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Tinker v. Veco, Inc. (3/29/96), 913 P 2d 488
Notice: This opinion 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, phone (907) 264-0607, fax (907) 276-5808.
THE SUPREME COURT OF THE STATE OF ALASKA
WILLIAM G. TINKER, )
) Supreme Court No. S-6809
) Superior Court No.
v. ) 3AN-93-10191 CI
VECO, INC., EAGLE PACIFIC )
INSURANCE CO., ALASKA ) O P I N I O N
INSURANCE GUARANTY ASSOC., )
and the ALASKA WORKERS' ) [No. 4329 - March 29, 1996]
COMPENSATION BOARD, )
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Milton M. Souter,
Appearances: Charles W. Coe, Anchorage, for
Appellant. Clay A. Young, Delaney, Wiles,
Hayes, Reitman & Brubaker, Inc., Anchorage,
for Appellees Veco, Inc. and Alaska Insurance
Guaranty Assoc. Phillip J. Eide, Eide &
Miller, P.C., Anchorage, for Appellees Veco,
Inc. and Eagle Pacific Insurance Co.
Before: Compton, Chief Justice, Rabinowitz,
and Matthews, Justices, and Carpeneti,
Justice pro tem.* [Moore and Eastaugh,
Justices, not participating.]
COMPTON, Chief Justice.
William G. Tinker appeals a decision of the superior
court affirming the denial of his compensation claims by the
Alaska Workers' Compensation Board (the Board). The Board denied
one claim for failure to give timely notice, a second claim for
failure to establish a prima facie case for compensation, and a
third claim for failure to establish all elements of the claim by
a preponderance of evidence, once the presumption of
compensability had been rebutted. We affirm the decisions of the
Board and the superior court as to the second and third claims,
but reverse their decisions on the first claim. We hold that
Tinker's failure to give notice should have been excused. We
remand the case for further proceedings on this claim.
William G. Tinker has suffered from diabetes since the
mid-1970s. People who suffer from diabetes are particularly
vulnerable to a range of foot problems, collectively referred to
as "diabetic foot." Diabetes may sometimes interact with an
unrelated foot injury to produce severe complications. Diabetes-
related foot conditions can progress to the point that amputation
Tinker began working for Veco, Inc. (Veco) in 1985 as
an equipment manager on the North Slope. He claimed he suffered
frostbite to his right foot in February 1986, while on the job
moving equipment at the Kuparuk field. Shortly thereafter he
discovered a blister on his right big toe. Tinker did not fill
out a written report of the frostbite incident, although he did
inform Veco project manager Grover Moreland and construction
superintendent Marvin King about the incident.
The blistered toe on the right foot soon became
infected. By the time it began to heal, the big toe on his left
foot started getting red and sore; the toe on that foot required
surgery later in 1986.1 In 1987 Tinker had surgery for a "hammer
toe" on his right foot. Both feet later became red and swollen.
They were operated on in December 1988. Tinker returned to work
in January 1989, at which time he filled out a report of
occupational injury for the 1986 frostbite incident. This report
was the first he filled out regarding any injuries to his feet.
Tinker had further foot problems and surgery through 1989 and
Tinker claimed he injured his left ankle and foot on
the job in December 1990, when he slipped on ice while stepping
off a truck. Upon examination, Tinker was diagnosed as having
Charcot osteoarthropathy in his left foot, a diabetes-related
condition in which the bones of the foot become demineralized and
weakened, break down, and assume an abnormal position. He
underwent further foot surgery in April 1991, in which bone was
removed from both of his feet.
In May 1991 Tinker returned for the last time to his
work on the North Slope, but he had to be evacuated to Anchorage
when he became ill in early June. He attributes this illness to
food poisoning from a meal at the company mess hall. Swelling in
his left foot then led to further surgery later in June.
In November 1991, Tinker's left leg had to be
surgically amputated below the knee.
