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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Groom v. State, Dept of Transportation (10/26/2007) sp-6180
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
| SCOTT A. GROOM, | ) |
| ) Supreme Court No. S- 11882 | |
| Appellant, | ) |
| ) Superior Court No. 4FA-03-1444 CI | |
| v. | ) |
| ) | |
| STATE OF ALASKA, | ) O P I N I O N |
| DEPARTMENT OF | ) |
| TRANSPORTATION, | ) No. 6180 October 26, 2007 |
| ) | |
| Appellee. | ) |
| ) | |
Appeal from the
Superior Court of the State of Alaska, Fourth
Judicial District, Fairbanks, Richard D.
Savell, Judge.
Appearances: James M. Hackett, Law Office of
James M. Hackett, Fairbanks, for Appellant.
Rebecca H. Cain, Assistant Attorney General,
Anchorage, and David W. M rquez, Attorney
General, Juneau, for Appellee.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
BRYNER, Chief Justice.
I. INTRODUCTION
In 1999 the Alaska Workers Compensation Board concluded
that Scott Groom had injured himself in a slip-and-fall incident
at work. In 2003 the board reversed course and determined that
Groom had not been involved in a slip-and-fall incident. After
finding that Grooms work duties required neither heavy lifting
nor episodes of prolonged standing and that Groom had not been
required to engage in heavy or extended snow shoveling, the board
denied Grooms claims for various disability and impairment
benefits. We reverse the boards 2003 resolution of Grooms slip-
and-fall claims because the board failed to give Groom any notice
that it might revisit its 1999 determination that he had
sustained an injury in the course and scope of his employment
with the state. We also reverse the boards dismissal of Grooms
remaining claims because the board applied the incorrect legal
standard in finding that the state had rebutted the presumption
of compensability. We remand this case for further proceedings.
II. FACTS AND PROCEEDINGS
Scott Groom suffers from a condition known as
congenital lymphedema, or Milroys disease. Congenital lymphedema
is a genetic disorder of the lymphatic system and is quite rare.
Vessels in the lymphatic system circulate lymph and other
interstitial fluids throughout the body; Groom is missing a
number of these vessels, and, as a result, his arms and legs
frequently swell with uncirculated fluid. In their swollen
state, Grooms legs are spongy. Lymphatic vessels also transport
bacteria and other hostile agents to lymph nodes, allowing the
body to produce antibodies; because Grooms body or lymphatic
system cannot perform this function reliably, he is prone to
cellulitis, a type of local skin infection.
Groom worked for the Department of Transportation as a
weigh station operator. On March 13, 1999, after letting his
supervisor know that he had injured himself in a fall, Groom left
the Fox weigh station near Fairbanks and never again returned to
work. Soon after, he completed a report of occupational injury
in which he alleged that he had fallen on the ice, creating a rip
in [his] left leg. In the employer section, Grooms supervisor
wrote, Scott told me that he fell measuring a[n] Alaska West
Express 3S1S1 Axle Spread . . . on a trailer.
The state twice controverted Grooms report of injury.
In its second controversion the state declared that Groom could
not have fallen while inspecting an Alaska West Express truck
because, according to an investigation by the state, the
measurement allegedly taken by Groom on March 13 did not take
place.
Groom then filed an application for adjustment of claim
with the Alaska Workers Compensation Board. In that application
he stated that he ripped open his left calf at work by slipping
and falling while measuring an Alaska West Express bulker truck
at the Fox weigh station. He requested temporary total
disability and permanent partial impairment benefits, as well as
costs and penalties.
The board held a hearing on Grooms claim on August 5,
1999. At the request of the state, the board considered only one
issue whether Groom ripped his left calf open on March 13, 1999
in a slip-and-fall accident at the Fox weigh station. The board
heard testimony from Groom, Grooms mother, and Grooms supervisor.
Groom testified:
I walked around to the back of th[e] truck, I
slipped with my left leg and went down Indian
style my right knee came down [on] my left
calf [and] popped it like a big [] zi[t].
Grooms mother testified that when she saw Grooms leg,
it looked as though it had crack[ed] open like a watermelon that
is too ripe. Both she and Groom described the injury as
unusually severe. Groom admitted that he did not initially seek
medical attention for the injury.
Grooms supervisor testified that Groom could not have
fallen while inspecting an Alaska West bulker truck on March 13,
because Alaska West had not shipped any bulkers in a 3S1S1
configuration on that day. He also noted that the computer
system had no record of a truck, bulker or otherwise, being
inspected near the time Groom claimed to have fallen.
In response Groom denied ever claiming that the truck
he was inspecting was a bulker. He also argued that the absence
of a computer record could be readily explained: after he fell,
he immediately allowed the truck he was inspecting to leave.
Rather than record an incomplete inspection, he deleted the log
entry.
The state also submitted the deposition of Andrew
Holland, a physicians assistant at Tanana Valley Clinic. Holland
was the first health care provider Groom saw following his
injury. Holland testified that he diagnosed Groom with
cellulitis because of patchy red skin. His chart notes did not
show a laceration, and he said that he would normally note the
presence of a laceration if he observed one. He also observed
swelling in Grooms legs.
The board handed down its decision on October 14, 1999.
It found that the state had produced substantial evidence to
overcome the presumption of compensability and had shifted the
burden to Groom to prove his claim by a preponderance of the
evidence. It found that Groom had met this burden and declared
that Grooms claim for workers compensation benefits associated
with his March 13, 1999 injury was compensable.
