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Dwight v. Humana Hospital et al (7/8/94), 876 P 2d 1114
NOTICE: This is subject to formal correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
THE SUPREME COURT OF THE STATE OF ALASKA
TONYA DWIGHT, )
) Supreme Court No. S-5635
) Superior Court No.
v. ) 3AN-90-9985 CI
HUMANA HOSPITAL ALASKA, )
TRAVELERS INDEMNITY CO., and )
THE ALASKA WORKERS' )
COMPENSATION BOARD, ) O P I N I O N
Appellees. ) [No. 4104 - July 8, 1994]
Appeal from the Alaska Workers'
Compensation Board and the Superior Court of
the State of Alaska, Third Judicial District,
Mark C. Rowland,
Appearances: William J. Soule, Law
Office of William J. Soule, Anchorage, for
Appellant. Monica Jenicek, Stone, Waller &
Jenicek, Anchorage, for Appellees.
Before: Moore, Chief Justice,
Rabinowitz, Matthews and Compton, Justices,
and Bryner, Justice pro tem.*
This case involves the Alaska Workers' Compensation
Board's determination that an injured employee (1) was not
entitled to disability benefits because she had not proved by a
preponderance of the evidence that her injury was compensable,
and (2) had waived her right to a second independent medical
evaluation under AS 23.30.095(k). The superior court affirmed
the Board's decision, and the employee appeals. We affirm the
superior court's decision that the employer effectively rebutted
the presumption of compensability. We reverse and remand the
superior court's decision that the employee had waived her right
to an independent medical evaluation.
I. FACTUAL AND PROCEDURAL BACKGROUND
Tonya Dwight became employed as a secretary/clerk at
Humana Hospital Alaska (Humana1) in 1981. While working in the
radiology department, she was exposed to Staphene, a "chemical
disinfectant spray and air sanitizer"that is commonly used in
medical environments and was used daily at Humana Hospital. She
filed a claim following her most recent untoward incident of
exposure in December 1988. Dwight has not returned to work at
Humana since that time. She alleges that she has become
hypersensitive to cleaners and other chemicals.
In deciding this case, the Alaska Workers' Compensation
Board (Board) considered the December 1988 exposure as well as
three prior incidents of exposure resulting in illness.
A. The First Exposure -- April 1987.
On April 17, 1987,2 a hospital worker used Staphene to
cleanse the air of cigarette smoke in a hospital lounge. Dwight
complained of numbness and tingling in her mouth, lips and
tongue. She called the emergency room (E.R.) and was told to
take Benadryl, which she did. However, she did not seek medical
attention until April 20-21, when she presented to the E.R. at
Humana with hives. The treating physicians concluded that Dwight
was experiencing an allergic reaction to Keflex, a drug which she
had been taking for a sinus infection.3
B. The Second Exposure -- November 1987.
On November 2, 1987, a janitor used Staphene when
cleaning up vomit at the hospital. Dwight complained of chest
tightness, shortness of breath, wheezing and a hoarse voice. She
sought medical attention the next day. Her family doctor, Mary
Ann Foland, M.D., did not find anything wrong with Dwight's ears,
nose, throat or chest, nor did she find hives. Dr. Foland
concluded that the illness was a "probable allergy to Staphene."
Dwight was sporadically absent from work for two weeks.
On November 16, Dwight complained of bronchitis. She
consulted James T. Scully, M.D., who found some evidence of
bronchitis, but suggested that Dwight gradually return to work
within two weeks. Dr. Scully indicated a possible link between
the illness and exposure to Staphene.
C. The Third Exposure -- April 1988.
On March 31, 1988, Dwight was exposed to Staphene which
had adhered to her supervisor's clothing. She complained of
shortness of breath, swelling of her face, tongue, throat and
joints, as well as bronchitis. She did not complain of hives.
Dwight did not seek medical attention at the time. On April 5,
Dwight saw Dr. Scully, who found her ears, nose and throat to be
clear. He did not note any swelling of the face.
In October 1988 Dwight was transferred from radiology
to the accounting department, a non-medical area of the hospital,
in an attempt to avoid Staphene exposure.
