Norcon, Inc. v. Alaska Workers' Compensation Bd.

• Decision Date: 09 September 1994
• Docket Number: No. S-5599,S-5599
• Citation: Norcon, Inc. v. Alaska Workers' Compensation Bd., 880 P.2d 1051 (Alaska 1994)
• Parties: NORCON, INC. and Eagle Pacific Insurance Co., Appellants, v. ALASKA WORKERS' COMPENSATION BOARD and Ellen Siebert, Appellees.
• Court: Alaska Supreme Court

Page 1051

880 P.2d 1051

NORCON, INC. and Eagle Pacific Insurance Co., Appellants, v.ALASKA WORKERS' COMPENSATION BOARD and Ellen Siebert, Appellees.

No. S-5599.

Supreme Court of Alaska.

Sept. 9, 1994.

Karen L. Russell and Joseph M. Cooper, Russell, Tesche & Wagg, Anchorage, for appellants.

Joseph A. Kalamarides, Kalamarides & Associates, Anchorage, for appellees.

Before MOORE, C.J., RABINOWITZ, MATTHEWS and COMPTON, JJ., and BRYNER, J. pro tem.^*

ORDER

On consideration of Appellees' motion for reconsideration, filed on July 1, 1994, treated by this court as a petition for rehearing,

IT IS ORDERED:

1.OpinionNo. 4097 published on July 1, 1994, is WITHDRAWN.

2.The petition for rehearing is GRANTED.

3.OpinionNo. 4119 is issued on this date in its place.

Entered by direction of the Court at Anchorage, Alaska, on September 9, 1994.

Before MOORE, C.J., RABINOWITZ, MATTHEWS and COMPTON, JJ., and BRYNER, J. Pro Tem.*

OPINION

COMPTON, Justice.

Norcon, Inc. and its workers' compensation carrier, Eagle Pacific Insurance Co.(Norcon), appeal from a superior court decision affirming an Alaska Workers' Compensation Board(Board) determination that Kenneth Siebert's sudden cardiac death was work related.We reverse.

I.FACTUAL AND PROCEDURAL BACKGROUND

Kenneth Siebert was hired by Norcon in June 1989 as a crane operator in connection with the Exxon Valdez oil spill cleanup.He would pick up dumpsters with a crane and empty their contents into a containment pit.The job was temporary and scheduled to end in the fall.Originally Kenneth was hired for eight weeks on and two weeks off.However, he worked seven days a week, twelve hours a day, without any vacations.

During his employment with Norcon, Kenneth resided in a "man camp" which was located approximately four and one half miles from Valdez.There was conflicting testimony concerning the amount of rest and relaxation time available to Kenneth.According to Ellen Siebert, Kenneth's wife, Kenneth believed that he would not be hired back if he took any time off for rest and relaxation.Mr. Gene Fontenot, Norcon's superintendent of support services, testified that rest and relaxation was offered to everyone, and that if someone did not take some after eight weeks, he or she was encouraged to do so.Ellen testified that Kenneth told her on occasion that he was very tired, but that he wanted to stay on until the job wound down.Kenneth's roommate, Robert Netherton, testified that although Kenneth complained occasionally of being tired, he did not do so any more than anyone else.He further testified that Kenneth never indicated to him that he was exhausted, nor did Kenneth appear as if he was exhausted.

On the morning of September 29, 1989, Kenneth got up, showered, shaved, and exchanged pleasantries with Netherton, who remained in bed.A short time later Netherton heard a thud.He rolled over in bed and saw that Kenneth was on the floor.Kenneth apparently suffered ventricular fibrillation, which resulted in sudden cardiac death.Emergency medical technicians succeeded in restoring his heart beat.However, Kenneth did not regain consciousness.He remained in a coma until he died in December 1989.

Kenneth was fifty-seven years old.He was a light drinker and had smoked cigarettes.Ellen testified that Kenneth had not seen a doctor in twenty years or more.No autopsy was performed.

In January 1990, Norcon filed a report of occupational injury with the Board.Norcon's representative filed a notice of controversion.Later Ellen filed an application for adjustment of claim.Norcon filed an answer denying entitlement to benefits.Eventually the Board issued a decision and order finding that Kenneth's death was compensable under the Alaska Workers' Compensation Act.The Board also awarded Ellen's counsel attorney's fees.

Norcon appealed the Board's decision to the superior court.AS 22.10.020(d);Alaska R.App.P. 601(a).It also filed a motion for stay pending appeal, which the superior court granted.

The superior court affirmed the Board's decision and awarded Ellen's counsel attorney's fees and costs on appeal.This appeal followed.

