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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Coppe v. Bleicher (2/14/2014) sp-6863
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, email
corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
MARILYN A. COPPE, )
) Supreme Court No. S-14938
Appellant, )
) Alaska Workers' Compensation
v. ) Appeals Commission No. 11-004
)
MICHAEL BLEICHER, M.D. and ) O P I N I O N
LAURIE BLEICHER, M.D., )
and LIBERTY NORTHWEST ) No. 6863 - February 14, 2014
INSURANCE COMPANY, )
)
Appellees. )
)
Appeal from the Alaska Workers' Compensation Appeals
Commission, Laurence Keyes, Commission Chair.
Appearances: Marilyn A. Coppe, pro se, Anchorage,
Appellant. Randall J. Weddle and Selena R. Hopkins-
Kendall, Holmes Weddle & Barcott, P.C., Anchorage, for
Appellees.
Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and
Bolger, Justices.
FABE, Chief Justice.
I. INTRODUCTION
Marilyn Coppe worked in the medical offices of Drs. Michael and Laurie
Bleicher from 1994 to 2003. In early 2003, she began to experience respiratory and pain
----------------------- Page 2-----------------------
symptoms, which she attributed to her work environment. After her work with the
Bleichers ended in October 2003, Coppe sued them in superior court for wrongful
discharge. According to Coppe, she became aware during the course of the litigation that
she could file a claim with the Alaska Workers' Compensation Board for work-related
medical problems. She filed a report of injury in August 2005, alleging that she had
suffered an orthopedic strain from repetitive work. She also alleged that she suffered
respiratory symptoms due to her work environment. After a hearing, the Board denied
her claim, and the Alaska Workers' Compensation Appeals Commission affirmed the
Board's decision. Coppe argues that the Board and Commission made factual and legal
errors in deciding her case. We affirm the Commission's decision.
II. FACTS AND PROCEEDINGS
Marilyn Coppe worked for Drs. Michael and Laurie Bleicher for almost
nine years, performing clerical and office work. During the time she worked for the
Bleichers, she occasionally strained her back from lifting and experienced some shoulder
and arm pain. According to Coppe, she did not have employment-related health
insurance, and Dr. Laurie Bleicher treated her for some of her medical problems.
In April 2003 Coppe began to experience numerous symptoms, "including
sore throat, dry mouth, headache, dizziness, and pain in the upper part of her chest." She
thought that her symptoms were caused by her work environment because the symptoms
improved when she was not at work. Coppe saw a nurse practitioner, who ordered
testing to rule out other conditions; the nurse practitioner did not give Coppe a definitive
diagnosis, noting a "[p]ossible allergic reaction" related to her workplace. Coppe visited
the nurse practitioner again a few weeks later and asked for a note excusing her from
work while environmental testing was performed. Coppe was concerned that the testing
would cause her symptoms to increase, and the nurse practitioner provided the requested
note.
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Coppe also wrote to other occupants of the building to learn if anyone else
was experiencing symptoms like hers. A few people responded, indicating that they had
experienced some of the symptoms Coppe listed. Coppe asked her employers to
investigate, and Dr. Michael Bleicher wrote the building manager to request that the duct
system and fluorescent lights be cleaned.
The building owners hired an environmental consultant to conduct indoor
air quality tests. The environmental consultant identified two possible areas of concern:
"a possibility of decaying organic matter generating allergenic bioaerosols and the
potential for inadequate outdoor air being added" to the indoor air. The consultant
suggested modifying the outdoor-air intake to bring in more outside air and cleaning the
leaves, brush, and other organic material from the area near the air intake. Monitors
placed in two of the office suites, including the Bleichers' offices, found no evidence of
harmful levels of carbon monoxide or carbon dioxide.
In July Coppe saw an allergist, who conducted tests and found that Coppe
had no allergies. Coppe next contacted Alaska Occupational Safety and Health
(AKOSH), asking it to inspect the office. She continued to experience symptoms, and
on October 3, 2003, she saw Dr. Robin Galloway, who diagnosed her with allergic
rhinitis and possible bronchospasm. The bronchospasm diagnosis was based on a report
that Coppe sometimes wheezed at work. Dr. Galloway provided Coppe with medication,
noted that Coppe's symptoms were "consistent with allergies that have developed as a
consequence of an environmental exposure," and instructed her to come back in a month.
