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Norcon Inc. and Eagle Pacific Ins. Co. v. Siebert and Alaska Workers' Comp. (9/9/94), 880 P 2d 1051
<![CDATA[
Notice: This is subject to formal 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.
THE SUPREME COURT OF THE STATE OF ALASKA
NORCON, INC. and )
EAGLE PACIFIC INSURANCE CO., )
) Supreme Court No. S-5599
Appellants, )
) Superior Court No.
v. ) 3AN-92-1178 CI
)
ALASKA WORKERS' COMPENSATION ) O P I N I O N
BOARD and ELLEN SIEBERT, )
)
Appellees. ) [No. 4119 - September 9, 1994]
______________________________)
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Anchorage,
J. Justin Ripley,
Judge.
Appearances: Karen L. Russell and
Joseph M. Cooper, Russell, Tesche & Wagg,
Anchorage, for Appellants. Joseph A.
Kalamarides, Kalamarides & Associates,
Anchorage, for Appellees.
Before: Moore, Chief Justice,
Rabinowitz, Matthews and Compton, Justices,
and Bryner, Justice pro tem.*
COMPTON, Justice.
RABINOWITZ, Justice, dissenting.
Norcon, Inc. and its workers' compensation carrier,
Eagle Pacific Insurance Co. (Norcon), appeal from a superior
court decision affirming an Alaska Workers' Compensation Board
(Board) determination that Kenneth Siebert's sudden cardiac death
was work related. We reverse.
I. FACTUAL AND PROCEDURAL BACKGROUND
Kenneth Siebert was hired by Norcon in June 1989 as a
crane operator in connection with the Exxon Valdez oil spill
cleanup. He would pick up dumpsters with a crane and empty their
contents into a containment pit. The job was temporary and
scheduled to end in the fall. Originally Kenneth was hired for
eight weeks on and two weeks off. However, he worked seven days
a week, twelve hours a day, without any vacations.
During his employment with Norcon, Kenneth resided in a
"man camp" which was located approximately four and one half
miles from Valdez. There was conflicting testimony concerning
the amount of rest and relaxation time available to Kenneth.
According to Ellen Siebert, Kenneth's wife, Kenneth believed that
he would not be hired back if he took any time off for rest and
relaxation. Mr. Gene Fontenot, Norcon's superintendent of
support services, testified that rest and relaxation was offered
to everyone, and that if someone did not take some after eight
weeks, he or she was encouraged to do so. Ellen testified that
Kenneth told her on occasion that he was very tired, but that he
wanted to stay on until the job wound down. Kenneth's roommate,
Robert Netherton, testified that although Kenneth complained
occasionally of being tired, he did not do so any more than
anyone else. He further testified that Kenneth never indicated
to him that he was exhausted, nor did Kenneth appear as if he was
exhausted.
On the morning of September 29, 1989, Kenneth got up,
showered, shaved, and exchanged pleasantries with Netherton, who
remained in bed. A short time later Netherton heard a thud. He
rolled over in bed and saw that Kenneth was on the floor.
Kenneth apparently suffered ventricular fibrillation, which
resulted in sudden cardiac death. Emergency medical technicians
succeeded in restoring his heart beat. However, Kenneth did not
regain consciousness. He remained in a coma until he died in
December 1989.
Kenneth was fifty-seven years old. He was a light
drinker and had smoked cigarettes. Ellen testified that Kenneth
had not seen a doctor in twenty years or more. No autopsy was
performed.
In January 1990, Norcon filed a report of occupational
injury with the Board. Norcon's representative filed a notice of
controversion. Later Ellen filed an application for adjustment
of claim. Norcon filed an answer denying entitlement to
benefits. Eventually the Board issued a decision and order
finding that Kenneth's death was compensable under the Alaska
Workers' Compensation Act. The Board also awarded Ellen's
counsel attorney's fees.
Norcon appealed the Board's decision to the superior
court. AS 22.10.020(d); Alaska R. App. P. 601(a). It also filed
a motion for stay pending appeal, which the superior court
granted. The superior court affirmed the Board's
decision and awarded Ellen's counsel attorney's fees and costs on
appeal. This appeal followed.
