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Stephens v. ITT/Felec Services (5/3/96), 915 P 2d 620
<![CDATA[
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, telephone (907) 264-0607, fax (907) 276-
5808.
THE SUPREME COURT OF THE STATE OF ALASKA
EDGAR STEPHENS, )
) Supreme Court No. S-6642
Appellant, )
) Superior Court No.
v. ) 4FA-91-1588 CI
)
ITT/FELEC SERVICES and )
CIGNA COS., ) O P I N I O N
)
Appellees. ) [No. 4346 - May 3, 1996]
______________________________)
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District,
Fairbanks,
Dale O. Curda, Judge.
Appearances: Chancy Croft, Chancy Croft Law
Office, Anchorage, for Appellant. Allan E.
Tesche, Russell, Tesche & Wagg, Anchorage,
for Appellees.
Before: Rabinowitz, Matthews, Compton and
Eastaugh, Justices. [Moore, Chief Justice,
not participating.]
EASTA
UGH,
Justi
ce.
MATTHEWS, Justice, dissenting in part.
I. INTRODUCTION
We must decide whether Edgar Stephens's employer,
ITT/Felec Services (ITT), overcame the statutory presumption of
compensability by producing substantial evidence that a heart
attack Stephens suffered while working was not work-related. The
Alaska Workers' Compensation Board (Board) found that ITT
overcame the presumption of compensability. The Board also found
that Stephens was unable to prove his claim by a preponderance of
the evidence. Stephens appeals. We affirm the Board's
conclusion that ITT overcame the presumption of compensability.
We remand for findings on the question of whether Stephens proved
the elements of his claim by a preponderance of the evidence. We
affirm the Board's decision not to order an independent medical
examination.
II. FACTS AND PROCEEDINGS
Stephens was employed by ITT as an electrical rigger.
He worked for three years at remote Distant Early Warning (DEW)
Line sites operated by ITT for the federal government. On May
1, 1990, he arrived for work at the Oliktock, POW-2, site. He
worked at the radome, a metal structure containing radar
apparatus, antennae, and control facilities.1 After arriving, he
staged tools and materials necessary to install a warning light
on top of the radome. Stephens worked until May 4 without
incident.
On May 4 Stephens arose, ate breakfast, smoked a
cigarette, watched the news, and reported to work at 8:00 a.m.2
At approximately 9:00 a.m. he climbed into the interior of the
radome, where he performed some sedentary work near a switch he
and a co-worker had installed two days previously. After
approximately fifteen minutes, Stephens determined that he needed
additional parts from the ground floor radar room, so he
descended approximately forty to fifty-three feet using the
ladders and spiral staircase. He returned with the parts to the
dome's interior, completing the roundtrip in approximately five
minutes. He worked for another two to three minutes until he
found that he needed different parts, which were also located
below. He again made the descent to ground level.
At some point during or after this descent, Stephens
"started breaking out in a sweat,"started coughing, and began
having difficulty breathing. Stephens was uncertain whether his
symptoms began while he was descending the ladders or the
staircase, or if they did not begin until after he had completed
the descent. He testified that he felt that he was "strangling"
from the mucous in his throat. Stephens unsuccessfully tried to
clear his throat by performing a Heimlich maneuver on himself.
He then regurgitated, clearing his air passage, allowing him to
breathe again. He went to his room, where he lay down, elevated
his feet, and calmed himself with deep breathing exercises.
Although he started to feel a little better, he still felt shaky
and weak. After getting up to talk with his supervisor, he
returned to his room, lay down, rested, and noticed some
improvement.
That evening Stephens was driven to Kuparuk where a
physician's assistant took his blood pressure, performed an EKG,
and told him that he might have had a heart attack. Stephens
flew to Fairbanks and saw a variety of physicians; they confirmed
that he had suffered a heart attack.
Stephens underwent exercise stress tests in Fairbanks.
In Anchorage, Dr. William Mayer, a cardiologist, gave him an
angiogram and then performed a cardiac catheterization. The
catheterization indicated blockage of at least two coronary
arteries, "damage to the bottom portion of the heart consistent
with a previous heart attack,"and atherosclerosis.
Stephens recuperated for several months, and returned
to work with ITT on August 28 or 29. His treating physician,
Fairbanks family practitioner Dr. Donald Thieman, released
Stephens to his previous employment without restriction.
Stephens worked in this capacity with ITT until he was laid off
on September 21.
