Burgess Const. Co. v. Smallwood
| Decision Date | 06 February 1981 |
| Docket Number | No. 4502,4502 |
| Citation | 623 P.2d 312 |
| Parties | BURGESS CONSTRUCTION COMPANY and Commercial Union Assurance Companies, Appellants, v. William S. SMALLWOOD, Appellee. |
| Court | Alaska Supreme Court |
Sanford M. Gibbs, Hagans, Smith, Brown, Erwin & Gibbs, Anchorage, for appellants.
Millard F. Ingraham, Rice, Hoppner, Hedland, Fleischer & Ingraham, Fairbanks, for appellee.
Before RABINOWITZ, C. J., and CONNOR, BOOCHEVER, BURKE and MATTHEWS, JJ. *
This worker's compensation case is before this court for the second time, after an extensive history of proceedings. Treating the present appeal as a petition for review, see City and Borough of Juneau v. Thibodeau, 595 P.2d 626, 628-29 (Alaska 1979), we hereby grant review. 1
William S. Smallwood first filed a claim for worker's compensation in October of 1973, alleging that his employment as a truckdriver with Burgess Construction Company contributed to the acute renal failure he suffered in 1970, necessitating the surgical removal of both kidneys. At the first hearing before the Worker's Compensation Board on June 4, 1974, Burgess objected to Smallwood's introduction of medical reports absent an opportunity to cross-examine the physicians who made the reports. Although the medical reports were admitted, the Board expressly disavowed any consideration of, or reliance on, them in reaching the decision to award compensation to Smallwood. The matter was appealed to the superior court, which held that Burgess had waived its right to cross-examine Smallwood's physicians and ordered the case remanded to the Board for reconsideration on the basis of all the evidence, including the medical reports. 2 In Commercial Union Cos. v. Smallwood, 550 P.2d 1261 (Alaska 1976), we modified the superior court's remand to the Board to include the right to cross-examine Smallwood's medical experts and to adduce additional medical evidence. This brings us to the facts and proceedings which are of concern in the present case.
Smallwood worked as a truckdriver for Burgess from 1964 until his hospitalization for acute renal failure in July, 1970. That Smallwood had a history of renal dysfunction, beginning years before his employment with Burgess, is without dispute. Smallwood's claim before the Board was based on his theory that hypertension, exacerbated by his working conditions, aggravated his pre-existing kidney condition to produce acute renal failure.
On remand, the Board relied on testimony from the previous hearing and the depositions of Dr. Henry Tenckhoff and Dr. William Bennett. Dr. Tenckhoff, a kidney specialist who examined Smallwood after his kidney failure, testified that in his opinion Smallwood's kidney failure was caused by malignant hypertension. Hypertension can be controlled with proper medical treatment and a low salt diet. Smallwood's medical records indicate there has been a noticeable rise in his blood pressure since 1968, developing into malignant hypertension by 1970. Dr. Tenckhoff was of the opinion that Smallwood's working conditions accelerated his hypertension since he had little opportunity to see a physician or maintain the proper diet while on the road. Thus, he concluded that "working conditions played a significant role in Mr. Smallwood's hypertension and therefore in his renal disease."
The defendant's medical expert, Dr. Bennett, also a kidney specialist, believed that Smallwood's acute kidney failure resulted from a natural progression of his preexisting condition, which was "probably" not aggravated or accelerated by his employment conditions.
The Board issued its decision and order denying Smallwood compensation on November 1, 1977. Following a fairly extensive review of the evidence, the Board found that "(n)either Dr. Tenckhoff nor Dr. Bennett can say to a reasonable degree of medical probability that applicant's kidney failure was caused by his employment," and concluded that Smallwood's kidney failure was not related to his employment but was "the natural progression of a disease which he has had for many years." Smallwood appealed this decision to the superior court which reversed and remanded for a determination of the extent of Smallwood's disability. The superior court determined that the Board failed to apply the statutory presumption of coverage and improperly placed the burden on Smallwood to establish that his disability was work related. Applying the correct standard and presumption, the court itself independently analyzed the evidence before the Board and concluded that there was no substantial evidence to overcome the presumption of coverage. Burgess appeals from this decision.
