Miller v. ITT Arctic Services

• Decision Date: 21 April 1978
• Docket Number: Nos. 3311 and 3312,s. 3311 and 3312
• Citation: 577 P.2d 1044
• Parties: Eileen Marie MILLER, wife, Michael Paul Miller, son, and Valerie Ann Merriman, stepchild of David Eugene Miller (Deceased), Appellants, v. ITT ARCTIC SERVICES, Liberty Mutual Insurance Company, and Alaska Pacific Assurance Company, Appellees. ITT ARCTIC SERVICES, Liberty Mutual Insurance Company, and Alaska Pacific Assurance Company, Cross-Appellants, v. Eileen Marie MILLER, wife, Michael Paul Miller, son, and Valerie Ann Merriman, stepchild of David Eugene Miller (Deceased), Cross-Appellee.
• Court: Alaska Supreme Court

Page 1044

577 P.2d 1044

Eileen Marie MILLER, wife, Michael Paul Miller, son, and

Valerie Ann Merriman, stepchild of David Eugene

Miller (Deceased), Appellants, v. ITT ARCTIC SERVICES, Liberty Mutual Insurance Company, and Alaska Pacific Assurance Company, Appellees.

ITT ARCTIC SERVICES, Liberty Mutual Insurance Company, and Alaska Pacific Assurance Company, Cross-Appellants, v. Eileen Marie MILLER, wife, Michael Paul Miller, son, and Valerie Ann Merriman, stepchild of David Eugene

Miller (Deceased), Cross-Appellee.

Nos. 3311 and 3312.

Supreme Court of Alaska.

April 21, 1978.

Robert N. Opland, Opland, Johnston & Arnett, Anchorage, for appellants.

Robert L. Eastaugh, Delaney, Wiles, Moore, Hayes & Reitman, Inc. and Michael G. Briggs, Ely, Guess & Rudd, Anchorage, for appellees.

Before BOOCHEVER, Chief Justice, and RABINOWITZ, CONNOR, BURKE and MATTHEWS, Justices.

OPINION

RABINOWITZ, Justice.

This appeal arises out of the denial of benefits to the survivors of David Eugene Miller by the Alaska Workmen's Compensation Board. The superior court upheld the Board's determination. We affirm.

David E. Miller collapsed on January 20, 1975, while employed by ITT Arctic Services on a project at Fort Wainwright near Fairbanks; he died at a nearby hospital within one and one-half hours of being stricken. Miller had been making "cross connections" for communications circuitry on the third floor of a building. Although testimony of witnesses before the Board is not entirely in agreement regarding details of the day's work, it appears that Miller had been doing primarily fine hand work for nine or ten hours making electrical connections and wrapping the wires around terminals with an electric "gun" weighing a pound or less. No heavy lifting or other vigorous exertion was involved. At about 5:15 p. m., the crew cleaned up the area, carried tools or other items down the 44 steps of the building, and loaded them into a pickup truck. One of Miller's co-workers testified that Miller made two or three trips down the stairs with boxes of equipment and materials and that Miller last carried a box of spare iron parts from the "cable rack." The "nonworking foreman" for the job testified that Miller made only one trip from the third floor to the pickup carrying his toolbox weighing 30-35 pounds. Miller lifted the box onto the tailgate of the pickup and immediately slumped over the box. He was carried back inside the building by the other members of the crew and subsequently was taken by ambulance to Bassett Army Hospital at Fort Wainwright where he died.

Miller's widow, son and stepdaughter filed a claim for workmen's compensation benefits, and a hearing was held before the Alaska Workmen's Compensation Board. ¹ The Board concluded that Miller's death was due to intracerebral bleeding the direct result of a ruptured berry aneurysm in his brain. The Board determined that although Miller was in the course of his employment when the aneurysm ruptured, the rupture was not caused by his employment. The Board heard lay and expert testimony which it determined was sufficient to overcome Alaska's statutory presumption of compensability. The Board concluded that, once the presumption had disappeared, the applicants failed to bear their burden of showing a connection between Miller's death and his employment.

In deciding that the presumption of compensability had been rebutted, the Board relied upon testimony of Miller's co-worker and foreman that the work performed by Miller on the day of his death required virtually no physical exertion and that the only exertion immediately prior to his attack was carrying a tool box downstairs. In addition, the Board viewed the medical evidence as indicating "that aneurysms rupture spontaneously and at random times around the clock."