Stephens subsequently filed a workers' compensation
claim, which ITT and its insurer, CIGNA Companies, (collectively
"ITT") controverted, pending medical documentation that his
condition arose out of his employment. Stephens filed an
Application for Adjustment of Claim, asking that his heart attack
be accepted as a work-related injury, and requesting an award of
benefits. The Board heard testimony and issued a Decision and
Order on June 20, 1991, awarding Stephens compensation on the
ground that ITT had not overcome the statutory presumption of
compensability. ITT sought reconsideration, arguing that the
Board had applied an incorrect standard of law in determining
that ITT had not overcome the presumption. By decision of August
1991, the Board found that ITT had not overcome the presumption
because it had not eliminated all reasonable possibilities that
work-related conditions were a substantial factor in the
development of his heart attack.
ITT appealed to the superior court. In October 1992
that court remanded the case to the Board with instructions to
apply the legal standard articulated in Big K Grocery v. Gibson,
836 P.2d 941 (Alaska 1992).
In a two-to-one decision issued in March 1993, the
Board concluded on remand that ITT had overcome the presumption
of compensability and that Stephens was unable to prove his claim
by a preponderance of the evidence.3 Thus the Board denied
Stephens's claim for benefits. Stephens appealed the Board's
decision; the superior court affirmed. This appeal followed.
III. DISCUSSION
Under the Alaska Workers' Compensation Act, an
employee's claim is presumed to be compensable. AS
23.30.120(a)(1). Application of this statutory presumption
involves a three-step analysis. Gillispie v. B & B Foodland, 881
P.2d 1106, 1109 (Alaska 1994). First, the employee must
establish a "preliminary link"between his or her disability and
the employment. Id. After this link is established, it is the
employer's burden to overcome the presumption by coming forward
with substantial evidence that the injury was not work-related.
Id. (citing Miller v. ITT Arctic Servs., 577 P.2d 1044, 1046
(Alaska 1978)). Substantial evidence is "such relevant evidence
as a reasonable mind might accept as adequate to support a
conclusion." Id. (quoting Grainger v. Alaska Workers'
Compensation Bd., 805 P.2d 976, 977 n.1 (Alaska 1991)). In
determining whether the employer produced substantial evidence,
"[i]t is not the function of this court to reweigh the evidence
but only to determine whether such evidence exists." Kessick v.
Alyeska Pipeline Serv. Co., 617 P.2d 755, 757 (Alaska 1980).
An employer has always been able to rebut the
presumption of compensability by presenting expert opinion
evidence that "the claimant's work was probably not a substantial
cause of the disability." Big K Grocery v. Gibson, 836 P.2d 941,
942 (Alaska 1992). Since the presumption shifts only the burden
of production to the employer and not the burden of proof, we
examine the evidence tending to rebut the presumption by itself
in determining whether substantial evidence has been presented.
Veco, Inc. v. Wolfer, 693 P.2d 865, 869 (Alaska 1985). Medical
testimony cannot constitute substantial evidence if it simply
points to other possible causes of an employee's injury without
ruling out work-related causes. Childs v. Copper Valley Elec.
Ass'n, 860 P.2d 1184, 1189 (Alaska 1993).
Once the employer produces substantial evidence to
rebut the presumption of compensability, the presumption vanishes
and the employee must prove the elements of his or her claim by a
preponderance of the evidence. Wolfer, 693 P.2d at 870. In
reviewing the Board's decision as to whether a claimant has
established his or her claim by a preponderance of the evidence,
we determine whether the Board's findings are supported by
substantial evidence. Gillispie, 881 P.2d at 1111.
A. Rebuttal of Presumption of Compensability
Stephens argues that the Board erred in failing to make
findings regarding his working conditions, the testimony of lay
witnesses, and Dr. Thieman's opinion in its determination that
ITT had overcome the presumption of compensability.
In reaching its decision, the Board relied on the
testimony of three physicians: Stephens's treating
otolaryngologist, Richard Raugust, M.D.,4 Stephens's treating
cardiologist, William Mayer, M.D., and ITT's cardiologist,
Geoffrey Tofler, M.D. The Board also considered Stephens's
testimony regarding his job and the conditions surrounding the
job. The Board's decision did not mention the testimony of
Stephens's co-workers about the working conditions. None of the
physicians who evaluated Stephens directly heard the co-workers'
comments.
Stephens argues that the Board erred by declining to
issue detailed findings of fact regarding the testimony of the
lay witnesses. In determining whether ITT rebutted the
presumption of compensability, however, the Board does not weigh
evidence offered by the employer against that offered by the
employee, but rather examines the evidence offered by the
employer standing alone. Wolfer, 693 P.2d at 869. Although the
Board need only look at evidence tending to rebut the presumption
of compensability, that evidence must be comprehensive and
reliable.
