James D. Hester appeals the denial of his claim for occupational disability benefits under the Public Employees' Retirement System (PERS). Hester served as the chief of police in Skagway and then in North Pole, Alaska. He resigned in 1985 as a result of the disabling symptoms of Crohn's disease, a chronic inflammatory bowel ailment, from which he suffers. In his application for occupational disability benefits, Hester did not claim that his work caused the disease. Instead, he claimed that the stress of his job caused the disabling flare-ups of the disease. According to Hester, but for his job he would have been able to manage the effects of his Crohn's disease. The superior court upheld the Public Employees' Retirement Board's denial of occupational benefits. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Hester was first diagnosed as having Crohn's disease in 1968 when he was working as a police officer in San Gabriel, California. He experienced severe abdominal cramps and fever, but these symptoms subsided after a brief period of treatment with steroids. Hester remained symptom-free until 1977.
A job-related motorcycle accident in 1970 rendered Hester physically unable to engage in active patrol work. He worked in various security and private investigator positions until January 26, 1976, when he accepted employment as chief of police in Skagway, Alaska. In 1977 Hester suffered another onset of abdominal cramping and fever. He took steroids to control the condition and underwent surgery in 1982. Following minimal time off work, Hester recovered and returned to full-time police work in Skagway.
In April 1983, Hester accepted a new position as police chief in North Pole, Alaska. According to Hester, he moved so that his ten-year-old daughter could participate in the larger school system of the Fairbanks North Star Borough and so that he could work in a less stressful environment. Hester believed the position in North Pole would be less demanding because the department there had more officers and therefore he would have to work less overtime, the department had a 24-hour dispatch center, and the Alaska State Troopers were available for emergency backup and assistance.
Hester's Crohn's disease was asymptomatic from October 1982 until January 1984. In January 1984, however, he suffered a new onset of symptoms. This flare-up coincided with a stressful personnel problem that Hester had to deal with in the police department. The mayor insisted that Hester fire an officer against whom Hester felt there were insufficient grounds for dismissal. Hester consulted with William H. Doolittle, M.D., of Fairbanks, on February 3, 1984. Thereafter, Dr. Doolittle followed Hester's condition regularly, with visits of no less than once a month.
In response to Dr. Doolittle's treatment, the condition remained under control until April 1985. At this time, Hester experienced another stressful situation at work and a recurrence of his symptoms. He resumed steroid treatment. On May 3,
On May 9, 1985, Hester filed for occupational disability benefits under AS 39.35.410. Alaska Statute 39.35.410 provides public employees benefits if they can no longer work because of a total and apparently permanent occupational disability.
Hester appealed the administrator's decision to the Public Employees' Retirement Board (PERB). Pursuant to AS 39.36.010, PERB requested advice from the Public Employees' and Teachers' Disability Review Board (DRB). DRB was created in 1982 to provide "expert review of applications for disability benefits."
After hearing testimony from Hester and Dr. Doolittle, PERB affirmed the denial of occupational disability benefits. PERB's conclusion reads, in part:
Hester appealed the decision to the superior court. AS 22.10.020(d); AS 44.62.560(a); Alaska R.App.P. 601. Judge James R. Blair reversed PERB's decision, concluding that the board had misconstrued the issue. Citing Delaney v. Alaska Airlines, 693 P.2d 859 (Alaska 1985), Judge Blair held that Hester might be entitled to occupational disability benefits even if his job did not cause his Crohn's disease. According to Judge Blair, the Delaney decision entitles a claimant to occupational disability benefits if his or her job causes a preexisting condition to advance from a dormant state to an acute state. Judge Blair remanded the case to PERB because it failed to address this issue.
PERB heard additional testimony and arguments relating to the remand. Hester provided telephonic testimony from Dr. Michael Citron, a gastroenterologist in California who had evaluated Hester in 1980 and 1985. PERB also heard from Dr. Vernon Cates, a member of DRB which had previously advised PERB.
Hester again appealed PERB's decision to the superior court. Judge Michael L. Wolverton affirmed PERB's denial of benefits. Hester appeals.
Since the superior court acted as an intermediate court of appeal, we independently and directly scrutinize the merits of PERB's decision. Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co., 746 P.2d 896, 903 (Alaska 1987). In reviewing PERB's denial of occupational disability
A. Is the Worsening of a Claimant's Nonwork-related Disease Compensable as an Occupational Disability Under Alaska's Public Employees' Retirement System?
The state argues that PERB applied an appropriate standard in its initial decision, No. 85-7, when it considered simply whether Hester's work proximately caused his Crohn's disease.
In support of its argument, the state emphasizes the following: (1) the broad presumption of coverage under workers' compensation does not apply under PERS; and (2) unlike the workers' compensation statutes, PERS provides for benefits for nonoccupational disability as well as for occupational disability. Therefore, according to the state, the court should apply a narrow interpretation to the words "a bodily injury sustained, or a hazard undergone, while in the performance and within the scope of the employee's duties," when evaluating the PERB's denial of occupational disability benefits. The state argues that this language in AS 39.35.680(26) does not entitle an employee whose preexisting condition is aggravated by his or her work to occupational disability benefits. We disagree.
In Delaney we stated that "a preexisting disease does not rule out compensation [under the Alaska Workers' Compensation Act] if employment aggravated, accelerated or combined with the disease to produce disability." 693 P.2d at 862 (citing Thornton v. Alaska Workers' Compensation Board, 411 P.2d 209, 210 (Alaska 1966)). We held that an employee is entitled to workers' compensation benefits if the employee's work was a substantial factor in bringing about the disability.
