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Yahara v. Construction & Rigging, Inc. (4/30/93), 851 P 2d 69
Notice: This is subject to formal
correction before publication in the Pacific
Reporter. Readers are requested to bring
typographical or other formal errors to the
attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska
99501, in order that corrections may be made
prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
ROBERT YAHARA, )
) Supreme Court File No. S-5011
Appellant, ) Superior Court File No.
) 3AN-91-1554 Civil
v. ) O P I N I O N
CONSTRUCTION & RIGGING, INC., )
and ALASKA NATIONAL )
INSURANCE COMPANY, ) [No. 3948 - April 30, 1993]
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Anchorage, David Mannheimer, Judge, pro tem,
on appeal from the Alaska Workers'
Appearances: Joseph A. Kalamarides and
Timothy MacMillan, Kalamarides & MacMillan,
Anchorage, for Appellant. Shelby L. Nuenke-
Davison, Davison & Davison, Inc., Anchorage,
Before: Moore, Chief Justice,
Rabinowitz, Burke, Matthews, and Compton,
MOORE, Chief Justice.
Robert Yahara injured his back in the course of his
employment with Construction & Rigging, Inc., and sought
reemployment benefits under the vocational rehabilitation
provisions of the Alaska Workers_ Compensation Act, AS 23.30.041.
The Reemployment Benefits Administrator (R.B.A.) granted Yahara's
request for benefits, and the Workers_ Compensation Board (Board)
affirmed the award. The superior court reversed the Board,
finding that the medical opinion on which the Board relied did
not constitute substantial evidence. We reverse.
II. FACTS AND PROCEEDINGS
In June 1990, Yahara, a carpenter/welder for
Construction & Rigging, injured his back while at work when he
jumped from one barge to another. He sought medical treatment
from Dr. Edward M. Voke, an orthopedic specialist. Dr. Voke
ultimately diagnosed Yahara_s injury as a herniated disc and
arranged for Yahara to undergo physical therapy. From June
through December, Dr. Voke saw Yahara at least eight times.
Yahara also requested an eligibility evaluation for reemployment
benefits under the vocational rehabilitation provisions of the
Alaska Workers_ Compensation Act, AS 23.30.041. The R.B.A.
assigned Don Helper, a rehabilitation specialist, to perform
From October through December, Yahara participated in
the Body Ergonomics and Rehabilitation (BEAR) program as part of
his physical therapy. During this time his ability to perform
fairly strenuous activity improved significantly. In December,
Forooz Sakata, the registered nurse/occupational therapist who
oversaw Yahara, wrote Dr. Voke to report on Yahara_s progress.
Noting that according to the U.S. Labor Department_s Dictionary
of Occupational Titles,2 the activity level of Yahara_s job was
Medium-Heavy, Sakata concluded that Yahara was "able to perform
in at least Medium-Heavy level work at this time"and thus could
return to full-time work as a carpenter/welder. In addition, Dr.
Morris R. Horning, a BEAR program physician, reviewed
computerized tests of Yahara_s progress and concluded that
Yahara_s "work level"had increased from "light to medium" to
"heavy." Horning, however, neither specifically predicted
whether Yahara was strong enough to return to his original job,
nor specifically applied the Department of Labor job activity
In December Dr. Voke met with Yahara, Helper, and a
representative of Construction & Rigging_s workers_ compensation
carrier. At this meeting, Dr. Voke reviewed Ms. Sakata_s report,
but concluded that notwithstanding the BEAR program results,
Yahara was capable of only light to medium duty work and
therefore should not return to carpentry or welding. Dr. Voke
also concluded that Yahara_s permanent physical capacities would
be insufficient for the requirements of Yahara_s old job.
Accordingly, the R.B.A., on Helper_s recommendation, declared
Yahara eligible for reemployment benefits.
Construction & Rigging challenged the decision. The
Workers_ Compensation Board affirmed the R.B.A._s determination,
concluding that Dr. Voke_s opinion constituted substantial
evidence for the decision and that no abuse of discretion
occurred. On appeal to the superior court, Judge David
Mannheimer reversed the Board, holding that because Dr. Voke_s
opinion disregarded the BEAR results without stating the
objective grounds for doing so, it did not constitute substantial
evidence. Yahara appeals.3
Generally, a decision of the Workers_ Compensation
Board will survive a challenge if substantial evidence exists to
support the Board_s findings of fact. Morrison v. Afognak
Logging, Inc., 768 P.2d 1139, 1141 (Alaska 1989). Substantial
evidence is that which a reasonable mind, viewing the record as a
whole, might accept as adequate to support the Board_s decision.
Id. On review, the court does not independently reweigh the
evidence. Id. Therefore, if the Board is faced with two or more
conflicting medical opinions--each of which constitutes
substantial evidence--and elects to rely upon one opinion rather
than the other, we will affirm the Board_s decision. See Delaney
v. Alaska Airlines, 693 P.2d 859, 863-65 (Alaska 1985), overruled
on other grounds by Wade v. Anchorage Sch. Dist., 741 P.2d 634,
638-39 (Alaska 1987); Whaley v. Alaska Workers_ Compensation Bd.,
648 P.2d 955, 958-59 (Alaska 1982); cf. Hester v. Public
Employees_ Retirement Bd., 817 P.2d 472, 477 (Alaska 1991)
(declining to interfere with the Public Employees' Retirement
Board's weighing of conflicting medical opinion in a disability
In order to claim that Dr. Voke_s opinion does not
constitute substantial evidence, Construction & Rigging puts a
peculiar twist on the eligibility standards for reemployment
benefits. These statutory criteria state the form that medical
opinions must take:
An employee shall be eligible for
benefits under this section upon the
employee_s written request and by having a
physician predict that the employee will have
permanent physical capacities that are less
than the physical demands of the employee_s
job as described in the United States
Department of Labor_s "Selected
Characteristics of Occupations Defined in the
Dictionary of Occupational Titles". . . .