Proceedings before the Board had been initiated by the
time Tinker's leg was amputated. In September 1991 Tinker filed
an application for adjustment of claim against Veco and its
insurance carrier, the Eagle Pacific Insurance Company (Eagle
Pacific), after they controverted claims he made for compensation
stemming from the 1990 foot injury and the 1991 food poisoning.
Eagle Pacific claimed that any problems with Tinker's feet
stemmed from his diabetes, not from the fall or any food
poisoning. In April 1992, several months after the amputation,
Eagle Pacific filed a petition requesting that Pacific Marine
Insurance Company (PacMar), Veco's insurance carrier at the time
of Tinker's 1986 frostbite injury, be joined as a party to the
claim; it argued that the 1986 incident was the original injury
that "allegedly caused his current condition." Because PacMar
was insolvent, the Alaska Insurance Guaranty Association (AIGA)
appeared as a party instead.
Tinker argued before the Board that the amputation was
a compensable result of the 1986 frostbite injury to his right
toe, the 1990 ankle injury, and the 1991 food poisoning.2 The
Board rejected the frostbite claim, finding that notice of the
injury was not properly given under AS 23.30.100(b), and that
this failure to provide proper notice was not excusable under AS
23.30.100(d)(1). It rejected the ankle injury claim, finding
that Tinker had failed to present any evidence connecting the
ankle injury with the later need for surgery and amputation, thus
failing to raise the presumption of compensability. Regarding
the food poisoning claim, the Board found that Tinker had
produced enough evidence to raise the presumption of
compensability, but that Veco had provided substantial evidence
rebutting this presumption. The Board then found that Tinker had
failed to prove all elements of this claim by a preponderance of
the evidence, as he had to do once the presumption was rebutted.
Thus, the Board rejected all of Tinker's claims for compensation.
The superior court sitting as an intermediate appellate court
affirmed the Board's decision, and Tinker now appeals.
II. Tinker's Failure to Give Timely Notice of his 1986 Frostbite
Injury was Excusable
AS 23.30.100(a) requires that notice of an injury be
given to the Board and the employer within thirty days of the
injury; AS 23.30.100(b) requires that such notice be in writing.3
Tinker did not give written notice of the frostbite injury until
January 1989, almost three years after the injury was sustained.
Thus, the Board correctly found that he had failed to give timely
notice of this injury.
The Board then proceeded to determine whether this
failure was excusable under AS 23.30.100(d)(1).4 Two
requirements must be met before this excuse can be applied:
first, knowledge of the injury by the employer, in-charge agent,
or carrier, and second, a lack of prejudice to the employer or
carrier. The Board found that King and Moreland were agents in
charge of Veco's business at the time and place of the frostbite
injury. It concluded that their knowledge of the frostbite
satisfied the first requirement under section 100(d)(1). It then
found, however, that the second requirement had not been met
because the employer had been prejudiced by the failure to give
timely written notice of the injury.
Tinker challenges the Board's finding of prejudice,
claiming that there was insufficient evidence to support this
finding. This court reviews findings of the Board under the
substantial evidence standard and will not vacate findings of the
Board that are supported by such evidence. Alaska State Hous.
Auth. v. Sullivan, 518 P.2d 759, 760 (Alaska 1974). However, the
ultimate question of whether the quantum of evidence is itself
substantial is a legal question, for which the court will
independently review the evidence. Fireman's Fund American
Insurance Cos. v. Gomes, 544 P.2d 1013, 1015 (1976). Substantial
evidence is "such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion." Id.; Sullivan, 518
P.2d at 760-61.
Timely written notice of an injury is required both
because it lets the employer provide immediate medical diagnosis
and treatment to minimize the seriousness of the injury, and
because it facilitates the earliest possible investigation of the
facts surrounding the injury. State v. Moore, 706 P.2d 311, 312
(Alaska 1985); Sullivan, 518 P.2d at 761; Morrison-Knudsen Co.
v. Vereen, 414 P.2d 536, 537 (Alaska 1966). Thus a failure to
provide timely notice that impedes either of these two objectives
prejudices the employer.
