Burgess Const. Co. v. Smallwood

• Decision Date: 10 May 1985
• Docket Number: Nos. S-42,S-119,s. S-42
• Parties: BURGESS CONSTRUCTION COMPANY, and Commercial Union Assurance Companies, Petitioners and Cross-Respondents, v. William S. SMALLWOOD, Respondent and Cross-Petitioner.
• Court: Alaska Supreme Court

Page 1206

698 P.2d 1206

BURGESS CONSTRUCTION COMPANY, and Commercial Union Assurance

Companies, Petitioners and Cross-Respondents, v. William S. SMALLWOOD, Respondent and Cross-Petitioner.

Nos. S-42, S-119.

Supreme Court of Alaska.

May 10, 1985.

Sanford M. Gibbs, Hagans, Brown & Gibbs, Anchorage, for petitioner.

Patrick T. Brown, Rice, Hoppner, Brown & Brunner, Fairbanks, for respondent.

Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

OPINION

RABINOWITZ, Chief Justice.

Like a phoenix rising from the ashes, this matter is before the court for the third time. See Commercial Union Cos. v. Smallwood (Smallwood I), 550 P.2d 1261 (Alaska 1976); Burgess Construction Co. v. Smallwood (Smallwood II), 623 P.2d 312 (Alaska 1981). This appeal stems from the dismissal of William Smallwood's claim for worker's compensation by the Alaska Worker's Compensation Board (Board). The Board's dismissal was reversed by the superior court. We, in turn, reverse the superior court and affirm the Board's decision.

In 1970 William Smallwood (Smallwood) experienced acute renal failure, resulting in the removal of both of his kidneys and two kidney transplant operations, one of which was successful. In 1973 he filed a worker's compensation claim, alleging that his employment as a truck driver with Burgess Construction Company (Burgess) contributed to his renal failure. Smallwood's contention here, as in Smallwood II, is that his working conditions under Burgess exacerbated his hypertension (high blood pressure), which in turn aggravated his kidney condition and accelerated his renal failure. It is not disputed that Smallwood had a long history of kidney problems that pre-dated his employment with Burgess. Tests taken in the early 1950's during a routine employment checkup revealed that he had chronic glomerulonephritis, a kidney condition which eventually leads to complete kidney failure. His doctors told him that he should maintain a low salt diet, but that he should not have problems arising from his condition until he was a "much older man." Smallwood concedes that he suffered from moderately severe hypertension at least from the time he began working for Burgess. However, Smallwood's actual working conditions and their effect on his developing hypertension and kidney condition are sharply disputed.

Beginning in 1968, Smallwood began to drive trucks on the haul road to the North Slope for Burgess. According to Smallwood, Burgess's truckers would drive from 4 a.m. until midnight, fuel, eat, and sleep in their trucks and be back on the road again at 4 a.m. He testified that drivers ate what food they could carry in their trucks, and that frequently the food would freeze since there were no facilities for heating it. Smallwood testified that he had carried beans, baloney and bread.

Smallwood testified that his road trips lasted from five days to two weeks. ¹ When he returned home to Fairbanks between trips, he claimed that he would sleep for four or five hours and then go back to work, either in town loading for a day or two, or else directly back to the slope. Smallwood stated that he worked under these conditions during the winters of 1967-68 and 1968-69 and took one trip in the winter of 1969-70. Smallwood said that he spent two or three months of the winter of 1968-69 living in Deadhorse and ate at a messhall where the food was very good. Smallwood often drove between Fairbanks and Bettles. In the winter of 1969-70 Smallwood stayed at Burgess' pipeline construction camps in the Yukon where "nice food", "nice bunkhouses" and medivac service were available.

Smallwood testified that he was unable to seek medical assistance because he was in Fairbanks only at odd hours and for brief periods of time. However, Smallwood also said that he was able to see a physician when he was not actually working on the slope if he had a cold or did not "feel good". He was once airlifted to Fairbanks from Burgess's camp in the Yukon when he had the flu.

Smallwood initially attributed his physical problems to the long driving hours and rough physical conditions. When he saw a doctor in the spring of 1970, three months prior to his kidney failure, he was told to stop driving, get rest and eat properly. He stopped working the haul road, started working in the Fairbanks area and shortened his hours.

Smallwood's medical expert, kidney specialist Dr. Henry Tenckhoff, first examined Smallwood shortly after his kidney failure in 1970. According to Dr. Tenckhoff, Smallwood's kidney failure was caused by malignant hypertension. Dr. Tenckhoff testified that Smallwood suffered from excessive salt intake or inadequate salt elimination, or both. In Dr. Tenckhoff's opinion, Smallwood's severe hypertension developed after Smallwood began to drive the haul road to the North Slope for Burgess, and that "working conditions played a significant role in Mr. Smallwood's hypertension and therefore his renal disease," since he could neither maintain a proper diet while on the road nor see a physician. He also concluded that Smallwood did not understand the severity of his disease and "the true implications of his dietary regimen." Dr. Tenckhoff's opinions were based solely on his study of Smallwood's medical record and Smallwood's testimony before the Board.

Burgess's medical expert, Dr. William M. Bennett, also a kidney specialist, contended that Smallwood's renal failure was the natural result of a progressive disease, and did not believe that there was a "reasonable probability" that there was any correlation between Smallwood's employment and his kidney condition. He thought that the course of Smallwood's illness was indistinguishable from that of "someone who stayed home and had the same disease and the same degree of blood pressure control." Dr. Bennett acknowledged that there was a "chance" or "possibility" that Smallwood's hypertension and kidney condition could have been aggravated by his diet and working environment, although he did not think they were probable causative factors. Like Dr. Tenckhoff, Dr. Bennett thought that Smallwood's "awareness of the condition was not appropriate to the condition."

The Board noted that in Smallwood II, we held that Smallwood had established a preliminary link between his employment and his kidney failure, thus raising the statutory presumption of compensability under AS 23.30.120. ² The Board went on to hold that Burgess had overcome the presumption by presenting substantial evidence eliminating all reasonable possibilities that the acceleration of Smallwood's condition was work related.

The Board found that Dr. Bennett and Dr. Tenckhoff essentially agreed on the causes of Smallwood's accelerated hypertension and that Dr. Tenckhoff had simply gone one step further by stating that Smallwood's ability to control his blood pressure was limited by his working conditions. The Board then examined Smallwood's testimony and found it to be "exaggerated," sometimes "to the point of incredibility." The Board believed Smallwood had exaggerated the amount of time he spent working on the haul road, noting that his testimony conflicted with Phil Tannehill's. It found that Smallwood could see a doctor "with reasonable frequency," noting that he had been airlifted to a doctor once, and had been seen by doctors when he did not feel well. The Board believed that Smallwood could have taken lower salt content food with him when he travelled. It found that he was not forced to eat high salt content foods at the pipeline camps, noting that he had not presented testimony regarding the food prepared at the camps, and had not informed his employer of his needs. Neither did the Board believe that Smallwood thought he would lose his job if he informed his employer of his dietary needs.

The Board concluded that Burgess had overcome the presumption of compensability:

We find the employee's working conditions did not prevent him from keeping to a low-salt diet, taking anti-hypertensive and diuretic drugs regularly, or seeking medical assistance. We base this finding on a close, careful assessment of the employee's testimony. The only medical evidence establishing a relationship between the employee's kidney disease and his working conditions [was] based on the assumption that the employee's work limited his ability to stay on a low-salt diet and seek medical care. However, the...