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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Smith v. University of Alaska, Fairbanks (12/21/2007) sp-6212
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
| GARY N. SMITH, | ) |
| ) Supreme Court No. S- 12418 | |
| Appellant, | ) |
| ) Superior Court No. 4FA-05-01391 Civil | |
| v. | ) |
| ) O P I N I O N | |
| UNIVERSITY OF ALASKA, | ) |
| FAIRBANKS, | ) No. 6212 December 21, 2007 |
| ) | |
| Appellee. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District,
Fairbanks, Randy M. Olsen, Judge.
Appearances: Allen F. Vacura, Fairbanks, for
Appellant. Constance Cates Ringstad,
McConahy, Zimmerman & Wallace, Fairbanks, for
Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, and Carpeneti, Justices. [Bryner,
Justice, not participating.]
MATTHEWS, Justice.
I. INTRODUCTION
Gary Smith worked at the University of Alaska,
Fairbanks (UAF) power plant for almost twenty years before he
injured his back at work in July 1999. He continued working for
a little more than a week following the injury, hoping his back
would improve. When it did not, he took his previously scheduled
annual leave and filed a notice of injury with UAF. About three
and a half weeks after the injury, he experienced extreme pain in
his lower back and right leg when he tried to climb into his
truck. Three days later the pain was so intense that he was
admitted to the hospital and had surgery four days afterwards.
UAF controverted all benefits on the basis of lack of causation.
After a series of board and superior court decisions, the board
ultimately decided that Smith had not proven his claim by a
preponderance of the evidence. Because the board failed to
explain its decision adequately, we vacate the boards decision
and remand for further findings.
II. FACTS AND PROCEEDINGS
Gary Smith began working at the UAF power plant in
1980. In 1993 and again in 1995 he had back surgery for medical
problems that were not related to his work. Smith apparently had
a good recovery from the surgeries, as he was able to perform his
work without limitations for over three years.
About 6:45 a.m. on July 8, 1999, Smith assumed his
duties as a shift engineer at the UAF power plant. The engineer
who was leaving notified Smith that during the previous shift a
filter had frozen up.1 Smith sent his fireman, John Alderson, to
put the filter back on line. While Alderson was working on the
problem, Smith, who was in the control room, received an alarm
indicating that the air pressure for the compressed air that
operated the power plants controls was too low. Smith tried to
contact Alderson but was unable to do so. When he could not
reach Alderson, he ran down to the basement to fix the problem
himself because he was afraid that if he did not act quickly, he
would lose the plant.
The stairs that Smith ran down were narrow and had a
low ceiling. Smith had to make three turns when he descended
from the control room to the basement, where the filter and some
valves were located. To get down the steps without hitting his
head, he had to duck and twist his head and back. When he jumped
onto the first landing, he felt something pop in his back, but
continued down the steps and opened a valve to start air flowing
through the filter. He then went back upstairs to the control
room, where the alarm had cleared. After he returned to the
control room, Smith noticed that his back hurt whenever he moved
forward or backward.
Smiths acting supervisor, Charles Ward, a mechanical
engineer, arrived at work about 8:00 a.m. He found Smith in the
control room, irate and in pain. Smith told Ward there had been
an emergency and that he had hurt his back running down the
stairs.
Smith continued to work until July 17, when he was
scheduled to take annual leave.2 Smith did not immediately seek
medical attention for his back injury because he thought he had
pulled a muscle. He took an anti-inflammatory and wore a back
brace; he also curtailed his work activities. He phoned his
family physician, told him that he had pulled a muscle in his
back, and obtained a prescription over the phone for a muscle
relaxant.
Smith had planned to spend his annual leave taking
supplies to a hunting camp so that he and a friend could go
hunting later in the year. He had to cancel these plans because
of his back pain; instead, he stayed home. Smith was unable to
do his yard work or cut firewood. His neighbors, the Highams,
took care of his dog. Smith signed an injury report related to
the back injury on July 23, 1999, which Ward signed on behalf of
UAF on July 29.
Smith agreed to help Vern Higham take a boat to a
nearby lake on August 2 to test it out. Smith spent about forty-
five minutes maneuvering his truck to line the hitch up with the
ball on the boat trailer. He then put the trailer on the hitch;
he experienced no increase in pain when moving the boat trailer.
After driving about five miles to the lake, Smith waited while
Higham tested the boat. After Higham left, Smith tried to get
into his truck but began to experience excruciating pain in his
back and leg. Smith waited to see if the pain would subside, but
when he tried to get back into the truck, the pain flared up
again. Smith flagged down a passer-by and asked him to call
Higham. Higham picked Smith up and took him to the office of Dr.
