This appeal arises out of the superior court's affirmance of a decision of the Alaska Workmen's Compensation Board which determined that appellant did not sustain any permanent disability arising out of and in the course of her employment.
Appellant was injured on September 3, 1963, while employed by appellee Northwest Airlines, Inc. According to appellant's uncontradicted testimony, she was "rushing back to the pantry from the storeroom" when she "slipped on this piece of fat meat and it just twisted [her] around." At the time of the fall appellant had been working for Northwest Airlines for seven years.
At the first hearing counsel for appellant had requested the Board to withhold any decision on the question of appellant's permanent disability until a psychiatric report was furnished.
Subsequent to the rendition of the Board's May 13, 1965, decision appellees appealed to the superior court, where, upon stipulation of the parties the appeal was subsequently dismissed. On March 17, 1966, a second hearing was held. This hearing consisted almost exclusively of arguments of counsel with the exception of a very limited examination of appellant. In addition to the evidence which had been received in conjunction with the first hearing, the Board had for consideration a January 21, 1965, psychiatric report of Dr. William J. Rader, as well as the medical report of Dr. Thomas E. Kiester dated October 20, 1965. At the conclusion of this abbreviated hearing, appellees' counsel stated that the Rader and Kiester reports "speak pretty much for themselves * * * and the Board should evaluate them as to Mrs. Brown." A second decision, dated May 19, 1966, was thereafter handed down by the Board. In this decision, the Board found
Based on the foregoing, the Board reached the conclusion that appellant was not entitled to any compensation after January 19, 1965, because "her disabilities as of January 19, 1965, and thereafter did not arise out of and in the cause of her employment."
Appellant then appealed the Board's second decision to the superior court. There appellant contended that she was "entitled to an award * * * finding her permanently, totally disabled on a psychiatric basis as a result of her injury suffered in the course and scope of her employment."
In her appeal to this court, appellant argues that the superior court erred in its affirmance of the Board's order because the decision is not supported by substantial evidence. Paralleling this contention is appellant's argument that "[t]he sole evidence presented the Board was that the claimant was functionally disabled totally by reason of mental or nervous disorder precipitated by her physical injury on September 3, 1963 * * * and that no evidence to the contrary was presented by the employer."
In Keiner v. City of Anchorage,
We have adhered to the substantial evidence criterion which was adopted in Keiner in subsequent workmen's compensation decisions.
Manthey has recently been followed in Fischback & Moore of Alaska, Inc. v. Lynn
Here we reach a similar result because we are unable to discern the basis for the Board's conclusion that appellant did not suffer, after January 19, 1965, any residual permanent disability related to her work-connected fall. Admittedly, there is no issue presented in this appeal concerning the fact that appellant failed to prove she has sustained any permanent physical injury and resultant disability. At the second hearing, the Board had the benefit of Dr. Thomas E. Kiester's report in which the doctor stated that after physical examination of appellant, he could find "no definite evidence of permanent impairment." Our remand is limited to and concerns the functional overlay or traumatic neurosis question. As we have previously pointed out, appellant's sole contention in this appeal is that there is an absence of substantial evidence to support the Board's inferential conclusion that appellant was not totally functionally disabled by reason of a mental or nervous disorder which was precipitated by her fall.
The record which was presented to the Board on the first occasion it heard this matter, in part consisted of the medical reports of Doctors George B. Wichman and Perry A. Mead. Dr. Wichman diagnosed appellant's trouble as a "functional skeltomuscular disorder of entire back." According to Dr. Mead's diagnosis, appellant had "a few signs of possible nerve root irritation at the left L-5 and possibly S-1 regions that are superimposed by functional signs and symptoms." At the second hearing the Board had, in addition to these reports, Dr. William J. Rader's psychiatric evaluation of appellant. Under "Clinical Diagnosis," Dr. Rader presented the following conclusions:
Other than appellant's testimony at both hearings as to her inability to work because of her physical condition, there was no other evidence adduced which went to the issue of traumatic neurosis or functional overlay.
In view of this state of the record, we believe that three prior decisions of this court have significance here. In Thornton v. Alaska Workmen's Compensation Board,
Additionally, in the case of Aleutian Homes v. Fischer,
Also of significance is our opinion in Morrison-Knudsen Co. v. Vereen.
It is on the basis of the Thornton, Fischer, and Vereen trilogy that we have concluded this case must be remanded for more explicit findings of fact. These three cases establish that disability flowing from traumatic neurosis is compensable; that compensation will not be barred because appellant was "unusually susceptible or predisposed to" a given mental or nervous disorder; that the appellant is entitled to compensation if the work-connected accident or injury "aggravated, accelerated, or combined with the disease or infirmity to produce * * * disability," or, as we said in Thornton, appellant should be compensated if the fall was "a precipitating factor" in any disability resulting from traumatic neurosis causally related to her employment. Guided by these precepts we have concluded that we are unable to determine how the Board reached the decision it did. Dr. Rader's report unequivocally stated that appellant was "functionally totally disabled" and that her fall in 1963 was "a precipitating factor" in appellant's illness.
Despite the foregoing, appellees argue that the Board was entitled to disregard such medical evidence and to disbelieve appellant's testimony. Appellees support their position by citations of precedent under the Harbor & Longshoremen's Compensation
On the state of the record in the case at bar, we believe that adoption of the Ennis rationale is appropriate and in so doing, hold that the case should be remanded to the Board for more explicit findings of fact in accordance with the authorities we have heretofore discussed.
Two other contentions made by appellees warrant discussion. As part of its argument in support of the second decision of the Board, appellees rely upon AS 44.62.460(d) of our Administrative Procedure Act which is applicable to compensation proceedings. AS 44.62.460(d) provides in part that:
On the basis of the foregoing, appellees contend that since Dr. Rader's report was hearsay the Board could not base an award of compensation thereon, and thus had no choice but to find against the claimant. Appellant counters with the argument that the Board's own rules provide, in regard to physician's reports as evidence, that: "The Board favors the production of medical evidence in the form of written reports."
Appellant further argues that:
We find it unnecessary to answer the broad question involved here because appellees made no objection to the admissibility of the reports
Appellee's final point in support of the Board's second decision is that we should apply the same rule we adopted in Bowker v. State.
In our opinion the fundamental differences in the character of a criminal and workmen's compensation proceeding discloses the inappropriateness of making the Bowker insanity-expert-witness rule part of our compensation law. Without intending any weakening of Bowker as a subsisting evidentiary rule in criminal trials, we decline to mandate Bowker as an evidentiary criterion for decisions of contested compensation claims.
The case is remanded to the superior court for remand to the Alaska Workmen's Compensation Board for further proceedings in conformity with this opinion.
See Alaska Redi-Mix, Inc. v. Alaska Workmen's Compensation Bd., 417 P.2d 595, 597-598 (Alaska 1966), where we alluded to the Vereen case in regard to the necessity for findings and held that there the findings sufficiently disclosed the basis for the Board's decision.
In Burkett v. O'Hearne, 132 F.Supp. 690 (D.Md. 1955), the deputy commissioner disregarded medical testimony largely because it was based on the history related to the doctors by the claimant who was himself disbelieved. But in Burkett the commissioner filed a memorandum specifically setting forth the reasons why he found the claimant, and consequently the doctors, unworthy of belief. In Simmons v. Marshall, 94 F.2d 850 (9th Cir.1938), the deputy commissioner filed a memorandum stating specifically that he found claimant to be unworthy of belief.