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Bradbury v. Chugach Electric Assoc. (6/20/2003) sp-5705
Bradbury v. Chugach Electric Assoc. (6/20/2003) sp-5705
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,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
LINDA BRADBURY, )
) Supreme Court No. S-10532
Appellant, )
) Superior Court No.
v. ) 3AN-00-03750 CI
)
CHUGACH ELECTRIC ) O P I N I O N
ASSOCIATION and FREMONT )
INSURANCE COMPANY, ) [No. 5705 - June 20, 2003]
)
Appellees. )
________________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Sharon L. Gleason, Judge.
Appearances: Michael J. Jensen, Law Offices
of Michael J. Jensen, Anchorage, for
Appellant. Patricia L. Zobel and John D.
Harjehausen, DeLisio, Moran, Geraghty &
Zobel, P.C., Anchorage, for Appellees.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
FABE, Chief Justice.
I. INTRODUCTION
Linda Bradbury died while working for Chugach Electric
Association, Inc. when a cyst in her liver ruptured causing a
deadly anaphylactic reaction. Dennis Bradbury, her husband,
appeals the Alaska Workers' Compensation Board's denial of
benefits related to his wife's death. Because the Board's
decision is supported by substantial evidence, we affirm it.
II. FACTS AND PROCEEDINGS
A. Factual History
Linda Bradbury died on June 18, 1999, while working as
a bull cook for Chugach Electric Association, Inc. in Beluga.
According to the autopsy, Bradbury died from anaphylactic shock
when a hydatid cyst in her liver ruptured. When the cyst
ruptured, its contents spilled into her abdomen and precipitated
a massive allergic reaction. Hydatid cysts are parasitic
infections. Dr. Franc Fallico, deputy medical examiner for the
state, noted on Bradbury's death certificate that during the
autopsy he found "[n]o evidence of significant traumatic injury."
Bradbury first experienced abdominal pain, which led to
the discovery of her cyst, in early March 1999. She went to the
Family Health Center in Palmer because of the pain and returned a
few days later for an abdominal ultrasound. Dr. Gerald Phillips,
who performed the ultrasound, reported that the test revealed a
large cyst in the left lobe of her liver. On March 12, 1999, a
practitioner at the Family Health Center noted in Bradbury's
records that a surgeon said the cyst was "not a problem" and that
he would watch it for any changes.
A few months later, Bradbury began to experience pain
in the area of her cyst. In June 1999 she told a nurse
practitioner that abdominal pain near her liver cyst had awakened
her from sleep. The next day Bradbury went to the Health Center
because of the pain. Other than abdominal pain, the nurse
practitioner noted that Bradbury's vital signs were stable and
advised her to return to the Health Center if she had a fever.
Bradbury made an appointment for a CT scan of her abdomen for
Wednesday, June 23, 1999, the day after she would have returned
home from her next work shift.
Linda Bradbury had worked for Chugach Electric since
April 1997. She worked seven 12-hour days straight followed by
seven days off. She flew to Beluga on Wednesday mornings and
left on Tuesday nights. On Wednesday, June 16, two days before
her death, Bradbury flew to Beluga to begin her week-long work
shift.
B. Procedural History
On February 7, 2000, Dennis Bradbury filed a workers'
compensation claim for death benefits and expenses stemming from
his wife's death. On February 23, 2000, Chugach Electric
challenged his claim as not work-related. The Alaska Workers'
Compensation Board heard the claim in September 2000.
1. Testimony presented to the Board
The Board first heard testimony from Dennis Bradbury,
who noted that his wife complained of stomach pains about two
weeks before her death. He testified that he spoke with her
after she returned to work on Wednesday, June 16, and that she
told him she had not slept well the night before. He described a
note his wife had written that Wednesday, which was found among
her personal belongings after she died. According to Dennis
Bradbury, his wife indicated in the note that she was in so much
pain she could not sleep that night. This note was admitted into
evidence.
