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DeYonge v. Nana/Marriott (4/21/00) sp-5265
DeYonge v. Nana/Marriott (4/21/00) sp-5265
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
JUDY L. DEYONGE, )
) Supreme Court No. S-9060
Appellant, )
) Superior Court No.
v. ) 3AN-98-4157 CI
)
NANA/MARRIOTT and ALASKA ) O P I N I O N
NATIONAL INSURANCE COMPANY, )
) [No. 5265 - April 21, 2000]
Appellees. )
______________________________)
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Sigurd E. Murphy, Judge pro tem.
Appearances: Charles W. Coe, Anchorage, for
Appellant. Theresa Hennemann and William W.
Whitaker, Holmes, Weddle & Barcott, Anchorage,
for Appellees.
Before: Matthews, Chief Justice, Eastaugh,
Fabe, Bryner, and Carpeneti, Justices.
FABE, Justice.
I. INTRODUCTION
This case presents the question of whether a worker who
suffers increased symptoms due to the physical requirements of her
job is entitled to workers' compensation. Judy DeYonge, who had a
preexisting arthritic condition, claims that working as a
housekeeper for NANA/Marriott aggravated her condition to the point
where she could no longer perform her job. The Workers'
Compensation Board denied her claim for benefits and compensation
because it concluded that, although her symptoms may have worsened
as a result of her job, her underlying condition did not. Because
we have rejected the distinction between aggravation of symptoms
and aggravation of the underlying impairment, we reverse the
Board's decision and remand for a determination of the extent and
compensability of DeYonge's injury.
II. FACTS AND PROCEEDINGS
A. Factual History
Judy DeYonge began working as a housekeeper for
NANA/Marriott on the North Slope in 1992. DeYonge's job required
her to kneel, bend, and stoop when performing such tasks as
scrubbing floors or showers. DeYonge also carried buckets of water
up and down flights of stairs as part of her job. In March of 1995
DeYonge informed her supervisor that she was suffering from pain in
her knees. A couple of weeks later, the pain became so unbearable
that DeYonge sought leave from work.
DeYonge's treating physician in Kenai, Dr. Marguerite
McIntosh, initially diagnosed DeYonge with patellar tracking
syndrome caused by damaged cartilage under the kneecap. Dr.
McIntosh referred DeYonge to Dr. Timothy Powers for further
evaluation.
Dr. Powers diagnosed DeYonge's condition as "[r]ight
knee, patella femoral pain, possibly [arising from] a degenerative
meniscus tear or degenerative arthritis. . . . Left knee is much
the same." In Dr. Powers's opinion, DeYonge's condition "may be
[due] to overuse and prolonged squatting and kneeling as described
by the patient." DeYonge also informed Dr. Powers that she had
been having trouble with her knees since the 1970s, and that her
mother and grandmother both had rheumatoid arthritis. Dr. Powers
recommended strengthening and stretching exercises for DeYonge and
restricted her from kneeling, repetitively climbing stairs, and
repetitively squatting. Since DeYonge was no longer working as a
housekeeper for NANA/Marriott at this time, she managed to avoid
such activities to a large extent.
At NANA/Marriott's request, DeYonge was next examined by
Dr. Frost, an orthopedic specialist. Dr. Frost diagnosed her as
having "mild bilateral arthritis, probably osteoarthritis, with
some patellofemoral chondrosis." He believed that this condition
had "probably been developing slowly for years," and that it "was
not specifically caused by her job."
Dr. Frost did believe, however, that DeYonge's duties as
a housekeeper worsened her symptoms, even if they did not actually
worsen her underlying condition. He stated in his report that
"[c]ertainly the type of duties which she performed as a
housekeeper for NANA/Marriott would have been a substantial factor
in increasing her symptoms, but not necessarily in either causing
or making her condition progress any more rapidly than it might
otherwise have." Also, Dr. Frost stated that although he felt that
DeYonge suffered from a "legitimate permanent physical impairment,"
he "would not necessarily say that the impairment was caused by her
work as opposed to being merely pointed out by her work."
