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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Pietro v. Unocal Corporation (6/25/2010) sp-6484
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
| PAUL D. PIETRO, | ) |
| ) Supreme Court No. S- 13500 | |
| Appellant, | ) |
| ) Superior Court No. 3AN-05-12980 CI | |
| v. | ) |
| ) O P I N I O N | |
| UNOCAL CORPORATION, | ) |
| ) No. 6484 June 25, 2010 | |
| Appellee. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Mark Rindner, Judge.
Appearances: Michael J. Jensen, Law Office
of Michael J. Jensen, Anchorage, for
Appellant. Richard L. Wagg and Vicky A.
Paddock, Russell, Wagg, Gabbert & Budzinski,
P.C., Anchorage, for Appellee.
Before: Carpeneti, Chief Justice, Fabe,
Winfree, Christen, and Stowers, Justices.
FABE, Justice.
I. INTRODUCTION
A worker developed peripheral neuropathy in his feet
and was later diagnosed with skin cancer. He asked for workers
compensation benefits for both of these conditions, alleging that
they developed as a result of his exposure to arsenic during the
course of his work at a fertilizer plant. The Alaska Workers
Compensation Board rejected his claims, finding that he had not
proven that his conditions were work related, and the superior
court affirmed the Board. We affirm the Boards finding that the
employer rebutted the presumption of compensability. But because
the Board failed to make adequate findings to permit review of
its decisions that the worker had not proven his claims by a
preponderance of the evidence, we vacate the Boards decisions and
remand for further findings.
II. FACTS AND PROCEEDINGS
A. Pietros Work And Medical History
Beginning in 1982 Paul Pietro worked for UNOCAL at its
urea and ammonia plant in Kenai, first as a physical plant
operator and then as a unit coordinator. Sometime around 1985 the
physical plant began to burn waste oxazolidone from ammonia and
urea production as fuel in one boiler. The waste oxazolidone was
considered hazardous because it contained arsenic in
concentrations exceeding environmental standards.1 Oxazolidone
was not burned continuously. According to one UNOCAL document,
when it was used, oxazolidone constituted about five percent of
the total heat duty of the boiler. UNOCAL stopped burning
oxazolidone in 1991 after the Environmental Protection Agency set
limits on ambient arsenic levels from burning hazardous waste and
UNOCAL determined that the worst case emissions from its boiler
at the Kenai plant were several orders of magnitude greater than
these standards.
Oxazolidone was sprayed into the boiler chamber with a
gun. When he worked as an operator in the utility plant, Pietro
was required to put the gun into the boiler and clean the nozzle
of the gun if it plugged up. He and other workers reported that
oxazolidone sprayed or spilled from the gun. According to the
workers, fumes and smoke came out of the boiler when the gun was
changed, and exhaust from the boiler stacks reentered the plant
because of what one worker described as a negative vacuum. In
addition, the boiler where the oxazolidone was burned had a
number of leaks. A UNOCAL document dated September 22, 1989,
indicated that water from a leak in the boiler contained 0.20 ppm
of arsenic. Pietro and another worker testified that Pietro
experienced skin contact with arsenic when he slipped in a
chemical spill that contained arsenic and saturated his clothes.
UNOCAL monitored the arsenic exposure of some employees, but
Pietro was never selected to wear a monitor for arsenic exposure.
Even after the plant stopped burning oxazolidone, arsenic
remained in the boiler. A 2001 memorandum to employees set out
detailed procedures to avoid arsenic and lead exposure while
repairing the boiler.
According to Pietro, he began to experience burning in
his feet in the late 1980s, which he initially attributed to
working long hours on his feet. In 1991 Pietro filled out a
health questionnaire for UNOCAL, in which he indicated he had
tingling in his hands, arms, feet, or legs and burning in his
arms or legs.2 His health questionnaires from 1996 though 1999
did not repeat these complaints.
Pietro was diagnosed with rheumatoid arthritis in 1997
and began taking medication to control its effects. In spite of
the medication, he had flares of the disease that impaired his
ability to work. Pietro began treatment with Michael Armstrong,
M.D., a rheumatologist, in August 2001. In March 2002, Dr.
Armstrong said that Pietro could never return to full duty work
because of his rheumatoid arthritis. Pietro eventually received
both private disability insurance and Social Security disability
benefits for his rheumatoid arthritis.
Pietro first brought his foot pain to the attention of
his treating physicians in late 2000 and was seen by a
podiatrist, Matt Heilala, D.P.M., in July 2001. Dr. Heilala
diagnosed rheumatoid arthritis and plantar fasciitis. Pietro
began to see providers at Alaska Alternative Medicine Clinic in
2001 after a friend from work had similar complaints. Chart
notes from the clinic showed a neuropathy diagnosis.
In 2001 Pietros physician at Alaska Alternative
Medicine Clinic ordered hair testing for toxin exposure. The
hair test showed highly elevated levels of arsenic. In January
2002 Pietro had a urine test for toxic metals, which showed
arsenic levels within the reference range. On the advice of an
attorney, Pietro consulted with occupational medicine doctors at
Harborview Medical Center in Seattle. The Harborview doctors
were skeptical of the validity of the hair test and ordered a
twenty-four-hour urine test, even though they noted that the
urine test would only reveal current exposure. The urine test
showed normal arsenic limits, and the Harborview doctors reports
indicated that arsenic exposure was not a likely explanation for
Pietros neuropathy. But after nerve testing by Dr. Heilala
showed evidence of peripheral neuropathy,3 one of the Harborview
physicians, Timothy Takaro, M.D., concluded in October 2002 that
the nerve studies were consistent with arsenic poisoning and
advised Pietro to pursue a case against UNOCAL.