Robert Klemke, the head cook who worked on Linda
Bradbury's shift, described to the Board some of Bradbury's
duties as a bull cook. The testimony that Klemke and others gave
concerning Bradbury's work duties and how she performed them is
significant because Dennis Bradbury's theory was that the
physical labor his wife performed inflicted trauma upon her
abdomen, resulting in the cyst's rupture. Klemke explained that
a bull cook is responsible for cold food preparation and basic
cleanup. Klemke testified that when Bradbury started work at
5:30 a.m., she first prepared breakfast by putting out fruit and
by stocking milk, juice, and water. Klemke added that in
addition to breakfast preparation, Bradbury did some general
cleaning including washing baking pans that were soaking in the
sink. He noted that because of Bradbury's size, five feet two
inches, she had to lean over the sink to reach the pans.
Klemke testified that after Bradbury finished in the
dining area, she loaded ice, milk, fruit, juice, and water into a
truck to drive to the break rooms. She would then stock the
break rooms with those items. Klemke testified that he had seen
her bump into things occasionally and that he witnessed Bradbury
support objects on her hip and abdomen.
In addition to Klemke, Claudia McLean testified in
support of Bradbury's claim. McLean worked as a bull cook on the
shift opposite Linda Bradbury. Because McLean and Bradbury
generally shared the same duties, McLean prepared a list of
morning duties Bradbury allegedly would have performed on the
morning of her death.
Two doctors, Dr. Gerald Roberts and Dr. David Anaise,
testified in support of Bradbury's claim. Dr. Roberts is a
gastroenterologist and internist and has never treated a patient
with a hydatid cyst. He indicated that "the cause of the rupture
was most probably related to the work she was carrying out at her
job as a bull cook, particularly in the two hours prior to her
death on June 18, 1999." Dr. Roberts based his opinion upon
Bradbury's medical records and medical articles about hydatid
cysts. He specified that minor trauma, and even leaning over a
deep sink, could conceivably cause a cyst to rupture. He
expressed the opinion that spontaneous rupture of hydatid cysts
is relatively rare and noted that Bradbury did fairly strong
physical labor. He concluded that the cyst ruptured because
something must have struck Bradbury's abdomen while she was
working.
Dr. David Anaise is a retired surgeon who now practices
law. He has never treated a patient with a hydatid cyst. He
testified that Bradbury's work activities in the two hours before
her death would have put enough pressure on her abdomen to
rupture the cyst. Dr. Anaise admitted that the only cases of
traumatic rupture he had read about in the medical literature
involved a blunt trauma or blow to the abdomen.
Two physicians, Dr. Kenneth Flora and Dr. David Nelson,
testified on behalf of Chugach Electric. Dr. Flora is a
hepatologist whose subspecialty is the diagnosis and treatment of
chronic liver disease. He is also a professor of medicine. In
his practice, he has seen approximately ten patients with hydatid
cysts. Dr. Flora gave the opinion that the cyst ruptured
spontaneously and that Bradbury's work activities were not a
substantial factor in her death. He eliminated lifting heavy
objects as a cause of her cyst's rupture, explaining that from
his reading of the literature, he believes that it requires
significant force against the liver to rupture a cyst. He
concluded that her cyst might have ruptured regardless of whether
she was at work.
Dr. Nelson is a professor of medicine and a
hepatologist who has treated patients with hydatid cysts. He
does not restrict his patients from lifting or working because he
does not believe that these activities rupture cysts. Dr. Nelson
explained that hydatid cysts can rupture spontaneously or from
trauma, usually a blunt rapid blow, to the abdomen. Dr. Nelson
indicated that Bradbury's cyst probably ruptured spontaneously.
2. The Board's decision and subsequent
proceedings
The Board issued its decision on October 13, 2000. The
Board considered three issues: (1) whether Linda Bradbury's work
activities were a substantial factor in her death; (2) whether it
would award death benefits; and (3) whether it would award
attorney's fees. In a 2-1 decision, the Board denied Bradbury's
claims and dismissed her case.