II. DISCUSSION
A. ASSUMING THE PRESUMPTION OF COMPENSABILITY
PROPERLY ATTACHED, DID NORCON SUCCESSFULLY
REBUT THE PRESUMPTION?1
Norcon argues that the Board was presented with
overwhelming evidence from both Dr. Allan and Dr. Scheidt that
rebutted the presumption of compensability. Norcon claims that
the testimony established that there was no connection between
Kenneth's death and his work. In addition, Norcon contends that
the superior court erred by enhancing the alternative test for
establishing that the presumption was rebutted.
Ellen contends that the presumption was not rebutted
because the Board found Dr. Allan's testimony ambiguous and Dr.
Scheidt's testimony inconclusive.
In Grainger v. Alaska Workers' Compensation Board, 805
P.2d 976 (Alaska 1991), we stated that an employer can overcome
the presumption of compensability by providing substantial
evidence that either: "(1) provides an alternative explanation
which, if accepted, would exclude work related factors as a
substantial cause of the disability; or (2) directly eliminates
any reasonable possibility that employment was a factor in
causing the disability." Id. at 977. "We have held that
substantial evidence is 'such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.'"
Fireman's Fund Am. Ins. Cos. v. Gomes, 544 P.2d 1013, 1015
(Alaska 1976) (quoting Thorton v. Alaska Workmen's Compensation
Bd., 411 P.2d 209, 210 (1966)). Whether the amount of evidence
is substantial is a legal question. Id. Therefore, we must
independently examine an employer's evidence to determine whether
the employer has successfully rebutted the presumption of
compensability. Veco, Inc. v. Wolfer, 693 P.2d 865, 869 (Alaska
1985).
In Big K Grocery v. Gibson, 836 P.2d 941 (Alaska 1992),
we held that "[i]t has always been possible to rebut the
presumption of compensability by presenting a qualified expert
who testifies that, in his or her opinion, the claimant's work
was probably not a substantial cause of the disability." Id. at
942. "[S]uch testimony is affirmative evidence that an injury is
not work connected." Id. "If medical experts have ruled out
work-related causes for an employee's injury, then Wolfer and
Grainger do not require that these experts also offer alternative
explanations." Childs v. Copper Valley Elec. Ass'n, 860 P.2d
1184, 1189 (Alaska 1993).2
The Board found that Dr. Scheidt's testimony was
ambiguous and that Dr. Allan's testimony was inconclusive with
respect to the work-relatedness of Kenneth's sudden cardiac
death. The Board then concluded that Norcon "failed to produce
medical testimony which fulfills the requirements set forth in
Grainger as to substantial evidence rebutting the presumption."
The superior court affirmed the Board's decision. The court
cited Grainger as authority for the proposition that because the
Board did not accept the alternative explanation for the cause of
the employer's death, the presumption of compensability had not
been overcome.
We agree that deference should be given to the Board's
determination of a witnesses credibility. AS 23.30.122.3
However, we find it necessary to clarify that any weighing of
testimony does not take place at the rebuttal stage. Rather, the
weight to be accorded the doctors' testimony must take place
after a determination of whether the presumption had been
overcome. See Wolfer, 693 P.2d at 869 ("the presumption [of
compensability] shifts only the burden of production and not the
burden of persuasion").
Dr. Allan and Dr. Scheidt provided evidence, in their
depositions and at the hearing, that a reasonable person might
accept as adequate to support the conclusion that Kenneth's death
was not work related. Dr. Scheidt testified that working long
hours is not recognized to be a risk factor for sudden cardiac
death. Additionally, he stated that "I do not think there's any
reasonable possibility that the two are related." Dr. Allan
testified that he did not think that Kenneth's work was a
substantial factor, either directly or indirectly, in bringing
about his cardiac death. Therefore, we conclude that Norcon
successfully rebutted the presumption of compensability.4
B. DID ELLEN PROVE THE ELEMENTS OF HER CASE
BY A PREPONDERANCE OF THE EVIDENCE?
The Board states:
Even if we considered in isolation
Dr. Allen's [sic] testimony and Dr. Scheidt's
hearing testimony only, which we would find
adequate to overcome the presumption, we
would still conclude Employee's death is
compensable. Once the presumption is
overcome, we would weigh the evidence. We
would review all the testimony given by Dr.
