Fairbanks North Star Borough v. Rogers and Babler

• Citation: 747 P.2d 528
• Decision Date: 18 December 1987
• Docket Number: No. S-1596,S-1596
• Parties: FAIRBANKS NORTH STAR BOROUGH and Scott Wetzel Services, Appellants, v. ROGERS AND BABLER and Alpac/INA, Northland Maintenance, Wausau Insurance Company, and Alex Odom, Appellees.
• Court: Alaska Supreme Court

Page 528

747 P.2d 528

FAIRBANKS NORTH STAR BOROUGH and Scott Wetzel Services, Appellants, v. ROGERS AND BABLER and Alpac/INA, Northland Maintenance Wausau Insurance Company, and Alex Odom, Appellees.

No. S-1596.

Supreme Court of Alaska.

Dec. 18, 1987.

Ralph R. Beistline, James Klassen, Ann Stoloff Brown, Hughes, Thorsness, Gantz, Powell & Brundin, Fairbanks, for appellants.

Chancy Croft, Fairbanks, for appellee Odom.

Robert L. Eastaugh, Delaney, Wiles, Hayes, Reitman & Brubaker, Anchorage, for appellees Rogers & Babler and INA.

Dennis E. Cook, Schaible, Staley, DeLisio & Cook, Fairbanks, for appellees Northland Maintenance and Wausau Ins.

OPINION

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

BURKE, Justice.

In this appeal we are asked to determine which employer should be held liable for the payment of workers' compensation benefits when employment with successive employers may have contributed to the worker's resulting disability. The Workers' Compensation Board applied Alaska's last injurious exposure rule ¹ to the case and determined that the worker's disability was causally related to the worker's most recent employment. Accordingly, the Board held employer, Rogers and Babler, liable for payment of the worker's disability benefits. On appeal, the superior court reversed and remanded on the grounds that the Board had failed to make certain required findings and that the determination lacked substantial evidentiary support. ² We now affirm the Board's determination.

I

In March, 1984, Alex Odom filed a disability claim with the Workers' Compensation Board. At the hearing on this claim, Odom showed that he first injured his right knee in 1976 while employed with Perini Arctic Associates. He reinjured the same knee in 1977 while employed with Alaska International Constructors. ³ In 1981 Odom injured his left knee while working for Northland Maintenance (Northland). Odom then consulted Dr. Francis Kelly concerning his various injuries and was advised that he was suffering from torn cartilage in both knees. At the time, Dr. Kelly recommended only rest. Odom, however, did not follow the doctor's advice and went back to work. Upon his return, Northland initially gave Odom light duty, but he was eventually laid off because he "couldn't do the other work."

At Dr. Kelly's suggestion, and because both knees were bothering him, Odom did not work the following year. Evidence showed that during this year Odom was in frequent pain and that his knees were subject to occasional "lockups" and swelling. Dr. Kelly prescribed medication for these conditions and recommended surgery. Odom declined to follow the latter advice.

Odom returned to work as a laborer with Rogers & Babler in 1982. His knees continued to bother him, but the work did not appear to worsen his condition. After some time on this job, he quit because of his knee problems. Odom then went to work for the Fairbanks North Star Borough School District (Borough) as a substitute janitor. Although Odom felt at the time that this work would be easier on his knees than was the Rogers & Babler work, he later found that this was not the case. Odom's duties with the Borough required him to climb stairs, to be on his feet for extended periods, and to engage in some heavy labor, including some lifting, heaving, and pushing.

During this period of employment, Odom's knees continued to bother him and Dr. Kelly continued to recommend surgery. In December of 1982, Odom had fluid drained from his right knee. Despite this procedure, Odom worked continuously for the Borough until he was laid off at the end of the school year. Odom felt that this layoff was due to his knee problems. Shortly thereafter, Dr. Kelly scheduled surgery to repair Odom's knees. The scheduled surgery was later cancelled at Odom's request.

Odom's final employment started in June 1983 and was again with Rogers & Babler. Odom operated an asphalt machine, worked 12-14 hour days, and was required to stand while working with the machine. Odom's knees continued to bother him and were again subject to "lock-ups" and swelling. During this employment, Odom again had fluid drained from his knees. Finally, Odom's pain led him to quit this job and submit to surgery.

