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C. Adamson v. University of Alaska (11/1/91), 819 P 2d 886
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Notice: This is subject to formal
correction before publication in the Pacific
Reporter. Readers are requested to bring
typographical or other formal errors to the
attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska
99501, in order that corrections may be made
prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
CONNIE ADAMSON, )
) Supreme Court No. S-3937
Appellant, )
) Superior Court No.
v. ) 3AN-S88-11573 Civil
)
UNIVERSITY OF ALASKA, ) O P I N I O N
)
Appellee. ) [No. 3766 - November 1,
1991]
)
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Anchorage,
Roy H. Madsen, Judge.
Appearances: Charles Coe, Anchorage,
for Appellant. Shelby L. Nuenke-Davison,
Davison & Davison, Inc., Anchorage, for
Appellee.
Before: Rabinowitz, Chief Justice,
Burke, Matthews, Compton, and Moore,
Justices.
RABINOWITZ, Chief Justice.
COMPTON, Justice, with whom MOORE,
Justice, joins, concurring.
Adamson, a workers' compensation claimant, appeals a
denial of various benefits by the Alaska Workers' Compensation
Board ("Board"), as affirmed by the superior court.
FACTS AND PROCEEDINGS
On August 17, 1984, Connie Adamson, a thirty-three year
old library clerk at the University of Alaska, was poked in the
ribs from behind by a co-employee and fell down three steps,
severely twisting her left ankle. She filed a workers'
compensation claim on August 29, 1984, which the University did
not controvert.
Adamson's condition has been diagnosed as sympathetic
dystrophy and causalgia. Adamson has seen many doctors
concerning the injury. One estimate is that she has seen
approximately twenty health care providers. Her treatment has
included a tarsal tunnel release, pain medicine, acupuncture, a
brief attendance at a Pain Clinic in Oregon, physical therapy, a
lumbar sympathectomy, chiropractic treatment, and self-hypnosis.
Unfortunately, Adamson continues to complain of pain.
After Adamson's lumbar sympathectomy on October 25,
1985, Dr. Horning released her for work as a full-time
bookkeeper. Dr. Horning, a physician specializing in
rehabilitation medicine, was recommended by Adamson's podiatrist
and has attended Adamson since December 17, 1984. Dr. Horning
filled out a physical capacities evaluation worksheet for Adamson
on July 31, 1986, placing no restrictions on the listed
activities.
Adamson ceased receiving temporary total compensation
benefits at the end of July 1986, based upon the release for
work, and from August 1986 to September 1987, she received
permanent partial compensation for her lower left foot and ankle.1
Adamson claims her condition improved until October
1986; then she returned to Dr. Horning complaining of pain. Yet,
Dr. Horning found nothing which would offer an objective
explanation of her pain. In December 1986, Adamson began seeing
Dr. Lucas, a chiropractor, for the pain in her foot, leg, and
back. Dr. Lucas attributed the pain in Adamson's back to her
abnormal gait. Dr. Lucas diagnosed her as having acute severe
rotary subluxation sprain/strain of the lumbar spine with
associated myalgia and left extension neuralgia. Adamson also
began seeing Dr. Schurig at Dr. Lucas' recommendation. Dr.
Schurig first prescribed marijuana for Adamson and then Marinol,
a marijuana derivative. The University controverted the payments
to Dr. Lucas and Dr. Schurig and the payments for the Marinol.
On May 13, 1987, Adamson applied for an adjustment of
her claim and the University opposed it. A hearing was held on
October 16, 1987. Approximately half-way through the hearing, a
settlement was reached and read into the record.
The University reduced the settlement to a fifty-four
page document. Adamson refused to sign it, claiming it portrayed
her as a malingerer, it did not accurately reflect the oral
agreement, and it limited her medical care.
The University petitioned the Board to enforce the oral
agreement. Adamson changed counsel and a hearing was held. The
Board declined to reduce the settlement to judgment; it decided
to continue the original hearing where it had left off, without
taking additional evidence beyond that which the parties would
have presented at the first hearing. It denied Adamson's request
for attorney's fees, preferring to "wait and see whether the
employee ultimately prevails in her claim and, if so, to what
extent the recovery exceeds the terms of the offered oral
agreement."
