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Gillispie v. B & B Foodland (9/30/94), 881 P 2d 1106
Notice: This opinion 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
DIANA J. GILLISPIE, )
) Supreme Court No. S-5657
) Superior Court No.
v. ) 3AN-92-1994 Civil
B & B FOODLAND, ) O P I N I O N
Appellee. ) [No. 4125 - September 30,
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Charles K. Cranston,
Appearances: Charles W. Coe, Anchorage,
for Appellant. Robert L. Griffin, Mason &
Griffin, Anchorage, for Appellee.
Before: Moore, Chief Justice,
Rabinowitz, Matthews and Compton, Justices,
and Bryner, Justice, pro tem.*
MOORE, Chief Justice.
Appellant Diana Gillispie filed an Application for
Adjustment of Claim before the Alaska Workers' Compensation Board
(the "Board") for back injuries allegedly arising out of three
work-related incidents. Her employer, B & B Foodland ("B&B"),
controverted the claim. Following a hearing, the Board issued a
decision denying and dismissing Gillispie's claim. The Board
concluded that B&B had rebutted the presumption of compensability
with substantial evidence and that Gillispie had failed to
establish the compensability of her claim by a preponderance of
the evidence. Gillispie appealed to the superior court, which
affirmed. She then appealed to this court. We now affirm the
Board's decision denying Gillispie's claim.
FACTS AND PROCEEDINGS
Gillispie was employed as a cashier by B&B in Soldotna
from January 1990 until the fall of the same year. She alleges
that she injured her back on several occasions during her
employment with B&B.
The first of these injuries occurred on February 2,
1990, when she allegedly twisted her back while stocking shelves.
As a result of the incident, Gillispie was off work until August.
She received temporary total disability (TTD) payments during
this time. The second alleged injury occurred on September 2,
1990, shortly after her return to work. She missed one week of
work after this incident. She did not receive compensation
during this period. Finally in November, she again alleged that
she had injured her back.1 Gillispie has not returned to work
since this injury. Following the November injury, Gillispie
received five days of TTD benefits.
On December 5, 1990, B&B controverted her claim.
Gillispie then sought a hearing before the Alaska Workers'
Compensation Board requesting TTD and medical benefits. At the
hearing, the following evidence was adduced:
(1) On December 20, 1990, a CAT scan revealed that
Gillispie suffered from a ruptured lumbar disc at the L5-S1 level
on her right side. Dr. Reinbold, an orthopedic surgeon, later
confirmed this diagnosis following a physical examination
accompanied by a battery of tests. He recommended surgery to
alleviate the problem.
(2) Two physicians, Drs. Christine and Donald
Peterson, were employed by B&B's insurance carrier to conduct
further tests aimed at determining whether such surgery was
necessary and whether Gillispie was feigning her injury. The
physicians conducted a physical examination of Gillispie and
reviewed her prior medical records. These records indicated
several prior treatments (including the use of narcotic
medications) for recurring lower back pain during the period 1984
to 1989. The physical examination consisted in part of several
tests designed to reveal whether Gillispie was giving false
positive responses to pain. Gillispie gave one false positive
response during the testing. The physicians also conducted one
test which would be indicative of a herniated disc, which was
positive. Based upon their examination, the doctors concluded:
It is not entirely clear that Mrs.
Gillispie had objective low back injury
either before or after the 2/90 incident. It
is entirely probable that Mrs. Gillispie used
lumbar complaints as a way of obtaining
narcotic medications and muscle relaxants. .
. . . .
In my opinion, her multiple complaints
and reported injuries are largely subordinate
to and a part of this drug seeking behavior.
There is no evidence of a new significant
injury to the lumbar spine.
Based upon these findings, the physicians opposed surgery. In
addition, both physicians questioned the significance of the CAT
scan and testified that the incidents at B&B were not substantial
or significant factors in bringing about her condition.