D. The Fourth Exposure -- December 1988.
On December 5, 1988, Dwight was exposed to Staphene
which was used as an air freshener in a bathroom at the hospital.
She complained of wheezing, a rash and swelling of her hands and
feet. She presented to the E.R. that day. The attending
physician indicated that her symptoms were possibly the result of
an allergic reaction to Staphene. This is the most recent
incident of exposure.
On December 6 Dwight consulted Dr. Scully. He found
that she had suffered an allergic reaction, but that her rash had
cleared up and she could return to work on December 8. On
December 7 Dwight consulted Dr. Foland, who also found that
Dwight had a clear chest and no rash, and that Dwight could
return to work within two weeks.
E. Post-Exposure Examinations.
Dwight has since consulted Buffington B. Burtis, M.D.,
who concluded that Dwight's four illnesses indicated a
hypersensitivity to Staphene that was life-threatening and
Abba I. Terr, M.D., examined Dwight at Humana's
request. Dr. Terr concluded that Dwight's April 1987 illness was
caused by an allergic reaction to Keflex. He concluded that
Dwight's subsequent illnesses were not caused by Staphene
exposure, but were anxiety-related.
F. Proceedings Before the Board.
After Dwight's fourth exposure to Staphene, she
reported the illness to Humana. It began paying her medical
benefits and temporary total disability (TTD) benefits. Shortly
thereafter, Humana terminated the TTD benefits, noting that
Dwight's disability had ended on January 1, 1989. Based on a
note from Dr. Foland, Humana reinstated TTD benefits. However,
Humana controverted the TTD benefits as of January 184 based on
Dr. Foland's opinion that Dwight was medically stable and its
belief that Dwight could work where there was no Staphene
Dwight adjusted her claim to include TTD or PTD
(permanent total disability) payments from January 19, attorney's
fees, costs and interest. Dwight did not request a second
independent medical evaluation (SIME) under AS 23.30.095(k) at
this time. The Board conducted a hearing in September 1990.
Shortly thereafter, Dwight sought to admit affidavits of two co-
workers. Humana objected.
The Board's Decision and Order of October 31, 1990
noted that although Dwight had demonstrated a preliminary link
between her illnesses and job-related exposures to Staphene,
Humana had shown substantial evidence to overcome the presumption
of compensability. The Board concluded that the first reaction
was an allergic reaction to Keflex, and that the other reactions
were not anaphylactic reactions to Staphene. Because Dwight
could not prove by a preponderance of the evidence that her
illnesses were work-related, the Board dismissed the claim.5
Dwight petitioned the Board for rehearing and
modification based on new evidence: two physicians' opinions that
Dwight's illnesses were work-related. Dwight later amended her
petition to include the Board's failure to conduct a SIME as
required by AS 23.30.095(k).
Dwight also appealed to the superior court, Alaska R.
App. P. 210(e), arguing that the Board erred by not admitting the
supplemental affidavits of the co-workers. Dwight voluntarily
stayed this appeal pending her above petition for rehearing and
The Board's Decision and Order of April 10, 1992 denied
the motion for rehearing as untimely, refused to hear the new
evidence, and held that Dwight had waived her right to assert a
violation of AS 23.30.095(k). Dwight appealed this decision to
the superior court.
G. Proceedings in the Superior Court.
Both of Dwight's appeals were consolidated in the
superior court, which affirmed the Board. The superior court
concluded that the Board had not erred in refusing to rehear the
case. It specifically concluded that Dwight had waived any claim
based on AS 23.30.095(k). Dwight appeals. AS 22.05.010; AS
A. AS 23.30.120(a) -- The Presumption of Compensability.
Alaska Statute 23.30.120(a) provides in part:
Presumptions. (a) In a proceeding for
the enforcement of a claim for compensation
under this chapter it is presumed, in the
absence of substantial evidence to the
(1) the claim comes within the
provisions of this chapter . . . .
The Board found that although Dwight had established a
preliminary link between her illness and her employment, Humana
overcame the presumption of compensability. See Veco, Inc. v.