George Vrablik, the orthopedic surgeon who had performed Smiths
previous back surgeries.
Dr. Vrablik recommended conservative treatment, gave
Smith some pain medication, and sent him home with instructions
to call the next day. Dr. Vrabliks chart notes indicated that
Smiths back was doing better the next day, although Smith still
had pain across the back. Dr. Vrablik prescribed a steroid and
again instructed Smith to call him to report his progress.
On August 5 Smith experienced a sharp increase in his
pain level. He was unable to stand; he had to dress lying down
and crawl out his door and into a friends truck for a trip to the
emergency room. Smith was admitted to the hospital that day,
where he was placed in traction. On August 8 Smith had a CT scan
and an MRI, which showed scarring from his previous surgeries, as
well as a disk herniation. The next day Dr. Vrablik operated on
Smiths back; he described the surgery as one of the most
difficult procedures he had ever done. Dr. Vrablik removed less
disk material than he expected but was limited by concerns that
he would damage Smiths nerves. Although the surgery improved
Smiths symptoms, it was not a complete success. Smith continued
to have some pain. Dr. Vrablik later concluded that Smith was
unable to return to his work as a shift supervisor at the UAF
power plant and rated Smith as having a fifteen percent whole
person impairment.
UAF controverted all benefits in Smiths case on
September 21, 1999. Smith filed a workers compensation claim on
November 2, 1999, seeking temporary total disability benefits
from July 17 and continuing, as well as permanent partial
impairment benefits, medical and transportation costs, penalties,
and attorneys fees. UAF filed its answer on November 29.
The main point of contention in the board proceedings
was the degree to which the July 8, 1999 injury to Smiths back
caused the need for surgery the following month. Two medical
doctors evaluated Smith: Dr. Vrablik and the employers expert,
Dr. John Ballard. Both doctors agreed that it was difficult to
determine causation. Dr. Vrablik was unable to ascertain whether
the back injury at the power plant caused the disk herniation or
whether Smith herniated his disk in August when he was getting
into his truck. His opinion in Smiths case was guarded because
he did not examine Smith until August, after both incidents had
happened. Dr. Vrabliks chart notes stated that both events were
significant in causing the symptoms. At his deposition Dr.
Vrablik elaborated that he had to rely on the history Smith gave
him in determining what might have precipitated the symptoms.
Because Smith considered the incident at the power plant to be
significant, Dr. Vrablik also considered it significant. Dr.
Vrablik also testified that based on Smiths history, both
incidents were substantial factors.
Even though Dr. Vrablik was unwilling to say that Smith
herniated his disk in July, he refused to ignore Smiths prior
history when he discussed causation. Dr. Vrablik pointed out
that a disk herniation can be caused by trivial things, like
picking up a bar of soap or sneezing, in the sense that the
trivial incident can be the straw that broke the camels back.
However, a whole chain of causation may contribute to the
herniation that is made symptomatic by the trivial event, and the
precipitating event can be removed in time from the event that
requires surgery. Dr. Vrablik was not able to say that it was
probable that Smiths injury in July weakened his back so much
that a minor movement later would have resulted in a disk
herniation; he said that it was possible. He testified that he
could not pinpoint the cause of the disk herniation and stated:
Now, if you want me to say what was the
straw that broke the camels back, getting
into the truck was when he noticed the severe
leg pain and when he had to have somebody
help him. I you know, that I think is
reasonable because thats when his symptoms
became worse.
But I dont know that you can neglect to
consider what happened at work, his previous
back surgeries. All this contributes to it.
Dr. Ballard was less hesitant about offering an opinion
about causation. He believed Smiths problems were caused
primarily by the scar tissue from his previous surgeries. Dr.
Ballard acknowledged that Smith injured his back running down the
stairs at the power plant, but he thought that this resulted only
in a strain to Smiths lower back. Dr. Ballard offered the
opinion that Smiths condition was probably not related to the
injury at the power plant. Dr. Ballard stated that in his
opinion something happened to Smith between August 3, when he saw
Dr. Vrablik to follow up on his visit of the day before, and
August 5, when he was admitted to the hospital, to cause the scar
tissue to become so symptomatic as to require surgery. He did
not identify a likely cause, stating, I do not believe it is
necessary for scar tissue to become symptomatic from any specific
event after a back has been operated on two times. In his March
deposition Dr. Ballard admitted that the power plant injury
probably aggravated Smiths back and might be a small contributing
factor to the need for surgery. He denied that it was a
substantial factor however. At his June deposition he was not
able to say whether any of Smiths symptoms on August 2 were
related to the power plant injury.