In his recommendations, Dr. Frost believed that it would
be "unwise" for DeYonge to continue working as a housekeeper. He
concluded she should have "permanent restrictions against any
activities which require her to do a significant amount of
kneeling, squatting, twisting, jumping, climbing, or carrying
greater than [twenty] pounds." He suggested that DeYonge was best
suited for a "desk-type job or very light standing work . . .
particularly in a situation where she can intermittently rest by
sitting on a stool."
B. Procedural History
The Workers' Compensation Board first heard DeYonge's
claim for benefits in April of 1996. The Board concluded that,
through Dr. Frost's opinion, NANA/Marriott had overcome the
presumption in favor of DeYonge. In reaching this decision, the
Board "rel[ied] heavily on the opinion of Dr. Frost," stating that
Dr. Frost "based his opinion regarding causation on the objective
medical record, not the subjective complaints as described by the
employee." The Board failed to address the opinion of DeYonge's
treating physician, Dr. McIntosh. Ultimately, the Board concluded
that DeYonge failed to prove her case by a preponderance of the
evidence and therefore denied her benefits.
DeYonge appealed the Board's decision to the superior
court (DeYonge I). Superior Court Judge Harold M. Brown determined
that the Board had incorrectly applied the evidentiary standards by
focusing on whether DeYonge's work caused her condition and failing
to address whether her work aggravated or accelerated it. Judge
Brown therefore remanded the case and directed the Board to apply
the substantial factor test to DeYonge's aggravation claim.
Additionally, Judge Brown determined that the Board erred in
failing to discuss Dr. McIntosh's medical opinion. Thus, Judge
Brown directed the Board to "modify its decision to include at
least a cursory discussion of all significant evidence,
particularly expert medical testimony, and the . . . reasons for
giving greater or lesser weight to that evidence."
Prior to the hearing on remand, DeYonge requested that
the same Board panel decide the case and that she be allowed to
introduce new evidence. The Board dismissed DeYonge's request to
introduce additional evidence and granted her request to empanel
the same Board members.
At the hearing on remand, the Board addressed DeYonge's
underlying claim for compensation and medical benefits, employing
the "substantial factor" test in compliance with the superior
court's order. In applying this test, the Board found that DeYonge
failed to prove "but for" causation on aggravation, and that even
if she did, NANA/Marriott rebutted the presumption through Dr.
Frost's opinion that DeYonge's work did not aggravate her
underlying condition. The Board based this conclusion on the
premise that a job must worsen the worker's underlying condition --
not merely the symptoms of that condition -- in order to be
compensable. The Board then found that DeYonge failed to prove her
claim by a preponderance of the evidence. Thus, it denied
DeYonge's claim for compensation, medical benefits, and legal fees
and costs.
DeYonge then appealed the Board's decision to deny her a
new evidentiary hearing as well as its decision to deny her
compensation and benefits (DeYonge II). Judge Sigurd E. Murphy for
the superior court concluded that the Board correctly denied
DeYonge's request to present new evidence, but improperly required
DeYonge to prove "but for" causation on aggravation. Judge Murphy
ultimately concluded that although DeYonge established the
preliminary link, NANA/Marriott produced substantial evidence to
rebut the presumption. The superior court thus affirmed the
Board's conclusion that DeYonge "was not disabled by her work with
the employer" and affirmed the denial of her benefits claim.
DeYonge appealed to this court shortly thereafter.
III. STANDARD OF REVIEW
When the superior court has acted as an intermediate
court of appeal, we independently review the merits of the
administrative determination. We review the administrative
agency's findings to determine whether they are supported by
substantial evidence. Substantial evidence is "such relevant
evidence as a reasonable mind might accept as adequate to support a
conclusion."