Allen [sic] and Dr. Scheidt. We would find
it inconclusive, contradictory, and doubtful.
We would resolve this doubt in Employee's
favor and conclude the death is compensable.
Norcon contends that the Board's alternative holding is
incorrect. It claims that rather than requiring Ellen to produce
any medical evidence that Kenneth's sudden cardiac death was work
related, the Board appeared to rely on what it perceived to be
Norcon's failure to prove that it was not.
Ellen argues that the Board chose not to rely on the
testimony of either of the doctors. She concludes that the only
believable evidence supported compensability of the claim.
After a determination that the presumption of compensability has
been successfully rebutted, the presumption "drops out"and the
employee must prove his or her case by a preponderance of the
evidence. Wolfer, 693 P.2d at 870. "Upon reviewing a
determination that the employee has or has not met that burden,
the court must apply the 'substantial evidence' test . . . ."
Id. "[W]hile the judiciary may not reweigh the evidence before
the Board, neither may it abdicate its reviewing function and
affirm a Board decision that has only extremely slight supporting
evidence." Hoth v. Valley Constr., 671 P.2d 871, 874 (Alaska
1983) (quoting Black v. Universal Servs., Inc., 627 P.2d 1073,
1076 (Alaska 1981)).
We conclude that the Board's holding that Ellen would
have prevailed even had the presumption of compensability been
rebutted is in error. There is no substantial evidence to
support a holding that Kenneth's death resulted from his
employment with Norcon. In fact, Ellen presented no medical
evidence showing a connection between the two. "Two factors
determine whether expert medical evidence is necessary in a given
case: the probative value of the available lay evidence and the
complexity of the medical facts involved." Wolfer, 693 P.2d at
871.
The only lay evidence before the Board which supported
the finding that Kenneth was "exhausted"was Ellen's testimony
that during phone conversations, Kenneth would tell her that he
was tired, and that the last time she spoke with him he told her
that he was extremely tired. Netherton, Kenneth's roommate,
testified that Kenneth did not complain of being tired more than
anyone else and that he did not appear to be exhausted. Ellen's
testimony does not appear to have any probative value connecting
fatigue to sudden cardiac death. The complexity of the cause and
effect relationship in sudden cardiac death necessitates
presentation of medical evidence.
Ellen also relies on the deposition testimony of both
Dr. Allan and Dr. Scheidt, Norcon's witnesses, to establish the
elements of her claim. Doctor Allan is a clinical psychologist
who specializes in cardiac patients. For the past ten years his
practice has centered on psychological factors in cardiac death.
When discussing his view on an individual's responsibility to
take time off when they are tired, he was asked, "Are you
expressing an opinion here that Mr. Siebert was tired to the
point that his tiredness was a significant factor in bringing
about his death?" Dr. Allan replied, "That's a very tough
question to answer, you know." He then told of a very driven and
over-worked executive who had a heart attack after a day of
sailing. Dr. Allan explained that "there really is not the
database to answer that kind of question, other than by this case
note." However, a few questions later, Dr. Allan was asked, "In
Mr. Siebert's case, was his employment either directly or
indirectly, by causing tiredness, a substantial factor in
bringing about his death, in your opinion?" Dr. Allan responded,
"I would say, no."
Dr. Scheidt, a cardiologist, did comment that he found
it unusual that Kenneth worked as much as he did. He stated that
while it was possible that long hours could result in heightened
sympathetic activity, it is not a generally recognized risk
factor in sudden cardiac death. Additionally, he also stated
that "the chronic stress that there's just sort of a generalized
free floating increase in sympathetic activity and that that
would . . . be operative the next day or after a good night's
sleep, that's never really been documented."
When asked if Kenneth would have suffered his cardiac
arrest when he did, had he not been working as he was on the
Valdez job, Dr. Scheidt replied,
Well that's a very difficult question to
answer. I mean, in the first place, I hardly
can give you a psychological profile of
Mr. Siebert . . . because it's from what few
comments that other people gave. And, of
course, none of the medical people ever
talked to Mr. Siebert.
In addition, I feel very
uncomfortable because in asking the question,
you seem to be presuming that medical science
has made connections between psychological
factors or job stress or that sort of thing
and cardiac arrest. This is an area of
active ongoing research.
