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Walt's Sheet Metal v. Debler (2/21/92), 826 P 2d 333
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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
WALT'S SHEET METAL, and )
UNDERWRITERS ADJUSTING CO., ) Supreme Court File No.
) S-4253
Appellants, ) Superior Court File No.
) 4FA-89-1896 Civil
)
v. ) O P I N I O N
)
)
MITCHELL DEBLER, )
)
Appellee. ) [No. 3814 - February 21, 1992]
______________________________)
Appeal from the Superior Court of the
State of Alaska, Fourth Judicial District,
Fairbanks, Jay Hodges, Judge, on appeal from
the Alaska Workers' Compensation Board.
Appearances: John E. Casperson,
Faulkner, Banfield, Doogan & Holmes,
Anchorage, for Appellants. Dennis E.
McKelvie, Fairbanks, for Appellee.
Before: Rabinowitz, Chief Justice,
Burke, Matthews, Compton and Moore, Justices.
MOORE, Justice.
Walt's Sheet Metal and Underwriters Adjusting Company
(collectively "the employer") appeal a ruling by the Alaska
Workers' Compensation Board that the medical costs of a proposed
medical procedure must be paid by the employer. The employer
argues that the Board failed to examine whether Debler's
"intentional or reckless conduct"was a superseding cause of his
new injuries. We affirm the Board's decision because the record
contains insufficient evidence to overcome the statutory
presumption that Debler did not wilfully intend to injure
himself.
I.
On February 2, 1984, while employed as a sheet metal
worker for Walt's Sheet Metal, Mitchell Debler suffered a back
injury when struck by falling ductwork. After the accident,
several physicians diagnosed Debler as having a herniated disc,
chronic alcoholism, pancreatitis, arthritis and gout. Despite
back operations in 1984 and 1985, Debler's symptoms worsened, and
in late 1986 Dr. George Sims found Debler to be 50 percent
disabled from the neuropathy resulting from his injury, and 50
percent disabled from his chronic alcoholism and resulting
pancreatitis. In June 1988, Debler underwent a disc excision and
fusion surgery performed by Dr. William Duffy and Dr. David
Jones.
The employer provided Debler with compensation, medical
benefits and vocational rehabilitation for an extended period
until a dispute over compensability arose when Debler's ability
to return to work was affected by alcohol-related criminal
charges brought against him in California. This dispute was
resolved in May 1988 in a court-approved Compromise and Release.
The employer subsequently terminated home health care benefits to
Debler as a result of its discovery that Debler was double-
billing for transportation provided to him by a home health care
service.1
In August 1988, Debler was arrested for public
intoxication in a Yuba City, California bowling alley. While
being arrested, he resisted arrest and fought with the arresting
officer. The officer forced Debler to the ground, causing facial
abrasions for which Debler was later taken to a hospital. In
February 1989, Dr. Duffy wrote a letter to the employer
indicating that the bone graft used in the fusion had been
displaced into the spinal canal and required removal, and that
the vertebrae needed to be refused. The employer filed a
Controversion Notice on February 17, 1989, claiming that it was
not obligated to pay for the additional surgery because there was
an "intervening cause and negligent conduct."
The Board held that Debler's claim was still
compensable, and awarded medical benefits related to the refusion
surgery and subsequent necessary care, including reasonable and
necessary home health care benefits if Debler should undergo
additional surgery. The Board wrote:
The Alaska Supreme Court ruled on a
situation similar to the case before us in
Alaska Pac. Assurance Co. v. Turner, 611 P.2d
12, 14 (Alaska 1980), holding that where an
employee was injured at work then suffered an
aggravation unrelated to employment, the
employer could escape liability only if it
could show that the work-related injury was
not a "substantial factor contributing to the
later injury." The record available to us
reflects that all of the employee's
physicians consider the spinal herniation to
have been caused by his employment. Both of
the employee's current physicians believe
that the employee's work injury caused the
underlying injury giving rise to his present
condition. Although the employee's symptoms
after fighting the police officer may suggest
some sort of aggravation, we find by the
preponderance of the evidence that the
employee's February 2, 1984 injury was a
substantial factor in bringing about the
failed fusion suffered by him in his present
condition. We conclude that the claim is
still compensable.
The employer appealed the Board's decision to the
superior court, arguing that the Board erroneously failed to
consider whether Debler's conduct was a superseding cause of his
injuries. In September 1990, the superior court rejected that
appeal. Superior Court Judge Jay Hodges held that there was
substantial evidence before the Board that Debler's injury was
work-related, and there was substantial evidence that the
original injury was a substantial factor in Debler's recurring
medical problems. Judge Hodges also held that there was no
evidence before the Board that Debler's conduct was intentional
or wilful, and that there was substantial evidence that the
arrest incident was not an intervening cause. This appeal
followed.
