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Melaku A. Ayele v. Unisea, Inc., Alaska National Insurance Company and Employer's Insurance of Wausau (5/28/99), 980 P 2d 955
<![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, phone (907)
264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
MELAKU A. AYELE, )
) Supreme Court No. S-8168
Appellant, )
) Superior Court No.
v. ) 3AN-96-04816 CI
)
UNISEA, INC., ALASKA NATIONAL )
INSURANCE COMPANY, and ) O P I N I O N
EMPLOYER'S INSURANCE OF )
WAUSAU, ) [No. 5124 - May 28, 1999]
)
Appellees. )
)
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Sigurd E. Murphy, Judge Pro Tem.
Appearances: Eric Dickman, Dickman Law Group,
Seattle, Washington, for Appellant. Michael A. Barcott, Faulkner,
Banfield, Doogan & Holmes, Seattle, Washington, and Richard L.
Wagg, Russell, Tesche & Wagg, Anchorage, for Appellees.
Before: Matthews, Chief Justice, Compton,
Eastaugh, Fabe, and Bryner, Justices.
BRYNER, Justice.
I. INTRODUCTION
The Alaska Workers' Compensation Board denied Melaku
Ayele's claim stemming from a disability allegedly caused by his
exposure to chemicals while working for Unisea, Inc. We must
decide whether the Board's decision is deficient for failing to
discuss the testimony of Ayele's lay witnesses. Because the
Board's findings permit meaningful appellate review, we affirm its
decision.
II. FACTS AND PROCEEDINGS
In 1994, Melaku Ayele filed a claim against Unisea, Inc.,
and its insurers, Alaska National Insurance Company and Employers
Insurance of Wausau (collectively, "Unisea"), seeking benefits for
a permanent disability. Ayele alleged that his disability resulted
from repeated exposure to ammonia while working for Unisea in Dutch
Harbor in 1991 and 1992. According to Ayele, the first major
incident of exposure occurred on August 31, 1991, when ammonia
fumes leaked into a Unisea freezer van where he was working. Ayele
experienced a burning sensation in his throat, shortness of breath,
a severe headache, a nosebleed, and vomiting. Later that day, he
was taken to a clinic in Unalaska, where he was treated for
sinusitis.
Ayele claimed to have suffered additional exposures to
ammonia in early September 1991 and in January 1992. He continued
to have headaches and episodes of vomiting and stopped working
entirely in late January 1992. Ayele left Dutch Harbor and
returned to Seattle.
Beginning in February 1992 and continuing through 1993,
Ayele saw various doctors in Washington. He continued to feel
increasingly ill, eventually experiencing a constant headache,
daily vomiting, and frequent nosebleeds. In addition, he began to
suffer from severe depression and paranoid thinking. In
November 1992, he began seeing a psychiatrist, Dr. Guido Aversa,
who described Ayele as having suicidal thoughts and as feeling
extreme rage towards and desiring revenge against those at Unisea
whom Ayele thought responsible for his illness. On November 10,
Ayele was hospitalized under Dr. Aversa's care. In late
January 1993, Dr. Aversa diagnosed him as suffering from psychotic
depression with persecutory ideas; he described Ayele as "gravely
disabled . . . [with] a continuous headache, . . . difficulties
with his nose, . . . [and] continued nausea."
Despite continued care from Dr. Aversa and other
physicians, Ayele's condition showed no marked improvement. In
January 1994, he applied to the Board for adjustment of his claim,
seeking benefits for permanent partial disability. Unisea
controverted this claim. [Fn. 1] In July 1995, at Unisea's
request, Ayele was examined by a panel of three independent
physicians. Each doctor concluded that Ayele's condition was
unrelated to his employment at Unisea. Each believed that his
symptoms stemmed from psychological difficulties rather than from
chemical exposures at Unisea. Dr. Brent T. Burton summarized the
panel's finding, in relevant part, as follows:
Mr. Ayele is a 37 year-old worker who
complains of multiple symptoms which he states are the result of an
alleged exposure to ammonia fumes encountered during August 1991.
