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Municipality of Anchorage v. Devon (12/02/2005) sp-5961
Municipality of Anchorage v. Devon (12/02/2005) sp-5961
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
| MUNICIPALITY OF ANCHORAGE,
| ) |
|
and WARD NORTH AMERICA, | ) |
|
INC.,
| ) |
|
| ) Supreme Court No. S-
11368 |
|
Appellants, | ) |
|
| ) Superior Court
No. |
|
v. | ) 3AN-02-7516
CI |
|
| ) |
|
SAMUEL DEVON, | ) O P I N I
O N |
|
| ) |
|
Appellee. | ) [No. 5961 - December
2, 2005] |
|
| ) |
|
|
|
|
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, William F. Morse, Judge.
Appearances: Trena L. Heikes, Law Office of
Trena L. Heikes, Anchorage, for Appellants.
Robert A. Rehbock, Rehbock & Rehbock,
Anchorage, for Appellee.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
CARPENETI, Justice.
I. INTRODUCTION
The main question presented in this appeal is whether
the Alaska Workers Compensation Board erred in denying the
Municipality of Anchorages petition for reimbursement of workers
compensation benefits paid to Samuel Devon. The municipality
argues on appeal that: (1) the board lacked substantial evidence
to dismiss its petition in light of surveillance tapes showing
Devon engaging in activities allegedly at odds with his claims of
injury, and (2) the board erred in admitting certain medical
records without allowing an opportunity for cross-examination.
Because the testimony of one of Devons treating physicians
provided substantial evidence for the board to conclude that
Devon did not misrepresent his condition in a way that garnered
him increased benefits, and because the superior court correctly
concluded that any error associated with admission of the medical
records was harmless, we affirm.
II. FACTS AND PROCEEDINGS
A. Facts
Samuel Devon began working for the Municipality of
Anchorage in May 1993 and was employed as a refuse disposal
technician. While employed by the municipality, Devon sustained
four injuries: (1) on February 1, 1995 he reported neck pain from
having to continuously look over his right shoulder while
operating a bulldozer; (2) on April 25,1998 he injured his neck
and upper spine after a sixteen-foot fall; (3) on October 19,
1999 he suffered pain in his neck after hitting three raised
manholes while operating a grader; and (4) on January 20, 2001 he
reported severe neck pain stemming from the vibration associated
with operating a grader. After the 1998 fall, Devon had two
surgeries: in June 1998 he had his C6 and C7 vertebrae surgically
fused and in November of that year he had arthroscopic surgery on
his right shoulder to remedy various problems, including a SLAP
lesion, which is a tear in the cartilage of the shoulder joint.
In July 2000 Devon underwent a physical capacities
evaluation (PCE) to determine whether he could continue to work
as a heavy equipment operator. Devon was able to push and pull a
350-pound cart, although at 400 pounds he demonstrated severe
scapular winging,1 and could lift thirty-five pounds above his
shoulders. He was certified for medium work. The evaluation
also noted that Devon had no strength above his shoulders and
that his neck could not take any impact. Sometime after the PCE
Devon was referred by his surgeon, Dr. Louis Kralick, to Dr.
Michael Gevaert for a permanent partial impairment (PPI) rating;
Dr. Gevaert conducted the evaluation in November 2000. Based on
pain and decreased shoulder mobility, the shoulder surgery, the
prior neck surgery, and related nerve damage, Dr. Gevaert
assigned Devon a PPI rating of twenty-seven percent.2 The
municipality paid Devon $36,500 based on this rating.3 Dr.
Gevaert agreed that Devon could return to medium work, but noted
that he risked reinjury if he was exposed to vibration. Devon
returned to work on January 14, 2001.
After ten days of work, on January 24, 2001, Devon
reported neck pain from the vibration associated with operating
the grader. The same day Devons request for reemployment
benefits was denied. Within a few days, Devon requested and
obtained notes from Drs. Gevaert and Kralick that restricted him
from operating the grader but allowed him to operate other heavy
equipment. Based on these notes, the Reemployment Benefits
Administrator reconsidered Devons application and granted him
reemployment benefits on February 8, 2001. According to the
municipality, Devon was paid $16,500 in temporary total
disability (TTD) benefits from January 24, 2001 until June 30,
2001. He was placed on annual sick leave until March 2001, when
the municipality terminated him.