In reaching this conclusion the board found: (1) Groom
and his mother were generally credible witnesses; (2) an on-going
personnel dispute explained why Groom removed the computer
evidence: because he did not wish to document his failure to
weigh and measure trucks, as required by his employer; and (3)
the absence of contemporaneous medical treatment was explained by
Grooms difficulty in finding knowledgeable medical providers for
his disease and his consequent history of self treatment. The
board made one additional finding:
Significantly, . . . though we were not asked
to decide this issue, we also believe the
associated flare up was a temporary
aggravation of a preexisting condition and
that entitlement to benefits ended upon
resolution of the condition.
The state petitioned the board to reconsider its
decision; the board declined. The state then appealed to the
superior court.
About a month after the 1999 board decision, Groom
filed a second report of occupational injury. He claimed a
different type of injury, centering on his snow shoveling duties
the previous winter. He stated that he had been forced to work
the Ester Scale with no snow blower, just a shovel causing
constant tears & damage to both legs. The state controverted the
report by arguing that Groom failed to provide written notice of
the injury within thirty days, as required by AS 23.30.100, and
that there was no medical documentation linking Grooms current
condition to his work with the state. Because the parties
had agreed to address only one aspect of Grooms slip-and-fall
claim at the boards initial hearing on that claim, they continued
to develop other aspects of their cases during the superior court
appeal. The state arranged for an independent medical
examination of Groom by Dr. Andrzej Szuba on March 3, 2000. Dr.
Szuba stated that Grooms cellulitis in 1999 could have been
caused by trauma even in the absence of a visible laceration; he
concluded that Grooms work for the state was a substantial factor
in exacerbating Grooms lymphedema. Shortly after Dr. Szuba wrote
his report, Groom filed another application for adjustment of
claim under the slip-and-fall case number, seeking permanent
total disability and permanent partial impairment benefits, as
well as penalties and interest. He claimed that the states
controversions had been unfair or frivolous and reported that the
slip and fall had caused cellulitis, swelling, infection and
fever, [and an] increase in production of lymphatic fluid.
The states answer characterized Grooms application as
an amendment to his original claim. It agreed that Groom could
amend his claim to include an award of additional benefits
because the scope of the1999 hearing did not include a
determination of the benefits to which Groom was entitled. But
it denied that Groom could allege a different type of injury from
that addressed in the August 5, 1999 hearing, contending that the
new allegation would interfere with the superior courts
jurisdiction or constitute an impermissible attempt to relitigate
issues that the board had already decided. It also denied that
Grooms employment was a substantial factor in bringing about any
change in his lymphedema.
Groom then filed an affidavit of readiness for hearing.
The state opposed it, claiming that it needed to conduct
additional discovery about the nature, scope, and physical
demands of Grooms work, as well as medical stability and total
disability. The board scheduled a hearing for November 21, 2000.
The state deposed Dr. Szuba before the hearing. In his
deposition Dr. Szuba testified that an injury to Grooms leg on
March 13, 1999 could aggravate his lymphedema by increasing
swelling; he further testified that every cellulitis infection
damages the lymphatic system. Dr. Szuba also said that
cellulitis could develop even without an objective tear in the
skin because of blunt trauma or an increased workload or
swelling. Dr. Szubas impression was that Grooms condition had
changed significantly from the year before. Dr. Szuba indicated
that if Grooms work did not involve prolonged standing or very
much snow shoveling, then he would have to reconsider his
conclusion that Grooms work had been a substantial factor in
aggravating his lymphedema. Dr. Szuba gave his opinion that
Groom was not medically stable and might benefit from specialized
treatment.
Following Dr. Szubas deposition, Groom filed a second
revision of his slip-and-fall claim. In it, he requested
temporary total disability benefits from March 13, 1999 onward
because of Dr. Szubas testimony that he was not yet medically
stable. The parties agreed to postpone the scheduled hearing so
that the state could respond to Grooms latest claim. When the
state filed its answer, it admitted that Dr. Szuba said that
Groom was not medically stable but denied that Grooms work for
the state entitled him to receive temporary total disability and
medical benefits.
On January 4, 2001, the superior court upheld the 1999
board decision, deciding that the boards findings were supported
by substantial evidence. It also found that the board had not
violated the states due process rights by considering an
alternative injury theory when it discussed the flare up of
Grooms lymphedema.
The parties then set another hearing date, June 14,
2001, on Grooms claim. On March 5, 2001, Groom filed his fourth
workers compensation claim, asserting that the superior courts
decision established the law of the case; he again requested
temporary total disability and permanent total disability
benefits, as well as penalties and interest. The state answered
this claim by asserting that the law of the case included not
only the fact that the slip and fall had occurred but also the
limited nature of the flare up. It denied that it should pay
benefits based on Dr. Szubas written reports because its
investigation showed that Grooms work duties were not as he
described them. It renewed its defense that Grooms second report
of injury centering on his snow- shoveling duties was not
timely and raised the additional defense that the snow-shoveling
claim had not been filed within the two-year statute of
limitations.
On March 9, 2001, Groom filed his fifth workers
compensation claim using the slip-and-fall case number. This
claim encompassed both the slip and fall and the injury report
related to snow shoveling. It gave the following description of
his injuries:
[C]ontinuous aggravation, triggered by
injury, injured left leg at work by slipping
& falling; while this act was the culminating
event, employer aggravated employees
lymphedema by requiring standing and
shoveling prior.
Groom reported that this claim was needed to make [his]
application consistent with facts adduced through discovery and
medical examinations. The state answered the March 9, 2001 claim
by asserting that any claim for permanent aggravation of his
lymphedema should have been filed under the case number that the
board assigned to the snow-shoveling report of injury and that
his claims related to the snow shoveling or standing were barred
either because of late notice of the injury or because of the
statute of limitations.
Groom filed a final workers compensation request on May
10, 2001. In this claim he asserted that the nature of his
injury was incremental injuries over time, culminating in left
leg injury. He asserted that if Dr. Szubas reports did not
establish permanent total disability, then they established
temporary partial disability; Groom then added a request for
temporary partial disability benefits to his claim.