We agree with the superior court's legal conclusion that the Board applied an incorrect standard in denying compensation to Smallwood, but find that the court erred in independently evaluating the evidence and reaching its own conclusion of compensability. Thus, we remand to the Board once again for reconsideration.
Thornton v. Alaska Workmen's Compensation Board, 411 P.2d 209, 210 (Alaska 1966). See also Ketchikan Gateway Borough v. Saling, 604 P.2d 590, 595-96 (Alaska 1979); Hawkins v. Green Associated, 559 P.2d 118, 119 (Alaska 1977); Beauchamp v. Employers Liability Assurance Corp., 477 P.2d 993, 997 (Alaska 1970); 1 A. Larson, Workmen's Compensation Law § 12.20 at 276 (1978). Smallwood's theory is that his employment conditions, particularly his work on the haul road to the North Slope, aggravated his pre-existing renal dysfunction by preventing him from getting proper medical attention and maintaining a low salt diet necessary to control hypertension, which accelerated his ultimate renal failure. Such aggravation or acceleration must be presumed in the absence of substantial evidence to the contrary. 3 Rogers Electric Co. v. Kouba, 603 P.2d 909, 911 (Alaska 1979); Beauchamp v. Employers Liability Assurance Co., 477 P.2d at 997; Thornton v. Alaska Workmen's Compensation Board, 411 P.2d at 211. Substantial evidence is such relevant evidence as a reasonable mind would accept as adequate to support the conclusion at issue. Miller v. ITT Arctic Services, 577 P.2d 1044, 1046 (Alaska 1978). Thus, applying the proper standards, the Board's inquiry should have been whether there was in the evidentiary record before it such relevant evidence as it could reasonably accept in support of a conclusion that Smallwood's employment conditions neither aggravated nor accelerated his renal dysfunction. Our review of the Board's decision leads us to conclude that it failed to apply the proper legal standard in reaching its decision that Smallwood's claim was not work related.
Nowhere in the Board's findings and conclusions is there any mention of the statutory presumption of coverage, or of aggravation or acceleration of a pre-existing condition. The language employed by the Board in its decision suggests that it improperly placed the burden of establishing work-relatedness on Smallwood. Rather than concluding that there was substantial evidence that Smallwood's kidney condition was not aggravated or accelerated by his employment, the Board concluded that it was "unable to find that applicant's kidney failure was related to his employment for the defendants." (emphasis added).
Burgess maintains that the statutory presumption of coverage contained in AS 23.30.120(1) is not applicable in this case, and thus the Board properly placed the burden on Smallwood to establish through medical analysis that his disability was work-related. Burgess contends that this conclusion is mandated by the following language in our prior decision in this case.
Commercial Union Cos. v. Smallwood, 550 P.2d 1261, 1267 (Alaska 1976). We did not mean by this language to imply, as Burgess suggests, that the statutory presumption of compensability in the absence of substantial evidence to the contrary is not applicable in cases such as this. Rather, the quoted language simply acknowledges that before the presumption attaches, some preliminary link must be established between the disability and the employment, 4 and that in claims "based on highly technical medical considerations" medical evidence is often necessary in order to make that connection. As we stated in Thornton, "(t)he question in a particular case of whether the employment did so contribute to (aggravate or accelerate) the final result is one of fact which is usually determined from medical testimony." 411 P.2d at 210. But once a prima facie case of work relatedness is made, as it clearly was here by Dr. Tenckhoff's testimony, the Board may not ignore the presumption and allocate the burden of proof to the claimant. 5 Should the company meet its burden of producing substantial evidence that the injury was not work related, the presumption would then drop out, shifting the burden of proving all elements of the claim back to the claimant. Miller v. ITT Arctic Services, 577 P.2d 1044, 1046 (Alaska 1978).
Moreover, the language in Smallwood emphasized by Burgess must be taken in the context of our holding that remand to the Board should include the right of Burgess to cross-examine Smallwood's medical witnesses and ...
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Pena v. New Mexico Highway Dept., Mountain States Mut. Ins. Co.
... ... Stanke-Brown & Associates, Inc., 98 N.M. 379, 648 P.2d 1192 (Ct.App.1982); see also Burgess Constr. Co. v. Smallwood, 623 P.2d 312 (Alaska 1981). 1 ... Summary judgment does ... ...