Dennis Bradbury petitioned for reconsideration of the
Board's decision in October 2000. The Board denied and dismissed
the petition. Bradbury then appealed to the superior court,
which, acting as an intermediate court of appeal, affirmed the
Board's decision. Dennis Bradbury appeals this decision.
III. STANDARD OF REVIEW
When the superior court acts as an intermediate court
of appeals, we independently review the merits of the
administrative decision.1 "We review the administrative agency's
findings to determine whether they are supported by substantial
evidence."2 "Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion."3 We do not determine witness credibility; the Board
makes those determinations exclusively.4 Therefore, even when
conflicting evidence exists, we uphold the Board's decision if
substantial evidence supports it.5
IV. DISCUSSION
A. Dennis Bradbury Is Not Entitled to Workers'
Compensation Benefits for His Wife's Death.
1. Burden of proof
The Alaska Workers' Compensation Act creates a
presumption that an employee's claims are compensable.6
"Applying this presumption involves a three-step analysis."7
First, the employee must establish a link between her injury and
her employment.8 In this case, the Board found that Dennis
Bradbury introduced sufficient evidence to establish a link
between his wife's death and her work. Chugach Electric does not
challenge the Board's finding that Dennis Bradbury satisfied his
burden of establishing this preliminary link.
Next, we ask whether the employer rebutted the
presumption with substantial evidence.9 The employer's
substantial evidence must either "(1) provide[] an alternative
explanation [for the injury] which, if accepted, would exclude
work related factors as a substantial cause of the disability; or
(2) directly eliminate[] any reasonable possibility that
employment was a factor in causing the disability."10 The burden
of production at this stage shifts to Chugach Electric, but not
the burden of persuasion; thus, we examine Chugach Electric's
evidence in isolation from Dennis Bradbury's evidence to the
contrary.11 We have held that "[i]t 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."12
The Board found that Chugach Electric satisfied this burden by
presenting the testimony of Dr. Flora and Dr. Nelson, who both
gave the opinion that Linda Bradbury's cyst ruptured
spontaneously and not because her work activities caused trauma
to her abdomen.
Finally, after an employer rebuts the presumption that
injuries are work-related, an employee can only prevail if his or
her claim is proven by a preponderance of the evidence.13 To
prove a claim by a preponderance of the evidence, the employee
must induce a belief in the trier of fact that the asserted facts
are probably true.14 The Board found that Dennis Bradbury failed
to satisfy this burden because there was no direct evidence that
his wife suffered trauma to her abdomen and because the
circumstantial evidence that he presented was insufficient to
prove his claim. Dennis Bradbury argues that the Board's
decision is not supported by substantial evidence.
2. Chugach Electric produced substantial
evidence that Linda Bradbury's work as a bull cook
was not a substantial factor in her death.
a. Chugach Electric provided an
alternative, non-work-related explanation for
Linda Bradbury's death, which excludes work-
related factors as a substantial cause of her
death.
The Board relied upon Dr. Nelson and Dr. Flora's
testimony in concluding that substantial evidence indicated that
Linda Bradbury's death was not work-related. Both doctors are
medical professors and hepatologists who have seen and treated
patients with hydatid cysts.
The doctors provided an alternative explanation for the
rupture that was not work related.15 Both doctors gave the
opinion that Bradbury's cyst ruptured spontaneously and that it
did not rupture because of trauma to her abdomen. Moreover, Dr.
Flora and Dr. Nelson believed that the cyst was either in the
process of rupturing or had ruptured by the time Bradbury arrived
at work on June 18. Both doctors placed great significance on
the symptoms that she experienced in the weeks prior to her
death. Dr. Flora noted that Bradbury complained of abdominal
pain for two weeks before her death and that during her week off,
a blood test revealed a higher than normal amount of eosinophils
in her blood. Dr. Flora explained that the body produces
eosinophils in response to parasitic infections. The heightened
level of eosinophils in her blood suggested to Dr. Flora that
Bradbury's cyst was slowly leaking and that it did not
necessarily rupture suddenly on the day that she died. Dr. Flora
gave the opinion that fluid leaking from the cyst onto the liver
and into the abdominal cavity caused her severe abdominal pain.