The Board has the sole power to determine the credibility
of witnesses. Thus, even where there is conflicting evidence, the
reviewing court will uphold the Board's decision if it is supported
by substantial evidence. It is not this court's role to reweigh
the evidence.
Finally, we review the Board's exclusion of evidence on
remand for an abuse of discretion. "An abuse of discretion exists
only if the reviewing court is left with the definite and firm
conviction, after reviewing the whole record, that the [Board]
erred in its [finding]."
IV. DISCUSSION
A. Background: Legal Framework Under the Alaska Workers'
Compensation Act
The Alaska Workers' Compensation Act presumes that an
employee's claim is compensable. Applying this statutory
presumption requires a three-step analysis. First, the employee
must establish the preliminary link between her employment and her
alleged injury. Once the employee establishes that link, it is
the employer's burden to overcome the presumption of compensability
by coming forward with substantial evidence that the injury was not
work related. If the employer meets this burden then the
presumption disappears and the employee must prove her claim by a
preponderance of the evidence.
B. The Board Erred in Finding that DeYonge Did Not Trigger
the Compensability Presumption.
1. The Board erred in requiring DeYonge to present
substantial evidence that her job caused her
injury.
The Board determined that DeYonge failed to trigger the
preliminary link, concluding that she had not presented
"substantial evidence" that her work caused her injury. The
superior court, Judge Sigurd E. Murphy, acting as an intermediate
court of appeal, correctly determined that this threshold standard
set by the Board was too high. As the superior court observed,
"DeYonge did not need to present substantial evidence that her
employment was a substantial cause of the alleged disability."
Instead, to establish the preliminary link, "an offer of 'some
evidence' that the claim arose out of the worker's employment is
sufficient." Thus, we conclude that the Board erred in the first
stage of its analysis.
Moreover, in determining whether DeYonge established the
preliminary link, the Board improperly weighed the evidence. In
deciding whether a worker has triggered the presumption of
compensability, the Board should consider "only evidence that tends
to establish the link -- competing evidence is disregarded." We
have observed that in determining whether the presumption attaches,
the Board should not weigh witness credibility. In this case,
however, in finding that DeYonge failed to present substantial
evidence that her employment caused her injury, the Board weighed
the credibility of Drs. McIntosh, Powers, and Frost. The Board
gave most weight to Dr. Frost's opinion, finding it "more
plausible" and "definite" than the opinions of either Dr. McIntosh
or Dr. Powers. But the Board should not have weighed the doctors'
testimony at this stage of the analysis. For this reason, too, we
conclude that the Board erred in its analysis of whether DeYonge
triggered the presumption of compensability.
2. DeYonge offered "some evidence" that her injury was
work related, and she therefore triggered the
presumption of compensability.
Because we conclude, as a matter of law, that DeYonge did
offer some evidence that her injury arose out of her employment, we
need not remand for a determination of whether DeYonge triggered
the presumption. In this case DeYonge's treating physician, Dr.
McIntosh, supplied the requisite evidence to raise the presumption.
Dr. McIntosh testified that DeYonge's job aggravated and worsened
her condition. That constitutes "some evidence" that DeYonge's
employment with NANA/Marriott aggravated her arthritis and is alone
enough to support the preliminary link.
Although Dr. McIntosh's opinion suffices to trigger the
presumption, all three doctors' opinions in fact support DeYonge's
claim. Dr. Powers stated that DeYonge's knees suffered from a
"possible degenerative meniscus tear or degenerative arthritis,"
and that she had "prominent" symptoms which "may be [due] to
overuse and prolonged squatting and kneeling as described by the
patient." Dr. Frost stated that DeYonge's job "has caused the
increase in symptoms," and that "[c]ertainly the type of duties
which she performed as a housekeeper for NANA/Marriott would have
been a substantial factor in increasing her symptoms." These three
opinions certainly amount to "some evidence" that DeYonge's claim
arose out of her employment. We therefore conclude that DeYonge
triggered the presumption of compensability.