To be comprehensive and reliable, the physicians'
testimony about whether Stephens's work was a substantial cause
of his heart attack necessarily had to consider Stephens's work
conditions on the day of his attack. These conditions included
the temperature, the amount of dust in the atmosphere, the level
of physical exertion required, the level of emotional stress, and
Stephens's diet. Even though the physicians did not directly
hear the lay witnesses' testimony, the attorneys asked the
physicians about various hypothetical situations. Some of these
hypotheticals incorporated the content of the lay witnesses'
testimony. The doctors also interviewed Stephens to some extent,
and at least one of them, Dr. Tofler, reviewed Stephens's
deposition before formulating his opinion. The two
cardiologists, Drs. Mayer and Tofler, agreed that as represented
to them, the levels of Stephens's physical exertion, emotional
stress, diet, and cold were not substantial factors in bringing
about his heart attack.5 They agreed that coughing may have
triggered the heart attack, although neither physician professed
to know the cause of the cough. Dr. Raugust, an ear, nose, and
throat specialist, stated that the cause of Stephens's coughing
and laryngospasm was not the cold dry air of the North Slope, the
dust, or the level of physical exertion, but was the phlegm
produced by Stephens's smoking and chronic sinus disease. He
testified that because of Stephens's smoking and sinus disease,
this coughing episode would have occurred "anywhere in the
world."
Thus, in reaching their conclusions that Stephens's
heart attack was not work-related, the physicians took into
account their understanding of his work conditions. Their
understanding was based on a factually permissible interpretation
of the work conditions.
Drs. Mayer and Tofler agreed that if Stephens's work
conditions differed from those that they considered (for example,
if there were a higher level of physical exertion involved) the
conditions might in fact have been a significant factor in
causing his heart attack. See supra note 5. The existence of a
potentially material, genuine fact dispute about Stephens's
actual work conditions, however, does not mean the Board erred by
ruling that ITT overcame the presumption of compensability. The
physicians based their opinions on a state of facts, which,
although disputed, could be permissibly resolved in favor of the
employer. The physicians' conclusions favoring the employer, and
the permissible fact assumptions underlying those conclusions,
standing alone, constitute sufficient evidence to rebut the
presumption of compensability. "It 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."
Big K Grocery, 836 P.2d at 942. "[I]t is not the function of
this court to reweigh the evidence but only to determine whether
such evidence exists." Gillispie, 881 P.2d at 1109 (quoting
Kessick, 617 P.2d at 757). We give deference to the Board's
determination of a witness's credibility. AS 23.30.122. Thus,
we conclude that the Board's finding that ITT rebutted the
presumption of compensability was based on substantial medical
evidence which eliminated all reasonable possibilities that the
heart attack was work-related.
B. Preservation of Remaining Issues
ITT argues that the only question appealed to the
superior court in September 1991 was the issue of whether the
employer rebutted the presumption of compensability. ITT reasons
that because Stephens did not raise any issues on cross-appeal in
the superior court, he waived his right to raise those issues
here.
Stephens arguably waived his right to appeal any issue
other than whether ITT rebutted the presumption of
compensability.6 Nonetheless, we conclude that under the
specific circumstances of this case, Stephens did not so clearly
waive these remaining issues that we should not consider them.7
C. Preponderance of the Evidence
After concluding that ITT had rebutted the presumption
of compensability, the Board's March 1993 decision found that
Stephens did not prove his claim by a preponderance of the
evidence. The Board stated:
Based on our conclusion that the defendants
have submitted substantial evidence to
overcome the presumption, we find the
employee must prove his claim by a
preponderance. Upon reviewing the entire
record, including the medical evidence
outlined above, we find he is unable to prove
his claim. Accordingly, we find by a great
weight of evidence that his claim for
workers' compensation benefits must be
denied.
Stephens argues that the Board erred in using the same
analysis to decide both that ITT overcame the presumption of
compensability and that Stephens was unable to prove his claim by
a preponderance of the evidence. He asserts that the standards
for making these two determinations differ because the evidence
offered to overcome the presumption should be viewed in
isolation.
Evidence offered by the employer to rebut the
presumption of compensability is viewed in isolation and is not
weighed against contrary evidence offered by the employee. In
Norcon, Inc. v. Alaska Workers' Compensation Bd., 880 P.2d 1051,
1054 (Alaska 1994), we explained that testimony is not weighed at
the rebuttal stage. Thus, the physicians' testimony could be
weighed only after the Board determined that the presumption had
been overcome. Id.; see also Wolfer, 693 P.2d at 869 ("[T]he
presumption [of compensability] shifts only the burden of
production and not the burden of persuasion.").
The Board stated that "[u]pon reviewing the entire
record, including the medical evidence outlined above, we find
[that Stephens] is unable to prove his claim. Accordingly, we
find by a great weight of evidence that his claim for workers'
compensation benefits must be denied." Given the dispute about
Stephens's work conditions, and the potential materiality of that
dispute, the Board did not make sufficiently specific findings.