. . . Nothing in this area is proven.
. . . .
There simply is not enough evidence
for us to link psychological factors or
stress to coronary disease or sudden death.
And therefore, I can't link it in Mr. Siebert
either.
When asked whether Kenneth's work was a substantial
factor in bringing about his cardiac arrest, Dr. Scheidt
responded,
It is impossible to state that. The
cause of sudden cardiac death . . . is
unknown. And it is unknown in Mr. Siebert's
case. It is unknown in general. It is
associated with coronary atherosclerosis that
has a number of associations which everybody
knows about, the risk factor.
But the [cause of] sudden death . .
. that occurs . . . in the course of coronary
disease, . . . is unknown. And in the vast
majority of cases where we look for unusual
out of the ordinary events, we don't find
them.
No other expert witnesses testified concerning a
connection, or lack thereof, between fatigue and sudden cardiac
death.
The Board erred in its determination that Ellen would
have prevailed even if Norcon had rebutted the presumption of
compensability. This conclusion is not supported by substantial
evidence. Although we will not reweigh the evidence on appeal,
to support an award of compensation in a highly technical medical
case such as this, more needs to be presented than an unexplained
case note and a statement by a cardiologist that working so many
hours is unusual. The quantum of evidence presented does not
meet the substantial evidence test to support the Board's
determination of a connection between Kenneth's death and his
employment. See, e.g., Grainger, 805 P.2d at 979 ("We will
reverse a Board decision when we `cannot conscientiously find
that the evidence supporting that decision is substantial.'")
(quoting Delaney v. Alaska Airlines, 693 P.2d 859, 864 n.2
(Alaska 1985)). Therefore, the claim for compensation is denied.
C. ATTORNEY'S FEES
Norcon correctly contends that because the decisions of
both the Board and the superior court must be reversed, the
awards of attorney's fees need also be reversed. AS 23.30.145
(a) (the board may direct fees for legal services "only on the
amount of compensation controverted and awarded") (emphasis
added); Alaska R. App. P. 508(g)(2) ("full reasonable attorney's
fees will be awarded to a successful claimant") (emphasis added);
W.R. Grasle Co. v. Mumby, 833 P.2d 10, 11 (Alaska 1992) (superior
court's award of attorney's fees reversed because the claimant
was no longer a "successful claimant").
III. CONCLUSION
Because the Board's determination is not supported by
substantial evidence, the decision of the superior court is
REVERSED. The superior court is directed to remand the case to
the Board, with instructions to conduct further proceedings it
deems appropriate, not inconsistent with this opinion. Because
Ellen is no longer a successful claimant, the awards of
attorney's fees are also REVERSED.
RABINOWITZ, Justice, dissenting.
I dissent from the court's conclusion that Norcon
rebutted the presumption of compensability. Norcon's medical
evidence was inconclusive as to whether Siebert's death was work
related. Therefore, I would affirm the Board's determination in
this case.
Substantial evidence rebutting the presumption of
compensability consists of "such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion." Thornton v. Alaska Workmen's Compensation Bd., 411
P.2d 209, 210 (Alaska 1966), quoted in Grainger v. Alaska
Workers' Compensation Bd., 805 P.2d 976, 977 n.1 (Alaska 1991).
Generally, the presumption of compensability is not overcome when
there is a profound lack of information regarding the cause of an
employee's death. See Fireman's Fund Am. Ins. Cos. v. Gomes, 544
P.2d 1013, 1017 (Alaska 1976) (unexplained shooting); Employers
Commercial Union Co. v. Libor, 536 P.2d 129, 132 (Alaska 1975)
(herniated disc).
Libor's facts are especially pertinent to the case at
bar. The employee received treatment for a herniated disc a few
weeks after a falling rock struck him in the lower back at his
worksite. 536 P.2d at 129. He sought workers' compensation, and
the employer controverted his claim. Id. at 130. The two
medical experts who testified were unable to state with
reasonable certainty that the back injury was work related, but
they did not exclude a causal connection. Id. at 132. One of
the doctors stated that he could not "make a definite statement"
linking the on-the-job injury with the subsequent herniated disc,
although they "could have"been connected. Id. at 130. He went
on to state, "I see no reason why there could not be a
relationship between the two injuries but it would be almost
impossible for me to make the causal connection." Id. The other
doctor stated that the on-the-job injury "cannot, with a
reasonable degree of medical certainty, be said to be either the
cause of or to have precipitated a herniated disc." Id. We
noted, however, that the other doctor "did not positively exclude
a causal connection; he was merely unable to establish it." Id.
at 132. Accordingly, we held that the combination of the
employee's lay testimony and the inconclusive medical testimony
constituted substantial evidence that the injury was work
related, and that the Board could have concluded that the
employer had not overcome the presumption of compensability. See
id.