Pietro also consulted with A. Lee Dellon, M.D., a
plastic surgeon whose practice was entirely devoted to peripheral
nerves. Dr. Dellon rejected the idea that Pietros rheumatoid
arthritis caused his peripheral neuropathy and recommended
testing to rule out other possible causes of the neuropathy. Dr.
Dellon stated that if other possible causes of peripheral
neuropathy were ruled out, then the most likely cause for
[Pietros] peripheral neuropathy would be an occupational exposure
to toxins.
Pietro filed a report of occupational injury in October
2002, alleging that exposure to chemicals caused neuropathy in
both his feet. UNOCAL controverted all benefits in December
2002, relying on Harborviews initial medical report, which
downplayed the role of arsenic in causing the peripheral
neuropathy. Shortly after the controversion, Pietro filed a
written workers compensation claim alleging that the neuropathy
was the result of work-related chemical exposure.
B. Other Medical Evidence
UNOCAL set up a panel of four doctors for an employers
independent medical evaluation (EIME) in July 2003. The panel
consisted of a podiatrist, an orthopedic rheumatologist, a
neurologist, and a toxicologist. None of the EIME doctors found
a link between Pietros symptoms and chemical exposure in the
workplace. The podiatrist was not able to confirm a diagnosis of
peripheral neuropathy on examination but said that arsenic
exposure could lead to peripheral neuropathy. Dejan Dordevich,
M.D., the EIME rheumatologist, concluded that Pietros peripheral
neuropathy was a product of rheumatoid arthritis. Lynne Bell,
M.D., Ph.D., the neurologist, was unwilling to diagnose
peripheral neuropathy because no nerve conduction or EMG studies
had been done, and she recommended further testing.4
Brent Burton, M.D., a specialist in occupational and
environmental toxicology, also examined Pietro. Dr. Burton
reviewed the material safety data sheets for the chemicals that
Pietro listed on his workers compensation claim. Dr. Burton did
not think that Pietros peripheral neuropathy had been properly
diagnosed and concluded that Pietro did not have a diagnosable
medical condition stemming from any workplace exposure.
Because of the differences in medical opinions, the
parties requested a second independent medical evaluation (SIME).
The Board arranged for Pietro to see a neurologist, Jonathan
Schleimer, M.D., and a rheumatologist, Neal Birnbaum, M.D. Dr.
Birnbaum agreed that Pietro had rheumatoid arthritis but found no
evidence that [Pietros] rheumatoid arthritis [was] in any way
related to any industrial exposure because there is no medical
literature to support the development of rheumatoid arthritis as
a consequence of toxin exposure. Dr. Birnbaum concluded that if
Pietro had peripheral neuropathy, it should not be attributed to
the rheumatoid arthritis. According to Dr. Birnbaum,
neurological problems related to rheumatoid arthritis are rare
and usually occur[] only in the setting of severe active
rheumatoid disease. He noted that Pietros foot symptoms
predate[d] the development of any joint complaints by quite a few
years.
Dr. Schleimer did nerve conduction and EMG testing and
concluded that Pietro suffered from a mild polyneuropathy with
distal degeneration of sensory axons. Dr. Schleimer thought that
Pietros neuropathy was likely related to rheumatoid arthritis.
He acknowledged that peripheral neuropathy is uncommon in
rheumatoid arthritis but considered it more common than arsenic
poisoning or toxicity. Dr. Schleimer also noted no bone marrow
suppression or evidence for a blood count suppression during
Pietros period of alleged exposure and found no clear
documentation of a neuropathy antecedent to the diagnosis of
rheumatoid arthritis. He wrote that if Pietro did not have
rheumatoid arthritis, he would consider the possibility of
arsenic exposure more seriously.
To show that his neuropathy was a cause of his
inability to work, Pietro submitted to the Board letters from his
healthcare providers indicating that he was disabled by his
neuropathy. Pietros attorney sent supplemental interrogatories
and documents to the SIME physicians, supplying the doctors with
additional medical records and information about chemicals used
at the plant. After reviewing the records, Dr. Schleimer stated
that he recognize[d] that there [was] potential for exposure of
this patient to heavy metals, arsenic, and other chemicals but
could not state on a more likely than not basis that the
substantial cause of this patients peripheral neuropathy is
related to toxic or heavy metal exposure. The additional
information did not change Dr. Birnbaums opinion.
C. Board Hearing
The Board held a hearing on Pietros claim on September
1, 2005. Several of Pietros coworkers testified about conditions
inside the utility plant and problems with the boiler that burned
oxazolidone. Pietros wife testified that the pain in his feet
began in the late 1980s. Pietro also testified about his medical
history and work conditions. Five doctors testified either in
person or by deposition.
The doctors gave sharply differing analyses of the
cause and development of Pietros neuropathy. Dr. Dordevich
attributed it to Pietros rheumatoid arthritis, although he
acknowledged that fewer than one percent of patients with
rheumatoid arthritis develop a sensory neuropathy like Pietros.