The Board did not discuss the work conditions dispute or even
acknowledge the testimony of Stephens's co-workers regarding work
conditions.8 The Board's conclusory statement consequently does
not permit adequate appellate review of its finding that the
preponderance of the evidence did not support Stephens's claim.
See Hewing v. Alaska Workmen's Compensation Bd., 512 P.2d 896,
898 (Alaska 1973) (remanding because "findings of fact filed by
the Board in regard to its disability determination do not permit
us to intelligently review" the appellant's assertions).
Therefore, we remand to the Board to make the appropriate
findings regarding the weight of the evidence.
At oral argument before us, Stephens's counsel also
argued that the Board's March 1993 decision failed to weigh the
opinion of Dr. Lawrence Repsher, a consultant in diseases of the
chest and critical care medicine. Dr. Repsher's testimony
potentially supported Stephens's claim that the work conditions
caused his heart attack.9
In a footnote, the Board's decision stated:
We note the employee's argument that our IME
physician, William Raphshire, [sic] M.D.,
concluded the coughing episode did not cause,
but was caused by, the heart attack. In
determining whether the presumption was
overcome, however, we do not weigh his
evidence in our consideration, but examine
the opinions of qualified experts in
isolation. Wolfer, 693 P.2d at 869.
It is unclear whether the Board, after determining that
ITT had overcome the presumption of compensability, then gave any
consideration to Dr. Repsher's opinion in deciding whether
Stephens had proven his claim by a preponderance of the evidence.
The Board may have considered Dr. Repsher's evidence in this
context, but its decision does not say so. On remand the Board
should indicate whether it has considered Dr. Repsher's opinion
in deciding whether Stephens proved his claim by a preponderance
of the evidence.
D. Independent Medical Evaluation
Alaska Statute 23.30.095(k) states in relevant part:
In the event of a medical dispute regarding
determinations of causation, medical
stability, ability to enter a reemployment
plan, degree of impairment, functional
capacity, the amount and efficacy of the
continuance of or necessity of treatment, or
compensability between the employee's
attending physician and the employer's
independent medical evaluation, a second
independent medical evaluation shall be
conducted by a physician or physicians
selected by the board from a list established
and maintained by the board.
Stephens argues that the Board erred in failing to
order an independent medical examination (IME) under AS
23.30.095(k) regarding the cause of his heart attack. He argues
that because the opinions of Drs. Donald Thieman and Tofler
regarding the cause of his heart attack were in conflict, the
Board should have ordered an IME.
ITT argues that the record provides no basis upon which
the Board could have ordered an IME, because both Stephens's
treating cardiologist, Dr. Mayer, and ITT's cardiologist expert,
Dr. Tofler, concluded that the heart attack was not work-related.
Dr. Thieman is a general practitioner, not a
cardiologist. In a letter to Stephens's attorney, Dr. Thieman
stated:
From the history given by Mr. Stephens,
his symptoms of myocardial infarction began
in the course of vigorous physical exertion
while he was on the job. In this sense there
is a reasonable association between the
physical work of his job and the acute
precipitation of the myocardial infarction.
The other questions as to whether the
physical and psychological stress of the job
overall contributed to his heart disease, and
as to whether diet on the job site was
related to his heart disease would be much
harder to demonstrate and I could not offer
you any particular expertise in that area.
I would suggest if you wish to pursue
the association between the acute physical
exertion and the acute precipitation of the
heart attack, that you obtain an appropriate
expert witness in the area of cardiology, who
can give an opinion as to the percentage of
responsibility to assign to the acute
physical exertion in causing the heart
attack, as opposed to the probability that
the heart attack would have occurred anyway
at somewhere near the same time in the
patient's life.
Thus, although Dr. Thieman saw a "reasonable association"between
Stephens's physical work and his heart attack, he qualified his
statement by recognizing his limited expertise in the area of
cardiology, and suggested that Stephens "get an appropriate
cardiology expert witness who has a more extensive knowledge on
the subject" to pursue the association between the physical
exertion and the heart attack. Because Dr. Thieman was not an
expert in cardiology, had qualified his opinion based on that
limitation, and had deferred to witnesses with expertise in
cardiology, and because two cardiologists opined that Stephens's
heart attack was not work-related, the Board did not abuse its
discretion by not requiring an IME regarding the cause of
Stephens's heart attack.
IV. CONCLUSION
We AFFIRM the Board's decision that ITT overcame the
presumption of compensability. We REMAND to the Board to make
appropriate findings regarding whether Stephens proved his claim
by a preponderance of the evidence. We AFFIRM the Board's
decision not to order an IME.
MATTHEWS, Justice, dissenting in part.