Coppe then contacted the Bleichers about her work. According to the Bleichers' notes,
they met with Coppe after her appointment with Galloway; Coppe asked them for leave,
which they allowed. The notes reflect that Coppe was going to take two weeks of unpaid
leave to look for other work and would "let [the Bleichers] know her thoughts" after the
AKOSH response to her inspection request.
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----------------------- Page 4-----------------------
AKOSH informed Coppe by letter on October 7, 2003 that it would not
inspect the Bleichers' office because regulatory standards did not "address [her]
complaint item at this time." Coppe again talked to the Bleichers; their notes reflect that
they had a series of phone conversations with her on October 9 and 10, 2003 about her
respiratory symptoms and her work. Coppe insisted that her symptoms had originated
in the work environment, maintaining that they had "escalated" after a wind storm in
March 2003. Coppe was convinced that whatever was causing her symptoms was in the
ventilation system of the building and pointed out that other workers in the building had
complained about being sick as well. Dr. Michael Bleicher responded that the building
manager had reported that those workers' symptoms had improved. Coppe and
1
Dr. Michael Bleicher spoke about ending Coppe's employment with the Bleichers; they
also discussed Coppe's pension and a letter of recommendation. Coppe was to pick up
her belongings from the office the following Monday. Coppe received unemployment
with no waiting period after the state unemployment division decided she had left work
"due to health reasons."
Soon after Coppe stopped working for the Bleichers, she reported to her
doctor that "her [respiratory] symptoms [had] completely resolved without the assistance
of medications," but she then began experiencing symptoms of depression. Coppe also
reported hand pain, which she thought was related to "repetitive use during her former
employment." Her doctor told her to take ibuprofen for the hand pain and offered her
medication for depression; Coppe expressed an interest in psychotherapy rather than
medication. In December Coppe began taking an antidepressant, which she discontinued
after she began to feel better. The record reflects that she was again taking an
1
Whether Coppe quit or was fired was contested. See Coppe v. Bleicher,
Mem. Op. & J. No. 1377, 2011 WL 832807, at *2 (Alaska, Mar. 9, 2011).
-4- 6863
----------------------- Page 5-----------------------
antidepressant in October 2005 but continued to experience symptoms of depression; her
doctor referred her to psychotherapy at that time.
2
Dr. Michael
In 2005 Coppe sued the Bleichers for wrongful discharge.
Bleicher moved for summary judgment based on AS 23.30.055, the exclusive liability
3
provision of the workers' compensation act. According to Coppe, someone told her
during the course of the employment litigation that she could file a claim with the Board.
She signed a report of injury on August 26, 2005. The Bleichers filed a notice of
controversion on November 8 on the basis that the claim was "barred under
4
AS 23.30.100."
On November 16, 2005, Coppe filed a written workers' compensation claim
for permanent partial impairment (PPI), medical and transportation costs, penalty,
interest, and "unfair or frivolous controvert." She alleged that she suffered from
depression, rhinitis, and bronchospasm and that she had experienced work-related
injuries to her back, hands, and knees, as well as her right shoulder and wrist. The
Bleichers filed another controversion notice on December 1, listing a number of reasons
to deny the claim.
Coppe engaged in counseling and saw a psychiatrist for medication from
late 2005 to about July 2006. During this time she also consulted with Dr. Claribel Tan,
who diagnosed Coppe with fibromyalgia. Dr. Tan gave the opinion that "there is no
2 See id. at *2-3 (setting out factual and procedural history). Coppe initially
sued only Dr. Michael Bleicher; she later added Dr. Laurie Bleicher as a defendant, but
the superior court dismissed the case against Dr. Laurie Bleicher based on the statute of
limitations. Id. at *2.
3 Id. at *2.
4
AS 23.30.100(a) requires that notice of a work-related injury be given to
both the employer and the Board within 30 days of the injury.
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----------------------- Page 6-----------------------
current evidence for any environmental causes for fibromyalgia" and recommended
"psychiatric evaluation and consultation."
In March 2006 Coppe testified at a deposition related to her workers'
compensation claim. During the deposition she testified that her allergy-like symptoms
ended after she stopped working for the Bleichers. She testified about her back,
shoulder, and wrist pain and her respiratory symptoms. She said she hoped to get some
back pay and compensation for doctor visits related to her earlier injuries.