At a June 1, 2001 prehearing conference, the board
joined Grooms two injury claims the slip-and-fall and the
shoveling-and-standing injury because discovery had been
conducted as to both injuries after the boards 1999 decision.
The board held a second hearing on August 16, 2001.
Five witnesses testified in person for Groom: (1) Groom; (2) his
mother; (3) a friend, who testified that Groom likely had to
shovel a substantial amount of snow; (4) a DOT supervisor, who
provided information about the states vehicle inspection
processes; and (5) a commercial vehicle enforcement officer, who
provided information about inspections and snow-shoveling duties
around the weigh station. Two witnesses testified for the state:
(1) another weigh station operator, who testified that snow
shoveling was light duty and inspections were short and required
little standing; and (2) Grooms supervisor, who testified about
office procedures and the lack of snow in Fairbanks during the
1999 winter. Grooms treating physician, Dr. Bartling, testified
by deposition. The board left the record open at the end of the
August 16 hearing. The state stipulated to payment of temporary
total disability compensation until the board reached a decision
in the case.
The board reconvened on June 13, 2002 to receive Dr.
Szubas testimony. Dr. Szuba testified that his deposition
testimony in 2000 had focused on Grooms description of his work
as involving prolonged standing and heavy work shoveling snow, as
well as on the fact that Groom did not have proper medical
garments to control his lymphedema. Dr. Szuba then stated that
there are no medical guidelines for the length of time someone
with lymphedema should stand; some patients with lymphedema will
experience swelling within as little as fifteen minutes of
standing, while others can tolerate longer periods of standing.
Dr. Szuba reiterated his testimony that Grooms March 1999
cellulitis damaged his lymphatic system, but the damage would be
limited to his left leg. He stated that if he assumed on a
hypothetical basis that Grooms work activities were much lighter
than he described, he would not conclude that Grooms work was a
substantial factor in aggravating his lymphedema. He also
testified, however, that vehicle inspections as described by
Grooms co-worker would be sufficient to cause an increase in
swelling and that standing and shoveling would worsen Grooms
condition regardless of the frequency with which he did them.
Ultimately, Dr. Szuba reaffirmed his deposition testimony that
Grooms work was a substantial factor in bringing about the need
for medical treatment and Grooms disability.
The board issued an interlocutory decision on July 25,
2002. It concluded that Groom had misrepresented his work
conditions. The board found that Grooms lack of credibility was
uniquely troubling because it undercut the usefulness of the
medical opinions offered by Drs. Szuba and Bartling. The board
ordered Groom to undergo a second independent medical evaluation
because the board found that the medical opinions were
inconsistent, making it difficult to determine whether Groom was
medically stable or permanently totally disabled. The board
further directed that the second-evaluation physician be
requested not to rely on Grooms assertions about his work. It
also ordered that the second-evaluation physician be given copies
of the interlocutory order and the 2001 hearing transcript.
In a petition for reconsideration Groom argued that the
board could not fairly rely on the boards earlier findings beyond
the conclusion of compensability because the nature or type of
Grooms disability was not an issue to be decided by the [first]
Board. Groom argued that adopting any other part of the boards
original dicta would deny him due process of law. He also
requested that the board provide the second-evaluation physician
with a transcript of the 1999 hearing. The board denied
reconsideration, emphasizing that no transcript was needed
because its 1999 decision and the superior court order affirming
it were long[] since final.
The board selected Dr. Neil Pitzer to evaluate Groom
for the second independent medical evaluation. It posed a number
of questions to Dr. Pitzer. Most of the questions assumed that
the March 13, 1999 slip-and-fall accident happened and asked Dr.
Pitzer his opinion of the effect of the slip and fall on Grooms
condition. Dr. Pitzer examined Groom on December 5, 2002. In
his report Dr. Pitzer concluded that: (1) the March 13, 1999
injury aggravated or combined with Grooms preexisting lymphedema
to produce the need for medical treatment or disability; (2)
Groom was medically stable; and (3) Groom had a six percent whole
person impairment related to his March 13, 1999 injury.
On May 8, 2003, the board held its fourth hearing on
Grooms claims. Dr. Pitzer testified by deposition. The board
also heard testimony from Groom again and from two final
witnesses and closed the record. It issued its final decision on
May 30, 2003.
The board decision focused on Grooms claim for
permanent total disability benefits. It began by noting that
Groom had made a prima facie case for such benefits and was
entitled to the presumption of compensability under
AS 23.30.120(a).1 It next determined that the presumption was
overcome by the substantial evidence provided by the second-
evaluation physician, Dr. Pitzer, that Groom was able to return
to employment in positions that did not require significant
physical effort or exposure to contusions or other physical
stress and that he did not suffer permanent and total work-
related disability. As a result, Groom was required to prove his
case by a preponderance of the evidence.
The board then revisited its 1999 finding that Groom
had injured himself at work on March 13, 1999. It stated:
Based on the slender record available to us
at the time of the August 5, 1999 hearing, we
gave credence to the employee in our October
14, 1999 and November 19, 1999 decisions.
Those decisions, and the Superior Court
affirmation of those decisions, are now final
and the employees entitlement to the brief
period of [temporary total disability]
benefits awarded in those decisions, from
March 13, 1999 through March 31, 1999, is now
final. Nevertheless, based on the evidence
fully developed in the present record, we
find the employees testimony is patently
incredible. We now find his explanation of
the disappearance of the employers computer
records concerning the truck he asserts is
involved in his March 13, 1999 trip and fall
claim is not credible. We are unable to give
any weight to his uncorroborated history of
that accident. We also find the subsequent
medical records, especially those of P.A.C.