Dr. Dordevich agreed that it was possible Pietro was exposed to
some arsenic while he was working for UNOCAL, but he did not
think the peripheral neuropathy developed as a result of arsenic
exposure because Pietro did not show signs of arsenic toxicity in
other organs.
Dr. Burton testified that Pietros neuropathy was not
related to arsenic exposure at his work site. His opinion was
based in part of the lack of objective evidence that Pietro had
been exposed to a toxic level of arsenic. Dr. Burton indicated
that there was a problem with trying to quantify Pietros exposure
but thought that Pietros exposure level would not result in
development of any arsenic-related symptoms. Dr. Burtons
testimony suggested that low-level exposure to arsenic was not
harmful and that even doses of arsenic high enough to cause acute
symptoms did not always cause permanent damage.
In contrast, Dr. Takaro testified that in his opinion
arsenic exposure was the most likely cause of the neuropathy
because of the type of neuropathy Pietro had. He thought that
other possible explanations for the neuropathy had been ruled
out, leaving arsenic exposure as the most likely cause. Dr.
Takaro identified the basis of his opinion that Pietro had been
exposed to sufficient arsenic to cause medical problems,
including reliance on UNOCALs documents. Dr. Takaro also
testified that a burning sensation in either the hands or feet or
both is the most common symptom of longstanding, low-level
exposure to arsenic. He indicated that very low levels of
arsenic could cause damage.
Dr. Armstrong testified that in his opinion the
rheumatoid arthritis did not cause Pietros peripheral neuropathy.
He stated that neuropathy with a burning sensation is as rare as
hens teeth in patients with rheumatoid arthritis. Dr. Armstrong
believed more likely than not that arsenic exposure was the
responsible factor in Pietros neuropathy. Dr. Armstrong also
agreed that Pietros peripheral neuropathy was the major
contributing factor in some of Pietros disabilities.
In its decision dated November 4, 2005, the Board
denied Pietros claim, finding that he had not proven it by a
preponderance of the evidence. The Board found that Pietro had
attached the presumption of compensability. It then found that
UNOCAL had rebutted the presumption through the opinions of Dr.
Dordevich, Dr. Burton, and Dr. Schleimer. In weighing the
evidence, the Board focused on objective evidence in finding that
Pietro had not met his burden of proof. It found that the hair
test for arsenic was considered unreliable and the urine test,
which it termed the gold standard, showed normal levels of
arsenic. It also found that the opinions of Pietros doctors
about causation were not supported by the objective, factual
record in this case. It gave more weight to the opinions of Dr.
Dordevich, Dr. Burton, and Dr. Schleimer, describing them as
based on objective findings. The Board emphasized that Pietro
had not developed other symptoms that would have indicated toxic
arsenic exposure, such as gastrointestinal distress, cardiac
issues, or dermatologic issues. Pietro appealed the decision to
the superior court.
D. Pietros Skin Cancer Claim
In April 2006 Pietro was diagnosed with skin cancer.
He had three lesions: One was on his shoulder and was diagnosed
as melanoma, while the other two were on or near his ears and
were diagnosed as basal cell carcinoma. After the skin cancers
were diagnosed, Pietro obtained an opinion from Richard Parent,
Ph.D., a toxicologist. Dr. Parent indicated that Pietros skin
cancers were consistent with arsenic exposure. Dr. Parent
concluded, with a reasonable degree of scientific certainty, that
Pietros medical problems have been caused or contributed to by
his exposures to arsenic during his employment . . . at Unocal.
In October 2006 Pietro filed a new workers compensation claim
related to the skin cancers and petitioned for modification of
the 2005 Board decision based on mistake. At Pietros request,
the superior court stayed the appeal and remanded the case to the
Board.
The Board held a hearing in June 2007 on the petition
for modification. There was some disagreement about the scope of
the hearing: Pietro asked the Board to consider his workers
compensation claim for the skin cancer because it was identified
as an issue in the prehearing conference, but the Board decided
that it was not comfortable deciding the compensability of the
skin cancer because of the possibility that Pietro had also been
exposed to arsenic while working for Agrium, which bought the
ammonia plant from UNOCAL. The Board permitted testimony about
the skin cancer because it was a basis of the petition for
modification. The Board heard testimony from Dr. Takaro and Dr.
Burton as well as some additional testimony from Pietro. Pietro
again testified about possible exposure to arsenic at his work,
focusing on exposure to his skin. He also discussed his skin
cancers and history of sun exposure.
Dr. Takaro testified about regulatory standards for
arsenic exposure. According to Dr. Takaro, based on documents he
reviewed, arsenic was present in levels well above the threshold
level described in some regulations. He testified that there is
a latency period of ten to fifteen years between exposure to
arsenic and development of skin cancer. In Dr. Takaros opinion,
there was absolutely no question that Pietro had been exposed to
much more arsenic than the general population. He also testified
that even though sunlight could have contributed to Pietros skin
cancers, animal studies showed that arsenic and [ultraviolet
radiation] together is a much more potent carcinogen than either
one apart. Dr. Takaro expressed the opinion that Pietros
exposure to arsenic while working for UNOCAL was a substantial
factor in the development of his skin cancer.