The Bleichers arranged an employer's independent medical evaluation
(EIME) with Dr. Bryan Laycoe, an orthopedist; he examined Coppe on April 15, 2006,
and reviewed her medical records. Dr. Laycoe diagnosed Coppe with major depression
by history and multiple pain complaints. He did not think Coppe's "work activities were
a substantial factor in her complaints of pain" and found "no diagnosis of a physical
condition which [could] be related" to her work activities. He recommended treatment
for depression, in part because he thought it might improve her perception of her pain,
but he did not think the treatment would be for a work-related condition.
Coppe began treating with a chiropractor, Dr. James Pizzadili, in 2006.
Also in 2006, Coppe had thermograms performed and saw a naturopath. The naturopath
ordered allergy testing as well as testing for heavy metals. The tests showed no evidence
of significant allergies but indicated that Coppe had high levels of some metals. She
received chelation therapy for elevated levels of copper in her blood. Coppe also
continued treating with Dr. Pizzadili; he diagnosed her with multiple problems related
to toxic encephalopathy from exposure to chemicals at work. He ordered an MRI, the
results of which were normal.
In November 2006 Coppe filed an amended workers' compensation claim,
seeking increased medical costs, as well as permanent total disability (PTD) and an
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----------------------- Page 7-----------------------
5
additional penalty because the Bleichers had not reported her injury in 2003. The
Bleichers answered, denying all claims, and filed two more controversion notices.
In February 2007 Dr. Eric Goranson, a psychiatrist, examined Coppe at the
Bleichers' request. He concluded that Coppe most probably suffered from a conversion
disorder, although he could not rule out malingering or factitious disorder. He did not
think her psychiatric conditions were work related. The Bleichers then filed a
controversion notice based on Dr. Goranson's report.
The Bleichers scheduled another EIME, to take place in July 2007 in
Oregon, with two doctors, Dr. Emil Bardana, Jr., a professor of immunology and allergy,
and Dr. Brent Burton, a professor of toxicology and occupational medicine. Coppe did
not attend the EIME, so the doctors based their opinions on a review of her medical
6
records. Neither Dr. Bardana nor Dr. Burton thought Coppe had a work-related
condition; both noted psychological diagnoses, but neither could find any evidence of
disease or injury in his specialty.
Coppe consulted with Dr. Gunnar Heuser, a physician in California, in
2007. He performed some testing, including tests for attention deficit disorder and
respiratory problems, and concluded that her symptoms were consistent with toxic
exposure. Dr. Heuser provided a report to the Board in February 2009 that explained
why Coppe might be suffering from "sick building syndrome" even though she had not
worked for the Bleichers for several years. Dr. Heuser diagnosed Coppe with toxic
5 An employer is required to report an employee's illness or injury to the
Board within 10 days after the employer knows of the injury or illness; the statute
permits the Board to assess a penalty equal to "20 percent of the amounts that were
unpaid when due." AS 23.30.070(a), (f).
6
Evidently Coppe misread the departure time and missed her flight to
Oregon.
-7- 6863
----------------------- Page 8-----------------------
encephalopathy, fibromyalgia, depression, orthopedic problems, and a sleep disorder.
In his opinion, all of these conditions except the orthopedic problems were "due to a
toxic work environment."
Because of the conflicting opinions of Coppe's and the Bleichers' experts,
the Board ordered a second independent medical evaluation (SIME) and selected
Dr. Thomas Martin, who specializes in occupational and environmental medicine and
toxicology, as the SIME physician. Dr. Martin performed a record review but did not
examine Coppe because she was too ill to travel. Dr. Martin concluded there was no
evidence that Coppe had suffered a work-related exposure to any toxin, in part because
"[t]here is no evidence of any toxins in the workplace that would or could be responsible
for creating a sick building." He also concluded that Coppe did not have any condition
or disability related to her employment with the Bleichers. Dr. Martin thought Coppe
could work as an administrative assistant with no restrictions.
The Board held a hearing on Coppe's claim in December 2010. Coppe
represented herself with the assistance of a lay representative. Dr. Burton testified at the
hearing, as did Coppe, Dr. Michael Bleicher, Dr. Pizzadili, and Coppe's husband. The
Board had deposition testimony from a number of other witnesses, including
Dr. Bardana, Dr. Goranson, and the employees who returned Coppe's 2003
questionnaire about symptoms.
Coppe's husband, who is a general contractor, testified about an inspection
he had done of the office building in 2008. He identified a number of deficiencies in the
building and testified that because of water damage, the building might be susceptible
to mold, which he said was part of sick building syndrome. He also testified that his
wife's symptoms arose after a storm in March 2003, but they did not know until 2006
that her symptoms were associated with the building.
