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Hester v. State & Employees Retirement Board (9/6/91), 817 P 2d 472
Notice: This is subject to formal correction
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THE SUPREME COURT OF THE STATE OF ALASKA
JAMES D. HESTER, )
) Supreme Court No.
Appellant, ) S-3559
) Superior Court File
v. ) No. 3AN-87-7072 CI
STATE OF ALASKA, PUBLIC ) O P I N I O N
EMPLOYEES' RETIREMENT BOARD, )
) [No. 3750 - September 6, 1991]
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Michael L. Wolverton, Judge Pro Tem.
Appearances: Chancy Croft, Anchorage,
for Appellant. Virginia B. Ragle, Assistant
Attorney General, and Douglas B. Baily,
Attorney General, Juneau, for Appellee.
Before: Rabinowitz, Chief Justice,
Burke, Matthews, Compton and Moore, Justices.
RABINOWITZ, Chief Justice, dissenting.
James D. Hester appeals the denial of his claim for
occupational disability benefits under the Public
Employees' Retirement System (PERS). Hester served as
the chief of police in Skagway and then in North Pole,
Alaska. He resigned in 1985 as a result of the
disabling symptoms of Crohn's disease, a chronic
inflammatory bowel ailment, from which he suffers. In
his application for occupational disability benefits,
Hester did not claim that his work caused the disease.
Instead, he claimed that the stress of his job caused
the disabling flare-ups of the disease. According to
Hester, but for his job he would have been able to
manage the effects of his Crohn's disease. The
superior court upheld the Public Employees' Retirement
Board's denial of occupational benefits. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Hester was first diagnosed as having Crohn's disease in
1968 when he was working as a police officer in San
Gabriel, California. He experienced severe abdominal
cramps and fever, but these symptoms subsided after a
brief period of treatment with steroids. Hester
remained symptom-free until 1977.
A job-related motorcycle accident in 1970 rendered
Hester physically unable to engage in active patrol
work. He worked in various security and private
investigator positions until January 26, 1976, when he
accepted employment as chief of police in Skagway,
Alaska. In 1977 Hester suffered another onset of
abdominal cramping and fever. He took steroids to
control the condition and underwent surgery in 1982.
Following minimal time off work, Hester recovered and
returned to full-time police work in Skagway.
In April 1983, Hester accepted a new position as police
chief in North Pole, Alaska. According to Hester, he
moved so that his ten-year-old daughter could
participate in the larger school system of the
Fairbanks North Star Borough and so that he could work
in a less stressful environment. Hester believed the
position in North Pole would be less demanding because
the department there had more officers and therefore he
would have to work less overtime, the department had a
24-hour dispatch center, and the Alaska State Troopers
were available for emergency backup and assistance.
Hester's Crohn's disease was asymptomatic from October
1982 until January 1984. In January 1984, however, he
suffered a new onset of symptoms. This flare-up
coincided with a stressful personnel problem that
Hester had to deal with in the police department. The
mayor insisted that Hester fire an officer against whom
Hester felt there were insufficient grounds for
dismissal. Hester consulted with William H.
Doolittle, M.D., of Fairbanks, on February 3, 1984.
Thereafter, Dr. Doolittle followed Hester's condition
regularly, with visits of no less than once a month.
In response to Dr. Doolittle's treatment, the condition
remained under control until April 1985. At this time,
Hester experienced another stressful situation at work
and a recurrence of his symptoms. He resumed steroid
treatment. On May 3, 1985, he resigned his position as
chief of police on the advice of Dr. Doolittle. Since
his resignation, Hester has continued to suffer
cramping, diarrhea and weight loss.
On May 9, 1985, Hester filed for occupational
disability benefits under AS 39.35.410. Alaska Statute
39.35.410 provides public employees benefits if they
can no longer work because of a total and apparently
permanent occupational disability.1 The Administrator
of the Division of Retirement and Benefits
(administrator) denied Hester's application.2
Hester appealed the administrator's decision to the
Public Employees' Retirement Board (PERB). Pursuant to
AS 39.36.010, PERB requested advice from the Public
Employees' and Teachers' Disability Review Board (DRB).
DRB was created in 1982 to provide "expert review of
applications for disability benefits."3 AS 39.36.010.