Devon filed a claim for workers compensation benefits
based on the injuries to his neck and spine sustained while
operating the grader in January 2001. An evaluation done by the
municipalitys physician, Dr. Thad Stanford, in May 2001 concluded
that Devon was unable to operate a grader due to his injuries.
Dr. Stanford recommended further evaluation of Devons shoulder
injuries. On June 18, 2001 Dr. Douglas Savikko examined Devon;
he observed significant weakness and loss of mobility in Devons
right arm and shoulder and noted that the vibration associated
with operating a grader would cause pain in his neck and upper
back. He recommended reassignment to a less traumatic work
detail.
The municipality hired a private investigation firm
which filmed Devon engaging in various activities in June and
July of 2001 that seemed inconsistent with his claims of
debilitating shoulder pain.4 Without telling Devon about the
tapes, the municipality deposed him in October 2001. At the
deposition Devon repeated his claims of elbow and shoulder
problems, noting that he had limited mobility and significant
pain in his right arm and shoulder. Specifically, he stated that
if he tried to straighten his right elbow he would drop to the
floor reeling in pain, and that when his elbow was straightened,
the pain was excruciating. He also said he was unable to throw a
football or use his arms to pull a sled behind him. Overall, he
denied engaging in any physical activities other than being a
Girl Scout leader, and noted that even hugging his children was
painful. However, Devon agreed that he rode a motorcycle and
possessed a commercial drivers license (CDL). He also related
that he regained some mobility in his right arm when medicated,
but noted that the gains were limited.
Upon reviewing the tapes, Dr. Stanford changed his
opinion. Dr. Stanford stated that after viewing the activities
he did not see any impairment. He therefore concluded that the
January 2001 cervical injury only resulted in temporary
aggravation of Devons neck and shoulder problems and that it was
more likely than not that he has been medically stable since
roughly the end of January of 2001.5
Dr. Gevaert also viewed the surveillance tapes and he
later testified about them in front of the board. He noted that
some of the activities, such as pulling the harrow, were somewhat
unusual, but not inconsistent with either his evaluation or Dr.
Savikkos June 2001 evaluation. However, he felt that overall,
the difference between Devons condition at the Savikko evaluation
and his videotaped abilities was highly unusual. Dr. Gevaert
observed that Devon reported that his shoulder showed no
improvement in early 2001, and that his medical records show that
it had worsened by the June 19 Savikko evaluation, but then noted
that Devon displayed full use of his shoulder and no evidence of
pain when videotaped playing softball nine days later. He
characterized this improvement as very dramatic and stated that
Devons ability to engage in these activities without evincing
pain or reduced mobility was striking. Dr. Gevaert concluded
that Devons 2000 PPI was [p]robably not accurate and agreed that
Devon had misrepresented his physical condition to his doctors.
However, when questioned by Devons counsel, Dr. Gevaert said that
he could not say that Devon lied to him or consciously
misrepresented his condition in November 2000. Dr. Gevaert
further stated that he could not say that it was more likely than
not that Devons PPI rating was incorrect. But on rebuttal Dr.
Gevaert offered contradictory testimony. First, he agreed that
it was more likely than not that the November 2000 PPI rating was
incorrect because it undercounted Devons range of motion in his
shoulder, and said that this error made Devons PPI score four to
seven percent higher than it should have been. Second, he
admitted that he suspected Devon of a certain degree of
malingering.
Dr. Gevaert also noted that Devon had been taking the
pain relievers Percocet and Oxycontin but was unaware whether
Devon had taken them before his November 2000 evaluation. And he
admitted that medication could lead to some improvement and that
it was possible, albeit unlikely, that narcotics could allow
someone with Devons level of injury to engage in the taped
activities without showing pain or discomfort. He also said that
if someone were to have a normal recovery, then they could have
demonstrated Devons level of injury at the November 2000 exam and
still engaged in the activities on the tape (which took place six
months later) without pain or medication.
Devon also testified in front of the board, admitting
that the tapes seemed pretty damning. He explained the
difference between his November 2000 PPI and the activities on
the tapes by claiming that he had not been medicated when he was
examined by Dr. Gevaert and that he was able to do more when
medicated. He suggested, but did not explicitly state, that he
was on medication when he was videotaped.6 Finally, he agreed
that his answer in the October deposition that he could not throw
a ball was if not false . . . a distortion of the truth.