-8- 6863
----------------------- Page 9-----------------------
Dr. Pizzadili testified about his treatment of Coppe and his PPI rating. He
testified that the tests she had undergone for heavy metals and brain damage were
reliable, and he concluded that she had suffered an exposure to toxins in the workplace
that had caused her current disability. He noted that others in the building had also
suffered environmental illnesses. Dr. Pizzadili testified that he had no formal training
in toxicology or psychiatry; his training was in forestry and chiropractics.
Dr. Michael Bleicher testified about maintenance in the office building as
well as steps that had been taken to address Coppe's environmental complaints. He
testified that he and his wife had displayed a notice about workers' compensation
insurance in the office; he also said that he told his employees how to file for workers'
compensation when they reported an injury.
Dr. Burton testified at length. He agreed with Dr. Martin's SIME report as
well as Dr. Bardana's EIME report. Dr. Burton still held the same opinions he gave in
his written report. According to Dr. Burton, Dr. Heuser had been "excluded as a witness
based on the Da [u]bert[7] criteria" in at least one lawsuit. He questioned the accuracy and
reliability of the testing Dr. Heuser had performed on Coppe; Dr. Burton also questioned
the value of thermographic testing. Dr. Burton denied that fibromyalgia could be caused
by exposure to toxins, saying it is a rheumatologic disorder. Although Dr. Burton
questioned the validity of the test used by Coppe's physicians to diagnose exposure to
toxins, he said that even if it were a valid measure of metals in her system, none of the
values showed any cause for concern. Dr. Burton added that even if there were mold in
the building, there was no evidence to connect any of Coppe's medical problems with
exposure to mold.
7
He was apparently referring to Daubert v. Merrell Dow Pharmaceuticals ,
Inc. , 509 U.S. 579, 592-93 (1993) (setting out test for admissibility of scientific
testimony).
-9- 6863
----------------------- Page 10-----------------------
In its final decision, the Board denied Coppe's claim. The Board first
decided that Coppe's claim was filed late but that the Bleichers had actual notice of the
injury. As a result, the Board did not dismiss the claim, but it held that the presumption
of compensability in AS 23.30.120 did not apply to the claim so that Coppe had to prove
all elements of her claim by a preponderance of the evidence. The Board went through
8
deciding that if the
the initial two steps of the presumption analysis in the alternative,
presumption analysis applied, the presumption would have attached through the
testimony of Coppe, her husband, and Dr. Pizzadili. The Board then concluded that the
Bleichers would have rebutted the presumption through the testimony of Drs. Bardana,
Burton, Goranson, and Laycoe.
In evaluating the evidence to determine whether Coppe had proved her
claim by a preponderance of the evidence, the Board decided that Coppe had not met her
burden of proof. The Board found Dr. Burton to be a credible witness and also decided
that Dr. Martin was credible. The Board gave less weight to Dr. Pizzadili's testimony
because he did not have specific training in toxicology and because his opinions relied
in part on erroneous factual information, including Coppe's report that others in the
building suffered symptoms similar to hers. The Board noted that (1) Coppe had
reported to her doctor in November 2003 that her symptoms had resolved and (2) the
other employees who initially responded to Coppe's questionnaire later denied that the
building caused their symptoms. The Board further supported its decision by pointing
8 Before 2005, the presumption analysis consisted of three steps: (1) the
employee was first required to attach the presumption of compensability through some
evidence linking her work and her disability; (2) if the presumption attached, the
employer had to rebut the presumption by presenting evidence that the disability was not
work related; and (3) if the presumption was rebutted, the employee had to prove all
elements of her claim by a preponderance of the evidence. See Smith v. Univ. of Alaska,
Fairbanks , 172 P.3d 782, 788 (Alaska 2007).
-10- 6863
----------------------- Page 11-----------------------
out that an environmental consultant had found "no unsafe levels of lead, arsenic,
mercury, or nickel" in the office water and that the allergy doctor who examined Coppe
in 2003 found no evidence of allergies.
The Board summarized the relevant testimony of the medical witnesses it
found more credible, specifically recognizing that "there is no evidence the building
produced any contaminants that would be toxic to [Coppe]." The Board also observed
that Coppe's symptoms "improved by November 2003 so if the building were making
her sick, her removal from the building cured the problem." Additionally Coppe's
"symptoms did not actually worsen until more than two years later." The Board decided
that "[t]he preponderance of the evidence . . . establishes the work environment was not
toxic and is not the source of [Coppe's] current disability."