Dr. Vrablik disagreed with Dr. Ballard about the extent
to which the scarring from the previous surgery could have caused
Smiths symptoms in July or August. Dr. Vrablik stated that any
epidural fibrosis3 occurs within three months to a year from the
time of surgery; because Smiths symptoms happened more than three
years after the 1995 surgery, Dr. Vrablik did not consider the
scar tissue the precipitating event in Smiths need for further
surgery. He conceded that the scar tissue was a factor in Smiths
disability, noting that when the nerve elements are held tight by
scar and fibrosis, it doesnt take much to put extra pressure on
them.
The board held a hearing on Smiths claim on July 20,
2000. The panel was made up of two members.4 Smith testified on
his own behalf and called three lay witnesses: Charles Ward,
John Alderson, and Vern Higham. The lay witnesses testified
about Smiths pain after the injury in July and about the
limitations on his activities between the time of the work injury
and the surgery. Drs. Vrablik and Ballard testified by
deposition. The two-member panel was unable to agree on a
decision in Smiths case, so the board reopened the record to add
a third member.5
The board issued its first decision on October 12,
2000. In it, the board found that Smith had attached the
presumption of compensability through Dr. Vrabliks and his own
testimony. It then found that UAF had not overcome the
presumption of compensability. This finding was based on the
boards analysis of Dr. Ballards testimony. The board examined
his testimony in some detail and concluded that it was ambiguous
and contradictory; it found that UAF had not provided substantial
evidence to rebut the presumption. From this it concluded that
Smiths claim was compensable, reserving jurisdiction to resolve
disputes about specific benefits owed to him. One panel member
dissented. He would have found that UAF had rebutted the
presumption of compensability based on Dr. Ballards testimony and
would have denied Smiths claim because, in his opinion, Smith had
not proven his claim by a preponderance of the evidence.
UAF appealed to the superior court. Relying on Norcon,
Inc. v. Alaska Workers Compensation Board,6 the superior court
decided that the board had improperly weighed the testimony of
Dr. Ballard at the second stage and remanded the case to the
board for a redetermination of whether UAF had rebutted the
presumption. The superior court retained jurisdiction in case
either side wanted to appeal the boards decision on remand.
On remand the board heard the case on the written
record and issued its second decision on December 2, 2002. It
evaluated Dr. Ballards testimony again, relying this time on
Wollaston v. Schroeder Cutting, Inc.7 in its legal analysis. The
board decided that Dr. Ballards testimony as a whole was too
ambiguous to meet any of the means of overcoming the presumption
of compensability. It again found that UAF had not overcome the
presumption of compensability and again declared that Smiths
condition was compensable. One member again dissented. He
acknowledged that Dr. Ballards testimony varied as to his opinion
of the cause of Smiths symptoms but concluded that Dr. Ballard
had been consistent in his opinion that Smiths 1999 back surgery
was the result of his preexisting back condition and not the
result of the July injury. As a result, the dissenter reiterated
his opinion that UAF had rebutted the presumption of
compensability and that Smith had not proven his claim by a
preponderance of the evidence.
UAF again appealed to the superior court. The superior
court again reversed the board, determining this time that UAF
had rebutted the presumption of compensability as a matter of law
because its expert, Dr. Ballard, had given an opinion that Smiths
need for surgery and his disability were not related to his
injury at UAF on a more-probable-than-not basis. The superior
court held that substantial evidence did not support the boards
determination that UAF had not rebutted the presumption of
compensability because [w]ithout weighing Dr. Ballards
credibility, a reasonable mind reading the record as a whole
could not conclude that Dr. Ballards testimony failed to rebut
Smiths presumption. The superior court determined that the board
had improperly weighed Dr. Ballards testimony at the rebuttal
stage and remanded the case to the board so that the board could
determine whether Smith had proven his claim by a preponderance
of the evidence. Its remand order stated that the board could
reject and weigh any testimony of any witnesses in determining
whether Smith satisfie[d] his burden of persuasion.
On the second remand, a new panel member replaced one
of the previous panel members. The board decided not to take
additional evidence and again heard the case on the written
record.