B. Proceedings
Based on the surveillance tapes and Devons deposition
testimony, the municipality filed a petition with the Alaska
Workers Compensation Board seeking reimbursement of PPI benefits,
TTD benefits from January to June of 2001, reemployment benefits
and associated costs and attorneys fees. The municipality argued
that Devon had fraudulently obtained benefits in violation of AS
23.30.250(b)7 by lying about the extent of his injuries and by
failing to inform his vocational counselor that he had driven an
eighteen-wheel tractor-trailer in a previous job. It requested
reimbursement under subsection .250(b), modification under AS
23.30.1308 of Devons eligibility for reemployment benefits, and
referral of the case to the District Attorneys office.
In regard to the PPI benefits, the board held that
Devons videotaped activities were explainable as either being not
inconsistent with the November 2000 PPI rating or possible with
pain medications. The board found Dr. Gevaert to be sincere but
noted that his testimony was at times incongruous and held that
when considered as a whole, his testimony did not support the
municipalitys claim. The board noted that there was a lack of
significant inconsistency between the employees physical
abilities at the July 11, 2000 PCE and the activities in the
videotapes, and noted that this also refuted the municipalitys
claims of knowing misrepresentation.
As to the TTD benefits, the board highlighted Dr.
Gevaerts testimony that he relied on the neck condition in
finding Devon to be unable to work on the grader, and thus
concluded that these benefits were properly awarded. The board
essentially held that, as Devons TTD benefits were based on his
neck condition, any misrepresentations about his shoulder
condition were immaterial.
In regard to the reemployment benefits, the board held
that the municipalitys claim that Devon tried to conceal that he
had driven a truck were baseless and declined to amend the award
of reemployment benefits because Devon listed his CDL on his
r‚sum‚ and told the vocational counselor that his prior job
involved driving a truck.
Finally, the board declined to refer the matter of
Devons misrepresentations for criminal prosecution. Although
the board noted that there were troubling problems with Devons
testimony, it held that he did not knowingly misrepresent his
condition at the October deposition because, while he denied
being able to throw a ball, he noted that he retained some
capabilities in that arm. The board also relied on Dr. Gevaerts
testimony, which it said revealed that Devon likely could throw a
softball if medicated.
The municipality appealed this decision to the superior
court, arguing that the board lacked substantial evidence for its
conclusions, applied the incorrect legal standard of proof, and
improperly admitted certain medical records. Superior Court
Judge William F. Morse affirmed on all counts. Judge Morse held
that the board properly applied the preponderance of the evidence
standard, as required by this court in DeNuptiis v. Unocal Corp.9
He also found that there was substantial evidence to support the
boards decision, citing its conclusion that Dr. Gevaert did not
change his PPI rating after viewing the tapes, the fact that the
TTD benefits were based on the neck injury, and the fact that
Devon told the vocational counselor he had driven a truck at work
and that he possessed a CDL. Finally, Judge Morse rejected the
municipalitys argument regarding the medical records, holding
that even if the records were improperly admitted, any error was
harmless because the board did not rely upon the reports in its
decision.
III. STANDARD OF REVIEW
We independently review the merits of an administrative
decision when the superior court acts as an intermediate court of
appeals.10 In reviewing the boards decision, we review factual
findings to ensure they are supported by substantial evidence.11
Substantial evidence is defined as such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.12
However, we do not reweigh the evidence or choose between
competing inferences; we only determine whether such relevant
evidence exists.13 Determining witness credibility is left
entirely to the board.14
We review the boards decisions regarding the
admissibility of evidence for an abuse of discretion.15 We find
an abuse of discretion exists only if we are left with the
definite and firm conviction that a mistake has been made.16
IV. DISCUSSION
A. The Boards Decision that Devon Did Not Fraudulently
Obtain Workers Compensation Benefits Was Not Erroneous.
The municipality bore the burden of proving by a
preponderance of the evidence that Devon knowingly made false or
misleading statements for the purpose of securing workers
compensation benefits.17 Alaska Statute 23.30.250(b) requires
repayment of employment benefits when a person has obtained
compensation, medical treatment, or another benefit provided
under this chapter by knowingly making a false or misleading
statement or for the purpose of obtaining that benefit. . . .