II.DISCUSSION

A.ASSUMING THE PRESUMPTION OF COMPENSABILITY PROPERLY ATTACHED, DID NORCON SUCCESSFULLY REBUT THE PRESUMPTION?¹

Norcon argues that the Board was presented with overwhelming evidence from both Dr. Allan and Dr. Scheidt that rebutted the presumption of compensability.Norcon claims that the testimony established that there was no connection between Kenneth's death and his work.In addition, Norcon contends that the superior court erred by enhancing the alternative test for establishing that the presumption was rebutted.

Ellen contends that the presumption was not rebutted because the Board found Dr. Allan's testimony ambiguous and Dr. Scheidt's testimony inconclusive.

In Grainger v. Alaska Workers' Compensation Board, 805 P.2d 976(Alaska1991), we stated that an employer can overcome the presumption of compensability by providing substantial evidence that either: "(1) provides an alternative explanation which, if accepted, would exclude work related factors as a substantial cause of the disability; or (2) directly eliminates any reasonable possibility that employment was a factor in causing the disability."Id. at 977."We have held that substantial evidence is 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' "Fireman's Fund Am. Ins. Cos. v. Gomes, 544 P.2d 1013, 1015(Alaska1976)(quotingThorton v. Alaska Workmen's Compensation Bd., 411 P.2d 209, 210(1966)).Whether the amount of evidence is substantial is a legal question.Id.Therefore, we must independently examine an employer's evidence to determine whether the employer has successfully rebutted the presumption of compensability.Veco, Inc. v. Wolfer, 693 P.2d 865, 869(Alaska1985).

In Big K Grocery v. Gibson, 836 P.2d 941(Alaska1992), we held that "[i]t has always been possible to rebut the presumption of compensability by presenting a qualified expert who testifies that, in his or her opinion, the claimant's work was probably not a substantial cause of the disability."Id. at 942."[S]uch testimony is affirmative evidence that an injury is not work connected."Id."If medical experts have ruled out work-related causes for an employee's injury, then Wolfer and Grainger do not require that these experts also offer alternative explanations."Childs v. Copper Valley Elec. Ass'n, 860 P.2d 1184, 1189(Alaska1993).²

The Board found that Dr. Scheidt's testimony was ambiguous and that Dr. Allan's testimony was inconclusive with respect to the work-relatedness of Kenneth's sudden cardiac death.The Board then concluded that Norcon "failed to produce medical testimony which fulfills the requirements set forth in Grainger as to substantial evidence rebutting the presumption."The superior court affirmed the Board's decision.The court cited Grainger as authority for the proposition that because the Board did not accept the alternative explanation for the cause of the employer's death, the presumption of compensability had not been overcome.

We agree that deference should be given to the Board's determination of a witnesses credibility.AS 23.30.122.³However, we find it necessary to clarify that any weighing of testimony does not take place at the rebuttal stage.Rather, the weight to be accorded the doctors' testimony must take place after a determination of whether the presumption had been overcome.SeeWolfer, 693 P.2d at 869("the presumption [of compensability] shifts only the burden of production and not the burden of persuasion").

Dr. Allan and Dr. Scheidt provided evidence, in their depositions and at the hearing, that a reasonable person might accept as adequate to support the conclusion that Kenneth's death was not work related.Dr. Scheidt testified that working long hours is not recognized to be a risk factor for sudden cardiac death.Additionally, he stated that "I do not think there's any reasonable possibility that the two are related."Dr. Allan testified that he did not think that Kenneth's work was a substantial factor, either directly or indirectly, in bringing about his cardiac death.Therefore, we conclude that Norcon successfully rebutted the presumption of compensability.⁴

B.DID ELLEN PROVE THE ELEMENTS OF HER CASE BY A PREPONDERANCE OF THE EVIDENCE?

The Board states:

Even if we considered in isolation Dr. Allen's [sic] testimony and Dr. Scheidt's hearing testimony only, which we would find adequate to overcome the presumption, we would still conclude Employee's death is compensable.Once the presumption is overcome, we would weigh the evidence.We would review all the testimony given by Dr. Allen [sic] and Dr. Scheidt.We would find it inconclusive, contradictory, and doubtful.We would resolve this doubt in Employee's favor and conclude the death is compensable.

Norcon contends that the Board's alternative holding is incorrect.It claims that rather than requiring Ellen to produce any medical evidence that Kenneth's sudden cardiac death was work related, the Board appeared to rely on what it perceived to be Norcon's failure to prove that it was not.

Ellen argues that the Board chose not to rely on the testimony of either of the doctors.She concludes that the only believable evidence supported compensability of the claim.

After a determination that the presumption of compensability has been successfully rebutted, the presumption "drops out" and the employee must prove his or her case by a preponderance of the evidence.Wolfer, 693 P.2d at 870."Upon reviewing a determination that the employee has or has not met that burden, the court must apply the 'substantial evidence' test...."Id."[W]hile the judiciary may not reweigh the evidence before the Board, neither may it abdicate its reviewing function and affirm a Board decision that has only extremely slight...