(3) Gillispie's treating physician, Dr. Davidhizar,
also opposed surgery. He stated that "I have reviewed the CAT
scan report which indicates some mild bulging . . . , but no
obvious indications that this is causing the patient's
discomfort." He further suggested that "she may have had that
disc for years." He also testified that the bulge on the CAT
scan was of no clinical significance and that, following the
incidents at B&B, Gillispie returned to her pre-existing
condition that Davidhizar had been treating for the previous
several years. Finally, he also informed Dr. Reinbold that "I'm
not sure she's a real good candidate for surgery. . . . She's
sure heavy into drugs."
(4) On March 20, 1991, Dr. Reinbold proceeded with the
surgery. Regarding the surgery, he testified:
We opened her back, and we looked, and
we retracted her S1 nerve root and dura, and
there was an underlying disc protrusion.
There was no evidence of a frank rupture of
the posterior longitudinal . . . ligament,
and no evidence of free fragment. But she .
. . did have a disc popped up, not -- not
real impressive, but it was there.
Dr. Reinbold further testified that the disc was pressing against
a nerve. However, he also noted that, while the incidents at B&B
could have caused her condition, he felt that her falls were
(5) Dr. Reinbold, based upon his observations during
the March 1991 surgery, concluded that the disc injury was
relatively recent. "Well, it wasn't . . . really old like three
to five years. It would have been within the last year or two.
Yeah, you can tell that." However, he could not definitively
determine when the ruptured disc occurred.
(6) Gillispie's extensive medical record included
several neurological and physiological tests from 1984 to 1989
relating to her back pain. During this period, Gillispie
underwent eight "straight leg raise" tests, which could be
indicative of a ruptured or herniated disc. Five of these tests
were negative. The first positive test occurred on July 20,
1984. However, a neurological examination four days later was
negative. In addition, a second follow up examination a week
later was likewise negative. The second positive test occurred
on March 28, 1989. A retest six days later resulted in the third
positive result, although the result of this test was only
"questionably positive." Three days later, a third straight leg
raise test was given, with a negative result. A follow up
neurological examination a week later was also negative.
(7) In May 1989, Gillispie was examined for the last
time prior to her employment with B&B. Gillispie went to the
emergency room at Central Peninsula Hospital complaining of lower
back pain. Dr. Cooper, the examining physician, testified that
nothing in her medical history or his examination of her led him
to believe that she had a herniated disc at that time. Based
upon his examination, he concluded that Gillispie most likely
developed her injury later. However, he also testified that it
was possible that Gillispie's disc injury predated his
examination of her.
(8) On October 26, 1989, prior to her employment with
B&B, Gillispie filed an application for public assistance with
the State of Alaska. In this application, she stated that she
"has a pinched nerve in lower back which has caused nerve damage
(9) Immediately prior to starting work with B&B,
Gillispie completed a pre-hiring physical condition
questionnaire. She filled out a similar, post-hiring
questionnaire subsequent to her hiring. On both of these
questionnaires, Gillispie indicated that she did not have, and
had never been treated for, back problems.
On February 4, 1992, the Board rendered its decision.
The board found that Gillispie had established a preliminary link
between her injury and her employment at B&B. Thus, the
presumption of compensability attached. However, the Board
concluded that B&B had rebutted the presumption with substantial
evidence. The Board further held that Gillispie had failed to
establish her claim by a preponderance of the evidence. Thus,
the Board denied her claim. Gillispie appealed this
determination to the superior court, which affirmed. This appeal
1. The Presumption of Compensability
Alaska Statutes section 23.30.120(a) provides that
"[i]n a proceeding for the enforcement of a claim for
compensation under this chapter it is presumed, in the absence of
substantial evidence to the contrary, that (1) the claim comes
within the provisions of this chapter." This presumption of
compensability extends to the existence and the work relationship
of the disability. Wien Air Alaska v. Kramer, 807 P.2d 471, 473-
74 (Alaska 1991).