The Board went on to decide Coppe's PTD claim separately, finding that
the evidence showed that Coppe was able to work in 2003. It also found that "[a]ny
work injury was at most temporary" because Coppe's "symptoms resolved by
November 2003, and her depression resolved by July 2006." The Board further noted
that Coppe looked for work until early 2006, work was available in her occupation, and
Coppe indicated that "the only reason she could not find work as a secretary was because
[the Bleichers] would not give her a reference." The Board denied the PTD claim.
Coppe appealed to the Commission. During the course of the appeal, a
dispute developed about whether certain documents had been filed with the Board. The
Commission wrote to Coppe and told her that the documents in question were not in the
record and, as a result, it could not consider them. According to a memo in the record,
Coppe responded by calling the Commission and claiming that she had filed the missing
documents on June 11, 2009, along with other documents that were in the record. The
Commission's clerk advised Coppe to include the documents in her excerpt of record and
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----------------------- Page 12-----------------------
to provide record citations in her brief to support her contention that she had discussed
the missing documents at the Board level.
Coppe included the pages in her excerpt; the Bleichers asked the
Commission to order Coppe to "cure defects" in her brief and excerpt of record and to
dismiss the appeal. One of the defects they identified was the inclusion of documents in
her excerpt that were not in the Board record. The Commission ordered that Coppe
remove six documents from her excerpt, including a report of injury for allergic rhinitis
and bronchospasm, and revise her brief. The Commission issued a supplemental order
in which it acknowledged that the report of injury was in fact in the record; the
Commission nevertheless determined that the document was "inadmissible" for purposes
of Coppe's appeal because it had a different workers' compensation number and the
Board had "issued no decision or order" related to that case.
The Commission affirmed the Board's decision. The Commission decided
that any problem with the Board's application of the presumption analysis was moot
because the Board had provided two different analyses of the evidence, one applying the
presumption and one not applying it. The Commission determined that the Board had
not overlooked evidence and that substantial evidence supported the Board's decision.
The Commission also decided that Coppe had waived or abandoned certain issues -
"the orthopedic and cigarette smoke inhalation issues" - because of inadequate briefing.
Coppe now appeals to this court.9
9 Coppe included in her excerpt of record before this court some of her recent
medical records. She apparently filed another claim with the Board, alleging that neck
pain and surgery she had in 2012 were compensable. The neck surgery is not an issue
in this appeal.
-12- 6863
----------------------- Page 13-----------------------
III. STANDARD OF REVIEW
In an appeal from the Workers' Compensation Appeals Commission, we
10
We apply our
review the Commission's decision rather than the Board's decision.
independent judgment to questions of law that do not involve agency expertise. 11 We
independently review the Commission's conclusion that substantial evidence in the
record supports the Board's findings, which "requires us to independently review the
record and the Board's factual findings."12 We interpret the pleadings of pro se litigants
less stringently than those of lawyers.13
IV. DISCUSSION
A. The Board's Error In Applying The Presumption Analysis Was
Harmless.
Coppe contends that the Board improperly applied the presumption analysis
to her claim. The Board decided that Coppe did not have the benefit of the presumption
of compensability because she filed her claim late, but the Board then performed an
alternative analysis in which it found that if the presumption applied, the presumption
had attached, and the Bleichers had rebutted it. The Commission decided the issue was
moot because of the Board's alternative analysis.
Alaska Statute 23.30.100(a) requires an employee to report her work-
related injury to the Board and to the employer within 30 days of the injury. If an
10 Shehata v. Salvation Army, 225 P.3d 1106, 1113 (Alaska 2010) (citing
Barrington v. Alaska Commc'ns Sys. Grp., Inc. , 198 P.3d 1122, 1125 (Alaska 2008)).
11 Id.
12 Smith v. CSK Auto, Inc., 204 P.3d 1001, 1007 (Alaska 2009).
13 Id. at 1011 (citing DeNardo v. Calista Corp. , 111 P.3d 326, 330 (Alaska
2005)).