I dissent from that part of the majority opinion which
remands this case to the Board for additional findings on the
question of whether Stephens proved the elements of his claim by
a preponderance of the evidence. In my opinion the Board's
decision contains adequate findings and no remand is necessary.
Findings are adequate when, at a minimum, they show
that the Board considered each issue of significance, demonstrate
the basis for the Board's decision, and are sufficiently detailed
so that they afford an opportunity for meaningful judicial
review. See White v. Alaska Commercial Fisheries Entry Comm'n,
678 P.2d 1319, 1322 (Alaska 1984); Uchitel Co. v. The Telephone
Co., 646 P.2d 229, 236 n.16 (Alaska 1982); Hewing v. Alaska
Workmen's Compensation Bd., 512 P.2d 896, 898 (Alaska 1973). The
findings made by the Board in this case satisfy these three
purposes.
The main issue of significance here is whether
Stephens's heart attack was work related. The Board considered
this issue and found that Stephens had not proven his claim by a
preponderance of the evidence. The Board demonstrated the basis
for its decision, stating that its decision was founded on a
review of the entire record "including the medical evidence
outlined"in the Board's written opinion. Sufficient detail was
supplied as the Board summarized the testimony of Dr. Raugust,
Stephens's treating otolaryngologist, Dr. Mayer, Stephens's
treating cardiologist, and Dr. Tofler, ITT's cardiologist, and
concluded, "uniformly, Drs. Raugust, Mayer, and Tofler agreed
that the employee's work probably was not the cause of the
employee's disability, but that it was caused by a non-work
related condition." An appellate court can readily review the
testimony of these witnesses to determine whether it meets the
substantial evidence standard by which Board findings are tested.
Today's opinion states that the working conditions at
the time of the heart attack were also a contested issue. As I
read the record, what the physical conditions were, and what
Stephens had done before the onset of the attack, were
uncontested, although there is room for cavil as to matters of
degree. In any case, the Board's composite decision discusses
working conditions at length, showing that they were considered.
Further, the circumstances which the Board accepted as true are
apparent from the Board's decision. Finally, the detail of the
Board's decision goes well beyond that employed by most judicial
and agency fact finders and is more than sufficient to facilitate
judicial review. To illustrate these points I quote in the
margin at length from the Board's decision, emphasizing its
discussion of work conditions.10
As a subsidiary holding the majority requires the Board
to make findings indicating what, if any, weight it gave to the
opinion of Dr. Repsher, noting that Dr. Repsher's testimony
"potentially supported Stephens's claim that the work conditions
caused his heart attack." In my view it is asking too much to
require that findings specifically refer to the testimony of
every witness who gives potentially significant testimony on
critical issues. This goes beyond the level of detail necessary
to satisfy the three purposes of findings. Further, Dr. Repsher
's testimony is collateral rather than central to the critical
issue of work relatedness. It seems that his main finding was
that Stephens's heart attack caused his coughing. This contra
dicted some of the testimony offered by the other physicians.
However Dr. Repsher did not testify that the heart attack was
work related.
For the above reasons I would affirm the decision of
the superior court which affirmed the decision of the Board.
_______________________________
1 The dome itself is forty to fifty feet in diameter and
rests on a rectangular structure, known as a "plenum,"
approximately eight feet high. The plenum, which resembles a
large room, stands fifty feet above the ground. To reach a work
site inside the radome, one climbs a nine- to ten-foot ladder
within the ground floor radar room and ascends a spiral staircase
twenty-five to thirty-five feet in height to the floor of the
plenum. One then walks about twenty feet inside the plenum and
then climbs another eight-foot ladder to reach the floor of the
radome. Accordingly, going from the radome floor to ground level
requires a descent of between forty-two and fifty-three feet.
2 Stephens is a smoker who, before his heart attack,
smoked three-quarters of a pack to one pack of cigarettes a day.
He had a history of high blood pressure for which he took at
least two forms of medication before his heart attack, and for
which he had been treated for at least six years.
3 The dissenting Board member stated that ITT had not
presented the substantial evidence necessary to overcome the
presumption of compensability.
4 Because of Stephens's chronic sinus problems, Dr.
Raugust was asked to see Stephens in the hospital at the time he
was admitted for his myocardial infarction. According to Dr.
Raugust, Stephens had a history of nasal injuries from athletics,
a chronic cough, and a longstanding history of chronic sinusitis
documented by x-rays.
5 Both doctors agreed that if there was an unusual level
of physical exertion, emotional stress resulting from either time
pressure or negative racial comments, or an extreme change in
temperature, these factors could have contributed to Stephens's
heart attack. In concluding that Stephens's employment did not
contribute substantially to his heart attack, neither doctor
considered that these factors had been present. However, both
doctors agreed that the Board should consider "the level of
physical activity that [Stephens] engaged in that morning, how
frequently he had engaged in that activity or similar activity in
the past year or two, the time constraint on which he was under,
the temperature, [and] the emotional stress" in determining
whether Stephens's heart attack was work-related.
