We must decide whether Edgar Stephens's employer, ITT/Felec Services (ITT), overcame the statutory presumption of compensability by producing substantial evidence that a heart attack Stephens suffered while working was not work-related. The Alaska Workers' Compensation Board (Board) found that ITT overcame the presumption of compensability. The Board also found that Stephens was unable to prove his claim by a preponderance of the evidence. Stephens appeals. We affirm the Board's conclusion that ITT overcame the presumption of compensability. We remand for findings on the question of whether Stephens proved the elements of his claim by a preponderance of the evidence. We affirm the Board's decision not to order an independent medical examination.
II. FACTS AND PROCEEDINGS
Stephens was employed by ITT as an electrical rigger. He worked for three years at remote Distant Early Warning (DEW) Line sites operated by ITT for the federal government. On May 1, 1990, he arrived for work at the Oliktock, POW-2, site. He worked at the radome, a metal structure containing radar apparatus, antennae, and control facilities.
On May 4 Stephens arose, ate breakfast, smoked a cigarette, watched the news, and reported to work at 8:00 a.m.
At some point during or after this descent, Stephens "started breaking out in a sweat," started coughing, and began having difficulty breathing. Stephens was uncertain whether his symptoms began while he was descending the ladders or the staircase, or if they did not begin until after he had completed the descent. He testified that he felt that he was "strangling" from the mucous in his throat. Stephens unsuccessfully tried to clear his throat by performing a Heimlich maneuver on himself. He then regurgitated, clearing his air passage, allowing him to breathe again. He went to his room, where he lay down, elevated his feet, and calmed himself with deep breathing exercises. Although he started to feel a little better, he still felt shaky and weak. After getting up to talk with his supervisor, he returned to his room, lay down, rested, and noticed some improvement.
That evening Stephens was driven to Kuparuk where a physician's assistant took his blood pressure, performed an EKG, and told him that he might have had a heart attack. Stephens flew to Fairbanks and saw a variety of physicians; they confirmed that he had suffered a heart attack.
Stephens underwent exercise stress tests in Fairbanks. In Anchorage, Dr. William Mayer, a cardiologist, gave him an angiogram and then performed a cardiac catheterization. The catheterization indicated blockage of at least two coronary arteries, "damage to the bottom portion of the heart consistent with a previous heart attack," and atherosclerosis.
Stephens recuperated for several months, and returned to work with ITT on August 28 or 29. His treating physician, Fairbanks family practitioner Dr. Donald Thieman, released Stephens to his previous employment without restriction. Stephens worked in this capacity with ITT until he was laid off on September 21.
Stephens subsequently filed a workers' compensation claim, which ITT and its insurer, CIGNA Companies, (collectively "ITT") controverted, pending medical documentation that his condition arose out of his employment. Stephens filed an Application for Adjustment of Claim, asking that his heart attack be accepted as a work-related injury, and requesting an award of benefits. The Board heard testimony and issued a Decision and Order on June 20, 1991, awarding Stephens compensation on the ground that ITT had not overcome the statutory presumption of compensability. ITT sought reconsideration, arguing that the Board had applied an
ITT appealed to the superior court. In October 1992 that court remanded the case to the Board with instructions to apply the legal standard articulated in Big K Grocery v. Gibson, 836 P.2d 941 (Alaska 1992).
In a two-to-one decision issued in March 1993, the Board concluded on remand that ITT had overcome the presumption of compensability and that Stephens was unable to prove his claim by a preponderance of the evidence.
Under the Alaska Workers' Compensation Act, an employee's claim is presumed to be compensable. AS 23.30.120(a)(1). Application of this statutory presumption involves a three-step analysis. Gillispie v. B & B Foodland, 881 P.2d 1106, 1109 (Alaska 1994). First, the employee must establish a "preliminary link" between his or her disability and the employment. Id. After this link is established, it is the employer's burden to overcome the presumption by coming forward with substantial evidence that the injury was not work-related. Id. (citing Miller v. ITT Arctic Servs., 577 P.2d 1044, 1046 (Alaska 1978)). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. (quoting Grainger v. Alaska Workers' Compensation Bd., 805 P.2d 976, 977 n. 1 (Alaska 1991)). In determining whether the employer produced substantial evidence, "[i]t is not the function of this court to reweigh the evidence but only to determine whether such evidence exists." Kessick v. Alyeska Pipeline Serv. Co., 617 P.2d 755, 757 (Alaska 1980).
An employer has always been able to rebut the presumption of compensability by presenting expert opinion evidence that "the claimant's work was probably not a substantial cause of the disability." Big K Grocery v. Gibson, 836 P.2d 941, 942 (Alaska 1992). Since the presumption shifts only the burden of production to the employer and not the burden of proof, we examine the evidence tending to rebut the presumption by itself in determining whether substantial evidence has been presented. Veco, Inc. v. Wolfer, 693 P.2d 865, 869 (Alaska 1985). Medical testimony cannot constitute substantial evidence if it simply points to other possible causes of an employee's injury without ruling out work-related causes. Childs v. Copper Valley Elec. Ass'n, 860 P.2d 1184, 1189 (Alaska 1993).