The hearing reconvened on August 31, 1988. After
allowing the parties to complete their presentations, the Board
held that Adamson was not entitled to continuing temporary total
disability benefits ("TTD"), a reclassification of the past
permanent partial disability ("PPD") benefits as TTD, or a
determination that her back pain was related to her leg injury.
It declined to authorize continuing chiropractic care for her
back or her left foot; it also declined to authorize the use of
Marinol. Finding for the University, it denied an award of
attorney's fees for Adamson under AS 23.30.145.
Adamson appealed to the superior court, which affirmed
the Board's decision. Adamson appeals.
DISCUSSION
I. DID THE BOARD ERR IN EXCLUDING RELEVANT EVIDENCE AT THE
AUGUST 31 HEARING?
The Board halted the first hearing on October 16, 1987
when the parties indicated they wanted to settle. Although an
oral agreement was entered on the record, Adamson refused to sign
the written version of the settlement as it "limited her medical
care, as well as contained slanderous and incorrect material."
The University petitioned to have the settlement reduced to
judgment, which the Board declined to do.
The Board decided to continue the hearing on the underlying
claims, yet it refused to consider any evidence concerning events
subsequent to the original hearing date, including witnesses not
listed at the October 1987 hearing. In this regard, the Board
stated,
While we reiterate our belief that we
have no choice but to conclude as we have
under AS 23.30.012, we need to take steps to
minimize the potential turmoil where an oral
agreement does not ultimately settle a claim.
Our primary concerns are the additional
administrative burden imposed by starting
hearings over after months have gone by and
avoiding changed conditions. The closer we
come to starting a "new"hearing, the more
likely one party may be perceived to have
obtained an advantage. We need to avoid the
perception that a "tactical"oral agreement
is an option at hearing.
The superior court affirmed this exclusion of evidence, citing AS
23.30.135(a).2
Adamson argues that the Board's approach was a sanction
that denied her a fair hearing consistent with due process.3
The University claims that the Board was within its discretion in
controlling its own proceedings, and its decision was good
policy. However, the University also argues that even if the
Board erred, it was harmless error. The University claims that
Adamson failed to object to the Board's rulings at the hearing,
she failed to make an offer of proof, and her physical condition
had not changed from October 16, 1987.
We affirm the Board's decision.4 Adamson's failure to
make an offer of proof is fatal to her claim of alleged error.
Evidence Rule 103(a)(2) states,
(a) Effect of Erroneous Ruling.
Error may not be predicated upon a ruling
which admits or excludes evidence unless a
substantial right of the party is affected;
and
. . . .
(2) Offer of Proof. In case the
ruling is one excluding evidence, the
substance of the evidence was made known to
the court by offer or was apparent from the
context within which questions were asked.
The commentary accompanying the Evidence Rules
explains, "If the ruling is to exclude evidence, the substance of
the offered evidence must be made known to the court in order to
ascertain on appeal whether a substantial right has been
affected." Alaska R. Evid. 103(a) Commentary. In the absence of
an offer of proof, there is no showing that it was prejudicial to
refuse to admit the excluded evidence. Mac-Rich Realty Constr.,
Inc. v. Planning Bd. of Southborough, 341 N.E.2d 916, 921 n.9
(Mass. App. 1976). 1 J. Wigmore, Wigmore on Evidence 20a, at
858 (Tillers rev. 1983). The failure to make such an offer
precludes appellate review. Illenden v. Illenden, 208 N.W.2d
565, 567-68 (Mich. App. 1973); Commonwealth v. Chapman, 186
N.E.2d 818, 821-22 (Mass. 1962). It constitutes waiver of the
claim of error. People v. Demond, 130 Cal. Rptr. 590, 598 (Cal.
App. 1976); Loveland v. State, 86 P.2d 942, 943 (Ariz. 1939).