(Emphasis added.) The board applies a four-part test for fraud
claims. The employer must show that: (1) the employee made
statements or representations; (2) the statements were false or
misleading; (3) the statements were made knowingly; and (4) the
statements resulted in the employee obtaining benefits.18 As it
comports with the language of AS 23.30.250(b), we adopt this
test. Thus, to succeed in this appeal the municipality must show
that the board lacked substantial evidence to conclude that Devon
did not secure workers compensation benefits through such
statements or actions.
1. Substantial evidence supports the boards finding
that Devon did not fraudulently obtain PPI
benefits.
PPI benefits were awarded as a result of Dr. Gevaerts
PPI rating in November 2000. Accordingly, the critical question
is whether Devon obtained excess PPI benefits by intentionally
misleading Dr. Gevaert in November 2000 when the PPI evaluation
was conducted. The board concluded that the municipalitys
surveillance tapes were not compelling evidence that Devon
engaged in fraudulent behavior. This conclusion was based on
three key findings: (1) that nearly all of the activities on the
videotapes were explained away by Dr. Gevaert as not inconsistent
with the November 2000 PPI rating; (2) that Dr. Gevaert testified
that Devons range of motion would have been improved with
medication and that Devon testified that he took medication when
he engaged in physical activities; and (3) there was little
inconsistency between Devons physical abilities at the July 2000
PCE and the videotaped activities. The municipality maintains
that the surveillance tapes and Dr. Gevaerts testimony show that
Devon fraudulently secured benefits, and thus argues that the
boards conclusion is not supported by substantial evidence. As
explained below, we disagree.
(a) Dr. Gevaerts testimony as to the November
2000 evaluation
As noted above, the board was faced with deciding
whether Devon obtained excess PPI benefits by intentionally
misleading Dr. Gevaert in November 2000, when the PPI evaluation
was conducted. The board relied on Dr. Gevaerts testimony in
concluding that [n]early all of the videotaped activities were
not inconsistent with the November 2000 evaluation. The board
specifically referred to his testimony that dragging a screen
across the infield of a softball field was not inconsistent with
the earlier evaluation. While Dr. Gevaert testified that Devon
likely misrepresented his condition to the other doctors in
spring of 2001, he did not testify that Devon misrepresented his
symptoms in November 2000. The board relied on Dr. Gevaerts
testimony that he was unable to say whether Devon intentionally
misrepresented his condition at the November 2000 evaluation.19
Although later portions of his testimony could be read as
contradicting this statement,20 the board was entitled to rely on
his earlier testimony that he could not say that Devon
misrepresented his condition in November 2000. It is significant
that there was a six-month gap between the November 2000 PPI and
the municipalitys surveillance. As Dr. Gevaert stated, a person
who recovered normally could have engaged in the activities on
the tape without pain. Thus, even if Devon lied or
misrepresented the fact that his shoulder was recovering
throughout 2001, it is possible that he was not exaggerating his
condition at the time of the PPI evaluation.
(b) Dr. Gevaerts testimony concerning pain
medication
The board relied on Dr. Gevaerts testimony that pain
medication could have affected Devons ability to engage in the
activities shown on the videotape. The doctor testified, for
example, that carrying several soccer balls in a bag as Devon did
in the videotape would be possible if the person had taken pain
medication. The board accepted Devons testimony that he had not
taken pain medication before the PPI evaluation but that he did
take pain medication before engaging in physical activities of
the type shown in the surveillance tapes. The board also relied
on Dr. Gevaerts testimony that Devon would have a better range of
motion when medicated.21
(c) Consistency between July 2000 PCE and
videotaped activities
The board lastly relied on a lack of significant
inconsistency between Devons condition as shown in the July 2000
PCE and his activities shown in the videotapes. At the July 2000
PCE Devon was able to push and pull up to 400 pounds without
complaining of pain, was able to lift and manipulate weights of
up to thirty-five pounds over his shoulder, and was able to lift
a weight of forty pounds to his shoulder height. Dr. Gevaert
stated that all of this was consistent with what was shown on the
videotape.22 While Dr. Gevaert was careful to point out that a
physical capacities evaluation is undertaken for a different
purpose than a permanent partial impairment rating, the board was
entitled to rely on the similarities in Devons condition in July
2000 (as shown in the PCE) and in June-July 2001 (as shown in the
videotapes) to support its conclusion that the municipality had
not established a case of misrepresentation.