To evaluate whether Tinker's failure to submit written
notice prejudiced his employer, we must first ask whether this
written notification would have informed Veco of anything about
which Tinker had not already told King and Moreland. If a
legally sufficient written notification would have only
duplicated the same information Tinker already had communicated
verbally to Veco through its in-charge agents, it would require
an exceptional set of circumstances for this difference in the
form by which the information was conveyed to prejudice the
Tinker told King and Moreland what he knew of his
injury at the time: that he had suffered frostbite while moving
equipment at Kuparuk. Written notice containing identical
information would have constituted a legally sufficient
"statement of the time, place, nature, and cause of the injury"
as required by section 100(b).5 No additional information would
have been necessary.6
No substantial evidence in the record supports the
finding that Veco was prejudiced simply because the knowledge it
obtained was received through a verbal communication, instead of
a written notification. Had an intervening event prevented King
and Moreland from communicating to Veco the information they had
received, there might be a factual basis for finding that
Tinker's failure to convey information through formal, written
channels had prejudiced Veco. Here, however, no such situation
existed. Through its in-charge agents, Veco had received all of
the information a written notice of injury would have conveyed.
Nothing prevented these in-charge agents from informing the
appropriate company personnel of an injury that had occurred at a
worksite under their control; any prejudice that may have
resulted is attributable to a failure of communication within the
company and not to the manner in which Tinker informed it of his
injury.7 Tinker did not deprive Veco of the opportunity either
to investigate the injury or to seek prompt medical diagnosis and
treatment. Because no substantial evidence supports the
assertion that Tinker's failure to give notice could have
prejudiced Veco in any way, the Board's finding of prejudice must
On remand, the Board will first need to determine
whether Tinker's claim was timely filed under AS 23.30.105. If
the Board finds that the claim was timely filed, it must then
address this claim on its merits.
III. The Board Correctly Applied the Presumption of
Compensability in Rejecting Tinker's Claims for Compensation
Based on his 1990 Ankle Injury and 1991 Illness
AS 23.30.120(a)(1) creates a presumption in favor of
compensability.8 In cases involving pre-existing medical
conditions, the aggravation or acceleration of the condition by
the injury must be presumed. Burgess Construction Co. v.
Smallwood, 623 P.2d 312, 315 (Alaska 1981) (Smallwood II).
However, the presumption does not attach until the employee
establishes a preliminary link between the disability and the
employment. Furthermore, "in claims 'based on highly technical
medical considerations' medical evidence is often necessary in
order to make that connection." Id. at 316 (quoting Commercial
Union Cos. v. Smallwood, 550 P.2d 1261, 1267 (Alaska 1976)
(Smallwood I). Once the employee makes a prima facie case of
work-relatedness, the presumption of compensability attaches and
shifts the burden of production to the employer. Veco, Inc. v.
Wolfer, 693 P.2d 865, 869 (Alaska 1985). To overcome the
presumption of compensability, the employer must then present
substantial evidence that the disability is not work-related.
Miller v. ITT Arctic Servs., 577 P.2d 1044, 1046 (Alaska 1978).
This can be accomplished either by producing affirmative evidence
that the injury is not work-related or by eliminating all
reasonable possibilities that the injury is work-related.
Smallwood II, 623 P.2d at 316. Medical evidence may be necessary
to rebut the presumption of compensability, depending on "the
probative value of the available lay evidence and the complexity
of the medical facts involved." Veco, 693 P.2d at 871. Once the
presumption of compensability is rebutted, the employee must
prove all elements of her case by a preponderance of the
evidence. Id. at 870.
The Board found that no medical evidence in the record
supported Tinker's claim that his 1990 ankle injury aggravated,
accelerated, or combined with his pre-existing condition to
become a substantial factor in his need for surgery and
amputation in 1991.9 Thus it concluded that Tinker failed to
establish a prima facie case and that the presumption of
compensability had not attached as to this claim.
The question of whether Tinker met the necessary
quantum of evidence to establish a prima facie case is a legal
question, and this court will independently review the evidence
in answering it. See Fireman's Fund, 544 P.2d at 1015.