Professor Wigmore has explained the reason for this
requirement:
The requirement of an offer, when
applicable, serves to promote justice and
conserve resources because it tends to reduce
the frequency of unnecessary reversals and
retrials. Furthermore, the requirement of an
offer serves as a prophylaxis against a
danger that arises from the adversary and
partisan character of the trial process in
America. Trial lawyers may (and, in our
experience, sometimes do) make offers of
nonexistent evidence with the hope of
establishing a basis for appeal when they
expect that the trial court will make an
erroneous ruling that the (nonexistent)
evidence will not be admitted. If lawyers
were relieved of the obligation to make an
offer of proof after an adverse ruling on an
offer of evidence, the number of attempts to
introduce nonexistent evidence would surely
increase greatly, at least in America.
Wigmore on Evidence, supra, 20a, at 866 (footnote omitted).
The rule also buttresses the principle that it is the appellant's
burden to convince us that the Board's decision to exclude the
evidence was in fact prejudicial and not harmless.5
In the case at bar, Adamson's attorney did not make an
adequate offer of proof.
Although an offer may be informal, it
must still be informative, and sufficiently
so. Thus, an informal offer must be
"definite," "specific," and "intelligible"
and cannot be "vague," "general," or
"indefinite;"it must "clearly state"what a
party intends to prove and cannot state "mere
conclusions."
Wigmore on Evidence, supra, 20a, at 870 (footnote omitted).
While Adamson's attorney discussed generally what witnesses might
be called and what they might say, the Board already had reports
by these doctors before it. There was no indication of new
evidence whose exclusion would have prejudiced Adamson.6
Our determination that the exclusion of further
evidence did not prejudice Adamson is fortified by Adamson's
testimony. She testified that her condition had not changed from
October 16, 1987. When asked, "What is your condition now
compared to October 16, 1987?"she stated,
Basically, it's the same. I'm still
having the same problems now that I was
having then. I'm still affected by the
weather, I still have the spikes and I still
have the swelling, I have the numbness the -
the pains - basically everything is the way
it was before.
II. DID THE BOARD ERR IN CHARACTERIZING TTD AS PPD AND IN
FAILING TO APPLY THE PRESUMPTION OF COMPENSABILITY TO
ADAMSON'S CONTINUING TTD CLAIMS?
The University recharacterized Adamson's TTD benefits
from August 1986 until September 7, 1987 as PPD payments and
halted further compensation. Adamson asked the Board to
reclassify those payments as TTD and award continuing TTD
benefits from September 7, 1987 to the present. The question,
therefore, whether TTD should have been discontinued, goes back
to the "recharacteriza-tion"of Adamson's benefits in August
1986.
Adamson first contends that the employer and the Board
erred by focusing on her maximum physical recovery rather than
her ability to return to work. We find this argument meritless.
The Board did look at Adamson's employability, finding that
Adamson could return to work full-time in July 1986.
Adamson also alleges that the Board failed to apply the
presumption of compensability to her claim for continuing TTD
after September 7, 1987. We find that the Board erred in its
failure to apply the presumption. The Board stated that the
employee "bears the burden of proving whether or not he is
disabled and the nature and extent of the disability." It then
assessed whether Adamson had proved she was temporarily totally
disabled after July 1, 1986. In Wien Air Alaska v. Kramer, 802
P.2d 471, 473-74 (Alaska 1991), we held that the statutory
presumption applies to a worker's burden of production in
establishing that he or she suffered from a continuing
disability.
However, after a review of the record, we find that the
Board's error was harmless. See Kodiak Oilfield Haulers v. Adams,
777 P.2d 1145, 1150 (Alaska 1989). The presumption shifts only
the burden of production and once the employer rebuts the
presumption with substantial evidence, the presumption drops out
and the employee must establish each element of the claim by a
preponderance of the evidence. See, e.g., Veco, Inc. v. Wolfer,
693 P.2d 865, 869-70 (Alaska 1985). The University produced
substantial evidence to rebut the presumption. The Board stated,
We find, based on the evidence we
summarized previously, that the employee
could have returned to work full-time in July
1986. We credit Dr. Horning's testimony,
over that of Drs. Lucas and Schurig, for
several reasons. Dr. Horning is a certified
expert in rehabilitation medicine. His
treatment began much closer to the employee's
injury date than that of Drs. Lucas and
Schurig. He also obtained a much fuller
understanding of the employee's condition and
complaints through review of her medical
records and consultation with her other
treating physicians. He concluded that the
employee's worsened condition in October 1986
represented a "flurry of pain behavior"
brought about by the impending need to return
to work rather than a bona fide deterioration
of her condition. We find therefore, that
the employee's ability to return to work in
July 1986 ended her entitlement to receive
temporary total disability compensation.