C. The Board Erred in Concluding that NANA/Marriott Produced
Substantial Evidence to Rebut the Presumption of
Compensability.
Although the Board erred in determining that DeYonge
failed to trigger the compensability presumption, the Board did
undertake an alternative analysis based on the assumption that the
presumption attached. It was on this basis that the superior court
affirmed the Board's decision to deny DeYonge's claim. In a recent
decision we held that although the Board erred in failing to attach
the compensability presumption to a worker's claim for
compensation, it properly denied the claim by undertaking an
alternative analysis and determining that the employer had rebutted
the presumption in any event. Thus, in that case, we concluded
that the Board's failure to attach the compensability presumption
was harmless. We must therefore determine whether, despite its
error in failing to attach the presumption, the Board appropriately
concluded that NANA/Marriott rebutted the presumption through
substantial evidence.
In order to rebut the presumption of compensability, the
employer must produce substantial evidence that the injury was not
work related. The employer may do this in two ways: by producing
substantial evidence that
(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.[ ]
Thus, to rebut the compensability presumption, NANA/Marriott must
produce substantial evidence that either (1) non-work-related
events alone caused DeYonge's worsened condition, or (2) there was
no possibility that DeYonge's work caused the aggravation.
1. The Board erred in concluding that Dr. Frost's
opinion rebutted the presumption of compensability.
After weighing the three doctors' opinions, the Board
concluded that Dr. Frost's report constituted affirmative evidence
that DeYonge's condition was not "aggravated or accelerated by her
work." In his report, Dr. Frost suggested that DeYonge's arthritic
condition had "probably been developing slowly for years and . . .
was not specifically caused by her job." He also suggested that
"any stressful use of her knees would have increased her symptoms."
These statements tend to demonstrate that a non-work-related
factor -- DeYonge's genetic predisposition for arthritis and its
natural degenerative progression -- caused DeYonge's underlying
impairment. But we have established "that a preexisting . . .
infirmity does not disqualify a claim under the work-connection
requirement if the employment aggravated, accelerated, or combined
with the . . . infirmity to produce the . . . disability for which
compensation is sought." Dr. Frost's explanation does not exclude
DeYonge's employment as a substantial factor in the aggravation of
her arthritis. On the contrary, Dr. Frost believed that DeYonge's
employment with NANA/Marriott did worsen her symptoms: "Certainly
the type of duties which she performed as a housekeeper . . . would
have been a substantial factor in increasing her symptoms."
In his conclusions, Dr. Frost distinguished between
aggravation of DeYonge's symptoms and aggravation of her underlying
condition. But in Hester v. State, Public Employees' Retirement
Board, we explicitly declined to differentiate between the
aggravation of symptoms and the aggravation of an underlying
condition in the context of a claim for occupational disability
benefits. "We reject the distinction . . . between worsening of
the underlying disease process and worsening of the symptoms of a
disease." Noting the difficulty in separating an aggravation of
symptoms from aggravation of the underlying disability, we observed
that "increased pain or other symptoms can be as disabling as
deterioration of the underlying disease itself." Although Hester
arose under a different statutory scheme, the principle that we
enunciated there -- that worsened symptoms may be compensable -- is
equally persuasive in the context of workers' compensation.
Thus, for an employee to establish an aggravation claim
under workers' compensation law, the employment need only have been
"a substantial factor in bringing about the disability." Hester
suggests that when a job worsens an employee's symptoms such that
she can no longer perform her job functions, that constitutes an
"aggravation" -- even when the job does not actually worsen the
underlying condition.
Based on Hester, it was error for the Board to conclude
that Dr. Frost's opinion rebutted the presumption of
compensability. The Board acknowledged Dr. Frost's opinion that
DeYonge's job worsened her symptoms. The Board stated:
We find Dr. Frost states that the
employee may have an increase in symptoms. We
do not find any evidence to support a
conclusion that an increase in symptoms is the
equivalent of a permanent aggravation or
acceleration of the pre-existing condition.