Miller's survivors appealed the decision of the Alaska Workmen's Compensation Board, and the superior court affirmed. ² This appeal followed. ³

Miller's survivors contend that the statutory presumption of compensability was not overcome because no substantial evidence was introduced to show that Miller's death was not work-connected. They also argue for application of the rule that doubts as to the substance of medical testimony must be resolved in favor of claimants; and with respect to testimony in the case at bar, this rule requires the conclusion that no substantial evidence was introduced to overcome the presumption of compensability.

The Alaska Workmen's Compensation Act contains a presumption that an injury is work-connected in the absence of substantial evidence to the contrary. ⁴ Once substantial evidence is introduced, the presumption drops out and the burden of proving all elements of the claim falls on the claimant. ⁵ This court has consistently defined "substantial evidence" as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." ⁶ Evidence which is competent or admissible may nevertheless be insufficient to overcome the presumption of compensability; the question whether the quantum of evidence is substantial is a legal question. ⁷

In Fireman's Fund American Insurance Cos. v. Gomes, 544 P.2d 1013 (Alaska 1976) (unexplained murder of bartender at his place of employment), we explained two possible ways of overcoming the presumption of compensability: (1) by affirmative evidence showing that the death was not work-connected, or (2) by eliminating all reasonable possibilities that the death was work-connected. ⁸ In Gomes, no affirmative evidence was produced to show that Gomes' death was due to non-work-related causes; nor was the employer able to meet "the infinitely more difficult task of eliminating all reasonable hypotheses that the killing was work-related." ⁹ In Gomes, the evidence did not answer the question why the employee had been killed; in the absence of affirmative evidence showing non-work-relatedness, we held that substantial evidence to rebut the presumption had not been introduced.

Unlike the situation in Gomes, appellees in the case at bar have introduced affirmative evidence in the form of expert testimony that Miller's death was not work-related. The question remains, however, whether the evidence was sufficient to constitute substantial evidence for purposes of rebutting the statutory presumption of compensability.

The adequacy of evidence introduced to overcome the statutory presumption was addressed by this court in Employers Commercial Union Co. v. Libor, 536 P.2d 129 (Alaska 1975). In Libor, the Board had awarded compensation based upon its conclusion that a work-related back injury was the cause of a subsequently discovered herniated disc. We upheld the award and concluded that substantial evidence against the presumption of compensability had not been produced even though one of the two medical experts testified that the initial injury could not, with a reasonable degree of medical certainty, be said to be the cause of the condition for which the claimant sought compensation. However, the witness gave no opinion that the subsequent disability was not work-related. Under those circumstances, we held that the presumption of compensability had not been overcome. The mere inability to state that the disability was work-related did not constitute substantial evidence. ¹⁰

Thornton v. Alaska Workmen's Compensation Board, 411 P.2d 209 (Alaska 1966), also presented the question whether the presumption of compensability had been overcome by substantial evidence that the employee's death was not work-related. We concluded, in part, that the presumption had not been overcome because neither of the two medical witnesses testified that the employee's exertion had not contributed to his death.

In the case at bar, three physicians testified as to the cause of Miller's death. All three agreed that a ruptured berry aneurysm was the most likely cause of death. ¹¹ However, the three doctors differed as to the connection between Miller's work activity and the subsequent intracerebral bleeding.

Dr. Partnow, the physician who treated Miller in the hospital emergency room, stated that causes of ruptured berry aneurysms are not well understood. He explained that such aneurysms are statistically more likely to rupture during periods of activity than during periods of repose, but he also noted that people are active for the largest proportion of each day. In Dr. Partnow's opinion, the rupture of a berry aneurysm might be caused by an increase in intracerebral blood pressure due to physical straining; loading a box on the back of a pickup truck was the kind of activity which would result in a noticeable increase in blood pressure. However, he declined to state categorically whether the rupture was related to physical activity:

I think that it is something that would have happened anyhow. The concept of somebody walking around with a time bomb in his head appeals to me. Had it not happened then it probably would have happened at another time, again more liable to be associated with physical activity, but certainly not inevitably associated with it.

Dr. Mead agreed that causes of rupture in aneurysms are not entirely understood. He testified that, based upon his observations, 20 to 40 per cent of such ruptures are associated with exertion. Dr. Mead also noted greater incidence of rupturing when blood pressure is elevated and stated that physical exertion causes an increase in blood pressure. In addition, he specifically concluded that Miller's death was related to the exertion associated with Miller's work. However, Dr. Mead refused to say that the rupture could have been avoided if Miller had not lifted the box into the truck at that moment; that is, a similar or greater strain at a time in the foreseeable future was likely to have caused the aneurysm to rupture. He further agreed with appellee's counsel that a certain degree of inevitability was involved and that risk of rupture was present whether...