Tinker argues that there was sufficient medical
evidence in the record to establish a preliminary link between
his 1990 ankle injury and his 1991 surgery and amputation. He
cites to Smallwood II, 623 P.2d 312, for support. In Smallwood
II, a doctor testified that "working conditions played a
significant role"in the employee's disability; the court found
that this testimony created a preliminary link. 623 P.2d at 314,
316. There was no comparable testimony in this case. The
closest any testimony came to establishing such a link was in the
testimony of a Dr. Mills, and it is clear from reading more than
an isolated line or two of this testimony that this doctor
strongly resisted Tinker's attempts to get him to testify that,
in his professional judgment, the 1990 ankle injury and collapsed
arch could have been a substantial factor in the amputation:
Q. Would you be able to state an opinion as
to whether or not this injury . . . to Mr.
Tinker's left foot could cause an infection
or an ulceration or lesion in Mr. Tinker's
left foot which could culminate in his below-
the-knee amputation of his left foot in
November of '91?
. . .
A. It would cause all those things, but my
point, my idea of that was I didn't think of
it as an injury. It was a gradual,
destructive process, if you wish, that was
occurring in his foot. It happened that he
suddenly might have become aware of it.
But anyway, it was a totally -- it
caused massive changes in his foot that
eventually, with overwhelming infection,
resulted in amputation. And that's a very
. . . .
I can see very much that he would have a so-
called collapse of his arch. But it's
primarily a collapse secondary to destruction
of all his tarsi or many of his tarsi.
. . .
Using your own word, the kind of foot he had
in itself is an eggshell. It's demineralized
and there are changes you've seen on X-ray
with this displacement of bone, so there's
not much substance to hold that foot
This is not testimony suggesting that the 1990 fall may have
played a significant role in the amputation. Our review of the
evidence before the Board leads us to the same conclusion reached
by the Board. There was no medical evidence suggesting that the
1990 fall might have played a significant role in the amputation,
and Tinker's claim for compensation based on that fall was
Tinker also claims that his 1991 illness resulted from
food poisoning at his place of employment, that this work-related
illness spread bacteria throughout his body, and that this
bacteria then seeded an infection in his foot that led to its
amputation. Because Dr. Aubuchon, one of the doctors who
examined Tinker, testified that he could not rule out the
possibility that Tinker had sustained food poisoning which could
have resulted in the infection of his left foot, the Board found
that Tinker had presented a prima facie case that the amputation
was work-related.10 It then found that Eagle Pacific had provided
substantial medical evidence rebutting the presumption. At that
point, Tinker was required to prove all elements of his claim by
a preponderance of the evidence, which the Board found he had
failed to do. Tinker argues that the Board erred in concluding
that Eagle Pacific provided the substantial evidence needed to
rebut the presumption.
This court will independently review the evidence to
determine whether it meets the necessary quantum of
substantiality. See Fireman's Fund, 544 P.2d at 1015. In
reviewing the substantiality of the evidence offered to rebut the
presumption of compensability, this court will examine that
evidence by itself and will not weigh it against evidence tending
to establish causation. Veco, 693 P.2d at 869-70. Substantial
evidence overcomes the presumption if it "'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.'" Big K Grocery v.
Gibson, 836 P.2d 941, 942 (Alaska 1992) (quoting Grainger v.
Alaska Workers' Comp. Bd., 805 P.2d 976, 977 (Alaska 1991)).
Considerable medical evidence documents the progression
of Tinker's foot problems from the 1986 frostbite incident to the
time of his 1991 illness. This evidence creates a "strong
inference" that Tinker's illness was not itself a substantial
cause of the amputation. See Burgess Construction Company v.
Smallwood, 698 P.2d 1206, 1211 (Alaska 1985) (Smallwood III). We
therefore conclude that the medical evidence concerning Tinker's
foot problems from 1986 to 1991 eliminates any reasonable
possibility that his employment during May and June, 1991, was a
factor in causing his amputation.
