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Cowen v. Wal-Mart (06/25/2004) sp-5821
Cowen v. Wal-Mart (06/25/2004) sp-5821
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
JACKIE L. COWEN, )
) Supreme Court No. S-10836
Appellant, )
) Superior Court No. 3AN-01-
11761 CI
v. )
) O P I N I O N
WAL-MART and INSURANCE )
COMPANY OF STATE OF ) [No. 5821 - June 25, 2004]
PENNSYLVANIA, )
)
Appellees. )
)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, William F. Morse, Judge.
Appearances: Robert A. Rehbock, Rehbock &
Rehbock, Anchorage, for Appellant. Robert L.
Griffin, Law Offices of Robert L. Griffin,
Anchorage, for Appellees.
Before: Eastaugh, Fabe, and Carpeneti,
Justices. [Bryner, Chief Justice, and
Matthews, Justice, not participating.]
EASTAUGH, Justice.
I. INTRODUCTION
Jackie Cowen, claiming that her employment caused her
left breast saline implant to deflate, sought workers
compensation benefits from her employer, Wal-Mart. The Alaska
Workers Compensation Board rejected her claim. We affirm the
superior courts affirmance of the boards decision because we
conclude that the opinions of two physicians were substantial
evidence permitting the board to conclude that Cowens work
activities did not cause her implant to deflate.
II. FACTS AND PROCEEDINGS
At the time of her injury, Jackie Cowen was employed as
a Direct to Store Delivery Associate at Wal-Mart, where her job
duties included loading and unloading freight, tracking
merchandise, and emptying boxes. She has a history of
fibrocystic breast disease for which she had undergone a
bilateral mastectomy and multiple breast implant surgeries. On
March 1, 2000, she felt lethargic and nauseated when she returned
home at the end of her shift. She worked the next day and
informed her store manager on March 3 that her left breast
implant had collapsed. Although she stated in her Report of
Occupational Injury that she had hit her left breast while
lifting a box, she answered maybe on the attached questionnaire
to the question of whether anything had struck her body.
Cowen informed her family physician, Derek Hagen, D.O.,
of her condition on March 2, 2000. Dr. Hagen referred her to
plastic surgeon Sarah Troxel, M.D., who examined Cowen on March
6. At that time, Cowen denied any knowledge of trauma to her
breast. Dr. Troxel confirmed leakage and deflation of Cowens
left breast implant, but found no evidence of chest area
bruising.
Dr. Troxel referred Cowen to George Siegfried, M.D.
Dr. Siegfried has performed implant surgery since 1973 and
performs approximately forty implant surgeries per year. Dr.
Siegfried examined Cowen on March 14, 2000. His October 24, 2000
affidavit expressed his opinion that Cowen would remember the
kind of trauma necessary to induce acute implant deflation. He
also thought that a blow sufficient to cause an implant to
deflate would probably cause the scar tissue around the implant
to bruise, even after multiple breast surgeries. He stated that
it was not possible that lifting boxes of merchandise and bumping
them against the breast caused Cowens implant to deflate. He
stated his opinion that the deflation was most likely due to
natural wear caused by continuous abrasion. He stated that
anything that would cause the pectoralis muscle to move would
contribute to implant failure.
Cowen revisited Dr. Hagen on March 20, 2000. She
complained of cough, congestion, body aches, and anxiety
associated with the deflation. Dr. Hagen expressed his opinion
in a letter dated May 5, 2000 that Cowens job duties directly
caused her breast implant to deflate. He later stated in his
deposition that he based his opinion on what Cowen told him had
happened at work. Although he doubted that fluid from the
implant directly caused her symptoms, he thought that the
deflations effect on Cowens emotional state affected her
pulmonary condition.
Cowen filed a workers compensation claim on April 12,
2000. She alleged that her left breast implant had deflated due
to trauma that occurred while she was performing her regular job
duties. Wal-Mart and its insurer controverted and answered her
claim, asserting that the breast implant deflation was not work-
related. Cowen, when deposed, testified that she could not
recall any specific event at work that could have caused the
implant to deflate.
