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AK Pulp Corp. & AK Timber Ins. v. Trading Union Inc. & AK National Ins. Corp. (6/9/95), 896 P 2d 235
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Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0607, fax (907) 276-5808.
THE SUPREME COURT OF THE STATE OF ALASKA
ALASKA PULP CORPORATION and )
ALASKA TIMBER INSURANCE ) Supreme Court No. S-5782
EXCHANGE, )
)
Appellants, )
) Superior Court No.
v. ) 1JU-92-593 CI
)
TRADING UNION, INC., and ) O P I N I O N
ALASKA NATIONAL INSURANCE CO.,)
)
Appellees. ) [No. ____ - (date)]
______________________________)
Appeal from the Superior Court of the
State of Alaska, First Judicial District,
Juneau,
Thomas M. Jahnke,
Judge.
Appearances: Paul M. Hoffman,
Robertson, Monagle & Eastaugh, P.C., Juneau,
for Appellants. T. G. Batchelor, Batchelor,
Brinkman & Pearson, Juneau, for Appellees.
Before: Moore, Chief Justice,
Rabinowitz, Matthews, Compton and Eastaugh,
Justices.
MATTHEWS, Justice.
Jeffrey Anderson suffered a fractured and dislocated
shoulder in a logging accident on November 7, 1989, while working
for Alaska Pulp Corporation. After treatment and arthroscopic
surgery, Anderson went to work in a grocery store owned by
Trading Union, Inc., on February 26, 1990. On May 21, 1990,
while working at the grocery store, Anderson again dislocated his
shoulder while lifting a box weighing no more than twenty-five
pounds. Anderson was unable to work after the incident.
Additional surgery was performed in October of 1990. One of
Anderson's physicians opined that his shoulder was stable and
stationary as of January 21, 1991, giving it a permanent partial
impairment rating of 5.5%.
The Workers' Compensation Board (Board) determined that
Alaska Pulp was responsible for payment of all benefits under the
Alaska Workers' Compensation Act, except for four weeks of
temporary total disability following the May 21, 1990 incident
for which Trading Union was found to be responsible. On appeal,
the superior court affirmed the Board's determination that Alaska
Pulp was generally responsible for payment of benefits to
Anderson, but reversed the Board's determination that Trading
Union was responsible for four weeks of temporary total
disability.1 Alaska Pulp appeals from the ruling of the superior
court.
The first issue is whether the Board erred in requiring
Alaska Pulp, rather than Trading Union, to pay the bulk of
Anderson's benefits. In sum, Alaska Pulp argues that, since
Anderson was able to work before the lifting incident and not
afterwards, the lifting incident was necessarily a legal cause of
his subsequent disability and therefore, under the last injurious
exposure rule, the responsible cause of the disability. The
applicable test, however, does not employ this post hoc ergo
propter hoc reasoning. See Olsen Logging Co. v. Lawson, 856 P.2d
1155, 1159 (Alaska 1993) (describing last injurious exposure
rule). Instead, the second injury must be a substantial factor
in bringing about the disability, a test which is satisfied "only
by a showing of both cause-in-fact and proximate cause: that the
injury would not have happened 'but for' an act, omission or
force and that reasonable persons would regard this act, omission
or force as a cause and attach responsibility to it." Fairbanks
North Star Borough v. Rogers & Babler, 747 P.2d 528, 532 (Alaska
1987). Whether legal cause exists is a question of fact to be
determined by the Board. Peek v. SKW/Clinton, 855 P.2d 415, 418
(Alaska 1993). On appeal, the determination of the Board must be
upheld if supported by substantial evidence on the whole record.
Marsh v. Alaska Workmen's Compensation Bd., 584 P.2d 1134, 1137
(Alaska 1978). The Board's determination that the injury
suffered by Anderson while working for Trading Union was not a
substantial factor in bringing about his long-term disability is
supported by substantial evidence.2
The second issue is whether the superior court erred in
reversing the Board's determination that Trading Union was
responsible for four weeks of temporary total disability
subsequent to the lifting incident. This determination by the
Board is also one of fact, reviewable under the substantial
evidence on the whole record standard. The superior court erred
on this point because such evidence does exist.3
For these reasons the judgment of the superior court is
AFFIRMED IN PART and REVERSED IN PART and this case is REMANDED
with directions to the superior court to affirm the decision of
the Board.
_______________________________
1 The record does not show that Trading Union appealed
this point to the superior court.
2 The evidence consists of (1) Anderson's testimony that
his arm continued to dislocate after his initial shoulder injury
and before the subsequent injury; (2) physical therapy records
from the period after Anderson's first surgery and before the
Trading Union injury which reveal reports of instability, pain
and grinding sounds like those occurring before the first surgery
and reports that the shoulder was dislocating; (3) Dr. Shields'
opinion that the Trading Union lifting incident was not a
significant exacerbation or aggravation of the shoulder injury
but rather merely helped to reveal what was already wrong with
Anderson's shoulder; (4) Dr. Shields' opinion that Anderson's
post-lifting incident difficulties were attributable to the
logging accident; (5) Dr. Coon's opinion that the logging
accident was the cause of all of Anderson's shoulder problems;
and (6) Dr. Matsen's opinion that the lifting incident was only a
"manifestation"of the earlier injury.
3 The evidence consists of testimony by Dr. Shields that
the lifting incident temporarily worsened Anderson's shoulder
condition for an estimated period of four weeks.
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