Holland, are persuasive that the employee did
not suffer a significant open wound at the
time that he claimed. Based on the
preponderance of the total evidence in the
present record, we find the employee did not
suffer his claimed injury at work on March
13, 1999.
(Citations omitted.)
The board also found that Grooms misrepresentations
entirely undercut the utility of all expert testimony in his
case; it stated, [W]e can give no weight to the substantive
opinions of the[] physicians regarding the work-relatedness of
this employees lymphedema. It then went on to rely on testimony
from Drs. Szuba and Pitzer to decide that Grooms lymphedema was
not substantially aggravated by his work for the state. It
denied his claim for permanent total disability benefits. It
then denied the rest of Grooms claims because it had determined
that he did not injure himself or substantially aggravate his
lymphedema in the course and scope of his work. Finally, the
board decided that the statute of limitations issue was moot.
Chairman Walters dissented from the boards opinion.
Like the board, he would have found that Groom was incredible,
had not suffered a slip-and-fall injury, and was not entitled to
permanent total disability benefits. Unlike the board, Chairman
Walters would, given the near vacuum of reliable medical
evidence, have relied on Dr. Pitzers opinion to award Groom
permanent partial impairment benefits for a six percent whole
person impairment and temporary total disability benefits from
March 13, 1999 through July 30, 1999, as well as medical benefits
related to the aggravation.
Groom appealed the boards decision to the superior
court. He argued, among other things, that: (1) his claims were
not barred by the statute of limitations; (2) the doctrine of
issue preclusion should have prevented the 2003 board from
reversing the final and binding decision of the 1999 board; (3)
the 2003 board erred in applying collateral estoppel to the 1999
boards dicta that Grooms lymphedema aggravation was temporary;
(4) the 2003 board erroneously deprived Groom of the presumption
of continuing disability and further erred in fashioning its own
medical opinions; and (5) the boards decision was not supported
by substantial evidence. The state responded that the boards
decision was correct and that Grooms issue-preclusion argument
was meritless; it also reiterated its argument that Grooms
standing and shoveling claims were barred by the statute of
limitations.
At oral argument in the superior court, the state
raised for the first time the argument that issue preclusion
could not apply to the 2001-2003 board proceedings because they
were a modification under AS 23.30.130. The superior court
ordered supplemental briefing on this issue. In his briefing on
the modification issue, Groom argued that if the later proceeding
was a modification, then the board had denied him due process by
not giving him notice of the issues it intended to examine. He
also alleged that he was prejudiced by the lack of notice because
he could have produced additional corroborating evidence to
support his claims of the 1999 injury.
The superior court affirmed the boards decision. It
decided that res judicata did not apply, because the 2003
decision was based on new claims Groom filed in 2001, including
his claims that standing and shoveling aggravated his lymphedema
and increased his disability. It further ruled that even if the
case involved a modification, it fell within the boards power to
modify its decisions. The superior court also ruled that the
board had provided sufficient legal justification to reopen the
case, but it did not address Grooms due process claims. The
superior court went on to conclude that the state had provided
sufficient evidence to rebut the presumption of compensability
and that the boards findings were supported by substantial
evidence. The superior court declined to rule on the statute of
limitations question because the board had not addressed it.
Groom petitioned for rehearing. The superior court
denied the petition. Groom appeals.
III. DISCUSSION
Groom urges us to reverse the boards 2003 decision and
award him a variety of benefits. He argues that the 2003
decision was an impermissible modification of the 1999 board
order. He further argues that the 2003 decision was flawed both
because the state failed to rebut the presumption of
compensability and because the board fashioned its own medical
opinions. The state contests each assertion and additionally
argues that Grooms snow shoveling and prolonged standing claims
are barred by the statute of limitations.
A. Standards of Review
When the superior court acts as the intermediate court
of appeal in an administrative matter, we independently review
and directly scrutinize the merits of the administrative boards
decision.2 We review the boards factual findings under a
substantial evidence standard.3 Under this standard, we will
uphold the boards findings so long as they are supported by such
relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.4
We review questions of law not involving agency
expertise de novo, substituting our own judgment for the boards.5
We will adopt rules of law most persuasive in light of precedent,
reason, and policy.6
B. Inadequate Notice
Groom argues that the boards 2003 decision violated
AS 23.30.1307 by modifying the boards 1999 board decision. He
alleges that the board failed to provide him with adequate notice
in 2003 of its intent to revisit its 1999 findings concerning the
original slip-and-fall claim and that in modifying the 1999
decision, the 2003 decision failed to indicate how the 1999 Board
decisions were mistaken.
Groom argues that the board was bound to follow the
procedures set out in AS 23.30.1108 and its own regulations for
notice and identification of issues. Groom notes that we have
previously reversed the board for failing to provide notice that
it intended to revisit a factual finding, and he cites our
decision in Dresser Industries v. Hiestand.9 In response the
state argues that Grooms notice arguments are meritless because
Groom himself asserted that he could seek additional benefits for
the March 13, 1999 slip and fall and that Groom cannot seriously
argue that he was surprised by the Boards review of the facts on
which [its] earlier decision [had been] based.