At Wal-Marts request, Cowen was evaluated by another
physician, Ajit Arora, M.D., who declined to offer his opinion
regarding the cause of the injury. He noted that nausea was a
symptom of fluid overload in the body, but found no association
between the implant deflation and Cowens pulmonary condition.
Rather, he concluded that her chest symptoms were related to her
asthma and interstitial fibrosis.
The board ordered a second independent medical
evaluation, by plastic surgeon Phil Haeck, M.D. He stated in a
letter that he found no evidence of the type of trauma required
to deflate Cowens implant. He opined that Cowens prior breast
surgeries would not result in a diminished ability to sense pain
except in the nipple areolar complex area of her breast and the
adjacent skin. He also stated that her multiple surgeries would
not alter the way bruising occurs after trauma. In his opinion,
shell-fold failure, which occurs when the implant is under-
filled, was the most likely cause of Cowens implant deflation.
He noted that Cowens right breast implant was under-filled by
approximately ten percent at the time of his examination.
Although he stated that the relation between shell-fold failure
and physical activity is unknown, he thought it unlikely that
Cowens work activities accelerated the shell-fold failure and
subsequent deflation of the implant. He also stated that he had
never encountered a patient with a deflated saline implant who
had any symptoms other than urinary frequency and decreased
breast size.
At the board hearing, Cowen testified that she could
not recall a specific blow that occurred the day before she
noticed her implant had deflated. She stated that she lacks
normal sensation or the ability to bruise in her chest area. She
also testified that her only physical activity is at work and
that she is physically inactive at home. Her husband
corroborated her testimony.
The board denied and dismissed Cowens claim for medical
and temporary total disability benefits. One member of the board
dissented. Although the board found that Cowen had introduced
sufficient minimal evidence to raise the presumption that work
was a substantial factor in her injury, it concluded that Wal-
Mart had presented substantial evidence to overcome the
presumption of compensability. Further, it concluded that Cowen
had failed to prove her claim by a preponderance of the evidence.
Superior Court Judge William F. Morse affirmed the boards
decision on September 24, 2002. Cowen appeals. She contends
that Wal-Mart failed to present evidence sufficient to overcome
the presumption of compensability.
III. DISCUSSION
A. 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 agencys
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 should not reweigh the evidence or choose between competing
inferences, but [we should] simply determine whether such
evidence exists.4 The workers compensation board has exclusive
authority to decide the credibility of witnesses.5
B. The Board Did Not Err in Concluding that Wal-Mart
Produced Substantial Evidence To Rebut the Presumption
that Cowens Claims Are Compensable Under the Workers
Compensation Act.
The Alaska Workers Compensation Act creates a
presumption that an employees claims are compensable.6 Applying
the presumption requires a three-step analysis.7 First, the
employee must establish the preliminary link between her
employment and her alleged injury.8 At this step, the board
should consider only evidence that tends to establish the link.9
Here the board found that Cowen introduced sufficient minimal
evidence to raise the presumption that her work was a substantial
factor in her injury. It relied upon Cowens testimony describing
her job duties and Dr. Hagens testimony that those duties
directly caused her breast implant to deflate. The parties do
not challenge the boards finding that Cowen established the
preliminary link between her job and the implant deflation.
Next, the employer has the burden of rebutting the
presumption that the injury was work-related with substantial
evidence.10 Benefits are awarded if the record establishes that a
work-related injury is a substantial factor in the employees
disability regardless of whether a non-work-related injury could
independently have caused the disability.11 The employers
substantial evidence must either (1) provide an alternative
explanation for the injury that, 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.12 The burden of production
shifts to the employer, but not the burden of persuasion; only
the employers evidence is examined.13 We have held that
presentation of a qualified expert who testifies that, in his or
her opinion, the claimants work was probably not a substantial
cause of the disability rebuts the presumption of compensability.14
Medical testimony cannot constitute substantial evidence if it
simply points to other possible causes of an employees condition,
however.15
The board found that Wal-Mart had rebutted the
presumption of compensability with substantial evidence. It
relied upon the opinions of Dr. Siegfried and Dr. Haeck that
Cowens work activities were not the cause of the implant failure.