In finding Rogers & Babler liable for the payment of Odom's disability benefits, the Board initially determined that the evidence presented was sufficient to establish the presumption of compensability under AS 23.30.120(1), but that such presumption had been overcome by "substantial evidence" to the contrary introduced by Rogers & Babler. Even though the statutory presumption had been rebutted, however, the Board concluded that Odom's evidence was sufficient to prove that the second Rogers & Babler employment aggravated Odom's preexisting knee condition and that this aggravation was a substantial factor in causing Odom's ultimate disability. On appeal, the superior court disagreed. The court first concluded that since the Board did not make certain required findings with regard to the causal connection between the employment and Odom's disability, the presumption of compensability was not properly raised. The court then concluded that absent the presumption, there was insufficient evidence to support the Board's decision. Consequently, the superior court vacated the Board's decision, ordered the Borough to continue Odom's disability payments until liability could ultimately be determined, and remanded the matter so that the Board could determine which prior employment was the legal cause of Odom's disability. This appeal followed.

II

We first consider the superior court's finding that the Board improperly raised the statutory presumption of compensability ^{4 4} and rule that the superior court's reversal on this ground was improper.

Even if a finding of fact or conclusion of law is erroneous, the mistake is not grounds for reversal if the finding or conclusion is not necessary to the court's ultimate decision. Branco Eastern Co. v. Leffler, 173 Colo. 428, 482 P.2d 364, 368 (1971); Wright v. Wright, 1 Haw.App. 581, 623 P.2d 97, 100 (1981); Newcum v. Lawson, 1 N.M. 448, 684 P.2d 534, 541 (App.1984); City of Village v. McCown, 446 P.2d 380, 383 (Okl.1968); State ex rel. Carriger v. Campbell Food Markets, 65 Wash.2d 600, 398 P.2d 1016, 1020 (1965). ⁵ Similarly, an administrative agency ruling, even if mistaken, will not be reversed unless substantial rights of a party have been prejudiced. Mattingly v. Charnes, 700 P.2d 927, 929 (Colo.App.1985); Survivors of Medeiros v. Maui Land and Pineapple Co., 66 Haw. 290, 660 P.2d 1316, 1319 (1983); Excepticon Midwest, Inc. v. Kansas Department of Health, 234 Kan. 802, 676 P.2d 107, 110 (1984). While the Board in this action did discuss the presumption and found it properly raised, it also specifically determined that Rogers & Babler had presented substantial evidence rebutting the presumption. The presumption thus "dropped out," placing the burden of persuasion upon Odom to prove all elements of his claim by a preponderance of the evidence. Raab v. Parker Drilling, 710 P.2d 423, 426 (Alaska 1985); Burgess Construction v. Smallwood, 698 P.2d 1206, 1210 (Alaska 1985). The Board subsequently found that Odom had satisfied that burden and imposed liability upon Rogers & Babler.

Because the Board thus rested its final ruling not upon the presumption, but upon its conclusion that Odom had satisfied his burden of persuasion, any finding regarding the presumption was unnecessary to the Board's ultimate ruling. Even assuming, therefore, that the Board's ruling on the presumption issue was error, it was harmless error and is not a ground for reversal. ⁶

III

A major purpose of Alaska's workers' compensation scheme is to provide injured workers with a simple, speedy remedy whereby they may be compensated for losses occasioned by work related injuries. Hewing v. Peter Kiewit & Sons, 586 P.2d 182, 187 (Alaska 1978). In this spirit, the last injurious exposure rule provides a reasonably equitable approach to compensation problems in the multi-employer context which is simple, easy to administer, and avoids the difficulties associated with apportionment. Ketchikan Gateway Borough v. Saling, 604 P.2d 590, 595 (Alaska 1979). The rule is not designed, however, to inequitably impose liability upon employers having no connection with the employee's disability. To ensure that the rule is not so utilized, we have indicated that liability may be imposed on a subsequent employer only after the claimant has proved by a preponderance of the evidence that the employment aggravated, accelerated, or combined with a preexisting condition and that this aggravation, acceleration or combination was a substantial factor contributing to the ultimate disability. ⁷ United Asphalt Paving v. Smith, 660 P.2d 445, 447 (Alaska 1983); Fluor Alaska, Inc. v. Peter Kiewit Sons' Co., 614 P.2d 310, 313 (Alaska 1980); Saling, 604 P.2d at 595. Although we have never before explicitly discussed the factors to be considered when determining whether an aggravation, acceleration or combination is a substantial factor in the resulting disability, in other contexts we have indicated that the substantial factor test may normally be satisfied only by a showing of both cause-in-fact and proximate cause: that the injury would not have happened "but for" an act, omission or force and that reasonable persons would regard this act, omission or force as a cause and attach responsibility to it. E.g., Division of Corrections v. Neakok, 721 P.2d 1121, 1135 (Alaska 1986); State v. Abbott, 498 P.2d 712, 726-27 (Alaska 1972).

In imposing liability upon Rogers & Babler, the Board employed the traditional cause-in-fact "but for" test to determine that the Rogers & Babler employment was a substantial factor in Odom's disability. The superior court applied this same test to come to an opposite conclusion. Both Odom and the Borough, however, now argue...