We have previously held that the crux of due process is
the opportunity to be heard and the right to adequately represent
ones interests.10 While the actual content of the notice is not
dispositive in administrative proceedings, the parties must have
adequate notice so that they can prepare their cases: [t]he
question is whether the complaining party had sufficient notice
and information to understand the nature of the proceedings.11 We
have also held that defects in administrative notice may be cured
by other evidence that the parties knew what the proceedings
would entail.12
Based on the record in this case, we hold that the
board did not give Groom adequate notice that it would revisit
its earlier factual finding that he had sustained a compensable
injury on March 13, 1999. In reaching this conclusion we look at
the notices the board gave the parties concerning its upcoming
hearings, the parties pleadings, and other written material the
board produced relating to the claim, such as its interlocutory
orders and its letter to the second-evaluation physician.13
The Alaska Workers Compensation Board gives notice to
parties of the issues to be addressed at a hearing through
prehearing conference summaries.14 By regulation, a prehearing
summary governs the issues and course of the hearing absent a
finding of extenuating circumstances.15 In this case, the board
never identified reconsideration of its prior decision that Groom
had in fact suffered a compensable injury in March 1999 as an
issue it might consider at a hearing. The state never requested
in any of its pleadings that the board reconsider the issue
either.16 In fact, the state affirmatively represented that it did
not contest that Groom had suffered a slip and fall in March
1999. For example, in closing argument in 2003, counsel for the
state said that it is true that were no longer arguing that Mr.
Groom did not slip and fall on March 13th, because that was found
by the board to be the case.17 The state also never argued that
the board should reexamine its decision that the slip and fall
happened in its briefing before the board. Before the final
hearing in May 2003, the state asked the board to dismiss Grooms
claims related to standing, shoveling, and other general work
duties, so that the only remaining issue would be whether the
compensable March 1999 cellulitis infection (flare-up) entitled
the Employee to more benefits th[a]n those originally paid or
conceded by the Employer.
All of the evidence in the record suggests that the
parties and the board alike considered the question of Grooms
fall to be settled by the law of the case. When the board denied
Grooms request that the second-evaluation physician be provided
with a copy of the 1999 hearing transcript, it did so because
that decision was long[]since final. Both parties referred to
the previous superior court decision as the law of the case. The
law of the case doctrine maintains that issues previously
adjudicated can only be reconsidered where there exist
exceptional circumstances presenting a clear error constituting a
manifest injustice. 18 Even if the board could reconsider the
issue in a modification for example it could not do so without
giving the parties some notice that it was considering doing just
that.
The boards letter to Dr. Pitzer, the second-evaluation
physician, likewise gives no hint that it was considering
revisiting its earlier decision on the slip and fall. The
questions the board posed to Dr. Pitzer included the following:
1. Which complaints or symptoms are or are
not related to the 03/13/1999 injury and what
is the basis for your opinion?
2. Did the 03/13/1999 injury aggravate,
accelerate, or combine with a pre-existing
condition to produce the need for medical
treatment or the disability?
. . . .
4. Based upon the following Alaska Workers
Compensation Act definition, is SCOTT A.
GROOM medically stable for any condition
attributable to the March 1999 incident?
Although the boards notice may have been nominally
defective, if Groom could have adequately presented his case
despite the defect in notice, then his right to due process would
not have been violated.19 But Groom has made an adequate showing
that he was actually prejudiced by the lack of adequate notice.
In the superior court, Groom asserted that had he been given
proper notice, he could have called his mother as a live witness
again20 and also could have provided corroborating evidence of the
slip and fall.
The state nevertheless asserts that Groom cannot
plausibly claim surprise because, according to the state, [i]t
was Groom himself who maintained that he could seek additional
benefits based on the March 13, 1999, slip and fall and that his
subsequent claims regarding snow shoveling, prolonged standing,
and vehicle inspections merely amended his earlier claims. Yet
the board never made it clear whether it regarded a second set of
claims his shoveling and standing claims as claims for a
separate injury from his original slip-and-fall claim or as an
attempt to expand the original claim. When Groom first filed the
shoveling and standing claims in late 1999, the board treated the
new injury report as distinct from Grooms original slip-and-fall
claim and thereafter treated the claims as procedurally distinct
until 2002, when it scheduled a single hearing encompassing both
claims. Even then, however, the boards prehearing notice
appeared to regard the case as involving claims of two separate
injuries that were scheduled for a single hearing, rather than a
single claim requiring a hearing on two issues.21 Given the
continuing uncertainty as to the procedural status and
interrelationship of Grooms original and subsequent claims, we
conclude that Groom did not receive clear notice that the 2003
hearing might be regarded by the board as an occasion for
revisiting its 1999 decision on his original claim. Because the
board provided inadequate notice to Groom that it might
reconsider its earlier factual determination that he had slipped
and fallen in March 1999, its decision that the slip and fall did
not occur must be reversed.
C. Rebutting the Presumption of Compensability
Groom next argues that the boards 2003 decision must be
overturned because the state failed to adequately rebut the
presumption of compensability. He argues that the board
erroneously fashioned its own medical opinions and ignored the
unanimous medical testimony that Groom had suffered work-related
injuries rendering him permanently disabled.
The state responds first by intimating that the medical
experts did not unanimously and unambiguously diagnose Groom as
permanently and totally disabled. Second, the state claims that
it was well within the boards discretion to weigh the competing
evidence and make appropriate findings of fact.22 The state also
points to the boards conclusion that Groom misled his doctors.
In addressing these competing arguments, we begin by
noting again that the proceedings leading up to the boards final
decision in 2003 addressed two distinct injury reports: Grooms
original claim for benefits related to his March 13, 1999 slip
and fall and his subsequent claims that the continuous shoveling,
standing, and performing of his regular duties as a weigh station
operator had aggravated his underlying lymphedema. With respect
to both sets of claims, Groom asserted that his work-related
injuries had resulted in permanent total disability. Although
the board joined the claims for purposes of the hearing, it
continued to describe them as separate claims.23
After conducting the final hearing on those claims,
however, the board issued a decision that conflated its
procedural analysis of the alleged injuries and claims for
benefits. As to both sets of claims, the state had controverted
not just the issue of whether Grooms current problem with
lymphedema amounted to a permanent disability, but also whether
his disability, even if it was permanent and total, stemmed from
injuries that were related to Grooms work for the state. The
boards 2003 decision completely rejected both sets of claims on a
single, overarching theory: that Groom had failed to meet his
burden of proving the existence of any work-related injury. Yet
the board reached this decision through a flawed application of
the three-step test used to determine whether a claimant
ultimately bears the burden of proof on the issue of work
relatedness.