Both experts attributed the implant deflation to product failure.
Dr. Siegfried stated his opinion that the implant failure was
caused by product fatigue. He thought it probable that the
implant wore out from everyday activity. Dr. Haeck attributed
the implant collapse to shell-fold failure that occurred because
the breast implant was under-filled. He explained that it was
unlikely . . . that lifting activities at work accelerated the
deflation of her breast implant. Only Dr. Hagen linked the
implant deflation to Cowens work activities.
Dr. Siegfried and Dr. Haeck also addressed the question
whether Cowens employment was a factor in causing her injury.
Dr. Siegfried stated that a blow sufficient to cause an implant
to deflate would probably also cause scar tissue around the
implant to bruise, even after multiple breast surgeries. Because
Cowen experienced no bruising and could not recall a specific
event in which she was hit in her left breast, he concluded that
her work activities probably did not cause her implant to
deflate. Dr. Haeck opined that Cowens multiple surgeries were
unlikely to diminish her ability to sense breast pain or to alter
the way bruises occur after trauma to the area. He could find no
evidence in the medical record or from [Cowens] history of any
specific trauma which caused the deflation of [her] implant. He
thought it most likely that the implant was under-filled and that
deflation was inevitable.
Cowen argues that Dr. Siegfrieds and Dr. Haecks
opinions are based on speculation and on factual assumptions
unsupported [by] and contrary [to] the record. Cowen points out
that Dr. Siegfried cannot exclude work as a substantial factor in
causing the implant failure. Dr. Siegfried initially stated that
he could not rule out work as a substantial factor because he was
unaware of the type of activities Cowen performed at work. After
Cowens work activities were described to him, he stated that the
pressure of boxes against Cowens chest was not likely to
accelerate implant failure, but that any activity that caused the
pectoralis muscle to move could contribute to it. Dr. Siegfried
seemed to doubt, however, that Cowens work activities caused any
more damage than would ordinary, everyday activities, such as
lifting a pencil or a glass of water or breathing. Although he
did not express his opinion in absolute terms, it was not
entirely inconclusive.16 In stating that everyday activities were
as likely to cause damage as work activities, he effectively
discounted work-related aggravation as a substantial factor in
Cowens disability. Although acceleration and aggravation are
justifiable bases for finding a compensable injury,17 it was not
clear that Cowens work-related movements contributed more to the
abrasion than did her usual movements. A reasonable mind could
therefore conclude that Dr. Siegfrieds opinions were adequate to
rebut the presumption of compensability.
Cowen also argues that Dr. Haecks opinion was
speculative and unsubstantiated. Dr. Haeck opined that the
implant deflation was not a direct consequence of physical
activity, whether undertaken at work or at home. He
acknowledged, however, that no one seems to know whether this
phenomena is related to physical activity.
Although we have held that medical certainty regarding
the causes of a claimed injury is not necessary to satisfy the
standard for substantial evidence,18 we have also stated that
merely reciting the proper words as an opinion is not necessarily
enough to rebut the presumption of compensability.19
Nevertheless, we have held that a doctors testimony that the
employees job was not a substantial factor in causing her
disability was substantial evidence to rebut the presumption of
compensability even when the doctor admitted that the causes of
the disability were unknown.20 We reasoned that it would
otherwise create an irrebuttable presumption that the disability
was work-related.21
A similar rationale applies here. We should not
discount Dr. Haecks opinion, which reflects his considerable
experience with and knowledge of breast implants, because of
medical uncertainty. Dr. Haeck based his opinion on his best
professional judgment. A reasonable mind could accept his
opinions as adequate to support the conclusion that Cowens work
activities were not a substantial factor in the shell-fold
failure and subsequent deflation of the implant, despite his
inability to state definitely whether the failure was related to
physical activity.