For the presumption to attach, the employee must
establish a preliminary link between his or her employment and
the injury. Burgess Constr. Co. v. Smallwood, 623 P.2d 312, 316
(Alaska 1981). This threshold showing is minimal and requires
only that the employee offer "some evidence"that the claim arose
out of his or her employment. Robinett v. Enserch Alaska
Constr., 804 P.2d 725, 728 (Alaska 1990).
In the present case, the Board held that Gillispie had
established the preliminary link between her injury and her
employment necessary for the presumption to attach. The Board
relied on Gillispie's testimony that she was injured at work, as
well as the medical testimony of Drs. Reinbold and Cooper. B&B
does not dispute this finding.
2. Rebutting the Presumption of Compensability
As provided in AS 23.30.120(a), to overcome the
presumption of compensability, the employer must present
substantial evidence that the injury in question is not work-
related.2 See, e.g., Miller v. ITT Arctic Servs., 577 P.2d 1044,
1046 (Alaska 1978). Substantial evidence has been defined as
"such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion." Grainger v. Alaska Workers'
Comp. Bd., 805 P.2d 976, 977 n.1 (Alaska 1991) (citations
omitted). In Kessick v. Alyeska Pipeline Serv. Co., 617 P.2d
755, 757 (Alaska 1980), the court stated that "[i]t is not the
function of this court to reweigh the evidence but only to
determine whether such evidence exists."
This court has stated that there are two means by which
an employer may rebut the presumption. "[A]n employer can
overcome it by presenting 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."
Grainger, 805 P.2d at 977; see also Land & Marine Rental Co. v.
Rawls, 686 P.2d 1187, 1188 (Alaska 1984) (presumption rebutted by
substantial evidence which affirmatively shows that injury is not
work-related or which eliminates all reasonable possibilities
that injury is work-related). Since the presumption shifts only
the burden of production to the employer and not the burden of
proof, the evidence tending to rebut the presumption should be
examined by itself in determining whether substantial evidence
has been presented. Veco, Inc. v. Wolfer, 693 P.2d 865, 869
In the present case, the Board held that B&B had
presented substantial evidence establishing that the injury
complained of was not work-related. In reaching this conclusion,
the Board relied upon the testimony of Dr. Davidhizar,
Gillispie's personal physician, and Drs. Donald and Christine
Peterson, the two physicians employed by B&B's insurance carrier
to investigate Gillispie's claims. The superior court concurred
in this determination. We affirm the Board's finding that this
evidence was sufficient to rebut the presumption.
Dr. Davidhizar, by Gillispie's own admission, is the
physician who best knew her condition. He testified that the
incidents at B&B merely caused temporary aggravations of
Gillispie's prior back problems and that after each of the
injuries, she returned to her pre-existing condition that he had
been treating for the previous seven years. He also testified
that he did not feel that the herniation diagnosed by Dr.
Reinbold "was really a factor in her clinical symptoms," noting
that "she may have had that disc for years."
Likewise, Drs. Donald and Christine Peterson also
testified that they did not feel that the herniation revealed in
the CAT scan was clinically significant. In addition, both
suggested that Gillispie's complaints derived from and were
subordinate to her drug-seeking behavior. Most importantly, both
testified that the incidents at B&B were not substantial or
significant factors in bringing about her condition.3
In support of her argument that the presumption was not
rebutted, Gillispie relies on the statement in Childs v. Copper
Valley Electric Ass'n, 860 P.2d 1184, 1189 (Alaska 1993), that
"medical testimony cannot constitute substantial evidence if it
simply points to other possible causes of an employee's injury or
disability, without ruling out work-related causes." She argues
that none of the doctors whose testimony was relied upon by the
Board were able to definitively eliminate the possibility that
the incidents at B&B caused Gillispie's back injury.
Gillispie misconstrues the rule set forth in Childs.
In Childs, the employee sought workers' compensation benefits
claiming that his chronic breathing disorder was caused by work-
related smoke inhalation. Id. at 1186. The evidence presented
before the Board included the testimony of Dr. Lee Newman, who
had been hired by the employer to investigate the claim. Though
Dr. Newman was unable to "totally rule out a link between the
smoke inhalation incident and [the claimant's] continued
problems, he did not think that such a link was at all likely."