(Footnote omitted.)
The evidence in the record amply supports the Board's
conclusion.7 Adamson was released for regular work as early as
November 9, 1984 by Dr. Waldroup. Dr. Seres testified that
Adamson said in March of 1985 that she could return to work as a
research librarian at that time. From a medical standpoint, Dr.
Seres felt that Adamson was capable of doing her job; from a
medical and psychological standpoint, Drs. Seres, Yospe, and
Kramer thought it was in her best interest to do so. Dr. Hein
concurred with Dr. Horning's advice on January 23, 1986, that
Adamson's best therapy would be exercise and to be as active as
possible. On July 31, 1986, Dr. Horning felt that she could
return to work as a reference librarian assistant. Dr. Horning
reiterated Adamson's need to return to work in October 1986,
after she returned complaining of pain.
By April 16, 1986, Adamson was walking up to three
hours a day and biking 20 miles in 45 minutes on a stationary
bike. In May 1986, she said she could handle returning to her
job at Personal Page on a full-time basis. By July 1986, she
played badminton for two hours. On July 31, 1986, Dr. Horning
fully released her for work noting Adamson was capable of sitting
eight hours, standing seven, walking five to six hours during a
normal workday, as well as bending and twisting frequently,
squatting, climbing, and crawling occasionally, lifting ten
pounds continu-ously, and lifting up to 35 pounds frequently. He
repeated this in August 27, 1987, and at his deposition on
October 12, 1987. Adamson argues that her improvement was a
temporary result of the sympathectomy operation, and therefore
Dr. Horning's testimony should be discounted.8 Dr. Horning's
consistent diagnosis that Adamson could return to work, even
years after that operation, indicates the improvement was not
temporary. Finally, it was for the Board to weigh the
credibility of the witnesses. See AS 23.30.122. Based on our
review of the record, we affirm the Board's decision on the TTD
benefits.
III. DID THE BOARD ERR IN FAILING TO APPLY THE PRESUMPTION OF
COMPENSABILITY TO ADAMSON'S BACK CONDITION AND IN RELYING ON
DR. SERES' TESTIMONY TO DENY COVERAGE FOR THE CONDITION?
Adamson claims that the Board made no finding as to
whether the leg and back condition were interrelated; she also
argues that it is "uncertain"whether the Board properly applied
the presumption of compensability. Adamson also claims that the
reliance on Dr. Seres' testimony to rebut the presumption was
error as he never treated her back.
The University argues that the back complaint did not
arise out of or in the course of the employment with the
University. It claims the Board properly applied the presumption
of compensability, finding substantial evidence that the back
injury, if it existed, was not work-related. We affirm the Board
on its denial of coverage for Adamson's back injury.
The presumption in AS 23.30.120(a) is used most often
to establish work-relatedness. See, e.g., Thornton v. Alaska
Workmen's Compensation Bd., 411 P.2d 209, 211 (Alaska 1966). In
the case at bar, the Board discussed the presumption at length,
correctly stating it and its implication for Adamson. It noted
that the presumption drops out if there is substantial evidence
that the claim is not work-connected. Veco, 693 P.2d at 870.
The Board found that a preliminary link was established
between the low back condition and employment. Yet, the Board
found that substantial evidence existed that the back injury was
not work-related.9 "We find the testimony of Drs. Horning,
Seres, and Yospe substantial evidence that the back injury, if
any, is not work-related."It continued,
We find a preponderance of the evidence
favors the employer. Dr. Lucas, and Dr.