(d) Conclusion
The boards finding that the municipality did not show
by a preponderance of the evidence that Devon obtained benefits
by making knowing misrepresentations was not clearly erroneous.23
Like the board, we note that Devons testimony certainly has
troubling aspects. And it is not unthinkable that upon de novo
review, we would be less inclined to credit the testimony of a
witness who admitted that he made statements about his physical
capabilities that were if not false, a distortion of the truth,
who had previously been convicted of dishonesty, and who lied
about being a member of a workers union in a deposition.
However, in this situation, we are bound by both the deferential
standard of review that we apply to the boards decisions and by
statute; AS 23.30.122 states that [t]he board has the sole power
to determine the credibility of a witness. (Emphasis added.) It
may well be that [e]very violation of truth is not only a sort of
suicide in the liar, but is a stab at the health of human
society.24 But given the standard of review, we are unable to
usurp the role of the board and consider whether such a wounding
has occurred.
2. Substantial evidence supports the boards finding
that Devon did not fraudulently obtain TTD
benefits.
The municipality also argues that the boards decision
to dismiss its claim that Devon fraudulently secured TTD benefits
was not supported by substantial evidence. The board noted that
the TTD benefits were based on Devons inability to withstand the
vibration associated with operating a grader, and Drs. Gevaert,
Savikko, and Kralick cited Devons cervical problems as the reason
for limiting his exposure to vibration. Dr. Stanford changed his
view of Devons neck injury after viewing the tapes, but Dr.
Gevaert declined to do so, noting that any error in shoulder
mobility was unrelated to his decision to excuse Devon from
operating the grader. Even if Devon was untruthful about his
shoulder injury, that misrepresentation did not increase or
affect TTD benefits paid for the neck injury. Thus, Dr. Gevaerts
testimony provides substantial evidence for the boards judgment
on the TTD benefits.
3. Substantial evidence supports the boards finding
that Devon did not fraudulently obtain
reemployment benefits.
The municipality argues that Devon is not entitled to
his reemployment benefits because he was not entirely candid with
Elisa Hitchcock, his vocational specialist. He was asked to
supply her with a list of all jobs he had held in the last ten
years, and she testified that he did not list commercial truck
driver as one of his past occupations. Thus, she did not
consider this job when looking for alternative employment for
Devon and testified that she could have found Devon a truck
driving job had she known this information sooner. The
municipality argues that it could have avoided $11,000 in
reemployment benefits. However, this argument fails because
there was sufficient evidence for the board to conclude that
Devon did not knowingly mislead Hitchcock. Hitchcock testified
that Devon gave her a copy of his CDL and informed her that he
drove a truck as part of his job. The information provided by
Devon seems to have been part of a good-faith effort to inform
the counselor of his work experience, and examination of his
r‚sum‚ and status as a CDL holder should have led Hitchcock to
consider truck driving as a possible job for Devon. Therefore,
we conclude that there was substantial evidence to support the
boards decision on this point.25
B. Any Error in Admitting Various Medical Reports Without
Allowing the Municipality To Cross-Examine the Reports
Authors Was Harmless.
The municipality argues that the boards decision should
also be reversed because it relied on medical reports from
doctors who were not made available for cross-examination. The
municipality notes that it was entitled to cross-examine the
author of the reports under Commercial Union Cos. v. Smallwood,26
and argues that because its request was not granted, the reports
were inadmissible. It asks for reversal because the weight given
the reports cannot be gleaned from the boards decision.
The municipality argues that these reports are
inadmissible because the authors were not Devons treating
physicians, they were not selected by the municipality, and the
evaluation was not undertaken for the workers compensation claim.
However, as the superior court pointed out in its decision
affirming the board on this issue, the municipality did not
object to introduction of the medical reports of two of the
doctors and did not request an opportunity to cross-examine the
third doctor. Since the municipality did not object to
introduction of the documents, Devon did not have the opportunity
to establish the requisite foundation. Further, even assuming
for the sake of argument that the board erred in admitting the
reports, the municipality bears the burden of showing that it was
prejudiced by the boards admission of these reports.27 We are
unable to conclude based on the record that the reports admission
prejudiced the municipality.