In spite of complete removal from the workplace and any potential
continuing exposure, Mr. Ayele indicates that his multiple symptoms
have increased in severity. His symptoms now encompass depression,
memory disorder, chronic recurrent headaches, nasal irritation and
recurrent bleeding, nausea and vomiting and aversion to various
odors. Based upon Mr. Ayele's history and the medical data
available in this case, there is no evidence to support a diagnosis
of an occupational exposure or injury. The basis for Mr. Ayele's
expression of symptoms is his underlying psychiatric disorder which
is not work-related.
. . . .
The clinical course of Mr. Ayele's complaints
is totally inconsistent with an acute exposure to ammonia (or any
other irritant substance) since such symptoms and illness would be
transient (and would result in chronic pulmonary symptoms and
findings[,] not isolated upper airway symptoms and headaches). An
exposure to ammonia (or any other substance identified at the
UniSea, Inc. processing plant) is incapable of causing depression
or any related psychiatric disorders.
At the workers' compensation hearing, Ayele and Unisea
agreed that Ayele was disabled but disagreed as to whether his
disability was related to his employment at Unisea. Unisea relied
on the reports of the three-physician panel and on other medical
evidence indicating that Ayele's disability was not work related.
Ayele relied on testimony by Dr. Aversa. He also presented
testimony from four lay witnesses: his brother and three former
Unisea co-workers. None of these witnesses had seen the August 31,
1991, incident that Ayele claimed was his first major exposure to
ammonia fumes. But all had observed and spoken with Ayele soon
after the incident; their testimony describing Ayele's complaints,
conduct, and visible symptoms tended to support Ayele's version of
events.
The Board concluded that Ayele's evidence was sufficient
to raise the presumption of compensability but that Unisea had
successfully rebutted the presumption. Because the Board found
that Ayele had not proven by a preponderance of the evidence that
his condition arose out of his employment, it denied his claim.
The Board's decision extensively discussed the medical evidence but
did not mention Ayele's lay witnesses.
The superior court affirmed the Board's decision. Ayele
appeals.
III. DISCUSSION
Although Ayele lists nine points on appeal, he briefs and
argues only one -- whether the Board's failure to discuss the lay-
witness testimony amounts to reversible error insofar as it
prevents meaningful review of the Board's decision. [Fn. 2]
In its decision rejecting Ayele's claim, the Board
thoroughly discussed and ultimately accepted the opinions expressed
by the three physicians who performed Ayele's independent medical
examinations: Dr. Brent T. Burton, the medical director of
Occupational Health Services at Oregon Health Sciences University;
Dr. F. Blair Simmons, a professor of otolaryngology at Stanford
University Medical Center; and Dr. Dejene Abebe, an instructor of
psychiatry at Harvard Medical School. In contrast, the Board
failed to even mention Ayele's four lay witnesses: Shimeles
Woldegebriel, Abraha Gebremeskel, Mohammed Hassen, and Belayneh
Negash.
Relying chiefly on Stephens v. ITT/Felec Services, [Fn.
3] Ayele asserts that because these witnesses undermine the Board's
decision and validate his claim, this court "cannot perform its
role as a reviewing Court where this contradictory evidence is
ignored by the Board." But this argument misinterprets Stephens
and mistakenly assumes that the lay-witness testimony in this case
is potentially material to the Board's decision.
Stephens is distinguishable from the present case.
There, an injured worker, Stephens, sought compensation for a heart
attack that he had suffered while working at a remote job site.
[Fn. 4] Several medical experts testified that the heart attack
was not work related. [Fn. 5] The experts had only limited
information about the actual work conditions under which Stephens's
heart attack occurred, and they expressly based their opinions as
to work-relatedness on various assumptions concerning those work
conditions. [Fn. 6] Although Stephens presented lay-witness
testimony tending to undermine these assumptions, the Board adopted
the experts' opinions and denied Stephens's claim without even
mentioning his witnesses. [Fn. 7] We remanded for further
findings, concluding that we could not adequately review the
Board's decision without knowing how the Board viewed Stephens's
lay-witness testimony. [Fn. 8]
In so ruling, we by no means held that the Board must
discuss all lay-witness testimony touching on a disputed issue.