In analyzing this point, the board started by
acknowledging that Groom had met the threshold requirement of
establishing a preliminary link to activate the presumption that
he was permanently and totally disabled. The board then turned
to the second step of the analysis, asking whether the state had
produced adequate evidence to rebut the presumption of
compensability. In conducting this inquiry, the board
articulated the following test:
There are two methods of overcoming the
presumption of compensability: (1) presenting
affirmative evidence showing that the
employee does not suffer permanent and total
work-related disability; or (2) eliminating
all reasonable possibilities that the
employee is permanently totally disabled or
that the disability is work-related.
(Citations omitted.)
We assume for purposes of this discussion that this
standard might suffice to establish whether the presumption of
compensability had been overcome in a case where the existence of
a work-related injury was undisputed, and the only contested
issue was whether the injury had resulted in the claimants
permanent total disability.24 But in this case, as already noted,
the state insisted that Grooms current problems with lymphedema
were not work related even if they might have been permanently
and totally disabling.
We have articulated the following standard for
determining whether an employer has rebutted the presumption of
compensability when a claim for permanent total disability
involves a dispute as to both the existence of a work-related
injury and whether that injury, if it exists, renders the worker
permanently and totally disabled:
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.[25]
In this case, after the board determined that Groom had triggered
the presumption of compensability, the board focused its analysis
of whether the state had rebutted that presumption exclusively on
whether the state had presented evidence to refute the existence
of a permanent total disability. According to the board, Dr.
Pitzers testimony that Groom could return to employment in
positions that do not require significant physical effort or
expose the employee to contusion or other physical stresses
sufficed to rebut the presumption.
This finding ended the boards inquiry at the second
step of the process and led it to conclude that Groom bore the
burden of proving his claims by a preponderance of the evidence.
Yet because the board had never inquired whether the state had
overcome its burden of rebutting the presumption of
compensability with regard to the existence of a work-related
injury, the board incorrectly treated Groom as having the burden
to prove both the existence of a permanent disability and the
work relatedness of his injuries. Conversely stated: Dr. Pitzers
testimony that Groom was capable of returning to work arguably
might have sufficed to rebut the presumption that he suffered
from a compensable permanent total disability; but his testimony
did nothing to rebut the related presumption that Groom suffered
from a compensable, work-related partial disability a
presumption the board mistakenly deemed this testimony to have
rebutted.
The state nevertheless argues that, despite the boards
failure to address the question of work relatedness when it ruled
that the state had met its burden of overcoming the presumption
of compensability, the boards decision should be affirmed
because the testimony of Dr. Szuba in combination with Grooms
medical records actually did rebut the presumption on the issue
of the work relatedness.26 Specifically, the board relied on: (1)
Dr. Szubas testimony at the June 2002 hearing that Grooms job
would not have aggravated his condition if his work was as
described by his co-workers; and (2) Dr. Szubas statement in his
deposition acknowledging that he would change his opinion that
Grooms work worsened his condition if Grooms work actually did
not involve very much snow shoveling or prolonged standing.
Dr. Szubas testimony does not rebut the presumption
that Groom was permanently and totally disabled as a result of
his slip and fall. The evidence that the board relied on in its
finding that Groom had not proven his case by a preponderance of
the evidence related only to the prolonged standing and general
work duties claim. It is unrelated to his claim based on the
slip and fall. Thus, it cannot serve as a basis for rebutting
the presumption that Groom was permanently and totally disabled
as a result of the slip and fall.
The evidence is also insufficient to rebut the
presumption that Grooms other injuries were work related.27 Dr.
Szuba never expressed the opinion that Grooms work was not a
substantial factor in causing his disability.28 The testimony
cited by the board establishes that Dr. Szubas conclusions were
contingent on his understanding of Grooms work conditions; if
Grooms work requirements were not as Groom described, Dr. Szuba
testified that his opinions would have to be revised:
Q: If, in point of fact, Mr. Grooms work
did not involve prolonged standing, and
did not involve very much snow
shoveling, would that change your
opinion whether his work worsened his
condition?
A: Yes, it would.
It is not at all clear from the deposition transcript what Dr.
Szuba understood the questioners prolonged and very much terms to
mean.29 Also, only if read in isolation can Dr. Szubas
affirmative response in this exchange be taken to mean that the
doctor felt that lighter duties posed absolutely no risk of
injury to Groom. Elsewhere Dr. Szuba made it clear that snow
shoveling of any frequency could prove injurious:
Q: And would would the action of standing
upright and shoveling snow worsen Mr.
Grooms condition regardless of the
frequency with which he had to do it?
A: Yes, it would.
The board also noted that Dr. Szuba testified in June
2002 that if Grooms work was as described by his co-workers, then
he would find the position acceptable for someone with Grooms
condition; but Dr. Szuba qualified this opinion by adding that
Groom would also need proper medical garments. Dr. Szuba
testified at the same hearing that he still believed that Grooms
employment with the state was a substantial factor in bringing
about his need for medical treatment and that this opinion was
established independently of what Groom told him. He also
reaffirmed his opinion that Grooms employment with the state was
a substantial factor in bringing about Grooms inability to work.
In short, Dr. Szubas testimony can at best be described
as equivocal or internally inconsistent. In addressing the
adequacy of medical evidence offered under analogous
circumstances, we have previously held that when the substance of
a particular witnesss testimony is in doubt, any doubt should be
resolved in favor of a workers compensation claimant.30 Because
of the irreconcilable ambiguity of Dr. Szubas opinions, any doubt
as to their meaning must be resolved in Grooms favor. As a
result, they did not provide substantial evidence to rebut the
presumption of compensability as to work relatedness in this
case.