In its decision and order of March 11, 2005, the board
denied Smiths claim for workers compensation benefits. This time
the board determined that Smith had not shown that his work
caused his need for surgery and continuing treatment because [n]o
physician has stated, on a more-probable-than-not basis, the
employees work caused his need for surgery and continuing
treatment. The decision made no explicit findings about witness
credibility or the weight the board gave to the testimony of the
two doctors. The board did not consider the lay testimony Smith
offered, finding that the case involved highly technical medical
issues so that the lay testimony had little probative value. One
panel member dissented. He was in the majority in the two prior
decisions, and he wrote in dissent that the board had found, on
two occasions, that UAF had failed to provide substantial
evidence to eliminate the employees injury as the cause of his
present back condition. Noting that the facts had not changed
and reiterating some of the findings from the previous two
decisions in Smiths case, the dissent stated that it would find
that Smith had proven his claim by a preponderance of the
evidence.
Smith appealed to the superior court. The superior
court affirmed the boards decision, deciding that substantial
evidence supported the boards decision and that it was of little
consequence that the board did not rely very heavily on the lay
testimony Smith presented.
Smith appeals.
III. STANDARD OF REVIEW
When the superior court acts as an intermediate
appellate court, we independently review the boards ruling.8
Factual findings by the board are reviewed under the substantial
evidence standard.9 Substantial evidence is such relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion.10 The board has the exclusive authority to
determine witness credibility.11 The boards exercise of its
discretion is reviewed for abuse; an abuse of discretion occurs
if this court is left with a definite and firm conviction that
the decision reviewed was a mistake.12
IV. DISCUSSION
The Alaska Workers Compensation Act creates a
presumption that an employees claims are compensable.13 Applying
this presumption involves a three-step analysis.14 First, the
employee must establish a link between his injury and his
employment.15 In this case the board found that Smith had
established a link between his injury at work and his disability
through his own testimony and that of Dr. Vrablik. UAF did not
contest this finding; the superior court stated that there was no
question Smith attached the presumption.
Once the presumption attaches, the employer may rebut
the presumption by presenting substantial evidence that (1)
provides an alternative explanation which 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.16 An employer has always
been able to rebut the presumption by presenting the opinion of a
qualified expert who testifies that in her opinion, the claimants
work was probably not a substantial cause of the disability.17
The superior court decided that UAF rebutted the presumption as a
matter of law. Smith does not contest the superior courts
determination.
If an employer rebuts the presumption of
compensability, the burden shifts to the employee to prove his
claim by a preponderance of the evidence.18 Here, the board found
that Smith had not shown by a preponderance of the evidence that
the back injury he sustained at work in July led to the need for
surgery in August. It therefore denied and dismissed Smiths
claim. In reaching its conclusion, the board found that it could
not rely on the lay testimony to determine whether Smiths work
injury was a substantial factor in his need for surgery and also
noted that no physician had stated on a more-probable-than-not
basis that Smiths work caused his need for surgery.
A. The Boards Findings Are Inadequate To Permit Appellate
Review. Smith argues that the board made several errors in
evaluating the evidence in his case. Specifically, Smith
contends that the lay testimony he presented supports his claim
and that the board erred in not evaluating it. He also insists
that Dr. Ballards testimony cannot constitute substantial
evidence because it is contradictory and ambiguous. Smith
asserts that Dr. Vrabliks testimony should be considered
substantial evidence and that Dr. Vrabliks testimony supports
Smiths claim for benefits. UAF responds that (1) Dr. Vrabliks
testimony was inadequate to prove Smiths case; (2) Dr. Ballards
testimony is substantial evidence that supports the boards
decision; and (3) the board could properly disregard the lay
testimony Smith presented.
1. The board should make findings about the lay
testimony.
In arguing that the board improperly disregarded the
lay testimony, Smith maintains that the lay testimony in the case
undercut Dr. Ballards assumptions about Smiths recovery from the
work-related injury and that these assumptions were important to
Dr. Ballards opinion. UAFs position is that the lay testimony
had little probative value because of the complex medical issues
in the case. It also contends that the board weighed the lay
testimony and found it unreliable.
The boards decision stated:
Where claims involve highly technical
medical considerations, lay testimony has
little probative value. Tinker v. Veco, 913
P.2d 488, 494-95, fn. 9-10 (Alaska 1996). We
find this case involves highly technical
medical considerations, and that a
determination of causation requires the
production of a greater weight of medical
evidence. As such, we find we cannot rely on
the testimony of the employee, his friends
and co-workers to determine whether the
employees industrial incident was a
substantial factor in causing the employee to
need his third back surgery in August 1999.
See, also, Brown v. Patriot Maintenance, 99
P.3d 544, 553 (Alaska 2004).