We AFFIRM the decisions of the Board and the superior
court as to the 1990 ankle injury and 1991 food poisoning claims
against Veco and Eagle Pacific. We REVERSE the decisions of the
Board and the superior court as to the 1986 frostbite claim
against Veco and AIGA, and remand the case for further
proceedings before the Board. On remand, the Board must
determine whether Tinker's frostbite claim was timely filed under
AS 23.30.105. If the claim was timely filed, the Board must
decide this claim on its merits.
* Sitting by assignment made pursuant to Article IV,
section 16 of the Alaska Constitution.
1 There was conflicting medical testimony before the
Board as to whether frostbite to the right foot might ultimately
result in injury to and possible amputation of the left. One
doctor testified that changes in gait due to the right toe ulcer
might have resulted in additional pressure on and injury to the
left foot. A second doctor testified that he could not make a
connection between frostbite to the right foot and injury to the
The second doctor did go on to testify, however, that
the majority of the 1,200 frostbite patients he had treated
suffered frostbite to both limbs, and that it was possible that
if Tinker had sustained a cold injury to his right foot he also
may have sustained such an injury to his left foot as well. A
third doctor testified that Tinker had told her in 1986 that he
had frostbitten both feet, although the compensation claim he
filled out in 1989 only mentions frostbite to the right foot.
2 Tinker's diabetes would not have barred his
compensation claim, so long as the injury he received on the job
aggravated, accelerated, or combined with his medical condition
in a manner that resulted in the loss of the leg. See Burgess
Constr. Co. v. Smallwood, 623 P.2d 312, 315 (Alaska 1981)
(Smallwood II); Cook v. Alaska Workmen's Comp. Bd., 476 P.2d 29,
32 (Alaska 1970); Thornton v. Alaska Workmen's Comp. Bd., 411
P.2d 209, 210 (Alaska 1966).
3 Sec. 23.30.100. Notice of injury or death. (a) Notice
of an injury or death in respect to which compensation is payable
under this chapter shall be given within 30 days after the date
of such injury or death to the board and to the employer.
(b) The notice must be in writing, contain the name and
address of the employee and a statement of the time, place,
nature, and cause of the injury or death, and be signed by the
employee or by a person on behalf of the employee, or in the case
of death, by a person claiming to be entitled to compensation for
the death or by a person on behalf of that person.
4 AS 23.30.100(d)(1) provides:
(d) Failure to give notice does not bar a claim under
(1) if the employer, an agent of the employer
in charge of the business in the place where
the injury occurred, or the carrier had
knowledge of the injury or death and the
board determines that the employer or carrier
has not been prejudiced by failure to give
notice . . . .
5 When questioned at oral argument, counsel for Veco and
AIGA conceded that written notice would have required only this
6 Indeed, such notice probably could not have contained
more information, since Tinker apparently did not know any more
about his injury at the time.
7 Veco claims it was prejudiced because Tinker should
have notified "safety man"Jamie Slack of his injury; Moreland
"did not fill out an accident or injury report form, and he would
not have been the one in the company to do so."
This argument fails because in-charge employees have a
statutory responsibility to report injuries that come to their
knowledge, and employers can be held accountable for their
failure to do so. See AS 23.30.070(e) (If "an agent of the
employer in charge of the business in the place where the injury
occurred . . . has knowledge of an injury . . . and fails,
neglects, or refuses to file a report of it as required by (a) of
this section, the limitations in AS 23.30.105(a) of this chapter
do not begin to run against the claim . . . until the report has
been furnished as required [by] (a) of this section.").
8 Sec. 23.30.120. Presumptions. (a) 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
(1) the claim comes within the provisions of
this chapter . . . .
9 The Board found that this claim involved highly
technical medical considerations and that lay evidence would be
of little probative value; thus it concluded that medical
evidence would be necessary to establish the preliminary link
between the employment and the need for surgery.
10 As with the ankle injury claim, the Board found that
this claim involved highly technical medical considerations and
that lay testimony was of little probative value. Thus it
required medical evidence, both to establish the preliminary link
and to rebut the presumption of compensability.