Once the employer produces substantial evidence to rebut the presumption of compensability, the presumption vanishes and the employee must prove the elements of his or her claim by a preponderance of the evidence. Wolfer, 693 P.2d at 870. In reviewing the Board's decision as to whether a claimant has established his or her claim by a preponderance of the evidence, we determine whether the Board's findings are supported by substantial evidence. Gillispie, 881 P.2d at 1111.
A. Rebuttal of Presumption of Compensability
Stephens argues that the Board erred in failing to make findings regarding his working conditions, the testimony of lay witnesses, and Dr. Thieman's opinion in its determination that ITT had overcome the presumption of compensability.
In reaching its decision, the Board relied on the testimony of three physicians: Stephens's treating otolaryngologist, Richard Raugust, M.D.,
Stephens argues that the Board erred by declining to issue detailed findings of fact regarding the testimony of the lay witnesses. In determining whether ITT rebutted the presumption of compensability, however, the Board does not weigh evidence offered by the employer against that offered by the employee, but rather examines the evidence offered by the employer standing alone. Wolfer, 693 P.2d at 869. Although the Board need only look at evidence tending to rebut the presumption of compensability, that evidence must be comprehensive and reliable.
To be comprehensive and reliable, the physicians' testimony about whether Stephens's work was a substantial cause of his heart attack necessarily had to consider Stephens's work conditions on the day of his attack. These conditions included the temperature, the amount of dust in the atmosphere, the level of physical exertion required, the level of emotional stress, and Stephens's diet. Even though the physicians did not directly hear the lay witnesses' testimony, the attorneys asked the physicians about various hypothetical situations. Some of these hypotheticals incorporated the content of the lay witnesses' testimony. The doctors also interviewed Stephens to some extent, and at least one of them, Dr. Tofler, reviewed Stephens's deposition before formulating his opinion. The two cardiologists, Drs. Mayer and Tofler, agreed that as represented to them, the levels of Stephens's physical exertion, emotional stress, diet, and cold were not substantial factors in bringing about his heart attack.
Thus, in reaching their conclusions that Stephens's heart attack was not work-related, the physicians took into account their understanding of his work conditions. Their understanding was based on a factually permissible interpretation of the work conditions.
Drs. Mayer and Tofler agreed that if Stephens's work conditions differed from those that they considered (for example, if there were a higher level of physical exertion involved) the conditions might in fact have been a significant factor in causing his heart attack. See supra note 5. The existence of a potentially material, genuine fact dispute about Stephens's actual work conditions, however, does not mean the Board erred by ruling that ITT overcame the presumption of compensability. The physicians based their opinions on a state of facts, which, although disputed, could be permissibly resolved in favor of the employer. The physicians' conclusions favoring the employer, and the permissible fact assumptions underlying those conclusions, standing alone, constitute sufficient
B. Preservation of Remaining Issues
ITT argues that the only question appealed to the superior court in September 1991 was the issue of whether the employer rebutted the presumption of compensability. ITT reasons that because Stephens did not raise any issues on cross-appeal in the superior court, he waived his right to raise those issues here.
Stephens arguably waived his right to appeal any issue other than whether ITT rebutted the presumption of compensability.
C. Preponderance of the Evidence
After concluding that ITT had rebutted the presumption of compensability, the Board's March 1993 decision found that Stephens did not prove his claim by a preponderance of the evidence. The Board stated:
Stephens argues that the Board erred in using the same analysis to decide both that ITT overcame the presumption of compensability and that Stephens was unable to prove
Evidence offered by the employer to rebut the presumption of compensability is viewed in isolation and is not weighed against contrary evidence offered by the employee. In Norcon, Inc. v. Alaska Workers' Compensation Bd., 880 P.2d 1051, 1054 (Alaska 1994), we explained that testimony is not weighed at the rebuttal stage. Thus, the physicians' testimony could be weighed only after the Board determined that the presumption had been overcome. Id.; see also Wolfer, 693 P.2d at 869 ("[T]he presumption [of compensability] shifts only the burden of production and not the burden of persuasion.").
The Board stated that "[u]pon reviewing the entire record, including the medical evidence outlined above, we find [that Stephens] is unable to prove his claim. Accordingly, we find by a great weight of evidence that his claim for workers' compensation benefits must be denied." Given the dispute about Stephens's work conditions, and the potential materiality of that dispute, the Board did not make sufficiently specific findings. The Board did not discuss the work conditions dispute or even acknowledge the testimony of Stephens's co-workers regarding work conditions.
At oral argument before us, Stephens's counsel also argued that the Board's March 1993 decision failed to weigh the opinion of Dr. Lawrence Repsher, a consultant in diseases of the chest and critical care medicine. Dr. Repsher's testimony potentially supported Stephens's claim that the work conditions caused his heart attack.