Based on this statement and the boards failure to mention the
testimony of any of the lay witnesses except Smith, we are not
able to determine whether the board correctly applied the law to
Smiths case.
Lay testimony may be insufficient taken alone in a
complex medical case to satisfy the preliminary link that an
injury is work related or to rebut the presumption of
compensability.19 Norcon, Inc. v. Alaska Workers Compensation
Board, which UAF cites for support, repeats the rule that expert
medical testimony may be necessary to establish a claim.20
Nothing in Norcon suggests a general rule that lay testimony can
be disregarded in a case with complex medical facts, however.
Here, Smith did not rely on lay testimony alone in presenting his
case to the board; Dr. Vrablik provided expert medical testimony
on his behalf, and the board determined that Smith had attached
the presumption in part through Dr. Vrabliks testimony. The
question in Smiths case is the relevance of the lay testimony to
his claim.
In some cases lay testimony has little probative value
because it supports points that are not relevant to the
determinations of the experts. We held in both Ayele v. Unisea,
Inc.21 and Brown v. Patriot Maintenance, Inc.22 that the lay
evidence presented was not material to the boards decision and as
a result the board was not required to make findings about it.
In Ayele, the issue presented was whether exposure to ammonia
could trigger depression or related psychiatric disorders.23 The
lay testimony supported Ayeles claim that he had been exposed to
ammonia, but the medical experts did not seriously question this
fact.24 Likewise, in Brown, the lay witnesses described facts
that the experts had already received and for the most part
accepted.25 There the issue before the board was the connection
between traumatic injury and the development of fibromyalgia; the
experts disagreed about whether any traumatic injury could cause
fibromyalgia.26 Thus, the lay testimony about symptoms and the
injury itself had no bearing on the experts opinions; it did not
materially erode the medical opinions of physicians whose
testimony the board chose to accept.27
At other times, though, lay evidence may be highly
relevant, as when it tends to support or contradict the
assumptions as to the facts of the claimants history on which
expert medical witnesses rely. For example, we determined in
Stephens v. ITT/Felec Services that lay testimony was potentially
important to the experts opinions about causation because their
opinions rested on assumptions about the claimants work
conditions, which the lay testimony addressed.28 In Stephens, the
board decided that a worker had not proven his claim that his
heart attack was work related.29 The employers experts testified
that Stephens heart attack was not work related, but their
opinions were based on assumptions about his work conditions.30
They also testified that their opinions might change if
information about work conditions was different from what they
assumed.31 Even though Stephens presented lay evidence about his
work conditions, the board did not evaluate it.32 We decided that
we could not review the boards decision without knowing how the
board had evaluated the lay testimony and remanded the case to
the board.33
Here, we are unable to determine from the boards
decision whether it applied an incorrect legal rule that lay
testimony should be disregarded in complex medical cases or
considered the lay testimony and determined that in Smiths case
it had little probative value. Because we are unable to
determine whether the board considered the lay testimony, on
remand the board should indicate whether it evaluated the lay
testimony and what weight, if any, the lay testimony should have.
In Smiths case it is possible that the lay testimony
could undermine Dr. Ballards assumptions about the development
and course of Smiths symptoms. Smith argues here that the lay
testimony undermines Dr. Ballards statement that Smith was
functioning with some low back pain after his injury and had
temporarily aggravated his back when he injured it at work.
Because neither doctor examined Smith between the July
injury and the August visit to Dr. Vrablik, the lay testimony
here may have more probative value than in other cases with
uncertain medical causation. As Dr. Vrablik indicated in his
deposition, he had to rely on the history Smith gave in assessing
his condition and its causes because he did not see Smith until
after both the July and August incidents.34 The lay testimony
arguably supported Smiths assertions about his increasing pain
following the accident, which could be contrary to Dr. Ballards
analysis of the course of Smiths illness. While UAF is correct
that the board alone is authorized to determine witness
credibility, there is a distinction between devaluing testimony
because it has no probative value, even if true, and deciding
that testimony is not credible.35 The board made no explicit
findings about credibility, so we are unable to say that the
board made a determination that the lay witnesses in Smiths case
were unreliable.36
Dr. Ballard also testified that differences in the
location and intensity of pain distinguished disk herniation from
stenosis; his testimony indicated that leg symptoms could suggest
a herniated disk. He further testified about his experience with
patients with symptomatic scar tissue. Smiths testimony and that
of his lay witnesses described Smiths pain and the limitations on
his activities. Because in this case it is possible that the lay
testimony had some bearing on the experts assumptions, the board
on remand should consider the lay testimony insofar as it
supports or detracts from the doctors conclusions and make
appropriate findings.