Schurig to a lesser extent, related the
employee's back complaints to a gait problem
arising from the 1984 injury. However,
neither saw the employee until over two years
after the 1984 injury and neither had
reviewed much of the prior medical records.
Both believed a gait problem could aggravate
her congenital L5 vertebral sacralization.
However, the testimony of the employee and
Dr. Horning reveal gait changes existed in
varying degrees, without back complaints, for
over two years before Dr. Lucas' December
1986 examination. The employee herself
related her back complaints to the
sympathectomy, although Dr. Horning testified
there is no correlation between them. We
conclude, based on Dr. Hornings [sic]
testimony and the long period between the
1984 injury and the employee's initial low
back complaint, that the low back condition
is not related to the 1984 injury and is not
compensable.
Ample evidence exists to support the Board's
conclusion. Dr. Horning examined Adamson's back in December
1984, October 1986, and August 1987, finding no problem. While
Adamson did not have low back pain until after the lumbar
sympathectomy, Dr. Horning stated that the lumbar sympathectomy
surgery could have no relationship to back pain. Although Dr.
Horning also noticed "the slightest limp,"he believed the lower
back pain was unrelated to the job injury and noted symptom
magnification.
The testimony of the doctors support Dr. Horning's
conclusions. Dr. Kramer found Adamson's back to be fine in March
1985. Dr. Hein noted no significant limp in February 1986 and
May 1986. Even Dr. Lucas found the range of motion for her back
normal. And Dr. Schurig testified that while Adamson had
degenerative disc disease, he did not relate it to her foot
injury or make any relationship between her back and her foot.
On redirect, he said the back pain may be due to her gait, but he
had not formed an opinion as to whether, alternatively,
degenerative disc disease was causing the problem. While the
doctors at the Northwest Pain Clinic, Drs. Seres, Yospe, and
Kramer, may not have examined Adamson extensively, the Board did
not give their testimony unreasonable weight given the other
evidence, including Dr. Horning's own conclusions.10
As far as Drs. Lucas and Schurig, the Board found that
neither doctor saw Adamson until two years after the 1984 injury,
nor had either reviewed much of the prior medical records. Dr.
Lucas never viewed earlier x-rays or looked at prior medical
records. Dr. Schurig only saw Adamson twice, and many evaluative
tests for her back were never done. He reviewed no medical
history for her prior to 1984, yet that medical history indicates
that Adamson was in a car accident in 1982 and received whiplash.
Moreover, Adamson's own testimony indicated that gait changes
existed in varying degrees without back complaints before the
lumbar sympathectomy. Given the Board's power to credit some
witnesses and not others, see AS 23.30.122, we affirm its
finding.
IV. DID THE BOARD ERR IN FAILING TO AWARD COMPENSATION FOR
MEDICAL EXPENSES?
Adamson sought continued compensation for chiropractic
treatment for her lower back condition, her foot, and
reimbursement payment for her Marinol prescription. Adamson
claims that the Board erred in failing to extend the time limit
for compensation of medical expenses two years from the date of
discovery of the latent back condition. She also claims the
Board erred in not applying the presumption of compensability for
medical expenses requested beyond the two year period mandated by
AS 23.30.095.11
The University argues that continued treatment or care
is in the Board's discretion, pursuant to AS 23.30.095(a).
Moreover, it claims that substantial evidence exists to support
the Board's position, even if the presumption should have been
applied.
The Board rejected the claim for chiropractic treatment
for the back condition as the back condition was not work-
related. As this finding was supported by substantial evidence,
we affirm.
The Board also found chiropractic treatment for
Adamson's foot was not reasonable or necessary. The Board did
not apply the presumption of compensability to Adamson's claim
for continuing chiropractic care. It said, "Employee has the
burden of proving the need for the treatment by a preponderance
of the evidence."
Failure to apply the presumption was error. In
Municipality of Anchorage v. Carter, ___ P.2d ___ Op. No. 3763 at
7 (Alaska, October 17, 1991), we held that the presumption
applies to a claim for continuing treatment or care. However,
the University argues the failure to apply the presumption was
harmless error as substantial evidence exists to support the
Board's position. We disagree.