We find that the employee temporarily
experienced an increase in her symptoms, i.e.,
discomfort while working. In summary, we find
no acceleration of the employee's pre-existing
degenerative condition and we find no
permanent worsening of her knee condition. We
find no indication of work-related disability
from this discomfort. We conclude the
employee was not disabled by her work with the
employer; therefore we must deny and dismiss
her claims for benefits.
The Board erred by focusing on whether DeYonge suffered
"a permanent aggravation or acceleration" and a "permanent
worsening" of her knee condition, for DeYonge did not bring a claim
for permanent total disability. DeYonge only brought claims for
medical benefits and temporary total disability (TTD). And with
respect to both of these claims, we only require that the
employment cause a temporary increase in symptoms aggravating the
disability. Because the Board failed to recognize the principle we
explicitly enunciated in Hester, it erred in concluding that
NANA/Marriott rebutted the presumption of compensability through
Dr. Frost's report.
2. NANA/Marriott also failed to rebut the presumption
by offering an "alternative explanation" for
DeYonge's worsened condition.
NANA/Marriott also attempted to produce an alternative
explanation for DeYonge's worsened condition. Specifically,
NANA/Marriott produced evidence to suggest that DeYonge injured her
knees while "working-out" on the treadmill or doing "weight work"
such as leg presses. NANA/Marriott asserts that these alternative
explanations for DeYonge's disability supplied the requisite
"affirmative evidence" that her job did not aggravate her
preexisting condition. Thus, NANA/Marriott argues that even if
DeYonge had raised the compensability presumption, it successfully
rebutted it.
We have noted that an employer does not provide a
sufficient "alternative explanation" simply by pointing to other
factors that likely aggravated a preexisting condition. Thus, in
Williams v. State, Department of Revenue, although the employer
presented evidence demonstrating "that genetics and emotional
factors played a significant role" in the employee's illness, the
employer did not "eliminate all possibilities that the injury was
work-connected." Because the employer "did not offer evidence
that other factors were the exclusive cause of [the employee's]
aggravated condition," nor did it produce evidence to eliminate the
employee's job as "another causal factor [among others]," this
court determined that the employee was entitled to workers'
compensation.
Similarly here, it may be true that DeYonge's "working-
out" on the treadmill or doing "weight work" contributed to her
worsened symptoms. But NANA/Marriott's attempt to attribute
DeYonge's aggravation to these activities does not "eliminate all
possibilities" that her condition was work related. That is, this
evidence does not exclude DeYonge's work as "another causal
factor" in the aggravation of her symptoms. And we have noted
that an employee is entitled to benefits whenever the work-related
aggravation "is a substantial factor" in the employee's impairment,
"regardless of whether a non-work-related injury could
independently have caused" that impairment.
Because NANA/Marriott did not offer evidence "that other
factors were the exclusive cause of her aggravated condition" or
that DeYonge's work "was not another causal factor" among others,
we disagree with the Board's and the superior court's
determinations that NANA/Marriott rebutted the presumption of
compensability. Because we reach this conclusion, we need not
address whether DeYonge proved her claim by a preponderance of
evidence.
D. Scope of Remand
DeYonge asserts that she is entitled to medical and
compensation benefits "at a minimum for temporary periods until her
knee condition returns to its pre-work condition." We agree that
she is entitled to TTD for the period during which she suffered
debilitating work-related symptoms. We therefore reverse the
Board's decision in that regard.
On remand, the Board should determine the amount due
DeYonge under AS 23.30.185 for TTD. Our conclusion that DeYonge
triggered the compensability presumption and that NANA/Marriott
failed as a matter of law to rebut it moots DeYonge's request for a
new evidentiary hearing on those issues. But in determining the
amount of TTD due DeYonge, the Board may choose to hear new
evidence or simply to rely on the existing record. We also remand
for an appropriate award of attorney's fees for DeYonge under AS
23.30.145.