He concluded that Linda Bradbury's cyst ruptured spontaneously.
Dr. Nelson also focused on the severe abdominal pain
Bradbury experienced before she died. Dr. Nelson explained that
pain severe enough to wake someone out of sleep is a worrisome
complaint to doctors because it suggests significant activity
within the abdomen. He noted that Bradbury's symptoms changed
dramatically in the week before she returned to work. He linked
these changes to the cyst's rupture: "It's well recognized that
sudden onset of changed symptoms with cysts usually herald[s]
cyst rupture." He, like Dr. Flora, gave the opinion that the
cyst ruptured spontaneously. A reasonable mind could accept Dr.
Flora and Dr. Nelson's testimony as adequate to support the
conclusion that Bradbury's cyst ruptured spontaneously and not
from work-related trauma to her abdomen.
b. Chugach Electric presented
substantial evidence such that it directly
eliminated any reasonable possibility that
employment was a factor in causing Linda
Bradbury's death.
Dennis Bradbury argues that Dr. Flora and Dr. Nelson's
opinions do not constitute substantial evidence because their
opinions did not eliminate all work-related causes of his wife's
death. Dennis Bradbury makes two points in support of this
argument. First, he asserts that the experts simply did not rule
out all work-related causes of his wife's death. Dennis Bradbury
points out that Dr. Flora said that he could not rule out the
possibility that work activities accelerated the cyst's
degeneration toward its ultimate rupture. However, Dr. Flora
also testified that it was more likely than not that work
activities did not accelerate the cyst's rupture. Because an
employer "may rebut the presumption of compensability by
presenting a qualified expert who testifies that, in his or her
opinion, the claimant's work was not a substantial cause of the
[injury]," Dr. Flora's testimony satisfies our standard for
substantial evidence.16
Dennis Bradbury further claims that because Dr. Nelson
could not say with certainty how much pressure it would take to
rupture the cyst, he could not rule out work-related trauma as a
substantial factor in Linda Bradbury's death. We addressed and
rejected a similar argument in Norcon, Inc. v. Alaska Workers'
Compensation Board.17 In Norcon, two physicians testifying for
the employer gave their opinions that the employee's heart attack
while on the job was not work-related.18 We held that the
physicians' testimony constituted substantial evidence.19
Significantly, we rejected the argument that because of medical
uncertainty regarding the causes of sudden cardiac death, the
physicians' opinions that the employee's work was not a
substantial factor in his death should be discounted.20 We
concluded that this argument, if accepted, would lead to an
irrebutable presumption of compensability whenever an employee
died of a heart attack.21 As in Norcon, medical uncertainty
exists here. Dennis Bradbury's lawyer asked Dr. Nelson how much
pressure it would have taken to rupture the cyst. Dr. Nelson
responded that there is no way to quantify the necessary amount
of pressure. We have recognized that a medical professional's
testimony is not inconclusive and does not fail to exclude work-
related causes of death simply because the witness does not state
his or her opinion in absolute terms.22
Both Dr. Flora and Dr. Nelson ruled out trauma as a
possible cause of the cyst's rupture, thereby eliminating a work-
related explanation for the rupture.23 Dr. Nelson explained that
the liver accommodates gentle pressure by moving; therefore,
neither holding a heavy object against one's chest nor leaning
over a sink would rupture a cyst. Dr. Nelson also explained that
the medical literature dealing with traumatic ruptures of hydatid
cysts generally describes blunt, rapid trauma to the abdomen that
ruptures a cyst - the type of trauma that happens during sporting
events, when a player might be elbowed in the stomach. Dr.