Wolfer, 693 P.2d 865, 872 (Alaska 1985). Dwight argues that
there was insufficient evidence to overcome the presumption under
this court's decision in Grainger v. Alaska Workers' Compensation
Board, 805 P.2d 976 (Alaska 1991). In Grainger, we held that to
overcome the presumption of compensability, an employer must
present substantial evidence6 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 will not affirm a Board decision where we
"'cannot conscientiously find that the evidence supporting the
decision is substantial.'" Id. at 979 (quoting Delaney v. Alaska
Airlines, 693 P.2d 859, 864 n.2 (Alaska 1985)); see also Black v.
Universal Servs., Inc., 627 P.2d 1073, 1076 (Alaska 1981) ("While
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 supporting evidence.")
Humana points to the "numerous factors"cited by the
Board as substantial evidence rebutting the presumption of
compensability: (1) evidence that Dwight's April 1987 illness was
the result of an allergic reaction to Keflex; (2) Dr. Williams'
opinion that Dwight may have mistaken her Keflex allergy for a
Staphene allergy; (3) Dwight's delays in seeking medical
attention for "life-threatening"anaphylactoid reactions; (4) the
opinion of Dr. Hemry, an allergy specialist, who was "not
convinced" that Dwight's illnesses were caused by Staphene
exposure; (5) a determination that Dr. Terr was more qualified
than Dr. Burtis; (6) a determination that Dr. Terr's procedure in
this case was more accurate and accepted than that of Dr. Burtis;
(7) Dr. Terr's opinion that if Dwight were allergic to often-used
Staphene, it is unlikely that she would suffer only four
reactions in ten years of employment; and (8) the fact that the
Board was presented with more than Dr. Terr's opinion: the
treatment and evaluation records of six specialists other than
Drs. Burtis and Terr, as well as Dwight's family physician and
certain E.R. physicians.
Dwight responds that the evidence upon which the Board
relied was not substantial for the following reasons:7 (1) only
Dr. Terr's opinion conclusively negated the possibility of
Staphene exposure; (2) Dr. Terr's opinion did not present a
likely alternative;8 (3) there was no evidence that Dwight
ingested Keflex at any time after December 1988; (4) the Board
overstated Dr. Hemry's opinion that Dwight's illness was not
caused by Staphene; (5) Dwight suffered symptoms in April 1987
that were inconsistent with an allergic reaction to Keflex,
thereby suggesting that she was also suffering from exposure to
Staphene; (6) Dr. Williams noted the possibility of an allergy to
Staphene in relation to the April 1987 exposure; (7) the Board
found certain delays on Dwight's part in seeking treatment to be
inconsistent with an anaphylactoid reaction to Staphene, but
Humana did not present evidence showing that Staphene exposure
necessarily resulted in anaphylactoid reactions; (8) the Board
ignored Dr. Burtis' opinion that the illnesses were caused by
exposure to Staphene notwithstanding her ten years' work in the
hospital environment where Staphene was regularly used; (9) there
was evidence that Dwight did not have a mental disorder or
anxiety; and (10) the Board focused on Staphene exposures prior
to that of December 1988, which was the exposure at issue.
We hold that Humana presented substantial evidence in
support of its position on the issue of compensability, i.e.,
evidence that a reasonable mind might accept as adequate to
support the conclusion that Dwight's illnesses were not work-
related. See Grainger, 805 P.2d at 977 n.1. Accordingly, the
Board properly concluded that Humana had rebutted the presumption
B. AS 23.30.095(k) -- The Second Independent
Alaska Statute 23.30.095(k) provides in part:
In the event of a medical dispute
regarding determinations of causation,
medical stability, ability to enter a
reemployment plan, degree of impairment,
functional capacity, the amount and efficacy
of the continuance or necessity of treatment,
or compensability between the employee's
attending physician and the employer's
independent medical evaluation, a second
independent medical evaluation shall be
conducted by a physician or physicians
selected by the board from a list established
and maintained by the board. The cost of the
examination and medical report shall be paid
by the employer. . . .