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----------------------- Page 14-----------------------
14
employee does not give the required notice, her claim may be barred. Alaska
Statute 23.30.100(d) sets out "three enumerated circumstances" in which late filing is
15
excused. Alaska Statute 23.30.100(d)(1) excuses late notice if the employer had
knowledge of the injury and was not prejudiced by the failure to give notice. In Coppe's
case, the Board decided that her claim was filed late, but it found that the Bleichers had
notice of the injury. The Board then determined, relying on AS 23.30.120, that although
it would consider Coppe's late claim, the presumption did not apply. The Commission
interpreted the Board's decision as relying on subsection (d)(1) because the Board found
that the Bleichers had actual notice of the sick building syndrome complaints. The
Commission observed that the Bleichers had not challenged this part of the decision on
appeal and that substantial evidence supported this part of the Board's decision. The
Commission decided that any issue related to the Board's decision not to apply the
presumption was moot because of the Board's alternative analysis.
16
McGahuey v. Whitestone Logging, Inc. presented a similar issue. In
17
McGahuey the claimant filed a report of injury more than a year after the date of injury.
The Commission and Board both decided the notice was not timely but did not analyze
18
when the time period for giving written notice began. We decided that both the
Commission and the Board erred in failing to identify the date on which the 30-day
period began to run, but that the error was harmless because the Board had performed
14 McGahuey v. Whitestone Logging, Inc. , 262 P.3d 613, 619 (Alaska 2011)
(citing AS 23.30.100(d)).
15 Alaska State Hous. Auth. v. Sullivan , 518 P.2d 759, 761 (Alaska 1974).
16 McGahuey , 262 P.3d at 613.
17 Id. at 615.
18 Id. at 619.
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19
an alternative analysis in which it analyzed the compensability of the claim. We
concluded that the Board's alternative analysis was correct.20
Coppe's case is analogous: We conclude that the Board erred but that the
error was harmless. The Commission's determination that the Board applied
AS 23.30.100(d)(1) is unchallenged on appeal, and the Commission correctly decided
that substantial evidence in the record supports the Board's finding that the Bleichers had
notice of Coppe's claim that the building was causing her respiratory complaints. The
Board erred in deciding that the presumption analysis did not apply because
AS 23.30.120(b) only deprives a claimant of the presumption of compensability "[i]f
delay in giving notice is excused by the board under AS 23.30.100(d)(2)." If the delay
is excused under AS 23.30.100(d)(1), the presumption applies.
The Board's error in failing to apply the presumption analysis was
harmless, however, because it provided an alternative analysis in which it hypothetically,
21
but correctly, applied the presumption analysis. It decided that the presumption of
compensability would have attached through the combined testimony of Coppe, her
husband, and Dr. Pizzadili, and that the Bleichers would have rebutted it through the
19 Id. at 619-20.
20 Id. at 620-22.
21 The issue was not moot, as the Commission said, because Coppe's
eligibility for benefits was still a live controversy. See Williams v. Williams, 252 P.3d
998, 1007 (Alaska 2011) ("A claim is moot if it has lost its character as a present, live
controversy . . . ." (quoting Akpik v. State, Office of Mgmt. & Budget , 115 P.3d 532, 535
(Alaska 2005)) (internal quotation marks omitted)). Instead, it was harmless error. See
RLR v. State , 487 P.2d 27, 45 (Alaska 1971) (distinguishing between mootness and
harmless error).
-15- 6863
----------------------- Page 16-----------------------
testimony of their medical experts. The Board's alternative approach of attaching the
presumption was correct as a matter of law.22
B. The Board Applied The Correct Legal Standard To Coppe's Claim.
Coppe asserts that the Board incorrectly applied the post-2005 causation
23
standard to her claim rather than the pre-2005 standard. Her argument is based on the
Board's statements that her work environment was not "the source" of her disability.
The Commission did not discuss this issue, and it is unclear whether Coppe raised it
before the Commission.
Assuming that Coppe preserved this issue for appeal, we conclude that the
Board applied the correct legal test to her claim. Although the Board did not use the
words "a substantial factor" in its concluding sentence, it used these words in the
narrative related to the presumption analysis. The Board noted that if the presumption
analysis applied, Coppe had provided enough evidence that "her place of employment
[was] a substantial factor in her current disability and need for medical treatment" to
attach the presumption. The Board also determined that the Bleichers had to "overcome
the presumption with substantial evidence [that her place of employment was] not a
substantial factor." It further stated that the EIME physicians "ruled out employment as
a substantial factor." From these statements, we conclude that the Board correctly
applied "a substantial factor" as the legal test rather than "the substantial cause."
