's back and hip pain and the Whitestone
fight were his testimony and his statements to doctors that the back and hip pain arose
after the fight. After the Board determined that his account of the injuries was not
credible, there was no evidence to establish the compensability of any of his injuries.
The normal imaging studies of his back and hip likewise provided evidence that he did
not suffer a compensable injury.
The same analysis applies to the lump near McGahuey's ear, which was
28
later determined to be a lipoma. Although at least one doctor indicated that the lipoma
could be associated with trauma, the link between trauma and the fight at the Afognak
camp depended on the Board's believing McGahuey's account of the fight and his
resulting injuries. The Board's finding that McGahuey was not credible removed any
causal link between his employment and the lipoma. The Commission did not err in
concluding that substantial evidence supported the Board's finding that McGahuey did
not prove his claim by a preponderance of the evidence.
V. CONCLUSION
For the foregoing reasons, we AFFIRM the Commission's decision.
28
A lipoma is a "benign tumor of chiefly fatty cells." WEBSTER 'S II NEW
COLLEGE DICTIONARY 654 (3d ed. 2005).
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