(Emphasis added). At the time of the September 1990 hearing
there was a conflict between Dr. Burtis' opinion that Dwight "has
a very severe hypersensitivity to the ingredients of Staphene . .
. [and] should not return to work,"on the one hand, and Dr.
Terr's opinion that Dwight's illnesses resulted from anxiety and
an allergy to Keflex, both of which were unrelated to her
employment at Humana, on the other.
Dwight argues that because there was such a "medical
dispute" the Board was required to order a SIME, or in the
alternative, was required to inform Dwight of her right to a
SIME. She bases this claim on the mandatory language of section
095(k). Humana responds that the Board was not required to order
the SIME unless either of the parties requested it. In this case
they did not do so, thereby waiving their right to a SIME.
At the outset, we reject Humana's argument. The
statute plainly does not provide that only the parties may
request the SIME. We also reject Dwight's argument that the
Board was required to order a SIME. The superior court correctly
opined that it was not the legislature's intent to require a SIME
every time the Board was presented with conflicting evidence:
The meaning urged upon this Court
by [Dwight] would require the Board to
appoint a physician at the expense of the
employer every time there was disagreement in
the evidence with regard to any of the issues
set forth in [AS 23.30.095(k)]. According to
[Dwight], this is mandated without regard to
the Board's opinion as to its desirability or
necessity, or any other attendant
That such exams are expensive is
well understood. That this economic burden
was intended by the legislature to be
automatically passed to the private sector
and the ultimate consumer of goods and
services [via the employer] when such exam is
unnecessary to the proper performance of the
Board's responsibilities seems more than
Some dispute -- in the general sense -- will usually exist
between an employer's physician and an employee's physician in
any workers' compensation case that is contested before the
Board. There is no evidence that the legislature intended that a
SIME occur in every such case.
Nonetheless, we agree with Dwight's alternative "record
waiver" argument. We hold that (1) in every case the Board is
required to give the parties notice of their right to request and
obtain a SIME under AS 23.30.095(k) in the event of a medical
dispute9; (2) if a party requests a SIME the Board must
order a SIME; and (3) in the event of a medical dispute, the
Board on its own can order a SIME.
This "record waiver" interpretation contains a
"gatekeeper"device; not every instance of dispute will prompt a
SIME. This addresses the efficiency and economy concerns
expressed by the Board and superior court in this case. The
Board can acknowledge that there is conflict in the medical
evidence, yet decline to order a SIME. However, it must inform
the parties of such action and honor the parties' requests for a
Furthermore, this interpretation is consistent with our
decision in Richard v. Fireman's Fund Insurance. Co., 384 P.2d
445, 449 (Alaska 1963): "[A] workmen's compensation board . . .
owes to every applicant for compensation the duty of fully
advising him as to all the real facts which bear upon his
condition and his right to compensation, . . . and of instructing
him on how to pursue that right under the law."
Humana argues that even if the Board should have
informed the parties of their right to a SIME, its failure to do
so was harmless error. We disagree. The Board's error was a
violation of a statutory duty mandatory in form. We cannot say
with confidence that if the statutory command had been followed
the Board's decision would not have been different. See Love v.
State, 457 P.2d 622, 631 (Alaska 1969); Howarth v. Pfeifer, 423
P.2d 680, 684 (Alaska 1967).
Dwight has thus persuaded us that the Board's failure
to inform her of her right to a SIME deprived her of "the
opportunity to have an impartial evaluator review the available
medical records, perform additional diagnostics if medically
indicated, and physically examine [her] to either corroborate or
weaken the respective opinions of the disagreeing doctors." The
unpredictable outcome of this examination is immaterial. Given
the equivocal evidence from the E.R.s and treating physicians,
the SIME could have influenced (1) the Board's decision in this
case (i.e., that Humana had overcome the presumption of
compensability), (2) Humana's continuing denial of the claim, or
(3) Dwight's pursuit of the claim. Humana has not persuaded us
otherwise. Accordingly, we reverse the decisions of the Board
and superior court.
C. The Board's Refusal to Modify its Decision.
Dwight petitioned for rehearing and modification of the
Board's October 1990 decision based on new evidence pursuant to
AS 23.30.130(a).11 Because we remand this case, the rehearing
issue is rendered moot.