Instead, we relied on the specific nature of the evidence that the
Board's decision failed to address and its peculiar relevance to
the issue actually contested: whether Stephens's work environment
caused or contributed to the heart attack -- which undisputably
occurred at work and resulted in his injuries -- or whether the
attack resulted from his preexisting physical condition. [Fn. 9]
Thus, our decision requiring the Board to address Stephens's lay-
witness testimony simply recognized the "potential materiality"of
that testimony in the specific factual setting of Stephens's case.
[Fn. 10]
As in Stephens, the Board's decision in this case turned
on whether the injury in question resulted from work conditions.
But the lay-witness testimony here lacks the "potential
materiality"[Fn. 11] of its counterpart in Stephens because it
does not undermine the expert testimony on which the Board chose to
rely.
In this case, the lay-witness testimony bears little
relevance to the Board's ultimate finding of lack of causation.
The lay witnesses testified about Ayele's statements, appearance,
and treatment by Unisea during the months immediately following the
August 31, 1991, incident, describing him as consistently
complaining of exposure to ammonia and of headaches, nosebleeds,
and vomiting. At most, these accounts supported Ayele's theory of
causation by tending to confirm that during that period Ayele had
in fact been exposed to ammonia.
The medical experts did not seriously question that Ayele
had made the complaints described by his lay witnesses, or even
that he might have been exposed to ammonia. They did question
whether Ayele's complaints had been corroborated by any objective
medical observations. But the lay-witness testimony sheds little
light on this issue. Moreover, the issue of Ayele's condition in
1991 is itself of minor importance. Despite Ayele's assertions to
the contrary, the experts' ultimate opinions concerning Ayele's
present condition did not hinge on assumptions concerning the
August 1991 incident. Rather, they drew on years of medical
history and on recent, thorough examinations of Ayele.
From all of this evidence, the experts concluded that
"[a]n exposure to ammonia (or any other substance identified at the
UniSea, Inc.[,] processing plant) is incapable of causing
depression or any related psychiatric disorders." In basing its
decision on this medical opinion, the Board found, as did the
experts, that Ayele's present disability was primarily
psychological and could not have been caused by his work conditions
at Unisea, even accepting Ayele's claim of exposure to ammonia.
Because the lay-witness testimony merely supported
Ayele's claim of past exposure to ammonia and did not cast doubt on
the validity of the expert testimony which the Board accepted, the
Board's failure to mention those witnesses in its decision denying
benefits does not preclude meaningful appellate review.
Accordingly, we reject Ayele's argument that Stephens requires a
remand to the Board.
IV. CONCLUSION
For these reasons, we AFFIRM the Board's decision denying
Ayele benefits.
FOOTNOTES
Footnote 1:
Until then Unisea had been paying Ayele workers' compensation
benefits.
Footnote 2:
Ayele has expressly declined to brief his other points,
stating that "[i]f the Court finds against [him] on whether or not
the lay witnesses must be considered by the Board, there is no
other reason to remand this matter for further proceedings."
Whether the Board's findings are adequate to permit appellate
review is a legal question that we decide by exercising our
independent judgment. See Handley v. State, Dep't of Revenue, 838
P.2d 1231, 1233 (Alaska 1992).
Footnote 3:
915 P.2d 620 (Alaska 1996).
Footnote 4:
See id. at 622-24.
Footnote 5:
See id. at 624-25.
Footnote 6:
See id. at 625.
Footnote 7:
See id. at 627.
Footnote 8:
See id. at 627, n.8.
Footnote 9:
See id. at 625-27.
Footnote 10:
Id. at 627; see id. at 625.
Footnote 11:
Id. at 627.
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