After an employer rebuts the presumption that injuries
are work-related, the employee must prove his or her claim by a
preponderance of the evidence to prevail.22 The employee must
induce a belief in the trier of fact that the asserted facts are
probably true.23 The claimed injury is compensable if the
employees work is a substantial factor in causing it.24
The board, after weighing the evidence, including the
opinions and the medical records, found the preponderance of the
evidence demonstrated that Cowens breast implant deflation was
not a work-related injury. Dr. Siegfrieds opinion persuaded the
board that the implant spontaneously deflated due to abrasion
when Cowen moved her pectoralis muscle. The board also gave
great weight to Dr. Haecks opinion that the breast implant was
going to fail regardless of Cowens physical activity at work or
home and that her job duties did not accelerate the failure. The
board gave less weight to Dr. Hagens opinion because he is a
family practitioner who has less experience with breast implants.
When medical experts provide contradictory testimony, the board
determines credibility.25 [I]f the Board is faced with two or
more conflicting medical opinions each of which constitutes
substantial evidence and elects to rely upon one opinion rather
than the other, we will affirm the Boards decision.26 It was
reasonable for the board to discount Dr. Hagens testimony because
he had limited experience with breast implants. The evidence
that was sufficient to rebut the presumption of compensability
was also sufficient to support the boards determination that
Cowen failed to show by a preponderance of the evidence that her
injury was work-related.
IV. CONCLUSION
For these reasons we AFFIRM the superior court order
that affirmed the decision of the Alaska Workers Compensation
Board.
_______________________________
1 DeYonge v. NANA/Marriott, 1 P.3d 90, 94 (Alaska 2000).
2 Id.
3 Id. (quoting Grove v. Alaska Constr. & Erectors, 948
P.2d 454, 456 (Alaska 1997)).
4 Steffey v. Municipality of Anchorage, 1 P.3d 685, 689
(Alaska 2000) (quoting Thompson v. United Parcel Serv., 975 P.2d
684, 688 (Alaska 1999)).
5 DeYonge, 1 P.3d at 94.
6 AS 23.30.120(a); see also Bradbury v. Chugach Elec.
Assn, 71 P.3d 901, 905 (Alaska 2003).
7 Bradbury, 71 P.3d at 905.
8 Id.
9 DeYonge, 1 P.3d at 95.
10 AS 23.30.120(a); see also Bradbury, 71 P.3d at 906.
11 Steffey v. Municipality of Anchorage, 1 P.3d 685, 690
(Alaska 2000).
12 Id. at 690-91.
13 Bradbury, 71 P.3d at 906.
14 Id. (quoting Big K Grocery v. Gibson, 836 P.2d 941, 942
(Alaska 1992)).
15 Childs v. Copper Valley Elec. Assn, 860 P.2d 1184, 1189
(Alaska 1993).
16 Bradbury, 71 P.3d at 907 (recognizing that a medical
professionals 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).
17 Williams v. State, Dept of Revenue, 938 P.2d 1065, 1072
(Alaska 1997).
18 Bradbury, 71 P.3d at 907.
19 Safeway, Inc. v. Mackey, 965 P.2d 22, 27 (Alaska 1998).
20 Id. at 28.
21 Id.
22 Bradbury, 71 P.3d at 906.
23 Id.
24 DeYonge v. NANA/Marriott, 1 P.3d 90, 96 (Alaska 2000).
25 Childs, 860 P.2d at 1189.
26 Doyon Universal Servs. v. Allen, 999 P.2d 764, 767-68
(Alaska 2000) (quoting Yahara v. Constr. & Rigging, Inc., 851
P.2d 69, 72 (Alaska 1993)).