AS 23.30.041(e) (emphasis added). Subparagraph (p)(4) defines
"physical capacities" as "objective and measurable physical
traits." AS 23.30.041(p)(4) (emphasis added). Construction &
Rigging takes this definition and elevates it to a requirement
that, where an "objective"test has been performed, a physician_s
opinion must conform to the results, or else have the support of
another "objective" test. Because Dr. Voke refused to find
Yahara fit to return to work, despite the BEAR results,
Construction & Rigging argues that Dr. Voke breached AS
23.30.041(e) and (p)(4), and that the R.B.A. and the Board should
not have accepted his opinion as substantial evidence.
Because the issue to be resolved depends upon statutory
interpretation, we shall independently consider the meaning of
the statute. Hood v. State, Workmen_s Compensation Bd., 574 P.2d
811, 813 (Alaska 1978). In doing so we look to "the language of
the statute construed in light of the purpose of its enactment."
J & L Diversified Enter. v. Municipality of Anchorage, 736 P.2d
349, 351 (Alaska 1987). We will neither modify nor extend a
statute if its language is unambiguous and expresses the
legislature_s intent, and if its legislative history reveals no
ambiguity. Alaska Public Employees Ass_n v. City of Fairbanks,
753 P.2d 725, 727 (Alaska 1988).
Under the express language of AS 23.30.041(e), medical
evidence of eligibility must satisfy three requirements. First,
the evidence must take the form of a prediction. Second, the
person making the prediction must be a physician. Third, the
prediction must compare the physical demands of the employee_s
job, as the U.S. Department of Labor describes them, with the
employee_s physical capacities. AS 23.30.041(e).
The definition of "physical capacities"as "objective
and measurable physical traits," AS 23.30.041(p)(4), simply
demands that they be capable of measurement. While these
provisions prevent a physician from creating "capacities"out of
thin air, they do not require her to interpret a test result in
only one way, nor do they prevent her from disagreeing with other
professionals about the meaning of test results. The language of
this provision is clear on its face, and legislative history
reveals no contrary reading or ambiguity.4
Applying these rules, the R.B.A. properly relied on Dr.
Voke_s opinion. What Construction & Rigging holds out as the
"objective" results of the BEAR program are not the numbers
themselves but rather Ms. Sakata_s and Dr. Horning_s analyses of
them. Because Ms. Sakata is a nurse/occupational therapist, her
report does not satisfy the requirement that a physician make the
prediction. Dr. Horning_s report, while classifying Yahara_s
work level as "heavy,"does not explicitly predict that Yahara_s
physical capacities met or exceeded the physical demands of his
job. Only Dr. Voke_s opinion meets the demands of the statute.
Even if Dr. Horning_s opinion met the statutory
requirements of AS 23.30.041(e), the R.B.A. had the discretion to
weigh Dr. Voke_s opinion more heavily. See Whaley v. Alaska
Workers_ Compensation Bd., 648 P.2d 955, 958-59 (Alaska 1982).
As the Board correctly stated, the R.B.A. could reasonably infer
that in forming an opinion, Dr. Voke relied on his own training,
experience, and knowledge of Yahara_s condition. The Board_s
refusal to reweigh the evidence was thus a proper application of
the substantial evidence test.
The decision of the superior court is REVERSED.
1. Alaska Statute 23.30.041(c) provides:
If an employee suffers a
compensable injury that may permanently
preclude an employee_s return to the
employee_s occupation at the time of injury,
the employee or employer may request an
eligibility evaluation for reemployment
benefits. . . . The [Reemployment Benefits]
[A]dministrator shall, on a rotating and
geographic basis, select a rehabilitation
specialist from the list maintained under
(b)(6) of this section to perform the
2. When predicting whether a job_s physical demands exceed
an employee_s physical capacities for the purpose of determining
an employee_s eligibility for reemployment benefits, a physician
must use the descriptions of physical demands provided in the
U.S. Department of Labor_s "Selected Characteristics of
Occupations Defined in the Dictionary of Occupational Titles."
See AS 23.30.041(e).
3. While the case was pending in superior court, in Kirby
v. Alaska Treatment Ctr., 821 P.2d 127, 129 (Alaska 1991), we
held that the presumption of compensability, AS 23.30.120(a)(1),
applied to claims for vocational rehabilitation. On rehearing,
Judge Mannheimer found that Yahara had submitted evidence
sufficient to raise the presumption. However, Judge Mannheimer
concluded that Construction & Rigging successfully rebutted the
presumption, and that subsequently Yahara failed to prove his
case by a preponderance of the evidence.
Yahara appeals this finding. However, we need not
reach this matter, because we find Dr. Voke's opinion to be
substantial evidence supporting the R.B.A.'s decision. See Part
III infra. Under these circumstances, no issue regarding the
presumption of compensability arises.
4. Construction & Rigging tries to support its reading of
the statute with a discussion of the legislature_s efforts to
reduce litigation in workers_ compensation cases, as reflected in
the 1988 revisions of the Workers_ Compensation Act, ch. 79, SLA
1988. However, this legislative history concerns provisions of
the Act that are wholly unrelated to this case. Construction &
Rigging offers no legislative history concerning the definition
of "physical capacities"under AS 23.30.041(p)(4).