DRB recommended that Hester be found not entitled to
occupational disability benefits.
After hearing testimony from Hester and Dr. Doolittle,
PERB affirmed the denial of occupational disability
benefits. PERB's conclusion reads, in part:
[T]he condition suffered by Mr. Hester
is Crohn's disease, and the evidence has not
proven that Crohn's disease was proximately
caused by an injury sustained or hazard
undergone by Mr. Hester in the performance of
his duties as a police officer.
Hester appealed the decision to the superior court.
AS 22.10.020(d); AS 44.62.560(a); Alaska R. App. P.
601. Judge James R. Blair reversed PERB's decision,
concluding that the board had misconstrued the issue.
Citing Delaney v. Alaska Airlines, 693 P.2d 859 (Alaska
1985), Judge Blair held that Hester might be entitled
to occupational disability benefits even if his job did
not cause his Crohn's disease. According to Judge
Blair, the Delaney decision entitles a claimant to
occupational disability benefits if his or her job
causes a preexisting condition to advance from a
dormant state to an acute state. Judge Blair remanded
the case to PERB because it failed to address this
PERB heard additional testimony and arguments relating
to the remand. Hester provided telephonic testimony
from Dr. Michael Citron, a gastroenterologist in
California who had evaluated Hester in 1980 and 1985.
PERB also heard from Dr. Vernon Cates, a member of DRB
which had previously advised PERB.4 On May 14, 1987,
PERB again denied occupational disability benefits to
Hester again appealed PERB's decision to the superior
court. Judge Michael L. Wolverton affirmed PERB's
denial of benefits. Hester appeals.
Since the superior court acted as an intermediate court
of appeal, we independently and directly scrutinize the
merits of PERB's decision. Tesoro Alaska Petroleum Co.
v. Kenai Pipe Line Co., 746 P.2d 896, 903 (Alaska
1987). In reviewing PERB's denial of occupational
disability benefits to Hester, we must first determine
whether the board applied the correct legal standards.
Second, we must consider whether substantial evidence
supports the board's factual findings.
A. Is the Worsening of a Claimant's Nonwork-related
Disease Compensable as an Occupational Disability
Under Alaska's Public Employees' Retirement System?
The state argues that PERB applied an appropriate
standard in its initial decision, No. 85-7, when it
considered simply whether Hester's work proximately
caused his Crohn's disease.5 According to the state,
Delaney, 693 P.2d 859, is inapplicable to PERB because
Delaney is a workers' compensation case.
In support of its argument, the state emphasizes the
following: (1) the broad presumption of coverage under
workers' compensation does not apply under PERS; and
(2) unlike the workers' compensation statutes, PERS
provides for benefits for nonoccupational disability as
well as for occupational disability. Therefore,
according to the state, the court should apply a narrow
interpretation to the words "a bodily injury sustained,
or a hazard undergone, while in the performance and
within the scope of the employee's duties," when
evaluating the PERB's denial of occupational disability
benefits. The state argues that this language in AS
39.35.680(26) does not entitle an employee whose
preexisting condition is aggravated by his or her work
to occupational disability benefits. We disagree.
In Delaney we stated that "a preexisting disease does
not rule out compensation [under the Alaska Workers'
Compensation Act] if employment aggravated, accelerated
or combined with the disease to produce disability."
693 P.2d at 862 (citing Thornton v. Alaska Workers'
Compensation Board, 411 P.2d 209, 210 (Alaska 1966)).
We held that an employee is entitled to workers'
compensation benefits if the employee's work was a
substantial factor in bringing about the disability.6
We believe that the causation standards articulated in
Delaney are applicable to occupational disability
claims under the PERS as well as to workers'
compensation claims. It is basic that an accident
which produces injury by precipitating the development
of a latent condition or by aggravating a preexisting
condition is a cause of that injury. 22 Am. Jur. 2d
Damages 280 (1988); see also LaMoureaux v. Totem
Ocean Trailer Express, Inc., 632 P.2d 539 (Alaska 1981)
(upholding jury instruction that plaintiff was
"entitled to recover damages for an aggravation of such
pre-existing condition or disability proximately
resulting from the injury,"while rejecting plaintiff's
proposed instruction making defendant liable for
plaintiff's entire injury if plaintiff was unable to
make an apportionment between his preexisting injury
and that suffered in the accident), reh'g on other
grounds, 651 P.2d 839 (Alaska 1982).