We believe that the causation standards articulated in Delaney are applicable to occupational disability claims under the PERS as well as to workers' compensation claims. It is basic that an accident which produces injury by precipitating the development of a latent condition or by aggravating a preexisting condition is a cause of that injury. 22 Am.Jur.2d Damages § 280 (1988); see also LaMoureaux v. Totem Ocean Trailer Express, Inc., 632 P.2d 539 (Alaska 1981) (upholding jury instruction that plaintiff was "entitled to recover damages for an aggravation of such preexisting condition or disability proximately resulting from the injury," while rejecting plaintiff's proposed instruction making defendant liable for plaintiff's entire injury if plaintiff was unable to make an apportionment between his preexisting injury and that suffered in the accident), reh'g on other grounds, 651 P.2d 839 (Alaska 1982).
Other jurisdictions have held that occupational disability can occur from work-related aggravation of a preexisting condition. The Court of Appeals of New York held that a city sanitation worker is entitled to accident disability retirement following an explosion at work if the explosion precipitated the employee's chronic anxiety neurosis. Tobin v. Steisel, 64 N.Y.2d 254, 485 N.Y.S.2d 730, 475 N.E.2d 101 (1985); see also Tingler v. City of Tampa, 400 So.2d 146, 149-50 (Fla. Dist. Ct. App. 1981) ("When the disability is `revealed' by the stress of
The state's contention that the statutory presumption of coverage under the Alaska Workers' Compensation Act is not applicable to claims under PERS is correct. Recently we held that in occupational disability claims, unlike workers' compensation claims, "the employee bears the burden of establishing by a preponderance of the evidence that the disability was proximately caused by an injury which occurred in the course of employment." State, Public Employees' Retirement Board v. Cacioppo, 813 P.2d 679, 682-83 (Alaska, 1991).
Who bears the burden of proof, however, has no relevance to what that party must prove. In Cacioppo, we stated that an occupational injury need not be the sole factor, but rather a substantial factor, in causing the employee's disability. Id. at 683. This holding is consistent with Delaney, 693 P.2d at 862. Hester is entitled to occupational disability benefits if he can establish by a preponderance of the evidence that work-related stress was a substantial factor in aggravating his Crohn's disease to the extent that he was no longer capable of working.
B. Is the Public Employees' Retirement Board's Conclusion that Hester's Work as Police Chief did not Exacerbate His Crohn's Disease Supported by Substantial Evidence?
Both parties agree that the appropriate standard of review is whether the PERB's finding is supported by substantial evidence. We have defined substantial evidence as "such relevant evidence as a reasonable mind might accept as adequate to support [the board's] conclusion." Miller v. ITT Arctic Services, 577 P.2d 1044, 1049 (Alaska 1978).
PERB concluded that Hester's work conditions did not cause his Crohn's disease to advance from a dormant to an acute state.
We believe that substantial evidence supports the board's conclusion. The following evidence supports PERB's conclusion that there was no proven causal link between Hester's work as police chief and the disabling effects of his Crohn's disease: (1)
Hester argues that PERB inappropriately discredited the testimony of Dr. Doolittle, Hester's treating physician and a specialist in Crohn's disease. In addition, Hester contends that PERB gave inordinate weight to the testimony of Dr. Cates, considering his bias as a member of the DRB, his lack of personal medical knowledge of Hester and his lack of special expertise relating to Crohn's disease. While we recognize the merit in Hester's criticism of PERB's decision, we do not believe that such weaknesses in the evidence justify reversing the board's decision. Weighing the evidence is the role of the board, not this court. Delaney, 693 P.2d at 863 & n. 2.
RABINOWITZ, Chief Justice, dissenting.
I dissent from the court's holding that there is substantial evidence to support the decision of PERB that "Hester's work conditions did not cause his Crohn's disease to advance from a dormant to an acute state" and that "the very nature of [Crohn's] disease was such that in its natural course it recurs with episodes of flare-up not necessarily or even probably attributable to stress."
In the case at bar the majority affirms the denial by PERB of benefits to Hester on the basis of (1) the testimony of Dr. Cates; (2) the opinion of the DRB; (3) the testimony of Dr. Andrews; and (4) Dr. Citron's acknowledgement that Crohn's disease flare-ups can recur for reasons other than stress. Id. at 476.
Based on my review of the record, I conclude that the denial by PERB of benefits is not supported by substantial evidence. First, Dr. Cates' testimony is less reliable than the testimony this court disregarded in Black v. Universal Servs., Inc., 627 P.2d 1073, 1076 (Alaska 1981).
Second, I don't believe that significant weight should be attached to the decision
Third, the majority cites Dr. Andrews' testimony for the proposition that "the stress of police work is not a causal link to Hester's condition." On the other hand, the record discloses that Dr. Andrews stated that stress exacerbated the disease.
(Emphasis added). Dr. Andrews' finding that reducing Hester's stress makes his condition more manageable indicates that work related stress exacerbated the disease.
Finally, the PERB relied on Dr. Citron's acknowledgement that Crohn's disease flare-ups can recur for reasons other than stress. It should be noted that Dr. Citron, a gastroenterologist, who has treated 800 to 1000 cases of Crohn's disease, stated in part:
In brief, based on the testimony of Dr. Jones,