Dr. Burton testified that in his opinion Pietro was not
exposed to excessive levels of arsenic during his employment with
UNOCAL. Dr. Burton noted the absence of testing results and
industrial hygiene surveys to show exposure levels. He also
based his conclusion on his understanding of workplace conditions
and Pietros lack of symptoms while he was working. Dr. Burton
disagreed with Dr. Takaros use of data from emissions testing
from the plants smokestack as a means of showing workplace
exposure. He also noted that Pietro never showed signs of
certain skin lesions that are consistent with arsenic exposure.
In Dr. Burton s opinion, Pietros skin cancers were most likely
the result of sun exposure and aging because he did not believe
that Pietro had been exposed to significant levels of arsenic.
Dr. Burton testified that the exposure level that triggered skin
cancer was not known, although it was a high level.
The Board found in an August 2007 decision that Pietro
had provided enough new evidence to permit it to consider his
petition for modification of the neuropathy claim, but it again
relied on Dr. Burtons opinion to decide that Pietro had failed to
prove that his peripheral neuropathy was work related. Pietro
then petitioned for reconsideration of the August 2007 decision
because the Board had not resolved his 2006 workers compensation
claim for skin cancer. The Board granted his petition in order
to make findings related to this claim and issued its final
decision on the skin cancer claim on February 22, 2008. It found
that Pietro had attached the presumption of compensability and
that UNOCAL had rebutted it; the Board decided that Pietro had
failed to prove his skin cancer claim by a preponderance of the
evidence.
Pietro appealed the August 2007 and February 2008 Board
decisions to the Alaska Workers Compensation Appeals Commission,
which decided that it did not have jurisdiction over the appeal.
The superior court consolidated the appeals of all of the
decisions. The superior court affirmed the Boards decisions,
concluding that substantial evidence in the record supported the
Boards findings. The court also decided that (1) the Board had
properly applied the presumption analysis; (2) substantial
evidence supported the Boards finding that UNOCAL had overcome
the presumption; (3) the Board had made sufficient findings to
permit review; (4) the Board engaged in reasoned decision making;
and (5) the Board had adequately considered Pietros neuropathy as
an occupational disease. Pietro appeals.
III. STANDARD OF REVIEW
In a workers compensation appeal from the superior
court, we directly review the Boards decision.5 Factual findings
are reviewed to see if they are supported by substantial
evidence.6 Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.7
The Board is required to make findings only about questions that
are both contested and material.8 Whether the [B]oard made
sufficient findings is a question of law that we review de novo.9
IV. DISCUSSION
A. UNOCAL Provided Substantial Evidence To Rebut The
Presumption.
The Board applies a three-step analysis when it
evaluates a workers compensation claim.10 It first decides
whether the employee has provided sufficient evidence
establishing a link between his injury and the employment, such
that the presumption that his claim is compensable attaches.11
The Board found here that Pietro had attached the presumption in
both of his claims, and UNOCAL does not dispute this finding.
In order to rebut the presumption, the employer is
required to provide substantial evidence that either (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.12 The Board found here that
UNOCAL had rebutted the presumption in Pietros neuropathy claim
through the testimony and reports of Dr. Dordevich, Dr. Burton,
and Dr. Schleimer. In the skin cancer claim, it found that
UNOCAL had rebutted the presumption of compensability through Dr.
Burtons testimony. Pietro contends that UNOCAL did not provide
sufficient evidence to rebut the presumption in either claim.
The Board did not err in finding that UNOCAL presented
enough evidence to rebut the presumption. At the second stage,
the Board does not weigh the evidence but looks at the evidence
provided by the employer in isolation to see if it is adequate.13
In his neuropathy claim, Pietro contends that the opinions the
Board identified as providing evidence to rebut the presumption
were not comprehensive and reliable because the doctors were not
aware of the evidence of Pietros exposure to arsenic, assumed the
rheumatoid arthritis preceded the neuropathy, and could not rule
out all work-related causes of Pietros neuropathy.
In Stephens v. ITT/Felec Services, we held that
physicians opinions were adequate to rebut the presumption when
[t]he physicians based their opinions on a state of facts, which,
although disputed, could be permissibly resolved in favor of the
employer.14 Pietros case is analogous. The physicians here based
their opinions about causation in the neuropathy claim on facts
that were disputed and could be resolved in favor of UNOCAL, such
as whether Pietro was exposed to enough arsenic to have health
effects and whether Pietros neuropathy predated his rheumatoid
arthritis. And although Pietro asserts that the doctors opinions
did not rule out any reasonable possibility that the neuropathy
was work related, the doctors provided an explanation (Pietros
rheumatoid arthritis) which, if accepted, would exclude arsenic
exposure as a cause of the peripheral neuropathy.
In the skin cancer claim, the Board relied solely on
Dr. Burtons testimony to rebut the presumption. Dr. Burton
testified that the most likely cause of Pietros cancer was sun
exposure and aging because he did not think Pietro had been
exposed to arsenic at a high enough level to cause skin cancer.
In Dr. Burtons opinion, Pietro had been exposed to no more
arsenic than the general population. Here again, Pietros case is
similar to Stephens. The level of Pietros arsenic exposure was
disputed, and the toxicologists provided conflicting testimony
about what level of arsenic exposure was needed to cause skin
cancers. Because the Board only looks at the evidence in
isolation at the second stage, without assigning it weight,
UNOCAL provided enough evidence to overcome the presumption. Dr.