Other jurisdictions have held that occupational
disability can occur from work-related aggravation of a
preexisting condition. The Court of Appeals of New
York held that a city sanitation worker is entitled to
accident disability retirement following an explosion
at work if the explosion precipitated the employee's
chronic anxiety neurosis. Tobin v. Steisel, 475 N.E.2d
101 (N.Y. 1985); see also Tingler v. City of Tampa, 400
So. 2d 146, 149-50 (Fla. Dist. Ct. App. 1981) ("When
the disability is `revealed' by the stress of
appellant's job, notwithstanding the pre-existing
condition, we hold that it was received `in the
service' and entitles appellant to [occupational]
disability benefits."); Olson v. City of Wheaton Police
Pension Board, 505 N.E.2d 1387, 1389 (Ill. App. Ct.
1987) (in reviewing policeman's claim for occupational
disability resulting from migraine headaches allegedly
precipitated by job-related stress, intermediate
appellate court applied aggravation of preexisting
condition rule articulated by Illinois Supreme Court in
workers' compensation cases); Henning v. Carrier, 430
So. 2d 1310, 1317 (La. Ct. App. 1983) (aggravation of
preexisting heart condition falls into category of an
"injury received in the line of duty" under former
Louisiana Statute 33.2376(B)(1)); Gibson v. Texas
Mun. Retirement Sys., 683 S.W.2d 882, 884 (Tex. Ct.
App. 1985) ("If, indeed, the strain [of repairing
firehouse door] aggravated the pre-existing heart
condition then Gibson is entitled to receive the
supplemental [i.e. occupational] disability benefit.").
Like AS 39.35.680(26), none of these states' disability
statutes explicitly address preexisting conditions. We
agree with the rationale of Tobin, 475 N.E.2d 101, and
perceive no reason to alter basic principles of
causation when dealing with retirement benefit cases.
The state's contention that the statutory presumption
of coverage under the Alaska Workers' Compensation Act
is not applicable to claims under PERS is correct.
Recently we held that in occupational disability
claims, unlike workers' compensation claims, "the
employee bears the burden of establishing by a
preponderance of the evidence that the disability was
proximately caused by an injury which occurred in the
course of employment." State, Public Employees'
Retirement Board v. Cacioppo, ____ P.2d ____, Op. No.
3713 at 7 (Alaska, June 21, 1991).
Who bears the burden of proof, however, has no
relevance to what that party must prove. In Cacioppo,
we stated that an occupational injury need not be the
sole factor, but rather a substantial factor, in
causing the employee's disability. Id. at 8. This
holding is consistent with Delaney, 693 P.2d at 862.
Hester is entitled to occupational disability benefits
if he can establish by a preponderance of the evidence
that work-related stress was a substantial factor in
aggravating his Crohn's disease to the extent that he
was no longer capable of working.
B. Is the Public Employees' Retirement Board's
Conclusion that Hester's Work as Police Chief
did not Exacerbate His Crohn's Disease
Supported by Substantial Evidence?
Both parties agree that the appropriate standard of
review is whether the PERB's finding is supported by
substantial evidence. We have defined substantial
evidence as "such relevant evidence as a reasonable
mind might accept as adequate to support [the board's]
conclusion." Miller v. ITT Arctic Services, 577 P.2d
1044, 1049 (Alaska 1978).
PERB concluded that Hester's work conditions did not
cause his Crohn's disease to advance from a dormant to
an acute state.7 According to PERB, the evidence
presented to it indicated that "the very nature of the
disease was such that in its natural course it recurs
with episodes of flare-up not necessarily or even
probably attributable to stress."
We believe that substantial evidence supports the
board's conclusion. The following evidence supports
PERB's conclusion that there was no proven causal link
between Hester's work as police chief and the disabling
effects of his Crohn's disease: (1) Dr. Vernon A.