D. Statute of Limitations
In its appellate briefing the state argues, as it did
below, that whether Grooms snow shoveling and prolonged standing
claims were meritorious, they are barred by the Workers
Compensation Acts two-year statute of limitations.31 Because the
board denied Grooms claims on the merits, neither it nor the
superior court addressed this issue.
We have adopted a discovery rule for statute of
limitations questions in the workers compensation context.32
Under this rule, the limitations period will begin to run on a
claim only when a claimant knows: (1) that he has an injury; (2)
that his injury is related to his employment; and (3) that his
injury has resulted in a disability.33 Precisely when Groom
became aware of his alleged snow shoveling and prolonged standing
injuries was not resolved by the board. The record suggests that
the discovery might not have occurred until Dr. Szuba submitted
his report to the board. Because it is not our role to settle
disputed or disputable factual claims,34 we cannot resolve this
issue. On remand, the board remains free to make factual
determinations relevant to the statute of limitations issue.35
IV. CONCLUSION
In deciding Grooms claims, the board made two errors
that require reversal. First, it gave no notice to Groom that it
might reconsider its earlier factual finding that he had suffered
a compensable slip-and-fall injury on March 13, 1999. Due
process requires, at a minimum, some notice of what may be
decided so that a party has the opportunity to prepare and
present his case. Second, the board used an improper legal
standard in finding that the state had rebutted the presumption
of compensability. We therefore REVERSE the superior court
decision affirming the boards decision and REMAND for further
proceedings consistent with this opinion.
_______________________________
1 AS 23.30.120, Presumptions, provides, in relevant part:
(a) In a proceeding for the enforcement of a
claim for compensation under this chapter it
is presumed, in the absence of substantial
evidence to the contrary, that
(1) the claim comes within the
provisions of this chapter;
(2) sufficient notice of the claim has
been given;
(3) the injury was not proximately
caused by the intoxication of the injured
employee or proximately caused by the
employee being under the influence of drugs
unless the drugs were taken as prescribed by
the employees physician;
(4) the injury was not occasioned by
the wilful intention of the injured employee
to injure or kill self or another.
2 DeYonge v. NANA/Marriott, 1 P.3d 90, 94 (Alaska 2000);
Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co., 746 P.2d 896,
903 (Alaska 1987).
3 Alyeska Pipeline Serv. Co. v. DeShong, 77 P.3d 1227,
1231 (Alaska 2003).
4 Grove v. Alaska Constr. & Erectors, 948 P.2d 454, 456
(Alaska 1997) (quoting Miller v. ITT Arctic Servs., 577 P.2d
1044, 1046 (Alaska 1978)).
5 Id.
6 Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).
7 AS 23.30.130, Modification of awards, provides:
(a) Upon its own initiative, or upon the
application of any party in interest on the
ground of a change in conditions, including,
for the purposes of AS 23.30.175, a change in
residence, or because of a mistake in its
determination of a fact, the board may,
before one year after the date of the last
payment of compensation benefits under AS
23.30.180, 23.30.185, 23.30.190, 23.30.200,
or 23.30.215, whether or not a compensation
order has been issued, or before one year
after the rejection of a claim, review a
compensation case under the procedure
prescribed in respect of claims in
AS 23.30.110. Under AS 23.30.110 the board
may issue a new compensation order which
terminates, continues, reinstates, increases,
or decreases the compensation, or award
compensation.
(b) A new order does not affect compensation
previously paid, except that an award
increasing the compensation rate may be made
effective from the date of the injury, and if
part of the compensation due or to become due
is unpaid, an award decreasing the
compensation rate may be made effective from
the date of the injury, and payment made
earlier in excess of the decreased rate shall
be deducted from the unpaid compensation, in
the manner the board determines.
8 AS 23.30.110, Procedure on claims, provides, in
relevant part:
(c) Before a hearing is scheduled, the party
seeking a hearing shall file a request for a
hearing together with an affidavit stating
that the party has completed necessary
discovery, obtained necessary evidence, and
is prepared for the hearing. An opposing
party shall have 10 days after the hearing
request is filed to file a response. If a
party opposes the hearing request, the board
or a board designee shall within 30 days of
the filing of the opposition conduct a
pre-hearing conference and set a hearing
date. If opposition is not filed, a hearing
shall be scheduled no later than 60 days
after the receipt of the hearing request.
The board shall give each party at least 10
days notice of the hearing, either personally
or by certified mail. After a hearing has
been scheduled, the parties may not stipulate
to change the hearing date or to cancel,
postpone, or continue the hearing, except for
good cause as determined by the board. After
completion of the hearing the board shall
close the hearing record. If a settlement
agreement is reached by the parties less than
14 days before the hearing, the parties shall
appear at the time of the scheduled hearing
to state the terms of the settlement
agreement. Within 30 days after the hearing
record closes, the board shall file its
decision. If the employer controverts a
claim on a board-prescribed controversion
notice and the employee does not request a
hearing within two years following the filing
of the controversion notice, the claim is
denied.
9 Dresser Indus., Inc./Atlas Div. v. Hiestand, 702 P.2d
244 (Alaska 1985).
10 Matanuska Maid, Inc. v. State, 620 P.2d 182, 192
(Alaska 1980).
11 North State Tel. Co. v. Alaska Pub. Util. Commn, 522
P.2d 711, 714 (Alaska 1974).
12 Id.
13 See Dresser, 702 P.2d at 247. Although Dresser
involved a modification, the board regulations about notice and
prehearing procedure are the same for petitions and claims. 8
Alaska Administrative Code (AAC) 45.060; 8 AAC 45.065;
8 AAC 45.070 (2004).
14 8 AAC 45.065 (2004); 8 AAC 45.070(g) (2004).