Burtons opinion that Pietro had not been exposed to a high enough
level of arsenic at work to cause skin cancer eliminated any
reasonable possibility that employment was a factor in causing
the cancer.15
Pietro argues that in order to overcome the
presumption, UNOCAL was required to present objective evidence
that its workers were not exposed to arsenic in the workplace.16
This overstates UNOCALs burden. UNOCALs experts and Dr.
Schleimer did not contest that Pietro was exposed to some arsenic
in his work for UNOCAL. The difficult question was assessing
whether he had been exposed to sufficient arsenic to cause the
health effects he suffered: peripheral neuropathy and skin
cancer. Both sides presented expert testimony supporting their
positions, and UNOCALs experts testimony, viewed in isolation,
provided sufficient evidence to rebut the presumption.
If the employer rebuts the presumption, the Board must
weigh the testimony in deciding whether a worker has proven his
claim by a preponderance of the evidence.17 The Board found that
Pietro had not proven either of his claims by a preponderance of
the evidence. In the neuropathy claim, the Board found that the
opinions of Pietros physicians were not supported by the
objective, factual record in this case. It then noted that the
twenty-four-hour urine test was negative and that Dr. Takaro
ultimately concluded that the employees neuropathies [were]
inexplorable. The Board [found] it telling that Pietro had no
other symptoms associated with toxic arsenic exposure, including
dermatologic issues.
The Board listed three reasons for rejecting Pietros
skin cancer claim: (1) UNOCAL stopped burning arsenic more than
eleven years before Pietros cancer diagnosis; (2) the most common
cause of skin cancer is exposure to ultraviolet light (the sun);
and (3) Dr. Burton testified that there is zero relationship
between the type of carcinoma/melanoma the employee had and
arsenic exposure. In its decision denying the skin cancer claim,
the Board did not specifically reject Dr. Takaros opinions.
B. The Boards Findings Are Inadequate To Permit Appellate
Review.
Pietro contends that the Boards findings are inadequate
to permit review because the Board failed to make findings about
material and contested facts. According to Pietro, the Board was
required to make findings about the lay testimony here because
that testimony undermined the opinions of UNOCALs experts. He
also argues that the Board made many significant errors in its
decisions. UNOCAL concedes that there are errors in the Boards
decisions but asserts that the errors were not significant. It
maintains that the Boards factual findings were adequate.
The Board is required to make findings about issues
that are both contested and material.18 Findings are adequate to
permit appellate review when at a minimum, they show that the
Board considered each issue of significance, demonstrate the
basis for the Boards decision, and are sufficiently detailed. 19
Here, the Boards findings failed to meet this standard. Not only
did the findings neglect to address significant, disputed issues,
such as when Pietros neuropathy began relative to his arthritis
and whether his work conditions exposed him to enough arsenic to
cause health complaints, but the Boards analyses also did not
evaluate the lay testimony and its interaction with the experts
opinions. The Boards lack of detailed analysis makes it
difficult to discern its reasoning, which is particularly
troubling in light of the conceded errors in its decisions.
1. The Board erred in failing to evaluate the lay
testimony.
As we discussed in Smith v. University of Alaska,
Fairbanks, lay testimony does not always have probative value in
complex medical cases.20 But at times lay testimony is highly
relevant, especially when it tends to support or contradict the
assumptions as to the facts of the claimants history on which
expert medical witnesses rely.21 In Pietros case, the lay
testimony was relevant to two contested issues underlying the
medical experts opinions: when Pietros neuropathy developed
relative to his rheumatoid arthritis and whether his work
conditions exposed him to enough arsenic to cause health
complaints. These issues were both contested and material.
Pietro introduced three types of evidence to support
his claim that he had been exposed to hazardous levels of arsenic
at work: lay testimony about his work and health conditions,
documentary evidence from UNOCAL obtained through discovery, and
expert testimony.22 The UNOCAL documents contained information
about boiler problems and levels of arsenic in the environment
both inside and near the plant. The toxicologists expressed
opinions about Pietros potential exposure, and their opinions
were based in part on their understanding of his work conditions.
Dr. Takaro used environmental testing data from UNOCAL documents
together with information about Pietros workplace to conclude
that Pietro had been exposed to significant levels of arsenic.
Dr. Burton testified that to evaluate exposure he looked at
Pietros description of his work practices.
The lay testimony Pietro presented was relevant to the
doctors assumptions about his exposure to arsenic. The Board
briefly summarized the lay testimony in the neuropathy decision
but did not mention it in its analysis of either the neuropathy
or cancer claim and made no findings about either the lay
witnesses or their testimony. Information about Pietros work
conditions was necessary to evaluate the compensability of his
claim because that testimony could support or contradict the
toxicologists assumptions about Pietros work conditions, as the
lay testimony did in Smith.23 For example, Dr. Burton testified
that burning oxazolidone would not present an exposure hazard if
the fumes were contained in the boiler; he also said that there
was no history . . . to indicate that [Pietro] was working in an
environment where there were products of combustion in the
workplace. Yet the lay witnesses testified that there was smoke
in their work area; witnesses also testified that exhaust from
the boiler was drawn back into the building. Because the lay
testimony was relevant to the experts assumptions about Pietros
work conditions and his potential exposure to arsenic at work,
the Board was required to evaluate and make findings about it.