Nelson concluded that none of Bradbury's work activities were
likely to rupture a cyst. Again, this satisfies our standard for
substantial evidence.
Second, Dennis Bradbury contends that Dr. Flora and Dr.
Nelson did not know about all of his wife's activities and
therefore based their opinions on incomplete information about
the amount of trauma she may have encountered in her job. He
claims, for example, that the video reenactment of his wife's
work duties was incomplete and thus the basis of Dr. Flora and
Dr. Nelson's opinions was flawed. Dr. Flora testified, however,
that unless Linda Bradbury suffered a blow to her abdomen,
regular work duties would not cause sufficient trauma to rupture
her cyst. Dr. Flora and Dr. Nelson's testimony thus eliminated
work as a substantial factor in Linda Bradbury's death. Their
testimony therefore constituted substantial evidence.
3. Substantial evidence supports the
Board's decision that Dennis Bradbury failed to
prove by a preponderance of the evidence that
Linda Bradbury's death was work-related. " \l 3
Because Chugach Electric overcame the presumption
of compensability, Dennis Bradbury had to prove
his claim by a preponderance of the evidence.24 To
prove a claim by a preponderance of the evidence,
the claimant must induce a belief in the trier of
fact that the asserted facts are probably true.25
We apply the substantial evidence test to
determine whether a workers' compensation claimant
has met this burden.26
The Board found that Dennis Bradbury failed
to prove his claim by a preponderance of the
evidence. The Board found the circumstantial
evidence that he introduced, coupled with the lack
of direct evidence, to be insufficient to prove
his claim that his wife suffered any trauma to her
abdomen on the day she died.27 The Board concluded
that Linda Bradbury's cyst ruptured prior to her
return to work and that it would have ruptured
regardless of her work activities.
Dennis Bradbury argues that the Board's
decision is not supported by substantial evidence.
Rather than point to evidence that he presented to
support his claim, he bases his argument upon
perceived flaws in Dr. Flora and Dr. Nelson's
testimony. He argues primarily that the doctors'
opinions lack scientific bases. Dennis Bradbury
essentially urges us to discount Dr. Flora and Dr.
Nelson's opinions. But we do not re-weigh
evidence when we review Board decisions28 because
the Board has the sole responsibility to determine
witness credibility.29
A review of the testimony presented to the
Board shows that substantial evidence supports the
Board's decision that Dennis Bradbury failed to
prove his claim by a preponderance of the
evidence. Dennis Bradbury offered circumstantial
evidence of his wife's activities on the day that
she died; namely, a list of job responsibilities
prepared by Claudia McLean. McLean worked the
shift opposite Bradbury's shift; thus, the parties
stipulated that this list represented activities
that Linda Bradbury's job might have encompassed.
However, no one actually saw Bradbury at work on
that morning; therefore, her husband could not
offer a witness to testify to what activities she
performed. No one could testify that Bradbury
performed her duties in a way that would inflict
trauma upon her abdomen. The Board rejected the
circumstantial evidence, concluding that to find
for Dennis Bradbury they would have to speculate
about what Linda Bradbury did that morning and
whether it resulted in sufficient abdominal trauma
to rupture her cyst.
The Board accepted Dr. Flora and Dr. Nelson's
testimony that sudden changes in pressure are
required to rupture a cyst and that placing an
object against a cyst is not sufficient to rupture
it. Thus, the Board implicitly rejected Dr. David
Anaise and Dr. Gerald Robert's testimony to the
contrary. When medical experts disagree about the
cause of an employee's injury, we have held that
as a general rule "it is undeniably the province
of the Board and not this court to decide who to
believe and who to distrust."30 The Board acted
appropriately in accepting Dr. Flora and Dr.
Nelson's testimony over that of Dr. Roberts and
Dr. Anaise. Because substantial evidence
supported the Board's decision that Dennis
Bradbury did not prove his claim by a
preponderance of the evidence, we affirm that
decision.