The Board said,
We find the employee's left foot and leg
are affected by residual reflex sympathetic
dystrophy. Drs. Horning and Seres testified
the employee needs to use and exercise the
leg to improve her condition. Dr. Lucas
testified he obtained some improvement of the
employee's condition by adjusting her
navicular bone. Based on the failure to
substantially improve the employee's
condition, and Drs. Horning and Seres'
testimony concerning treatment of sympathetic
dystrophy, we find chiropractic treatment is
not reasonable or necessary.
However, evidence existed that the chiropractic
treatment reduced Adamson's pain. After several months of
treatment, she still felt severe pain at times but was much more
comfortable since the treatment began. While the care might not
be reasonable and necessary to improve her leg physically, it did
reduce the pain and applying the presumption may have led the
Board to a different result. In light of Carter, where we
acknowledged the right to continuing medical care for palliative
treatment, a remand is necessary as to the issue of chiropractic
treatment for Adamson's foot.
Similarly, a remand is necessary to apply the
presumption to Adamson's claim for reimbursement for her Marinol
prescription.12 As to the prescription for Marinol, the Board
said,
As an expert to pain treatment, we rely
on Dr. Seres' testimony concerning the
reasonableness and necessity of using Marinol
for treating chronic pain over that of Dr.
Schurig. Dr. Seres' testimony is also
consistent with Dr. Horning's testimony that
use of any pain medication over a long period
of time would not help the employee. We also
find that despite contrary advice from Dr.
Seres and Dr. Horning against use of pain
medications, the employee chose to approach
Dr. Schurig for prescription of marijuana and
Marinol. We find by a preponderance of the
evidence that the Marinol prescription was
not reasonable or necessary. The employee's
claim for reimbursement of the costs of the
Marinol prescription is denied and dismissed.
We note, however, that Adamson was seeking palliative
care. Her doctor, Dr. Schurig, prescribed Marinol for her in
October 1987. While he had only one visit with Adamson, and he
had doubts about the prescription's long term use, a lay person
cannot be expected to second guess a doctor's recommendation for
care. While the Board could reasonably rely on Dr. Seres, a
neurosurgeon, and his testimony that Marinol is an inappropriate
painkiller other than for cancer, in denying an award for
continuing treatment with Marinol, Adamson's claim was for
reimbursement.
V. DID THE BOARD ERR IN FAILING TO AWARD ATTORNEY'S FEES TO
ADAMSON AS THE PREVAILING PARTY REGARDING THE EMPLOYER'S
PETITION TO ENFORCE SETTLEMENT?
Adamson claims that she was erroneously denied
attorney's fees pursuant to AS 23.30.145(b) for the second
hearing; there the Board rejected the employer's claim to enforce
the oral settlement. The Board awarded fees to neither,
preferring to wait and see if Adamson ultimately prevailed and if
so, to what extend her recovery exceeded the terms of the oral
agreement. After the conclusion of the third hearing it
explained,
We denied the employee's claim for
compensation and medical benefits.
Consequently, we find the employee's attorney
did not successfully prosecute her claim as
required for award of attorney's fees under
AS 23.30.145. We also find that the employer
originally agreed to pay the employee $7,500
plus certain medical benefits. We find the
employee's attorney's "success"in obtaining
an opportunity to finish the continued
hearing over the employer's efforts to
enforce the settlement, only to have the
claim denied in its entirety, does not amount
to success in prosecuting a claim "otherwise
resist[ed]" by the employer for purposes of
an award of attorney's fees under AS
23.30.145(b).
Alaska Statute 23.30.145(b) states that "if the claimant has
employed an attorney in the successful prosecution of the claim,
the board shall make an award to reimburse the claimant for the
costs in the proceedings. . . ." This language makes it clear
that the employee must be successful on the claim itself, not on
a collateral issue. Cf. Hutchins v. Schwartz, 724 P.2d 1194,
1204 (Alaska 1986) ("Prevailing party status [for Civil Rule 82]
does not automatically follow if the party receives an
affirmative recovery but rather it is based upon which party
prevails on the main issues.") The word "proceedings" also
indicates that the Board should look at who ultimately is
successful on the claim, as opposed to who prevails at each
proceeding.