2. The board did not adequately analyze the medical
testimony.
Smith argues that Dr. Vrabliks testimony constitutes
substantial evidence to support his claim and that the board did
not give it proper weight. UAF responds that Dr. Vrabliks
testimony was not adequate to carry Smiths burden of proof. The
board did not explicitly reject Dr. Vrabliks testimony; it stated
that Dr. Vrablik agreed that Smiths condition probably changed in
August, when he sought medical attention, rather than in July.
The board also noted that Dr. Vrablik testified it was possible
that the July injury contributed to his need for surgery, but he
would not say it was probable. The board did not discuss Dr.
Vrabliks opinion, based on Smiths history, that the injury was a
significant or substantial factor in causing the need for surgery
or that the work injury contributed to the recurrent disk
herniation.
The board stated in its decision, No physician has
stated, on a more probable than not basis, the employees work
caused his need for surgery and continuing treatment. Therefore,
we find the employee cannot prove his claim by a preponderance of
the evidence. A statement by a physician using a probability
formula is not required to establish employer liability in
workers compensation. As Larson remarks:
The compensation process is not a game
of say the magic word, in which the rights of
injured workers should depend on whether a
witness happens to choose a form of words
prescribed by a court or legislature. What
counts is the real substance of what the
witness intended to convey, and for this
purpose there are more realistic approaches
than a mere appeal to the dictionary.[37]
We noted our agreement with Larson in Childs v. Copper
Valley Electric Assn, when we observed that the fact that a
doctor did not state his opinion in absolute terms did not mean
that his testimony was inconclusive or that he failed to exclude
a cause of the claimants condition.38 We have also upheld
compensation awards in the face of inconclusive medical
testimony, particularly when lay testimony supported the award.39
We are unable to determine here whether the board
applied an incorrect legal rule that would have required Smith to
provide a physicians statement which used a term like probability
in order to prove his claim. The absence of a definitive
statement from a physician that the industrial accident caused
Smiths need for surgery, on a more-probable-than-not basis, may
be an important factor for the board in making its ultimate
decision, but lack of such a statement is not necessarily fatal
to a workers compensation claim.
Our holding here is distinct from Lindhag v. State,
Department of Natural Resources, where we rejected the employees
argument that the board had failed to make adequate findings.40
In Lindhag, the board explicitly accepted the testimony of the
second independent medical evaluation physician, finding that he
had more relevant training and had provided a more complete
picture of the claimants illness.41 Here, the board did not
credit the testimony of one doctor over the other and appears to
have relied on the conclusions of both doctors in reaching its
decision.
Moreover, the board may have overlooked or
misinterpreted Dr. Vrabliks testimony about causation. Dr.
Vrablik testified that both the work-related injury and the
incident of getting into the truck were significant in causing
Smiths need for back surgery in August 1999. He also stated
that, based on Smiths history, they were both substantial
factors. Although Dr. Vrablik said that a recurrent disk
herniation can result from trivial things, he observed that a
person cannot ignore the patients prior history in determining
causation either. It is not clear that the board considered Dr.
Vrabliks opinion that the industrial accident was a significant
cause of the need for surgery. On remand, the board should
clarify the weight it accorded the lack of a definitive
statement.
B. The Board Did Not Abuse Its Discretion by Following the
Superior Courts Remand Order.
Smith asserts that the board abused its discretion in
finding that his claim was not compensable. His claim that the
board abused its discretion centers around the boards reversal of
course in its assessment of Dr. Ballards testimony and its
reliance on what he terms Dr. Ballards insubstantial testimony.
The board was free on remand to reconsider the issue of
Dr. Ballards credibility. After the superior court determined as
a matter of law that UAF had rebutted the presumption of
compensability, it remanded the case to the board for a
determination of whether Smith had proven his claim by a
preponderance of the evidence. In its remand order, the superior
court stated, [T]he AWCB may reject and weigh any testimony of
any witnesses in determining whether Smith satisfies his burden
of persuasion.
When a reviewing court remands a case to an
administrative agency, the agency is bound to follow the courts
order and may correct or revisit issues that were not decided by
the reviewing court.42 Here, the superior court made a legal
determination that Dr. Ballards testimony, without weighing it,
provided adequate evidence to rebut the presumption of
compensability. In so deciding, the superior court found that
the board had committed a legal error in weighing Dr. Ballards
testimony at the rebuttal stage. More importantly, the superior
court explicitly told the board that it could reweigh the
evidence on remand. Smiths argument asks us to hold that the
board abused its discretion by following the mandate of the
superior court. We decline to do so.