6 In its August 28, 1991 decision and order on
reconsideration the Board stated:
As we indicated in our June 20, 1991 decision
and order, all the treating and examining
physicians doubted the work-relatedness of
the employee's myocardial infarction.
Nevertheless because no doctor unequivocally
stated that the work was not a "substantial
factor"in causing the myocardial infarction,
and based on our review of the Supreme
Court's analysis in Grainger II, we conclude
the petitioners have not rebutted the
presumption of compensability. In the event
that any appellate court finds the
presumption was overcome, however, based on
the medical testimony in this case, we would
find the employee did not prove the
compensability of his claim by a
preponderance of the evidence. (Emphasis
added.)
In September 1991 ITT filed its notice of appeal which stated
that it appealed:
only from that portion of the Board's
decisions in which the Board found that
appellants did not rebut the presumption of
compensability. Appellants do not appeal
from the finding in the Board's August 28,
1991 decision that had the presumption of
compensability been rebutted, employee Edgar
Stephens did not prove his claim by a
preponderance of the evidence.
As he was clearly on notice that ITT was appealing only the
Board's finding regarding the presumption of compensability,
Stephens should have cross-appealed to preserve his own right to
challenge any unfavorable aspect of what was otherwise a
favorable decision. See Andersen v. Edwards, 625 P.2d 282, 285
(Alaska 1981) (refusing to consider argument because appellee did
not file a cross-appeal and properly raise the issue).
7 The Board's August 1991 decision should be viewed as
separate from its March 1993 post-remand decision which
considered the effect of our 1992 Big K Grocery opinion. The
Board's March 1993 decision concluded that ITT successfully
rebutted the presumption of compensability and that Stephens was
unable to prove his claim by a preponderance of the evidence.
Assuming the appellate process began anew when the Board issued
its March 1993 decision, Stephens's superior court points on
appeal preserved his remaining issues. Moreover, because the
case technically ended when the Board found that ITT had not
overcome the presumption of compensability, it was unnecessary
for the Board's August 1991 decision to find conditionally that
Stephens failed to prove his claim by a preponderance of the
evidence.
8 Although the decision summarized some of the evidence
presented, it does not reflect any findings regarding Stephens's
actual work conditions, discuss the evidence on that issue, or
even mention that issue. Perhaps the Board implicitly found the
work conditions to be as the medical experts assumed them to be.
The failure to mention the issue leaves us without any confidence
that the Board made any such implicit finding. Although it is
true, as the dissenting opinion argues, that "an appellate court
can readily review the testimony of these [expert] witnesses to
determine whether it meets the substantial evidence standard,"
Op. at 20 (Matthews, J., dissenting), it is not clear whether the
Board made the findings of fact essential to acceptance of the
experts' testimony. A remand is consequently necessary.
9 Dr. Repsher was asked to give his opinion on whether
the conditions of Stephens's employment contributed to the
coughing episode that he suffered on the morning of May 4. He
drew a distinction between Stephens's chronic underlying cough,
and the acute coughing episode that Stephens suffered on the
morning of the heart attack. Dr. Repsher wrote that "it is my
opinion, to an overwhelming probability, that the acute onset of
the cough was as a result of his acute myocardial infarction and
not underlying the cause of it." He cited three reasons for this
opinion: (1) Stephens's chronic underlying cough was related to
cigarette smoking as documented by Dr. Thieman; (2) Stephens
smoked a cigarette before going to work on May 4; and (3) his
cough was part of the initial constellation of symptoms, all of
which are characteristic of an acute myocardial infarction. Dr.
Repsher concluded that
his episode of coughing at 0900 hours on 4
May 1990 was not the result of working
conditions while employed for ITT Felec
Services as a rigger, but rather was the
result of transient left ventricular failure
due to a large inferior wall myocardial
infarction and that therefore, the cough was
the result of the myocardial infarction and
not the cause of the myocardial infarction.
Dr. Repsher's testimony potentially supports Stephens's
claim that his work conditions caused his heart attack and
potentially contradicts expert medical testimony that Stephens's
heart attack may have been caused by the coughing episode, and
thus was not work-related. Consequently, Dr. Repsher's testimony
is relevant to the critical issue of work relatedness, and should
have been considered by the Board in deciding whether Stephens
had proven his claim by a preponderance of the evidence.
10
The employee's POW-2 work site consists
of a radar facility known as a radome, which
is a metal structure containing the radar
apparatus, antennae, and control facilities.