The Boards failure to make findings about the work conditions,
especially as it related to Pietros exposure to arsenic in the
workplace, impedes adequate appellate review of its decision.24
Pietro also presented lay testimony that he suffered
from peripheral neuropathy in the late 1980s to support his
contention that his neuropathy developed before his rheumatoid
arthritis. The relative date of onset of the neuropathy and
arthritis was an important, contested issue in this case. Dr.
Schleimer, the SIME neurologist, did not think there was
adequate medical evidence that Pietros neuropathy developed
before his rheumatoid arthritis but also stated that he would
consider the possibility of arsenic exposure more seriously in
the absence of rheumatoid arthritis. The lay testimony here,
like the lay testimony in Smith, provided information relevant
to the experts assumptions about the development and course of
Pietros symptoms.25 On remand, the Board must make findings
about the lay testimony.
2. The Boards findings do not show consideration of
significant issues.
The fundamental question before the Board was whether
Pietros neuropathy was caused by exposure to toxins over a long
period of time or by his rheumatoid arthritis. In order to
decide this question, the Board needed to resolve a number of
issues: whether the peripheral neuropathy arose before the
arthritis, whether low levels of arsenic are toxic over a long
period of exposure, and, relatedly, whether Pietro had been
exposed to levels of arsenic that caused health effects. After
Pietros skin cancer diagnosis, the Board needed to consider
whether that diagnosis altered its assessment of his neuropathy
claim. We agree with Pietro that the Board failed to make
findings about these significant issues.
The date of onset of the neuropathy was an important,
disputed fact underlying several doctors opinions. Both SIME
physicians mentioned the time of onset of the neuropathy in
assessing whether Pietros rheumatoid arthritis caused his
neuropathy. Dr. Birnbaum concluded that Pietros rheumatoid
arthritis could not be a causative factor in the neuropathy in
part because he thought the neuropathy predated the arthritis
diagnosis. In contrast, Dr. Schleimer thought that the
neuropathy arose after the rheumatoid arthritis and the
arthritis caused the neuropathy. Pietro provided lay testimony
as well as his health questionnaire to support his position that
his neuropathy developed before his arthritis. UNOCAL argued
that no medical evidence supported Pietros position. Yet the
Board failed to discuss or make findings about when the
neuropathy arose relative to Pietros rheumatoid arthritis.
The Board also failed to make findings about Pietros
potential exposure to arsenic or about the conditions in Pietros
workplace, even though these conditions bore upon the crucial
question of his exposure level. Aside from the lay testimony
about work conditions at the plant, the Board had UNOCALs
documents, which had some testing data, as well as expert
testimony from the toxicologists. The experts reached
significantly different conclusions about the level of Pietros
exposure to arsenic and its possible health effects. Dr. Burton
thought that Pietros exposure level was similar to that of the
general population and inadequate to cause health effects. Dr.
Takaro concluded that Pietros workplace exposure was much higher
than that of the general population and was more than sufficient
to cause Pietros symptoms. The Boards findings do not mention
Pietros work conditions. Although the evidence may not have
permitted the Board to come up with a number precisely
quantifying Pietros exposure level, the Board had sufficient
evidence to evaluate the expert testimony, make a finding
regarding Pietros exposure to toxins, and explain the finding.
Finally, the toxicologists gave conflicting testimony
about whether low levels of arsenic exposure could cause health
effects. Dr. Burton testified that arsenic exposure would have
to rise to the level of intoxication or poisoning in order to
cause health effects. Dr. Takaro testified that arsenic could
cause damage at much lower levels than the levels discussed by
Dr. Burton and cited medical literature to support his opinion.
The Board did not resolve this conflict. Nor did it adequately
explain its reasoning rejecting Pietros modification petition.
The Board denied Pietros neuropathy claim in part because Pietro
did not have a dermatologic condition consistent with arsenic
exposure. Yet after he presented evidence of a skin condition
that could be related to arsenic exposure, the Board failed to
reconcile its first opinion with this new fact, except in a
conclusory fashion that provided no insight into its reasoning.
3. The Boards findings are not detailed enough to
show the basis for its decisions.
In its decision on the neuropathy claim, the Board
found that Dr. Takaros, Dr. Armstrongs, and Dr. Dellons opinions
regarding causation [were] not supported by the objective,
factual record in this case. The Boards finding is difficult to
review because it does not explain what facts in the record
undermined these doctors opinions. Dr. Takaro based his
opinions in part on the objective findings in the EMG and nerve
conduction studies, which showed that Pietro had a specific type
of nerve damage. Dr. Takaro also looked at data from
environmental testing provided by UNOCAL to support his opinion
about exposure levels. The Boards conclusory statement does not
provide enough information to assess its accuracy. By contrast,
we determined in Lindhag v. State, Department of Natural
Resources that the Boards decision was adequately detailed.26
There, the case involved only medical issues; the Board relied
on one doctor, the SIME physician, and gave its reasons for
crediting that doctors opinions instead of two others opinions.27
The reasons given there that one doctor lacked training in a
relevant specialty and the other doctor made factual errors in
his report (which the Board identified) were amenable to review
and readily understandable.28 Because the Board provided no
concrete reasons for rejecting the testimony of Dr. Takaro, Dr.