In determining whether an error was harmless, we
examine whether it affected the final verdict.28 Factors relevant
to this determination include the relative amount of time at
trial devoted to the evidence29 and whether the inadmissible
evidence was cumulative and largely replicated other admissible
evidence.30 In this case, the board heard no testimony about
these reports. Moreover, it only mentioned the reports in its
factual summary; its substantive discussion focused on Dr.
Gevaerts testimony, Devons testimony, and the existing record.
In addition, the information in the contested reports essentially
restated evidence already in the record.31 We conclude that the
municipality has not met its burden of showing that it was
prejudiced by the boards admission of the reports. Thus, even if
the board erred in admitting the reports, any error is harmless
because it did not rely on the reports in its final decision.
V. CONCLUSION
Because there was substantial evidence to support the
boards findings that Devon did not fraudulently secure PPI, TTD,
or reemployment benefits and because any error in the admission
of medical reports not subject to cross-examination was harmless,
we AFFIRM the superior courts decision upholding the boards
decision denying the municipalitys petition for reimbursement of
benefits.32
_______________________________
1 Scapular winging occurs when the scapula, or shoulder
blade, protrudes away from the back. This condition is caused by
paralysis of the serratus anterior muscle. Stedmans Medical
Dictionary 1387 (25th ed. 1990).
2 While most of the rating was objectively determined,
the portion of the PPI rating related to Devons shoulder mobility
and pain was based on Devons comments to Dr. Gevaert.
3 Under former AS 23.30.190, PPI payments were determined
by multiplying the PPI percentage by $135,000.
4 Specifically, investigators observed Devon:
[R]iding his Harley Davidson motorcycle.
Conducting physical labor maintaining a ball
field including starting a pitching machine
with a rope starter using both arms, dragging
a wire mesh harrow around the infield with
both arms behind his back and lifting the
harrow over his head. Subject was also taped
raking and using a wheel barrow and was
observed lifting heavy items. Subject was
also taped playing softball that included
activities such as batting, throwing,
running, and catching a softball.
5 Once an injured employee is medically stable, he or she
may not receive temporary total disability payments. AS
23.30.185. An employee is medically stable once further
objectively measurable improvement from the effects of the
compensable injury is not reasonably expected to result from
additional medical care or treatment, notwithstanding the
possible need for additional medical care or the possibility of
improvement or deterioration resulting from the passage of
time. . . . AS 23.30.395(21).
6 Devon
did
not
expli
citly
admit
that
he
had
taken
medic
ation
befor
e he
was
video
taped
.
Inste
ad,
he
said
that:
[W]hen I know that Im going to be doing some
physical activity, I will medicate ahead of
time, because I know that it that I wont be
able to do a lot of things if I dont. . . . I
try not to take the medication all the time.
. . . I really dont want to be addicted to
any narcotic . . . and thats probably why
there may be some inconsistencies . . . in my
activity.
7 AS 23.30.250(b) states in relevant part:
If the board, after a hearing, finds that a
person has obtained compensation, medical
treatment, or another benefit provided under
this chapter by knowingly making a false or
misleading statement or representation for
the purpose of obtaining that benefit, the
board shall order that person to make full
reimbursement of the cost of all benefits
obtained. Upon entry of an order authorized
under this subsection, the board shall also
order that person to pay all reasonable costs
and attorney fees incurred by the employer
and the employers carrier in obtaining an
order under this section and in defending any
claim made for benefits under this chapter.
8 AS 23.30.130(a) lists various grounds for the
modification of a workers compensation award, including mistake
of fact.
9 63 P.3d 272, 277-78 (Alaska 2003).
10 Cowen v. Wal-Mart, 93 P.3d 420, 424 (Alaska 2004).
11 Id.
12 Id. (quoting DeYonge v. NANA/Marriott, 1 P.3d 90, 94
(Alaska 2000)).
13 Id.
14 Id.
15 DeYonge, 1 P.3d at 94.
16 Id.
17 DeNuptiis v. Unocal Corp., 63 P.3d 272, 277-78 (Alaska
2003).