The dome itself is approximately 40-50 feet
in diameter and rests on a rectangular
structure known as a "plenum," which is
approximately 50 feet square and 8 feet high.
The plenum, which resembles a large room, is
supported 50 feet above the ground by stilt-
like columns at each corner. Between the
floor of the plenum and the radar room at
ground level is an enclosed spiral staircase
used to travel between the radar room at
ground level and the base of the plenum. To
reach any work site within the interior of
the radome from ground level, one must first
climb a 9-10 foot ladder within the radar
room to a spiral staircase 25-35 feet in
height to the floor of the plenum. From that
point, one walks horizontally about 20 feet
across the floor of the plenum to another 8-
foot ladder, which is then used to reach the
floor of the radome. Accordingly, from any
work area on the floor of the radome to
ground level, one must descend between 42 to
53 feet.
The employee testified that he devoted
the two days after his arrival at the site
assisting in the installation of an obstruc
tion or warning light on the top of the ra
dome, and running a wire from that light to a
switch on the inner wall of the radome. On
Thursday, May 3, 1990, the employee threaded
that wire through a number of brackets, which
he and a co-worker mounted on the inner wall
of the radome. That work was indoor work,
involved the use of a 40-foot wooden
extension ladder and step-ladder, both of
which were moved with the assistance of the
employee and a co-worker, Matt Cowles, during
the day. On each of the three days preceding
his myocardial infarction, the employee
completed work at 5:00 p.m. On each of the
nights preceding his myocardial infarction,
the employee retired at his usual time and
slept normally.
On Friday, May 4, 1990, the employee
arose, ate breakfast, and reported to work at
his usual 8:00 a.m. time. At approximately
9:00 a.m., he climbed up into the interior of
the radome, where he worked in an almost
sedentary fashion in the vicinity of the
switch he and Matt Cowles had installed two
days before. After approximately 15 minutes,
the employee determined he needed additional
small plastic surface mounting clips for the
wire he was installing through the switch, so
he descended approximately 40 to 53 feet
through the series of ladders and the spiral
staircase to get those parts. After
retrieving the parts, the employee returned
to the interior of the radome, completing
that roundtrip in approximately five minutes.
He worked for an additional two to three
minutes and found that the clips were
breaking because of the cold. The employee
then decided to use metal rather than plastic
clips, and again descended through the
ladders and spiral staircase which connect
the interior of the radome to the lower,
ground level of the facility.
At some point during or after descending
to the radar room floor at ground level, the
employee "started breaking out in a cold
sweat" and started coughing. The employee
was uncertain, however, if his symptoms began
while descending the steps or once he had
completed the descent. The employee
testified that he could not breathe and felt
that he "started strangling"from the mucous.
. . . .
The defendants submitted substantial amounts
of medical testimony to show that the various
activities engaged in by the employee at work
did not substantially contribute to his
myocardial infarction. For example, Dr.
Tofler and cardiologist William Mayer, M.D.,
testified they did not think the employee's
act of climbing the radome, or the speed
required to finish the task of replacing
broken brackets, substantially contributed to
the myocardial infarction. Similarly, they
did not think the cold temperatures
substantially contributed to the myocardial
infarctions. Additionally, Dr. Tofler
thought the stress the employee experienced
when working with co-workers and supervisors
who dislike him or who made him the target of
racial remarks did not substantially
contribute to the myocardial infarction.
. . . .
[T]o eliminate the possible work-related
factors as the cause of the heart attack, the
petitioners rely on the following:
1. The physical exertion required at
the time of the heart attack was not unusual.
Dr. Mayer and cardiologist Geoffrey Tofler
testified, however, that physical exertion
could have been a factor in the myocardial
infarction.
2. The cold weather the employee
experienced was not unusual. Nevertheless,
Dr. Tofler testified the cold temperatures
could have increased the risk of heart
attack. Dr. Mayer thought the employee might
suffer from cold-induced recurrent asthma
which could have caused the coughing episode
at the time of the heart attack.
3. The emotional stressors were not
unusual. The record reflects, however, the
employee was subject to pressure due to time
limitations, frustration from breaking parts,
racial slurs and personality clashes with co-
workers and a supervisor. Dr. Tofler thought
these elements could be a factor in the
employee's myocardial infarction.
4. A combination of the above factors
did not play a "significant role"in causing
the myocardial infarction. Nevertheless, Dr.
Tofler testified that each or a "catastrophic
convergence" of all the above factors could
have played a role in the heart attack.
. . . .
According to Dr. Raugust, the cause of
the coughing and laryngospasm was not the
cold, dry air of the North Slope, the
presence of any dust in the air, or physical
exertion, but the wad of phlegm in the
employee's throat. Dr. Raugust testified
that because of the employee's smoking and
sinus disease, this coughing episode would
have occurred "anywhere in the world."