V. CONCLUSION
The Board improperly declined to apply the presumption of
compensability and incorrectly distinguished between aggravation of
symptoms and aggravation of the underlying condition. Thus, the
Board's determinations regarding DeYonge's claims were erroneous.
Because DeYonge successfully triggered the presumption of
compensability and NANA/Marriott failed to rebut it, we REVERSE the
Board's decision with respect to TTD and REMAND for a determination
of the amount due DeYonge in benefits, compensation, and attorney's
fees.
See Tolbert v. Alascom, Inc., 973 P.3d 603, 606-07
(Alaska 1999).
See Grove v. Alaska Constr. & Erectors, 948 P.2d 454, 456
(Alaska 1997).
Id. (quoting Miller v. ITT Arctic Servs., 577 P.2d 1044,
1046 (Alaska 1978)).
See AS 23.30.122; Resler v. Universal Servs., Inc., 778
P.2d 1146, 1149 (Alaska 1989).
See Williams v. State, Dep't of Revenue, 938 P.2d 1065,
1069 (Alaska 1997).
See Miller v. ITT Arctic Servs., 577 P.2d 1044, 1049
(Alaska 1978).
See Schmidt v. Beeson Plumbing & Heating, Inc., 869 P.2d
1170, 1179 (Alaska 1994).
Harris v. Keys, 948 P.2d 460, 466 (Alaska 1997)
(citations omitted).
See AS 23.30.120(a)(1); Tolbert, 973 P.2d at 610.
See Osborne Constr. Co. v. Jordan, 904 P.2d 386, 389
(Alaska 1995).
See id.
See Burgess Constr. Co. v. Smallwood, 623 P.2d 312, 316
(Alaska 1981).
See Osborne, 904 P.2d at 390.
Tolbert, 973 P.2d at 610 (emphasis added) (quoting
Gillispie v. B & B Foodland, 881 P.2d 1106, 1109 (Alaska 1994)).
Id.
See id.
See Carlson v. Doyon Universal-Ogden Servs., 995 P.2d
224, 229 (Alaska 2000).
See id.
See Tolbert, 973 P.2d at 611.
Gillispie, 881 P.2d at 1109 (citations omitted).
See Veco, Inc. v. Wolfer, 693 P.2d 865, 872 (Alaska
1985).
Burgess Constr. Co. v. Smallwood, 623 P.2d 312, 315
(Alaska 1981) (quoting Thornton v. Alaska Workmen's Compensation
Bd., 411 P.2d 209, 210 (Alaska 1966)).
817 P.2d 472, 476 n.7 (Alaska 1991).
Id.
Id.
Hester arose under the Public Employees' Retirement
System, AS 39.35.
Hester, 817 P.2d at 476 n.7 (quotations omitted).
Other jurisdictions agree with this approach. See
Hensley v. Washington Metro. Area Transit Auth., 655 F.2d 264, 274
(D.C. Cir. 1981) (holding that the increased symptomatology of bus
driver's psoriatic condition was due to physical trauma of driving
and was therefore compensable); McDonald v. Meijer, Inc., 469
N.W.2d 27, 30 (Mich. App. 1991) (holding that disability based only
on increased symptoms is compensable within meaning of Michigan
workers' compensation statute); Geck v. North Dakota Workers
Compensation Bureau, 583 N.W.2d 621, 624 (N.D. 1998) (stating that
"[p]ain can be an aggravation of an underlying condition of
arthritis").
Wolfer, 693 P.2d at 872.
See Williams v. State, Dep't of Revenue, 938 P.2d 1065,
1074-75 (Alaska 1997).
Id. at 1075.
Id. at 1075-76.
Id. at 1075.
Id.
Tolbert, 973 P.2d at 612 (internal punctuation and
quotations omitted).
Williams, 938 P.2d at 1075.
AS 23.30.135(a) authorizes the Board to "conduct its
hearing in the manner by which it may best ascertain the rights of
the parties."
-21- 5265