We hold that Humana rebutted by substantial evidence
the presumption of compensability created by AS 23.30.120(a).
However, the Board erred in not ordering a second independent
medical examination or informing Dwight of her right to such an
examination pursuant to AS 23.30.095(k). Accordingly, we AFFIRM
in part and REVERSE and REMAND in part for proceedings consistent
with this opinion.
*Sitting by assignment made pursuant to article IV, section
16 of the Alaska Constitution.
1 Where appropriate, "Humana"refers to both Humana
Hospital and its workers' compensation insurance carrier,
Travelers Indemnity Co.
2 This incident occurred six years after Dwight began
working at Humana. Dwight had previously had "frequent exposure"
to Staphene without problems.
3 David Williams, M.D., had prescribed the Keflex on
April 13. There is no indication that Dwight was taking Keflex
at any other time relevant to this case.
Dwight filed an occurrence report alleging that her
symptoms had been caused by exposure to Staphene at work. Humana
controverted the claim based on the opinion of Dr. David
Williams, that Dwight had mistakenly attributed her allergic
reaction to Keflex to her exposure to Staphene.
4 Humana continued to pay TTD benefits from 2/3/89 to
11/23/89 under a "Reservation of Right."
5 Dwight correctly notes that the Board based its
conclusion in part on Keyes v. Reeve Aleutian Airways, No. 85-
0132 (Alaska Workers' Compensation Board November 8, 1985), which
this court overruled in Olsen v. A.I.C./Martin J.V., 818 P.2d 669
(Alaska 1991). However, a second independent basis for the
Board's decision was the conclusion that Humana rebutted the
presumption of compensability. This second conclusion is
undisturbed by Olsen.
6 See AS 23.30.120(a). We independently review evidence
to determine if it was "substantial." Grainger, 805 P.2d at 977
n.1. Furthermore, we define "substantial evidence" as "'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 (Alaska 1976) (quoting Thornton v.
Alaska Workmen's Compensation Board, 411 P.2d 209, 210 (Alaska
Moreover, because the superior court acted as an
intermediate appellate court, we do not give deference to its
decision. National Bank of Alaska v. State, Dep't of Revenue,
642 P.2d 811, 816 (Alaska 1982).
7 Dwight argues that "[a]ny doubts as to the medical
evidence must be resolved in employee's favor." This is
incorrect. In Kessick v. Alyeska Pipeline Service Co., 617 P.2d
755 (Alaska 1980), we decided that "in the absence of any
competent contradictory medical evidence . . . inconclusive
medical testimony is to be resolved in favor of the claimant."
Id. at 757 n.3, 758. Where, as here, there is contradicting
medical evidence, there is no need to resolve ambiguity in
8 Dr. Terr concluded that Keflex caused the first
reaction and hinted that the others were anxiety-related. He did
not make a conclusion as to an alternative cause of the other
9 At this time, each party can either request the SIME or
enter into the record a clear waiver of the right to a SIME.
10 Because the SIME is independent, both parties face the
risk of receiving an unfavorable report. There is little
incentive for overuse of the SIME because employees must submit
to the examination and employers must pay for the examination.
At oral argument in this case, Dwight's counsel advised
the court that the Board has recently amended its forms to advise
parties of their right to a SIME, directing them to request or
waive the SIME. This revised form does not appear in the record.
11 AS 23.30.130(a) provides in part:
[u]pon the application of any party in
interest on the ground of a change in
conditions, . . . the board may . . . review
a compensation case . . . . [T]he board may
issue a new compensation order which
terminates, continues, reinstates, increases,
or decreases the compensation, or award
We review requests for modification under AS 23.30.130
per the substantial evidence standard. Interior Paint Co. v.
Rodgers, 522 P.2d 164, 169-70 (Alaska 1974). Nonetheless, we
caution that "a reopening will not be permitted only to let one
contestant cumulate more evidence on his side of a dispute." 3
Arthur Larson, The Law of Workmen's Compensation 81.52(b), 15-
1150 to 1151 (1992) (footnote omitted).