B. The Board Engaged in Reasoned Decision-Making .
Dennis Bradbury argues that the Board failed to engage
in reasoned decision-making and that this violated his due
process rights. He argues primarily that the Board ignored
evidence refuting Dr. Nelson and Dr. Flora's testimony.
The Board summarized the evidence presented by each
witness in its eighteen-page decision. The Board also reviewed
the list of possible job activities prepared by Claudia McLean
and the video reenactment of Linda Bradbury's possible work
activities. A review of the Board's decision and of the evidence
in the record shows that the Board engaged in reasoned decision-
making. Dennis Bradbury's argument to the contrary essentially
asks us to re-weigh the evidence, which we will not do.31 The
Board's decision that the testimony of certain doctors is more
persuasive than that of others is precisely the type of
credibility determination that only the Board may make.32
V. CONCLUSION
Because Chugach Electric produced substantial evidence
that Linda Bradbury's death was not work-related and because
Dennis Bradbury failed to prove his claim by a preponderance of
the evidence, we AFFIRM the Board's denial of benefits.
_______________________________
1DeYonge v. NANA/Marriott, 1 P.3d 90, 94 (Alaska 2000).
2Id.
3Id. (internal quotations omitted).
4Id.
5Id.
6Temple v. Denali Princess Lodge, 21 P.3d 813, 815-16 (Alaska
2001).
7Id. at 816.
8Id.
9Id.
10DeYonge, 1 P.3d at 96.
11Childs v. Copper Valley Elec. Ass'n, 860 P.2d 1184, 1188 n.5
(Alaska 1993).
12Big K Grocery v. Gibson, 836 P.2d 941, 942 (Alaska 1992).
13Temple, 21 P.3d at 816.
14Saxton v. Harris, 395 P.2d 71, 72 (Alaska 1964).
15See DeYonge, 1 P.3d at 96.
16Norcon, Inc. v. Alaska Workers' Comp. Bd., 880 P.2d 1051, 1054
(Alaska 1994) (quoting Big K Grocery, 836 P.2d at 942).
17880 P.2d 1051 (Alaska 1994).
18Id. at 1054.
19Id. at 1055.
20Id. at 1055 n.4
21Id.
22Childs v. Copper Valley Elec. Ass'n, 860 P.2d 1184, 1189 (Alaska
1993) ("The weight of [medical] testimony . . . should not be too
sharply discounted because of the disposition of the highly
trained scientific mind to refrain from unqualified statements or
opinions on such matters as causation.") (quoting Arthur Larson,
The Law of Workmen's Compensation 80.32, at 15-834 - 835
(1992)).
23See DeYonge v. NANA/Marriott, 1 P.3d 90, 96 (Alaska 2000).
24Norcon, 880 P.2d at 1055.
25Saxton v. Harris, 395 P.2d 71, 72 (Alaska 1964).
26Norcon, 880 P.2d at 1055.
27Dennis Bradbury challenges the Board's finding that the
circumstantial evidence he presented was insufficient to prove
his claim. He argues that "the best evidence of the effects of
[Linda Bradbury's] work on the hydatid cyst was, in effect,
circumstantial. It was her death." He contends that once the
presumption of compensability attached, "it was wrong of the
Board to require more than circumstantial evidence" for him to
prove his claim. This argument lacks merit; the Board did not
require more than circumstantial evidence, it simply rejected the
circumstantial evidence presented as insufficient.
28Safeway, Inc. v. Mackey, 965 P.2d 22, 29 (Alaska 1998).
29Id.; see also AS 23.30.122.
30Childs v. Copper Valley Elec. Ass'n, 860 P.2d 1184, 1189 (Alaska
1993) (quoting Kessick v. Alyeska Pipeline Serv. Co., 617 P.2d
755, 758 (Alaska 1980)).
31Safeway, Inc., 965 P.2d at 29.
32Bolieu v. Our Lady of Compassion Care Ctr., 983 P.2d 1270, 1274
n.11 (Alaska 1999).