Instead of looking to the Libor rule, here the court
relies on two recent decisions, Childs v. Copper Valley Electric
Ass'n, 860 P.2d 1184 (Alaska 1993), and Big K Grocery v. Gibson,
836 P.2d 941 (Alaska 1992). The court culls the correct legal
rule from these cases: "An employer has always been able to
rebut the presumption of compensability with an expert opinion
that 'the claimant's work was probably not a substantial cause of
the disability.'" Childs, 860 P.2d at 1189 (quoting Gibson, 836
P.2d at 942). Nonetheless, I believe the court is mistaken in
concluding that Norcon met this burden.
Childs and Gibson were cases in which an employer's
medical experts ruled out a link between an employee's job and
his or her injury. Practically speaking, such testimony need not
be expressed in absolute or unqualified terms. When experts
examine the evidence and become fairly certain about causation,
we do not construe their testimony as inconclusive. Instead, we
attribute the lack of absolute certainty to the tendency of the
scientific mind to avoid unqualified statements on causation.
See Childs, 860 P.2d at 1189; Gibson, 836 P.2d at 942; 3 Arthur
Larson, The Law of Workmen's Compensation 80.32, at 15-834
through -835 (1993).
The opinions of Drs. Scheidt and Allan more closely
resemble the medical testimony in Libor than the testimony in
Childs or Gibson. Although Dr. Scheidt expressed conjectural
doubt that Siebert's death was work related, he also stated that
there is a great deal of uncertainty regarding the causes of
heart failure. He also discussed a study that found correlations
between lifestyle changes, including working hours, and sudden
cardiac death. In regard to the literature on the connection
between stress and ventricular arrhythmia, he indicated that
there were some studies showing a connection, and some finding
none:
There are some studies that show
[psychological stress to be a trigger for
ventricular arrhythmia]. But exactly in whom
and exactly--and again, you know, every study
sort of has its own triggers. One has long
working hours and another has depression and
another has something else. It's a very
confusing literature that doesn't permit you
to come to any definite conclusion. But,
your question, are there some studies that
show a relationship, yes.
The conclusion of Dr. Scheidt's deposition testimony is similarly
ambiguous:
Most cases that are very common that
occur in men just like Mr. Siebert, they
occurred for seemingly random and
inexplicable reasons. And since so many
other cases occur for no reason, since the
medical literature in our experience gives us
no particular reason, I have to conclude that
also in Mr. Siebert's case . . . there is no
clear reason and no reason to believe that it
is related to his job stress.
(Emphasis added).
Dr. Allan's testimony is no more conclusive. When
asked whether exhaustion was a significant factor in Siebert's
death, Dr. Allan stated that "[t]here really is not the database
to answer that kind of question."
The majority acknowledges that Norcon's burden was to
provide substantial evidence that "directly eliminates any
reasonable possibility that employment was a factor in causing
the disability." Inconclusive medical testimony emphasizing a
lack of data does not satisfy that burden. Therefore, I would
affirm the determination of the Board.
IN THE SUPREME COURT OF THE STATE OF ALASKA
NORCON, INC., and )
EAGLE PACIFIC INSURANCE CO. )
) Supreme Court No. S-5599
Appellants, )
) O R D E R
v. )
)
ALASKA WORKERS' COMPENSATION )
BOARD and ELLEN SIEBERT, )
)
Appellees. )
______________________________)
Superior Court No. 3AN-92-1178 Civil
Before: Moore, Chief Justice, Rabinowitz,
Matthews, and Compton, Justices, and Bryner,
Justice, pro tem.*****
On consideration of Appellees' motion for
reconsideration, filed on July 1, 1994, treated by this court as
a petition for rehearing,
IT IS ORDERED:
1. Opinion No. 4097 published on July 1, 1994, is
WITHDRAWN.