Smiths other arguments lack merit. He maintains that
Dr. Vrabliks testimony is entitled to greater weight than Dr.
Ballards because of Dr. Vrabliks greater knowledge of Smiths case
and longer career as a physician. The board did not explicitly
credit the testimony of one doctor over the other; it appears to
have relied on both doctors in making its decision. Nonetheless,
we have previously refused to adopt a general rule in workers
compensation cases that a treating physicians opinion is entitled
to greater weight than the opinion of an employers expert.43 The
board alone is charged with determining the weight it will give
to medical reports.44
Smith also argues that Dr. Ballards testimony is not
substantial evidence on which the board could rely to deny his
claim. He contends that Dr. Ballards testimony was contradictory
and ambiguous and asks us to determine that it was insubstantial.
Smiths arguments are really directed at issues of Dr. Ballards
credibility, which is a question related to the weight of
evidence. Whether the quantum of evidence presented is
substantial is a question of law.45 This is akin to a
determination that there is sufficient evidence available for the
board to make a decision. A legal determination that the
evidence is sufficient to support a proposition is distinct from
assigning weight to a particular piece of evidence.46 Findings
related to weight are within the province of the fact-finder,
which is the board in workers compensation cases.47
Our rule that inconclusive and ambiguous testimony is
construed in favor of the applicant applies at the rebuttal
stage, when the board is charged with determining whether the
employer has presented sufficient evidence to rebut the
presumption of compensability.48 Here, the superior court
determined as a matter of law that UAF had presented sufficient
evidence to rebut the presumption of compensability. Smith did
not attempt to have this determination reviewed in an
interlocutory appeal, and he did not question the holding in his
points on appeal in this case. If the evidence UAF presented was
sufficient to rebut the presumption of compensability, without
being weighed, it could be sufficient to support a denial of
Smiths claim if the board accorded it weight.49
V. CONCLUSION
This is a case with medical uncertainty as to
causation. The boards decision is inadequate to permit appellate
review because we are unable to determine whether it applied
incorrect legal rules and whether it considered all of the
relevant evidence. We therefore VACATE the boards decision
denying Smiths claim and REMAND the case to the board for further
findings consistent with this opinion.
_______________________________
1 The malfunctioning filter cooled and dehumidified the
compressed air that operated the power plant controls.
2 Smiths normal work schedule was three twelve-hour
shifts and one four- hour shift per week. At the time of his
injury, his schedule was Wednesday from 11:00 a.m. to 3:00 p.m.
and then Thursday through Saturday from 7:00 a.m. to 7:00 p.m.
3 Epidural fibrosis is scarring from back surgery.
4 AS 23.30.005(a) requires that each board panel be
composed of a hearing officer, a representative of industry, and
a representative of labor. Two members of a panel are a quorum
for hearing cases. AS 23.30.005(f).
5 A board regulation permits a member who did not attend
the hearing to review the record and deliberate when a two-member
panel is deadlocked. 8 Alaska Administrative Code (AAC)
45.070(k)(2)(A) (2006).
6 Norcon, Inc. v. Alaska Workers Comp. Bd., 880 P.2d 1051
(Alaska 1994).
7 Wollaston v. Schroeder Cutting, Inc., 42 P.3d 1065
(Alaska 2002).
8 DeYonge v. NANA/Marriott, 1 P.3d 90, 94 (Alaska 2000).
9 Circle De Lumber Co. v. Humphrey, 130 P.3d 941, 946
(Alaska 2006).
10 Id. (quoting Robertson v. Am. Mech., Inc., 54 P.3d 777,
779 (Alaska 2002)).
11 Bradbury v. Chugach Elec. Assn, 71 P.3d 901, 905
(Alaska 2003).
12 Thoeni v. Consumer Elec. Servs., 151 P.3d 1249, 1253
(Alaska 2007) (quoting Municipality of Anchorage v. Devon, 124
P.3d 424, 429 (Alaska 2005)).
13 Bradbury, 71 P.3d at 905.
14 Id. (quoting Temple v. Denali Princess Lodge, 21 P.3d
813, 816 (Alaska 2001)).
15 Id.
16 Id. at 906.
17 Id. (citing Big K Grocery v. Gibson, 836 P.2d 941, 942
(Alaska 1992)).
18 Id.
19 Burgess Constr. Co. v. Smallwood, 623 P.2d 312, 316
(Alaska 1981). But cf. Veco, Inc. v. Wolfer, 693 P.2d 865, 870
(Alaska 1985) (noting that expert medical evidence is not always
necessary to establish or rebut the presumption).