15 8 AAC 45.070(g) (2004).
16 Dresser, 702 P.2d at 247.
17 Elsewhere, the state referred to the finding as settled
law of the case:
As you pointed out, it was a traumatic injury
that was alleged. And, yes, we defended it.
It went to the superior court. There is law
of the case about what did or didnt happen to
Mr. Grooms calf on that day.
18 State, Commercial Fisheries Entry Commn v. Carlson, 65
P.3d 851, 859 (Alaska 2003) (quoting Patrick v. Sedwick, 413 P.2d
169, 173-74 (Alaska 1966) and Alaska Diversified Contractors,
Inc. v. Lower Kuskokwim Sch. Dist., 778 P.2d 581, 583 (Alaska
1989)).
19 Matanuska Maid, 620 P.2d at 193.
20 She testified by telephone at the second hearing.
21 We note that the state did not consistently try to keep
the two claims separate in prehearing procedure, either. For
example, in a June 22, 2000 prehearing conference on Grooms slip-
and-fall claim, the state indicated that it might want to pursue
discovery on the snow shoveling activities. Also, in its
opposition to Grooms July 2000 affidavit of readiness for hearing
on the permanent total disability claim, the state said that it
needed to complete discovery about the nature, scope, and
physical demands of Grooms work both generally and in the
specific period leading up to the alleged temporary total or
permanent total disability period(s).
22 Cf. Kodiak Oilfield Haulers v. Adams, 777 P.2d 1145,
1151 (Alaska 1989) (The Board may base its decision not only on
direct testimony, medical findings, and other tangible evidence,
but also on the Boards experience, judgment, observations, unique
or peculiar facts of the case, and inferences drawn from all of
the above.) (quoting Fairbanks N. Star Borough v. Rogers &
Babler, 747 P.2d 528, 533-34 (Alaska 1987)).
23 The boards regulation concerning joinder provides
little guidance about joinder of claims. It provides that when
claims are joined, documentary evidence is considered part of the
record in each of the joined cases. 8 AAC 45.040(k)(3).
24 With regard to the adequacy of the standard articulated
by the board, we note that, even in cases involving claims for
permanent total disability in which an employer presents evidence
suggesting that an injured worker is not completely incapable of
returning to some kind of work, the employer bears the additional
burden of further showing that there is regular and continuously
available work in the area suited to the employees capabilities,
i.e., that [the employee] is not an odd lot worker. Leigh v.
Seekins Ford, 136 P.3d 214, 216 (Alaska 2006) (citing Carlson v.
Doyon Universal-Ogden Servs., 995 P.2d 224, 227 (Alaska 2000)).
25 DeYonge v. NANA/Marriott, 1 P.3d 90, 95-96 (Alaska
2000).
26 The state additionally contends that Dr. Pitzers
testimony overcame the presumption of work relatedness by
establishing that Grooms condition progressively worsened even in
the absence of work stresses and worsened from Grooms lack of
self-care. But since Grooms work conditions might have worsened
his lymphedema regardless of whether he was adequately self-
treating, this testimony could not have ruled out work-related
aggravation. Accordingly, only the states contentions concerning
Dr. Szubas testimony arguably might support an ultimate finding
that Groom suffered no work-related injury.
27 Safeway, Inc. v. Mackey, 965 P.2d 22, 27 (Alaska 1998)
(The issue of whether there is substantial evidence to overcome
the presumption is a question of law which this court will
independently examine.).
28 See Big K Grocery v. Gibson, 836 P.2d 941, 942 (Alaska
1992).
29 At the hearing in June 2002 Dr. Szuba said that he
would consider prolonged standing to be more than an hour at a
time. He also testified that some lymphedema patients will swell
in as little as fifteen minutes. The board made no finding
regarding the maximum amount of time Groom was required to stand
in performing his work duties.
30 Miller v. ITT Arctic Servs., 577 P.2d 1044, 1048
(Alaska 1978).
31 AS 23.30.105, Time for filing of claims, provides, in
relevant part:
(a) The right to compensation for disability
under this chapter is barred unless a claim
for it is filed within two years after the
employee has knowledge of the nature of the
employees disability and its relation to the
employment and after disablement. However,
the maximum time for filing the claim in any
event other than arising out of an
occupational disease shall be four years from
the date of injury[.] . . . It is
additionally provided that, in the case of
latent defects pertinent to and causing
compensable disability, the injured employee
has full right to claim as shall be
determined by the board, time limitations
notwithstanding.
(b) Failure to file a claim within the
period prescribed in (a) of this section is
not a bar to compensation unless objection to
the failure is made at the first hearing of
the claim in which all parties in interest
are given reasonable notice and opportunity
to be heard.
32 See Egemo v. Egemo Constr. Co., 998 P.2d 434, 441
(Alaska 2000).
33 Id.
34 Cf. Vaska v. State, 135 P.3d 1011, 1019 (Alaska 2006):
We recognize of course that an appellate
court ordinarily has broad authority to
affirm a trial courts ruling on any legal
theory established in the appellate record.
But this rule is not absolute. By its own
terms, it applies only to issues of law that
find support in settled facts. It does not
extend to new theories that would normally be
resolved by discretionary powers
traditionally reserved for trial courts
powers relying on case-specific consideration
of disputed or disputable issues of fact.
(Footnote omitted.)
35 Groom has also argued that the state failed to present
labor market survey evidence as ostensibly required by AS
23.30.180(a) and failed to rebut the claim that Groom is merely
an odd lot worker; he has suggested that we should impose
penalties on the state pursuant to AS 23.30.155(e). Our order of
a remand in this case makes it unnecessary to consider these
contentions.
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