Armstrong, and Dr. Dellon, we are unable to review this
decision.
In rejecting Pietros neuropathy claim, the Board also
focused on the results of the twenty-four-hour urine test, which
were normal, and the unreliability of the hair test, which
showed elevated arsenic levels. We agree with Pietro that the
Board placed too much emphasis on the results of the twenty-four-
hour urine test. UNOCAL defends the Boards reasoning, arguing
that Pietro needed to provide a positive medical test result
showing work-related arsenic exposure to substantiate his claim.
But there is no rigid requirement that a worker prove his claim
by means of a specific medical test,29 and by requiring Pietro to
do so here, without consideration of the circumstantial evidence
of arsenic exposure, the Board erred. This is particularly so
when the test at issue measured ongoing exposure and had little
probative value of Pietros exposure to arsenic during his
employment at UNOCAL. The experts agreed that arsenic is
excreted rapidly from the body, and the doctor who ordered the
twenty-four-hour urine test indicated that it would only show
ongoing exposure, not exposure that had occurred years before
the test. Pietro underwent the urine test about two months
after Dr. Armstrong took him off work because of his arthritis;
this suggests that the negative urine test result was not
probative of Pietros exposure at UNOCAL.
Medical testing can provide important objective
evidence in workers compensation cases, but it is not the only
way a worker can prove his claim.30 Dr. Burton, Dr. Takaro, Dr.
Armstrong, and Dr. Schleimer arrived at their conclusions about
causation using differential diagnosis methodology, not by using
different objective tests. None of the doctors disputed that
the type of nerve damage Pietro suffered could be associated
with arsenic exposure. Dr. Schleimer stated that he [could] not
rule out the possible work-related contributing causes, i.e.,
exposures and [i]f [Pietro] had no other explanation for the
neuropathy, i.e. did not have rheumatoid arthritis, I would
consider [arsenic poisoning or toxicity] more seriously.31 The
doctors reached different conclusions about the cause of the
neuropathy based on differences in their understanding of
Pietros exposure level, his other health conditions, the
likelihood that those conditions could cause the type of nerve
damage Pietro had, and the dates of onset of the conditions.
The Boards findings on the skin cancer claim are also
inadequate. The Board did not, in its decision rejecting this
claim, explicitly reject Dr. Takaros testimony; in fact, it
cited his testimony to support its finding that ultraviolet
radiation is the most common cause of skin cancer. But Dr.
Takaro testified that arsenic and ultraviolet radiation in
combination are a more potent carcinogen than either one alone
so that the combination on a sun-exposed area, like in this case
the ears, would make it even more likely that there is a
relationship between the two. The Boards finding that sunlight
is the most common cause of skin cancer also does not adequately
explain its reasoning in light of its references to Dr. Takaros
testimony and Dr. Takaros statement that Pietros cancers in sun-
exposed areas made arsenic causation more likely.
The Board found that Dr. Burton testified that there
[was] zero relationship between the type of carcinoma/melanoma
the employee had and arsenic exposure. Our review of the record
does not support this finding. Dr. Burton testified that
squamous cell cancer was most commonly associated with arsenic
exposure, but that it was possible for basal cell carcinoma one
type of cancer Pietro had to be caused by arsenic exposure.
Dr. Burton thought that arsenic exposure was not a likely cause
of Pietros cancer because he did not think Pietro had been
exposed to enough arsenic, not because there was zero
relationship between basal cell carcinoma and arsenic exposure.
And, as noted above, the Board failed to make any findings about
Pietros level of arsenic exposure.
We are troubled by the errors in the Boards decisions.
UNOCAL concedes that the Boards decisions contain errors but
argues that they are harmless. Some of the Boards mistakes are
harmless: As we explained above in Part IV.A, even though the
Board incorrectly stated that Pietro acknowledged that UNOCAL
had rebutted the presumption, the Board cited adequate evidence
to support its finding that UNOCAL had done so.
But other mistakes are not so easily excused. The
Boards statement, which UNOCAL concedes is incorrect, that Dr.
Takaro ultimately concluded that the employees neuropathies
[were] inexplorable is part of the Boards analysis explaining
why it did not give Dr. Takaros opinion as much weight as Dr.
Burtons. UNOCAL asserts that this finding was not significant
because there [was] still a lack of evidence showing that
arsenic was a substantial factor in causation of this condition.
But besides testifying that after a certain point
demyelinization just continues inexorably, Dr. Takaro testified
that a burning sensation in either the hands or feet or both is
the most common symptom of longstanding, low-level exposure to
arsenic. He indicated that very low levels of arsenic could
cause damage if the exposures occurred over a long period of
time. Similarly, UNOCAL agrees that the Board was incorrect in
finding that all doctors [had] opined that Pietros neuropathy
would be accompanied by other symptoms if it were related to
arsenic exposure; it nonetheless contends that the error is
harmless. But this erroneous factual finding was one of the
Boards chief reasons for denying Pietros neuropathy claim. The
Boards factual mistakes cast doubt on its conclusions,
particularly given the lack of a detailed or rigorous rationale
explaining its decision.32
V. CONCLUSION
For the reasons stated, we AFFIRM the Boards finding
that UNOCAL rebutted the presumption of compensability. We
VACATE the Boards decisions denying Pietros claims and REMAND to
the Board to make appropriate findings regarding whether Pietro
proved his claims by a preponderance of the evidence.