In a footnote, the Board's decision stated:
It is unclear whether the Board, after determining that ITT had overcome the presumption of compensability, then gave any consideration to Dr. Repsher's opinion in deciding whether Stephens had proven his claim by a preponderance of the evidence. The Board may have considered Dr. Repsher's evidence in this context, but its decision does not say so. On remand the Board should indicate whether it has considered Dr. Repsher's opinion in deciding whether Stephens proved his claim by a preponderance of the evidence.
D. Independent Medical Evaluation
Alaska Statute 23.30.095(k) states in relevant part:
Stephens argues that the Board erred in failing to order an independent medical examination (IME) under AS 23.30.095(k) regarding the cause of his heart attack. He argues that because the opinions of Drs. Donald Thieman and Tofler regarding the cause of his heart attack were in conflict, the Board should have ordered an IME.
ITT argues that the record provides no basis upon which the Board could have ordered an IME, because both Stephens's treating cardiologist, Dr. Mayer, and ITT's cardiologist expert, Dr. Tofler, concluded that the heart attack was not work-related.
Dr. Thieman is a general practitioner, not a cardiologist. In a letter to Stephens's attorney, Dr. Thieman stated:
Thus, although Dr. Thieman saw a "reasonable association" between Stephens's physical work and his heart attack, he qualified his statement by recognizing his limited expertise in the area of cardiology, and suggested that Stephens "get an appropriate cardiology expert witness who has a more extensive knowledge on the subject" to pursue the association between the physical exertion and the heart attack. Because Dr. Thieman was not an expert in cardiology, had qualified his opinion based on that limitation, and had deferred to witnesses with expertise in cardiology, and because two cardiologists opined that Stephens's heart attack was not work-related, the Board did not abuse its discretion
We AFFIRM the Board's decision that ITT overcame the presumption of compensability. We REMAND to the Board to make appropriate findings regarding whether Stephens proved his claim by a preponderance of the evidence. We AFFIRM the Board's decision not to order an IME.
MOORE, C.J., not participating.
MATTHEWS, J., dissents.
MATTHEWS, Justice, dissenting in part.
I dissent from that part of the majority opinion which remands this case to the Board for additional findings on the question of whether Stephens proved the elements of his claim by a preponderance of the evidence. In my opinion the Board's decision contains adequate findings and no remand is necessary.
Findings are adequate when, at a minimum, they show that the Board considered each issue of significance, demonstrate the basis for the Board's decision, and are sufficiently detailed so that they afford an opportunity for meaningful judicial review. See White v. Alaska Commercial Fisheries Entry Comm'n, 678 P.2d 1319, 1322 (Alaska 1984); Uchitel Co. v. The Telephone Co., 646 P.2d 229, 236 n. 16 (Alaska 1982); Hewing v. Alaska Workmen's Compensation Bd., 512 P.2d 896, 898 (Alaska 1973). The findings made by the Board in this case satisfy these three purposes.
The main issue of significance here is whether Stephens's heart attack was work related. The Board considered this issue and found that Stephens had not proven his claim by a preponderance of the evidence. The Board demonstrated the basis for its decision, stating that its decision was founded on a review of the entire record "including the medical evidence outlined" in the Board's written opinion. Sufficient detail was supplied as the Board summarized the testimony of Dr. Raugust, Stephens's treating otolaryngologist, Dr. Mayer, Stephens's treating cardiologist, and Dr. Tofler, ITT's cardiologist, and concluded, "uniformly, Drs. Raugust, Mayer, and Tofler agreed that the employee's work probably was not the cause of the employee's disability, but that it was caused by a non-work related condition." An appellate court can readily review the testimony of these witnesses to determine whether it meets the substantial evidence standard by which Board findings are tested.
Today's opinion states that the working conditions at the time of the heart attack were also a contested issue. As I read the record, what the physical conditions were, and what Stephens had done before the onset of the attack, were uncontested, although there is room for cavil as to matters of degree. In any case, the Board's composite decision discusses working conditions at length, showing that they were considered. Further, the circumstances which the Board accepted as true are apparent from the Board's decision. Finally, the detail of the Board's decision goes well beyond that employed by most judicial and agency fact finders and is more than sufficient to facilitate judicial review. To illustrate these points I quote in the margin at length from the Board's decision, emphasizing its discussion of work conditions.
As a subsidiary holding the majority requires the Board to make findings indicating what, if any, weight it gave to the opinion of
In September 1991 ITT filed its notice of appeal which stated that it appealed:
Dr. Repsher's testimony potentially supports Stephens's claim that his work conditions caused his heart attack and potentially contradicts expert medical testimony that Stephens's heart attack may have been caused by the coughing episode, and thus was not work-related. Consequently, Dr. Repsher's testimony is relevant to the critical issue of work relatedness, and should have been considered by the Board in deciding whether Stephens had proven his claim by a preponderance of the evidence.
(Emphasis added except as noted.)