22 This court has reviewed the question whether the presumption should attach
as a matter of law. See, e.g., DeYonge v. NANA/Marriott , 1 P.3d 90, 95 (Alaska 2000).
23 The legislature changed the standard for compensability from "a substantial
factor" to "the substantial cause" in 2005. See Rivera v. Wal-Mart Stores, Inc., 247 P.3d
957, 959 n.2 (Alaska 2011) (citing Pietro v. Unocal Corp. , 233 P.3d 604, 616 n.31
(Alaska 2010)) (noting change in causation standard). Coppe's claim arose before the
statutory amendments took effect.
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----------------------- Page 17-----------------------
C. The Commission Correctly Concluded That Substantial Evidence
Supported The Board's Decision.
The central issue in this appeal is whether the Commission erred in deciding
that substantial evidence in the record supported the Board's decision. Coppe contends
that the Board ignored or failed to evaluate substantial evidence to support her claim.
The Bleichers respond that substantial evidence supports the conclusion that Coppe did
not suffer a work-related injury.
We agree with the Commission that substantial evidence in the record
supports the Board's decision. The Board found Dr. Burton, the EIME toxicologist, and
Dr. Martin, the SIME toxicologist, to be credible witnesses. The Board's credibility
24 Both doctors concluded that Coppe did
determinations are binding on the Commission.
not suffer any work-related exposure to toxins that would cause her to suffer the
disabling conditions she described. Because Coppe alleged that her debilitating
conditions were related to toxins in her work environment, these physicians' opinions
were substantial evidence supporting the Board's decision that she did not suffer a work-
related injury. Moreover, we have held in many cases that when the Board is presented
with two or more conflicting medical opinions, each of which constitutes substantial
25
Because the Board
evidence, we will defer to the Board's weighing of the evidence.
assigned Coppe's evidence less weight than the Bleichers' evidence, she did not meet her
burden of proof at the last step of the presumption analysis.
Coppe contends that the Board did not discuss her medical evidence, but
the Board in fact did summarize the testimony and reports of her doctors. The Board
decided to give their opinions less weight in part because the doctors relied on Coppe's
24 AS 23.30.128(b).
25 See, e.g., Cowen v. Wal-Mart, 93 P.3d 420, 426 (Alaska 2004) (quoting
Doyon Universal Servs. v. Allen , 999 P.2d 764, 767-68 (Alaska 2000)).
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representations that others were also sickened by the building environment. The Board
had depositions of the three employees who responded to Coppe's earlier survey; all
three employees testified that their symptoms arose from causes other than their work
environment.
D. The Commission Did Not Err In Deciding That Coppe Waived Some
Issues On Appeal Due To Inadequate Briefing.
Coppe argues that the Commission and Board erred in failing to deal with
her orthopedic complaints and her concerns about smoking in the office. The Board did
not address them, and the Commission decided that she had waived these issues on
appeal.
Because Coppe is pro se, her brief is subject to a more relaxed standard than
26 Coppe complains that the Commission did not tell her
a brief prepared by an attorney.
that her brief was inadequate. The Commission reviews briefs to determine whether they
meet the technical requirements set out in its regulations, and it can reject a brief that
27
The adequacy of briefing an issue is not a
does not meet its technical requirements.
technical requirement covered by the regulation; rather, it is a legal judgment subject to
28
independent review. Thus the Commission had no legal duty to notify Coppe that she
had inadequately briefed an issue.
The Commission did not err in deciding that Coppe waived due to
inadequate briefing issues about second-hand smoke and her orthopedic complaints. In
26 Smith v. CSK Auto, Inc., 204 P.3d 1001, 1011 (Alaska 2009) (citing
DeNardo v. Calista Corp. , 111 P.3d 326, 330 (Alaska 2005)).
27 8 Alaska Administrative Code (AAC) 57.150 (2011).
28 See Bluel v. State, 153 P.3d 982, 986 n.5 (Alaska 2007) (citing Wilkerson
v. State, Dep't of Health & Soc. Servs. , 933 P.2d 1018, 1021 (Alaska 1999)) (reviewing
adequacy of briefing as question of law).