2. The petition for rehearing is GRANTED.
3. Opinion No. 4119 is issued on this date in its
place.
Entered by direction of the Court at Anchorage, Alaska,
on September 9, 1994.
CLERK OF THE SUPREME COURT
__________________________
JAN HANSEN
_______________________________
*Sitting by assignment made pursuant to article IV, section
16 of the Alaska Constitution.
1 Alaska Workers' Compensation Act, AS 23.30.005 -.270,
creates a presumption that a claim for compensation falls within
its provisions. AS 23.30.120(a). This statute provides in part:
(a) In a proceeding for the enforcement
of a claim for compensation under [the Alaska
Workers' Compensation Act] it is presumed, in
the absence of substantial evidence to the
contrary, that
(1) the claim comes within the
provisions of [the Alaska Workers'
Compensation Act];
To establish the presumption of compensability, Ellen
relied on her testimony that Kenneth said he was exhausted from
the job, and on the testimony of two of Norcon's witnesses -- Dr.
Allan and Dr. Scheidt. Ellen also contended before the Board
that the presumption was met because Kenneth's sudden cardiac
death occurred at a remote site. She utilizes the "remote site"
theory because Kenneth's sudden cardiac death did not occur
while he was working, but rather while at his living quarters
before leaving for work. She concludes that because Norcon
provided food and shelter, Kenneth was at a "remote site." She
contended that had Kenneth's ventricular fibrillation occurred in
Anchorage, he would have had a better chance of recovery, because
he could have been defibrillated earlier. Evidence was presented
at the hearing concerning the timing of medical attention given.
However, the Board did not address this issue. It determined
that the claim was compensable based on its decision that Dr.
Allan's and Dr. Scheidt's testimony was "inconclusive,
contradictory, and doubtful."
We conclude that the "remote site" theory is
inapplicable in this case. The principle behind the "remote
site" theory is that because a worker at a remote site is
required, as a condition of employment, to eat, sleep and
socialize on the work premises, activities normally divorced from
his work become part of the working conditions to which the
worker is subjected. Anderson v. Employers Liab. Assurance
Corp., 498 P.2d 288, 290 (Alaska 1972) (remote site employee,
subject to call at any time, injured in a pole-climbing contest
on the employer's premises). "For these reasons many courts have
concluded that when an employee is working in a remote area far
from family and friends and the normal recreational outlets
available to the working man, his recreational activities become
an incident of his employment." Id. (footnote omitted). See
also, Sokolowski v. Best W. Golden Lion Hotel, 813 P.2d 286, 291
n.4 (Alaska 1991) (court distinguishes the remote site situation
from the more usual employment where employees have fewer
constraints in their choices for after-work activity). Getting
ready for work is not an activity choice made as a result of
limited activities offered at a remote site. It is an activity
that most employees engage in before they go to work, regardless
of their location. Therefore, it does not fall within the
parameters of the "remote site"theory.
2 In fact, Norcon contends that the presumption of
compensability was rebutted by Dr. Scheidt's alternative
explanation for Kenneth's death. Dr. Scheidt opined that Kenneth
had what is the number one cause of death in the United States --
atherosclerosis.
3 AS 23.30.122 provides:
The board has the sole power to
determine the credibility of a witness. A
finding by the board concerning the weight to
be accorded a witness's testimony, including
medical testimony and reports, is conclusive
even if the evidence is conflicting or
susceptible to contrary conclusions. The
findings of the board are subject to the same
standard of review as a jury's finding in a
civil action.
4 The dissent focuses on the experts' uncertainty
regarding causes of sudden cardiac death. The dissent reasons
that because there is medical uncertainty regarding causes of
sudden cardiac death, an expert's opinion that a specific event
was not a substantial cause in the employee's sudden cardiac
death should not be given any weight. If we accept the dissent's
reasoning, an employer would be unable to rebut the presumption
of compensability of work relatedness whenever an employee
suffers sudden cardiac death. We decline to adopt such an
irrebuttable presumption.
*****Sitting by assignment made pursuant to article IV,
section 16 of the Alaska Constitution.
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