_______________________________
1 Arsenic is not a component of oxazolidone, but sodium
arsenite, which does contain arsenic, was added during ammonia
and urea production to prevent corrosion of processing equipment.
2 Numbness, tingling, and burning sensations can all be
symptoms of peripheral neuropathy.
3 The test done by Dr. Heilala was called [q]uantitative
neurological testing.
4 Dr. Bell did not feel that the testing done by Dr.
Heilala confirmed the diagnosis.
5 Dougan v. Aurora Elec., Inc., 50 P.3d 789, 793 (Alaska
2002).
6 DeYonge v. NANA/Marriott, 1 P.3d 90, 94 (Alaska 2000).
7 Id. (quoting Grove v. Alaska Constr. & Erectors, 948
P.2d 454, 456 (Alaska 1997)) (internal quotation marks omitted).
8 Bolieu v. Our Lady of Compassion Care Ctr., 983 P.2d
1270, 1275 (Alaska 1999).
9 Leigh v. Seekins Ford, 136 P.3d 214, 216 (Alaska 2006)
(citing Bolieu, 983 P.2d at 1276).
10 Smith v. Univ. of Alaska, Fairbanks, 172 P.3d 782, 788
(Alaska 2007) (citing Bradbury v. Chugach Elec. Assn, 71 P.3d
901, 905 (Alaska 2003)).
11 Id.
12 Id.
13 Bouse v. Firemans Fund Ins. Co., 932 P.2d 222, 232
(Alaska 1997) (citing Veco, Inc. v. Wolfer, 693 P.2d 865, 869
(Alaska 1985)).
14 915 P.2d 620, 625 (Alaska 1996).
15 See Smith, 172 P.3d at 788 (holding that an employer
may rebut the presumption by presenting substantial evidence . .
. that directly eliminates any reasonable possibility that
employment was a factor in causing the disability (citing
Bradbury, 71 P.3d at 906)).
16 Pietro also claims that the Board erred in saying that
he acknowledge[d] UNOCAL overcame the presumption. Even though
the Boards statement was inaccurate, we see no indication that
this misperception influenced the Boards decision. The Board
identified the evidence on which it relied to find that UNOCAL
rebutted the presumption, and that evidence was adequate.
17 Smith, 172 P.3d at 788.
18 Bolieu v. Our Lady of Compassion Care Ctr., 983 P.2d
1270, 1275 (Alaska 1999).
19 Lindhag v. State, Dept of Natural Res., 123 P.3d 948,
953 (Alaska 2005) (quoting Stephens, 915 P.2d at 629 (Matthews,
J., dissenting in part)).
20 172 P.3d at 789.
21 Id. at 790.
22 UNOCAL suggests that Pietro was required to quantify
precisely his exposure to arsenic at work. It asserts that [a]t
no point is [Pietro] able to document duration, level, nature,
and amounts of exposure. We disagree with UNOCAL that Pietros
inability to quantify exactly his exposure at work would have
been a proper basis for the Boards rejection of his claim.
23 172 P.3d at 790.
24 See Stephens, 915 P.2d at 627.
25 172 P.3d at 790.
26 123 P.3d 948, 953-54 (Alaska 2005).
27 Id.
28 Id. at 952-54.
29 See AT & T Alascom v. Orchitt, 161 P.3d 1232, 1242
(Alaska 2007) (citing Beauchamp v. Employers Liab. Assurance
Corp., 477 P.2d 993, 996-97 (Alaska 1970)) (holding that the
Board permissibly relied on expert medical and lay testimony to
find that a worker suffered work-related overexposure to
radiation).
30 See Bolieu v. Our Lady of Compassion Care Ctr., 983
P.2d 1270, 1275 n.19 (Alaska 1999) (citing Beauchamp, 477 P.2d at
996) (Evidence of work-relatedness need not consist solely of
medical or scientific testimony.).
31 Pietro asserts that the Board applied the incorrect
legal standard for causation because it relied on Dr. Schleimers
report. In his later report, Dr. Schleimer wrote that he could
not say that the substantial cause of Pietros neuropathy was
related to toxic or heavy metal exposure. The relevant legal
standard that applied to Pietros claim was a substantial factor.
See Carter v. B & B Constr., Inc., 199 P.3d 1150, 1157 (Alaska
2008) (noting that the work-related injury must be a substantial
factor in causing a disability). The legislature changed the
standard to the substantial factor in 2005. Ch. 10, 9, FSSLA
2005. Pietro equates Dr. Schleimers use of the substantial cause
with use of the substantial factor as a legal standard. Pietro
was unable to identify any indication that the Board used the
substantial factor as the legal test to evaluate Pietros claim
rather than a substantial factor. Although Dr. Schleimers use of
the phrase the substantial cause was unfortunate given the change
in the law, we see no evidence that the Board applied the
incorrect causation test to Pietros claim.
32 Pietro contends that the Board failed to apply the
definition of occupational disease to his case. Because we are
remanding the case for further findings, we do not address this
issue.
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