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her brief before the Commission, she listed evidence that she thought the Board had
ignored in making its decision, including her testimony that Dr. Michael Bleicher
smoked in the office. Second-hand smoke was presented as an environmental toxin at
the hearing; the Board addressed her environmental complaints, as did the Commission.29
But as the Commission noted, Coppe's brief consisted principally of a summary of the
evidence; only four pages had any legal argument, and those arguments were primarily
directed at her toxic-exposure claim. Her argument about the orthopedic complaints
30
lacked citation to authority or a legal theory to support it. We therefore conclude that
the Commission correctly decided that Coppe inadequately briefed these issues.
E. The Commission's Error In Deciding That A Document In The Record
Was "Inadmissible" For Purposes Of The Appeal Was Harmless.
Coppe argues that some documents, which the Commission required her
to remove from her excerpt in the Commission appeal, should have been included in the
record and that the Commission deprived her of the opportunity to "challenge missing
records." The regulation she cites in support of her argument, 8 AAC 57.180(a)(4),
permits a party in a Commission appeal to include in her excerpt of record any evidence
that was excluded at the Board level when the appeal challenges the Board's ruling about
admissibility. This regulation does not apply here because the Board did not make a
ruling about the admissibility of the documents and Coppe did not challenge a Board
29 To the extent Coppe was attempting to link second-hand smoke to heart
disease in her brief to the Commission, she did not make a claim for heart disease and
did not present medical evidence about it at the hearing. The doctor's testimony that
Coppe cited in her brief before the Commission did not in any way link her medical test
results to heart disease, nor did it link heart disease and second-hand smoke. Her doctor
was describing medical tests he ordered to investigate Coppe's complaints of joint pain.
30
See Thoeni v. Consumer Elec. Servs., 151 P.3d 1249, 1257 (Alaska 2007)
(discussing waiver of inadequately briefed issues when litigant is pro se).
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ruling about admissibility. Instead, Coppe contended that she had filed the documents
31
Coppe found documents from
with the Board but that the Board had misplaced them.
another claim in the record in her appeal and argues that this supports her contention that
the Board misplaced documents she filed. We have reviewed the documents, which were
included in her excerpt before this court, and see no prejudice to Coppe from their
exclusion.
But the Commission also prohibited Coppe from discussing a document that
was part of the record. The Commission noted that Coppe's initial report of injury about
her environmental complaints, with case number 200324746, was in the record on
appeal. The Commission nonetheless decided that it was "inadmissible" for purposes of
the appeal and ordered Coppe not to refer to this document in her brief. The Commission
did not cite any legal authority for its order, stating only that "no issues arising out of that
case" were part of the appeal.
The Commission erred in deciding that a document in the record was
"inadmissible" for purposes of the appeal, but the error was harmless in this case. One
of the Commission's regulations states that the record on appeal consists of "the entire
32
Because it is uncontested that the report of
board file, including all original papers."
injury was part of the Board's record, the Commission had no basis for excluding it from
the record on appeal. A report of injury could potentially be used to rebut a charge of
recent fabrication33 or simply to show that a report had in fact been filed.
31 The documents in question are correspondence from the insurance company
and a transcript of a recorded conversation from September 2005 between Coppe and an
unnamed person about her claim.
32 8 AAC 57.110(a)(2).
33
Cf. Alaska R. Evid. 801(d)(1)(B) (defining as not hearsay prior consistent
(continued...)
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But the Commission's error was harmless. Coppe fails to show how her
rights were affected by her inability to refer to this document; moreover, other
documents discussed her respiratory symptoms and her allegations that these symptoms
were work related. Because the exclusion of this report of injury did not substantially
affect her rights, the Commission's error was harmless.34
V. CONCLUSION
For the foregoing reasons, we AFFIRM the Commission's decision.35
33 (...continued)
statements that are offered to rebut charges of recent fabrication).
34 See Hill v. Giani, 296 P.3d 14, 22 n.23 (Alaska 2013) (stating that a court
should disregard errors that "have no substantial effect on the rights of the parties or on
the outcome of the case." (citing Fairbanks N. Star Borough v. Rogers & Babler , 747
P.2d 528, 531 (Alaska 1987))).
35 Coppe's brief mentions a number of other issues that we do not address;
they have been waived because they were inadequately briefed or not preserved for
appeal. Some issues were never raised before the Board or the Commission and are
waived for that reason. Rude v. Cook Inlet Region, Inc., 294 P.3d 76, 101 (Alaska 2012)
(quoting Brandon v. Corr. Corp. of Am., 28 P.3d 269, 280 (Alaska 2001)) (holding that
an issue may not be raised for first time on appeal).
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