Given Adamson's success on appeal of her claim for
chiropractic care for her foot, we remand for a redetermination
of attorney's fees by the Board.
AFFIRMED, in part, REVERSED, in part, and REMANDED to
the superior court for remand to the Board for proceedings
consistent with this opinion.
COMPTON, Justice, with whom MOORE, Justice, joins, concurring.
With the exception of the court's language noted below,
I agree with the opinion. However, the language is as wrong as
it is irrelevant, and should not be read uncritically.
Contrary to the court's broad assertion on p.18 that
"[i]n Municipality of Anchorage v. Carter . . . we held that the
presumption [of compensability] applies to a claim for continuing
treatment or care,"the court held only that "in the absence of
substantial evidence to the contrary this presumption [of
compensability] will satisfy the employee's burden of proof as to
whether continued treatment or care is medically indicated."
Municipality of Anchorage v. Carter, P.2d , Op. No. 3763
at 7 (Alaska, October 17, 1991). To presume that a claim for
continuing treatment or care is compensable is quite different
from presuming that continued treatment or care is medically
indicated. Carter addressed only the latter proposition, not the
former. Moreover, no factual issue of whether any treatment or
care was medically indicated was raised in this case. Thus this
irrelevant discussion may tend to confuse the law of presumptive
compensability rather than simply restate it.
What is relevant is that the Board failed to recognize
that palliative treatment or care may be compensable in itself.
This is a question of law in the first instance, not of fact.
For this reason a remand is necessary. The Board must now apply
the law as set forth in Carter to the facts.
_______________________________
1. Adamson received temporary total disability benefits
from August 18, 1984 through September 2, 1984, from September 7,
1984 through October 7, 1984, from December 4, 1984 through June
10, 1985, and from July 16, 1985 through July 31, 1986.
Permanent partial disability payments were made from June 11,
1985 through July 15, 1985 and from August 1, 1986 through
September 7, 1987. Total compensation payments have exceeded
$40,000. The University has paid benefits for Adamson's health
care, vocational rehabilitation, temporary total disability, and
permanent partial disability.
2. AS 23.30.135(a) states, in part,
Procedure before the board. In making
an investigation or inquiry or conducting a
hearing the board is not bound by common law
or statutory rules of evidence or by
technical or formal rules of procedure,
except as provided by this chapter. The
board may make its investigation or inquiry
or conduct its hearing in the manner by which
it may best ascertain the rights of the
parties.
3. We view Adamson's appeal of the Board's exclusion of
evidence as a question of whether the Board abused its
discretion. This is the crux of her argument. Adamson mentions
due process only in passing in her opening brief, although it is
given more attention in the reply brief. Yet, where a point is
given only a cursory statement in the argument portion of a
brief, the point will not be considered on appeal. State v.
O'Neill Investigations, Inc., 609 P.2d 520, 528 (Alaska 1980);
Fairview Development, Inc. v. City of Fairbanks, 475 P.2d 35, 36
(Alaska 1970), cert. denied, 402 U.S. 901 (1971). Such a waiver
is not correctable by arguing the issue in a reply brief. Hitt
v. J.B. Coghill, Inc., 641 P.2d 211, 213 n.4 (Alaska 1982).
Moreover, we reject Adamson's contention that she was
"sanctioned" by the Board for not signing the Compromise and
Release. The Board, in fact, found the exercise of Adamson's
statutory right not "frivolous, unreasonable or in bad faith."
4. Our decision is limited to the case at bar. We do not
intend to imply approval of a policy of excluding relevant
evidence in circumstances where the hearing is continued because
of a failed settlement. On the contrary, we have grave
reservations concerning any such policy, given the purposes of
the Workers' Compensation Act.