18 See Church v. Silver Bay Logging, Inc., No. 99-0139
(Alaska Workers Comp. Bd., June 24, 1999).
19 Devons counsel and Dr. Gevaert engaged in the following
exchange:
Q: [A]re you saying, then, [in] November
2000 that Mr. Devon lied to you; that is
consciously misrepresented his physical
capacities? Yes, no, or you cant say.
A: I cant say.
Q: Thank you. Would you agree and this is
the legal standard that you cannot say
to a reasonable degree of medical
certainty, more likely than not, that
Mr. Devons PPI rating of November 00 as
of that date was wrong?
A: Thats correct, I cant say it was wrong.
20 First, Dr. Gevaert agreed that the November 2000 PPI
evaluation was more likely than not wrong. Then, he admitted to
suspecting Devon of a certain degree of malingering. And
finally, when asked whether he agreed with the statement that the
only time that Mr. Devon shows [a] reduced range of motion is
when hes either with a doctor or in a deposition, and that when
hes recreating there is no loss of motion, he responded: That is
correct.
21 Dr. Gevaerts testimony on this subject was not without
internal contradictions. As noted by the municipality, he also
testified that while pain medication can reduce the pain and
allow people to participate in certain activities, . . . it wont
reduce the pain completely so that we dont see any secondary
effects of guarding for pain, of rubbing the shoulder, etc. He
concluded that it was kind of unlikely that Devon could have
engaged in all of the activities on the tapes without
demonstrating any signs of pain.
22 The only inconsistency noted by Dr. Gevaert was that,
in the videotape, Devon showed no indication of pain or guarding.
23 The municipality also argues that the board erred
either by abdicat[ing] its duty to make a specific finding
regarding Devons credibility or by relying on Devons testimony
when, in the municipalitys view, Devon was wholly unbelievable.
The board accepted Devons testimony that he did not take
medications prior to the November 2000 evaluation and found it
plausible that he self-medicated before engaging in physical
activities. Although not explicit, this reliance on Devons
testimony demonstrates that the board found him to be credible.
Cf. Hoth v. Valley Constr., 671 P.2d 871, 874 n.3 (Alaska 1983)
(Absent specific findings by the Board that it chose to
disbelieve a witnesss testimony, we will not assume that lack of
credibility was a relevant factor in the Boards decision.).
24 Ralph Waldo Emerson, Essay VII: Prudence, in Emersons
Essays 135 (Dent 1906) (1841).
25 In addition, the municipality does not offer any
evidence to show that Devon intentionally misrepresented his work
history. Alaska Statute 23.30.250(b) requires that any
misrepresentation or falsehood be knowing. Even if Devons
description of his work history was less than clear, the lack of
intentionality also undermines the municipalitys argument.
26 550 P.2d 1261 (Alaska 1976). In Smallwood we held that
parties have a right to cross-examine authors of reports
submitted for review by the board. Id. at 1265-66.
27 Dobos v. Ingersoll, 9 P.3d 1020, 1024 (Alaska 2000)
(citing Zerbinos v. Lewis, 394 P.2d 886, 889 (Alaska 1964)).
28 Wyatt v. State, 981 P.2d 109, 115 (Alaska 1999) (A
non-constitutional error is harmless if it did not appreciably
affect the jurys verdict. ) (quoting Love v. State, 457 P.2d 622,
631-32 (Alaska 1969)).
29 Dobos, 9 P.3d at 1024-25 (citing Alyeska Pipeline Serv.
Co. v. OKelley, 645 P.2d 767, 773 (Alaska 1982)).
30 Jackson v. White, 556 P.2d 530, 534 n.13 (Alaska 1976)
(introduction of hearsay evidence harmless error where evidence
cumulative of other evidence).
31 The contested evaluations noted that Devon had cervical
problems stemming from his C6/C7 fusion, that he could push or
pull unlimited amounts of weight, that he displayed scapular
winging, and that he had limited lifting capabilities. These
results are not significantly different from the results of the
July 2000 PCE.
32 Devon also requests that this court grant him attorneys
fees for not only this appeal, but also for stayed proceedings
regarding the amount of attorneys fees owed to him for the fraud
hearing and his appeal to the superior court. However, because
neither the board nor the superior court has issued a final order
on this point, it is not properly before us.