Cates' testimony that stress is not a major factor in
the pathology of Crohn's disease and that the major
cause of flare-ups is the natural continuing process of
the disease itself; (2) the expert opinion of the DRB
that there is no persuasive evidence that job-related
stress causes Crohn's disease or exacerbates its
symptons; (3) the opinion of Dr. Willard E. Andrews,
the consulting physician who reviewed the available
medical evidence for the administrator, that the stress
of police work is not a causal link to Hester's
condition; and (4) Dr. Michael Citron's acknowledgment
that Crohn's disease flare-ups can recur for reasons
other than stress.
Hester argues that PERB inappropriately discredited the
testimony of Dr. Doolittle, Hester's treating physician
and a specialist in Crohn's disease. In addition,
Hester contends that PERB gave inordinate weight to the
testimony of Dr. Cates, considering his bias as a
member of the DRB, his lack of personal medical
knowledge of Hester and his lack of special expertise
relating to Crohn's disease. While we recognize the
merit in Hester's criticism of PERB's decision, we do
not believe that such weaknesses in the evidence
justify reversing the board's decision. Weighing the
evidence is the role of the board, not this court.
Delaney, 693 P.2d at 863 & n.2.
RABINOWITZ, Chief Justice, dissenting.
I dissent from the court's holding that there is
substantial evidence to support the decision of PERB
that "Hester's work conditions did not cause his
Crohn's disease to advance from a dormant to an acute
state" and that "the very nature of [Crohn's] disease
was such that in its natural course it recurs with
episodes of flare-up not necessarily or even probably
attributable to stress."8 Hester v. State, Employees
Retirement Board, ____ P.2d ___, Op. No. 3750 at 10-11
(Alaska, September 6, 1991).
In the case at bar the majority affirms the denial by
PERB of benefits to Hester on the basis of (1) the
testimony of Dr. Cates; (2) the opinion of the DRB; (3)
the testimony of Dr. Andrews; and (4) Dr. Citron's
acknowledgement that Crohn's disease flare-ups can
recur for reasons other than stress. Id. at 11.
Based on my review of the record, I conclude that the
denial by PERB of benefits is not supported by
substantial evidence. First, Dr. Cates' testimony is
less reliable than the testimony this court disregarded
in Black v. Universal Servs., Inc., 627 P.2d 1073, 1076
(Alaska 1981).9 Dr. Cates is a general practitioner,
who over the last 10 years hadn't treated, or operated
on anyone with Crohn's disease. Futhermore, he never
saw, treated, or examined Hester until the proceedings
before the PERB were commenced. Dr. Cates acknowledged
his lack of specialized expertise in the treatment of
Crohn's disease and his limited knowledge of the
medical literature in the field. He admitted that
stress plays some role in flare-ups. Finally, I think
it significant to note that Dr. Cates' testimony is
contrary to the testimony of all of Hester's treating
physicians, who expressed the opinion that stress
exacerbated Hester's Crohn's disease.
Second, I don't believe that significiant weight should
be attached to the decision of the DRB. Dr. Cates was
both a witness and the only member of the DRB who is a
Third, the majority cites Dr. Andrews' testimony for
the proposition that "the stress of police work is not
a causal link to Hester's condition." On the other
hand, the record discloses that Dr. Andrews stated that
stress exacerbated the disease.
The role of stress is controversial to
this condition, but I believe that stress
undoubtedly exacerbates its progression.
Relief of the stressful situation makes
management of the condition much more
successful. I do not feel the stress of
police work [sic] is a causal link to this
(Emphasis added). Dr. Andrews' finding that reducing Hester's
stress makes his condition more manageable indicates
that work related stress exacerbated the disease.
Finally, the PERB relied on Dr. Citron's
acknowledgement that Crohn's disease flare-ups can
recur for reasons other than stress. It should be
noted that Dr. Citron, a gastroenterologist, who has
treated 800 to 1000 cases of Crohn's disease, stated in
I don't think there is a
gastroenterologist that would not admit that
there is an association between aggravation
of the disease and stress situations . . . .
I don't think there is . . . much doubt . . .
that there is a relationship between stress
and exacerbation of the disease.