20 Norcon, Inc. v. Alaska Workers Comp. Bd., 880 P.2d
1051, 1055 (Alaska 1994).
21 Ayele v. Unisea, Inc., 980 P.2d 955, 957 (Alaska 1999).
22 Brown v. Patriot Maint., Inc., 99 P.3d 544, 551-52
(Alaska 2004).
23 Ayele, 980 P.2d at 958.
24 Id.
25 Brown, 99 P.3d at 553.
26 Id. at 547.
27 Id. at 553.
28 Stephens v. ITT/Felec Servs., 915 P.2d 620, 627 (Alaska
1996).
29 Id. at 627.
30 Id.
31 Id. at 625-26.
32 Id. at 627.
33 Id.
34 Dr. Vrabliks reliance on Smith in determining causation
is not unique. The doctor whose opinion the board relied on in
Employers Commercial Union Co. v. Libor indicated that the best
way to establish a connection between two injuries would be to
ask the patient how much back pain he had in the interim period.
Employers Commercial Union Co. v. Libor, 536 P.2d 129, 131
(Alaska 1975).
35 Cf. Brown, 99 P.3d at 553 (noting that experts had
accepted facts described by lay witnesses, but facts were not
material).
36 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.).
37 8 Arthur Larson & Lex K. Larson, Larsons Workers
Compensation Law 130.06[2][e] (2006).
38 Childs v. Copper Valley Elec. Assn, 860 P.2d 1184, 1189
(Alaska 1993) (citing 3 Arthur Larson, The Law of Workmens
Compensation 80.32, at 15-834 to -835 (1992)); see also Safeway,
Inc. v. Mackey, 965 P.2d 22, 27 (Alaska 1998) (stating that
merely reciting the proper words as an opinion is not necessarily
enough to rebut the presumption of compensability).
39 Libor, 536 P.2d at 32; Beauchamp v. Employers Liab.
Assurance Corp., 477 P.2d 993, 996-97 (Alaska 1970).
40 Lindhag v. State, Dept of Natural Res., 123 P.3d 948,
953-55 (Alaska 2005).
41 Id. at 954.
42 Scott v. Mason Coal Co., 289 F.3d 263, 267-68 (4th Cir.
2002); City of Hampton v. Iowa Civil Rights Commn, 554 N.W.2d
532, 535 (Iowa 1996) (holding that unless the order to an agency
provides otherwise a remand is general and the agency is free to
address the claim anew); see also Reier v. State, Dept of
Assessments & Taxation, 915 A.2d 970, 983-84 (Md. App. 2007)
(upholding agency findings on remand that differed from initial
agency findings); Armstrong v. Employment Div., 832 P.2d 1233,
1235 (Or. App. 1992) (holding that administrative agency could
change its findings on remand because appellate court did not
circumscribe agencys authority); 2 Am. Jur. 2d Administrative Law
576 (2004).
43 Safeway, 965 P.2d at 29.
44 AS 23.30.122.
45 Veco, Inc. v. Wolfer, 693 P.2d 865, 869 (Alaska 1985)
(quoting Firemans Fund Am. Ins. Cos. v. Gomes, 544 P.2d 1013,
1015 (Alaska 1976)).
46 See Firemans Fund, 544 P.2d at 1015 n.6.
47 AS 23.30.122.
48 Bouse v. Firemans Fund Ins. Co., 932 P.2d 222, 235
(Alaska 1997) (When medical testimony offered to rebut the
presumption is uncertain or inconclusive, the presumption of
compensability is not overcome.); Miller v. ITT Arctic Servs.,
577 P.2d 1044, 1048-49 (Alaska 1978). But see Brown, 99 P.3d at
548-50; Fairbanks N. Star Borough v. Rogers & Babler, 747 P.2d
528, 534 (Alaska 1987); Beauchamp, 477 P.2d at 997. We also note
that this rule does not apply if an expert gives an explicit
opinion that the industrial accident is not a substantial cause
of the disability. See Stephens v. ITT/Felec Servs., 915 P.2d
620, 625-26 (Alaska 1996) (citing Big K Grocery v. Gibson, 836
P.2d 941, 942 (Alaska 1992)).
49 See Cowen v. Wal-Mart, 93 P.3d 420, 426 (Alaska 2004)
(noting that the evidence that was sufficient to rebut the
presumption of compensability was also sufficient to support the
boards determination as to the preponderance of the evidence).
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