II.
Under the Alaska Workers' Compensation Act, an
employee's injury is presumed to have arisen out of his
employment. Alaska Statute 23.30.120(a) provides:
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;
. . . .
(4) the injury was not occasioned by the
wilful intention of the injured employee to
injure or kill self or another.
The Alaska Supreme Court has construed this statute to mean that,
in cases involving the reinjury of a work-related injury, "if an
_earlier compensable injury is a substantial factor contributing
to the later injury, then the later injury is compensable._"
Alaska Pac. Assurance Co. v. Turner, 611 P.2d 12, 14 (Alaska
1980) (citing Cook v. Alaska Workmen's Compensation Bd., 476 P.2d
29, 35 (Alaska 1970)). The Board explicitly applied the Turner
rule in this case, finding "by the preponderance of the evidence
that the employee's February 2, 1984 injury was a substantial
factor in bringing about the failed fusion suffered by him in his
present condition."
The employer complains that the Board failed to also
examine whether Debler's "intentional or reckless misconduct"
relieved the employer of the duty to pay for the additional
surgery. If Debler's injuries were proximately caused by his
wilful intent, it maintains, his actions constituted an
intervening cause which bars an award of compensation under the
Workers' Compensation Act. Debler maintains that the Board's
failure to explicitly discuss AS 23.30.235 should be treated as
harmless error because substantial evidence supports the Board's
findings.
Alaska Statute 23.30.235 provides that compensation may
not be allowed under the Workers' Compensation Act for an injury
"proximately caused by the employee's wilful intent to injure or
kill any person." The employer therefore should have been
relieved of its obligation to pay for Debler's additional surgery
if Debler's reinjury was proximately caused by his wilful intent
to injure himself.2 Under AS 23.30.120(a)(4), absent substantial
evidence to the contrary, injuries are presumed not to be
occasioned by the wilful intention of an employee.
We affirm the Board's decision because the record
contains insufficient evidence to overcome the statutory
presumption that Debler did not wilfully intend to injure
himself. An act is wilful if it is done intentionally and
purposefully, rather than accidentally or inadvertently.3 See
Black's Law Dictionary 1434 (5th ed. 1979). Mere recklessness
does not constitute wilful conduct. Debler may have acted
recklessly when he resisted arrest and fought with the arresting
officer, but he clearly did not act with the intent to reinjure
his back. Alaska Statute 23.30.235 therefore does not apply to
this case.4
The employer argues that the application of AS
23.30.235 should not be limited to those situations in which an
employee specifically intends to injure himself, for such a
standard would allow a convalescing employee to engage in risky
activities with the assurance that his employer will be required
to pay for any aggravation of the employee's injury. This
argument ignores the statute's unequivocal language. If AS
23.30.235 is to be modified to provide a defense based on the
misconduct or reckless behavior of employees, the legislature
should make that modification.
The decision of the Board is AFFIRMED.
_______________________________
1. This termination of home health care benefits is not at
issue in this case.
2. The employer does not argue, nor is there evidence in
the record, that Debler intended to injure the arresting officer.
3. Professor Larson has written that "[t]he words _wilful
intent to injure_ obviously contemplate
behavior of greater deliberateness, gravity
and culpability than the sort of thing that
has sometimes qualified as aggression." 1 A.
Larson, The Law of Workmen's Compensation
11.15(d) (1990). Larson's treatise also
states that:
If the claimant, instead of allowing his
wound to heal, deliberately engages in
conduct which presents a strong probability
of reopening the wound, the reinjury is not
compensable. Thus when a claimant, whose
hand was healing nicely, rashly decided to
get into a boxing match, and tore open and
infected the wound, he could not attribute
the aggravation to the employment.
Id. at 13.22(a).
4. Citing Professor Larson's treatise, the employer argues
that it should not be required to pay for any additional surgery
necessitated by Debler's "misconduct." According to Professor
Larson, the laws of twenty-three states provide that an employer
is relieved of its duty to compensate injuries resulting from an
employee's wilful intention to injure another, while the workers'
compensation laws of another seventeen states "contain some kind
of defense based on wilful misconduct." 1 A. Larson, The Law of
Workmen's Compensation 11.15(d) (1990). Because AS 23.30.235
requires "wilful intent,"mere misconduct is insufficient to
trigger that statutory provision.
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