In brief, based on the testimony of Dr. Jones,10
Dr. Stevenson,11 Dr. Doolittle,12 and the testimony
mentioned above, I conclude that the decision of the
PERB denying Hester benefits lacks substantial
1. AS 39.35.680(26) defines "occupational disability"as
"occupational disability"means a
physical or mental condition that, in the
judgment of the administrator, presumably
permanently prevents an employee from
satisfactorily performing the employee's
usual duties for an employer or the duties of
another comparable position or job that an
employer makes available and for which the
employee is qualified by training or
education; however, the proximate cause of
the condition must be a bodily injury
sustained, or a hazard undergone, while in
the performance and within the scope of the
employee's duties and not the proximate
result of the wilful negligence of the
2. Hester was, however, entitled to receive
nonoccupational disability benefits pursuant to AS
3. The legislature disbanded the DRB in 1990. Ch. 40,
4, SLA 1990. Currently, the governor appoints medical
experts to serve as voting members on PERB when it
needs such expertise. AS 39.35.030(d).
4. DRB did not reevaluate Hester's application after the
remand. DRB had concluded in its initial
recommendation that work-related stress does not cause
Crohn's disease nor exacerbate its symptoms.
5. The state did not appeal the superior court's remand of
PERB's initial decision nor petition the supreme court
for review. Nevertheless, we must consider the merits
of Judge Blair's decision at this point. See City &
Borough of Juneau v. Thibodeau, 595 P.2d 626 (Alaska
1979) (The decision of a superior court acting as an
intermediate appellate court, which reverses the
judgment of an inferior court or the decision of an
administrative agency and remands for further
proceedings, is not a final judgment for purposes of
6. Like Hester, Delaney suffered from Crohn's disease. We
affirmed the Alaska Workers' Compensation Board's
denial of Delaney's claim for benefits on the grounds
that substantial evidence supported the board's finding
that Delaney's Crohn's disease was not aggravated by
his employment as an Alaska Airlines pilot. Delaney,
693 P.2d at 865.
7. In interpreting AS 39.35.680(26), we reject the
distinction articulated in Weller v. Union Carbide
Corp., 602 P.2d 259 (Or. 1979), between worsening of
the underlying disease process and worsening of the
symptoms of a disease. The Supreme Court of Oregon
held that the former is compensable, but that the
latter is not. Id. at 261-62. As the Oregon court
recognized, Id. at 261 n.2 & 262, it is difficult to
separate an aggravation of "symptoms"from aggravation
of a "disease." Delaney simply requires that "the
employment must have been a substantial factor in
bringing about the disability." 693 P.2d at 862
(emphasis added). We believe that increased pain or
other symptoms can be as disabling as deterioration of
the underlying disease itself.
8. In determining whether there is substantial evidence, a
court "must take into account whatever in the record
fairly detracts from its weight." Delaney v. Alaska
Airlines, 693 P.2d 859, 863-64 n.2 (Alaska 1985)
overruled on other grounds 741 P.2d 634, 639 (Alaska
1987) (quoting Universal Camera Corp. v. NLRB, 340 U.S.
9. In Black v. Universal Servs., Inc., this court reversed
the denial of continuing compensation by the Workers
Compensation Board despite the testimony of a doctor
supporting the Board's ruling. 627 P.2d 1073 (Alaska
1981). We reasoned that "Dr. Pennell [the doctor
relied upon by the Board] had no opportunity to examine
Black in any depth, and because his conclusions are
contrary to those of the numerous physicians who
treated her, we have concluded that a 'reasonable mind'
would not accept his diagnosis." Id. at 1075-76
(footnote omitted). Dr. Pennell's examination of Black
lasted only twenty minutes. Id. at 1075 n.9. Thus, in
Black we concluded that "Dr. Pennell's knowledge of the
case is so slight as to make his report worthless.
After reviewing the record, we are unable to accept Dr.
Pennell's report as 'substantial evidence' in support
of the Board's conclusion . . . ." Id. at 1075.
10. In his physician's statement, Dr. Jones states that
Hester's condition was "aggravated by emotional
11. In his physician's statement, Dr. Stevenson writes in
part that Hester's disease was "exacerbated by stress."
12. Throughout his extensive testimony before the PERB, Dr.
Doolittle, Hester's primary treating physician, related
exacerbation of Hester's Crohn's disease to work