5. We recognize that the Board is not bound by the
statutory rules of evidence or by technical or formal rules of
procedure. See AS 23.30.135(a) and 8 AAC 45.120(e).
Nevertheless, if appellate review is to be meaningful, a party
asserting error in proceedings before the board must, by making
an offer of proof or other appropriate procedural means, afford
the appellate tribunal a means of evaluating the claims of error.
6. While a report by a Dr. Alberts was not admitted at the
hearing, the content of the report was made known to the Board.
This report would not have constituted substantial evidence to
support a different conclusion. Black v. Universal Servs., Inc.,
627 P.2d 1073, 1075 (Alaska 1981). The report indicated that in
October 1985, there was no evidence of hysterical conversion or
psychosomatic explanation for Adamson's constant pain. Yet, at
the August 1988 hearing, numerous doctors described Adamson as a
hypochondriac.
7. Where the superior court functions as an intermediate
court of appeals, we independently review the Board's findings of
fact. See Burgess Constr. Co. v. Smallwood, 698 P.2d 1206, 1210
(Alaska 1985). We review the Board's factual findings to
determine whether they are supported by "substantial evidence."
In making this determination, we do not reweigh conflicting
evidence. Fairbanks North Star Borough School Dist. v. Crider,
736 P.2d 770, 773 (Alaska 1987) ("The court need only find 'such
relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.'"(citation omitted)).
8. On October 12, 1987, she reported to Dr. Schurig that
"[s]he cannot walk on concrete or stairs. She cannot squat, bend
over, kneel or perform vacuuming, sweeping or mopping type
activities. . . . She reports it would be difficult to do
secretarial type work because she would have to prop her leg up
most of the time."
9. As the Board noted, there are two ways by which the
presumption of compensability can be overcome in relation to
work-relatedness: affirmative evidence that the injury was not
work-related, or elimination of all reasonable possibilities that
the injury was work-connected. See, e.g., Burgess, 698 P.2d at
1211.
10. Adamson cites Black v. Universal Servs., Inc., 627 P.2d
1073 (Alaska 1981), for the proposition that this court should
not credit the testimony of Drs. Yospe and Seres because they saw
her only for a short period of time. In Black, however, the
doctor interviewed the patient only twenty minutes and the
evidence was contrary to numerous physicians who treated her. Id.
at 1075 n.9. Here the examination was much more extensive. Dr.
Yospe saw Adamson separately from Drs. Seres and Kramer. He
reviewed all the records sent by her physicians and insurance
carrier and then saw her for an hour. He also conducted a
Minnesota Multiphasic Personality Inventory. After Dr. Kramer's
examination, Dr. Seres chaired a discussion with her and the
other two doctors on issues that presented themselves. Dr. Seres
also saw her several days later, and conducted a thermography.
Overall, these doctors
thought that she had a basic underlying
hysterical personality structure. That means
a person tending to overreact to physical
things that would go on, and reacting to them
in a very negative way. Instead of looking
for ways of getting better, a person like
this would be an individual who would tend to
augment their complaints . . . and use the
complaints as a way of avoiding, actually,
appropriate therapies.
. . . We felt that she did have
elements of . . . an hysterical conversion
reaction type of thing. This is a type of
reaction where there are secondary benefits
or secondary gains that occur as a result of
the behaviors and the complaints that a
person has.
11. AS 23.30.095 was amended in 1988. However, those
amendments only apply to injuries incurred after July 1, 1988.
As Adamson's injury occurred in 1984, the old version of the
statute applies.
12. In Municipality of Anchorage v. Carter, ____ P.2d ____
Op. No. 3763 at 8 (Alaska, October 17, 1991) we said:
the Board retains discretion not to
award continued care or treatment or to
authorize care or treatment different from
that specifically requested based on the
requirements demonstrated either by the
employee's raised and unrebutted presumption,
or by the preponderance of the evidence, as
further informed in each case by the "Board's
experience, judgment, observations, unique or
peculiar facts of the case, and inferences
drawn from all of the above." Kodiak
Oilfield Haulers, 777 P.2d at 1151.
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