. . . .
A. Cold Weather [Board's emphasis.]
The employee testified that he worked as
a rigger on a regular basis and was assigned
to work at DEW line stations throughout his
three-year employment with the employer. The
employee also testified that his job often
caused him to climb up outdoor antennas, that
he worked indoors and outdoors, and was able
to acclimate himself to both work
environments. The employee spoke directly
with Dr. Tofler about his work in cold
temperatures and indicated to Dr. Tofler that
he had been exposed to significantly colder
weather than he experienced on the morning of
his myocardial infarction.
With these facts in mind, Dr. Tofler
testified that "to a reasonable degree of
medical probability, I do not believe that
the factors (including exposure to cold)
occurring associated with his employment
contributed substantially to the onset of the
myocardial infarction." Dr. Mayer also
testified that it was not likely that cold
temperatures, as experienced by the employee,
was a trigger for his myocardial infarction.
B. Physical Activity [Board's emphasis.]
The employee testified that he worked as
a rigger on a regular basis throughout his
three-year employment with the employer. The
employee stated that his job required him to
often climb up outdoor antennas "some of them
as high as 300 feet, a lot of them around 100
feet." Climbing towers, stairs, ladders and
stepladders was a regular part of the job of
rigger. From speaking directly with the
employee, Dr. Tofler testified that the
employee's work activities before May 1990
were of a similar or more strenuous nature
than they were on the day of his myocardial
infarction.
Dr. Mayer was also provided a
description of the employee's work activities
of May 4, 1990. Dr. Mayer, himself,
reenacted the level of the employee's May 4,
1990 activity. Dr. Mayer testified that at
no time did he feel that was an unusual level
of physical stress that a normal person, even
a person with some coronary disease, should
not be able to do.
Similarly, Dr. Tofler read the
employee's deposition, which describes, in
detail, his employment history and his
physical duties as a rigger for three years
with the employer. Additionally, Dr. Tofler
interviewed the employee in order to
"completely understand"the condition on the
morning of the myocardial infarction. Dr.
Tofler concluded that the employee's activity
"was, at most, moderate for him;" "it was
significantly less than had occurred on many
of his previous work days." Dr. Tofler
reiterated that opinion at hearing,
testifying that "the exertion that Mr.
Stephens did was consistent with the usual
amount of exertion that he had done on
previous occasions . . . it was not extra
ordinary exertion . . . ."
Dr. Mayer testified that to a reasonable
degree of medical probability, the employee's
physical activities on May 4, 1990, were not
a substantial factor in bringing about his
myocardial infarction. Dr. Tofler testified
that to a reasonable degree of medical
probability, the employee's physical
activities associated with his employment did
not contribute substantially to the onset of
his myocardial infarction.
C. Emotional Stress [Board's emphasis.]
Dr. Tofler testified that acute
emotional stress could trigger the onset of a
myocardial infarction. Nevertheless, after
speaking with the employee, Dr. Tofler
concluded that there was no evidence of any
specific statement or episode on the morning
of the employee's heart attack which could
trigger the heart attack and the lack of any
evidence from the employee himself over his
own reaction to such alleged statements.
Dr. Mayer testified that nothing he has
ever read, reviewed, or been told about this
case, or learned from his experience, would
cause him to believe that the employee's
employment was substantial factor in bringing
about the employee's myocardial infarction.
Dr. Tofler testified that he considered
emotional stress and concluded it did not
play a significant role triggering the
employee's myocardial infarction; it was not
a substantial factor.
D. A Catastrophic Convergence [Board's emphasis.]
Dr. Tofler concluded that the employee's
work was not a substantial factor in trigger
ing the myocardial infarction after consider
ation of the "various factors which Mr. Croft
asked you about, that is, the level of
physical activity, time (constraints),
temperature, emotional stress and the other."
Dr. Mayer testified that there was nothing
that he had been made aware of through Mr.
Croft's letter to him, through anything else
Mr. Croft may have sent him, through any
conversations he may have had with Mr. Croft
or anyone else, through his review of the
documents in this case, or from any other
source, that causes him to believe that the
employee's employment or his activities
involved in employment were, on May 4th, a
substantial factor in bringing about his
myocardial infarction.
As the author of medical journal
articles on the subject, Tofler was familiar
with the concept of "catastrophic
convergence." Nevertheless, he concluded
that to a reasonable degree of medical
probability, the factors occurring associated
with the employee's work did not contribute
substantially to the onset of his myocardial
infarction. Dr. Mayer testified that the
employee's employment was not a substantial
factor in bringing about his myocardial
infarction.
(Emphasis added except as noted.)
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