Id. at 1187.
In affirming the Board's conclusion that substantial
evidence had been offered to rebut the presumption, we addressed
the weight to be accorded Dr. Newman's testimony. We stated that
"the fact that Dr. Newman, like many medical professionals, did
not state his opinion in absolute terms does not mean that his
testimony was inconclusive or that he failed to exclude smoke
inhalation as a cause of [the claimant's] condition." Id. We
further noted that "[a]n employer has always been able to rebut
the presumption of compensability with an expert opinion that
'the claimant's work was probably not a substantial cause of the
disability.'" Id. (quoting Big K Grocery v. Gibson, 836 P.2d
941, 942 (Alaska 1992)).
In the present case, Drs. Peterson and Peterson both
testified that, in their opinion, the incidents at B&B were not
substantial factors in bringing about Gillispie's condition.
Moreover, Dr. Davidhizar testified that after each of the
incidents, Gillispie returned to her pre-existing condition which
Davidhizar had been treating for several years. This evidence
clearly constitutes "such relevant evidence as a reasonable mind
might accept as adequate" to support the conclusion that
Gillispie's injuries were not compensable. See Grainger, 805
P.2d at 977 n.1. Thus, the decision of the Board that B&B
rebutted the presumption of compensability with substantial
evidence is affirmed.4
3. Proving the Claim by a Preponderance of the Evidence
Once the employer produces substantial evidence to
rebut the presumption of compensability, the presumption vanishes
and the employee must prove the elements of his or her claim by a
preponderance of the evidence. Veco, 693 P.2d at 870. In
reviewing the Board's decision as to whether a claimant has
established his or her claim by a preponderance of the evidence,
we must determine whether the Board's findings are supported by
substantial evidence in light of the whole record. Delaney v.
Alaska Airlines, 693 P.2d 859, 863 (Alaska 1985), disapproved on
other grounds by Wade v. Anchorage School Dist., 741 P.2d 634,
639 (Alaska 1987); see also Resler v. Universal Servs., 778 P.2d
1146, 1149-50 (Alaska 1989) (holding Board's finding that
claimant failed to prove claim by preponderance of evidence to be
supported by substantial evidence).
In the present case, the Board concluded that Gillispie
failed to prove her claim by a preponderance of the evidence. In
so holding, the Board relied on the medical testimony of Drs.
Peterson, Peterson, and Davidhizar, as discussed above.
The court also noted that Gillispie herself was not a
reliable witness. In particular, the Board noted that Gillispie
had misrepresented her medical history on her employment
application health questionnaire, stating that she had never been
treated for back problems. The questionnaire also indicated that
Gillispie did not suffer from headaches and that she had never
been treated for mental illness. These assertions were also
false. Based on these misrepresentations, the court discounted
the testimony of Drs. Reinbold and Cooper to the extent they
relied on Gillispie's statements in reaching their conclusions.5
Indeed, Dr. Reinbold recognized the possibility that he would
reassess his conclusions regarding Gillispie's condition if it
were established that she had lied to him regarding the timing of
the onset of her back pain.
In addition, Dr. Reinbold, whose testimony Gillispie
principally relied upon to establish that her injury occurred as
a result of the incidents at B&B, testified that he could not
determine for certain when the ruptured disc occurred. More
importantly, Dr. Reinbold himself stated that, while any of the
falls at B&B could have caused Gillispie's injury, the three
falls were "probably insignificant. I mean, with a long history
like she had, what significance did those have?"
Based on the above evidence, we affirm the Board's
conclusion that Gillispie failed to establish the compensability
of her claim by a preponderance of the evidence. Clearly, the
Board's conclusion is supported by substantial evidence in light
of the whole record.
For the reasons outlined above, the Board's conclusion
that Gillispie's injuries were not compensable is AFFIRMED.
* Sitting by assignment made pursuant to article IV,
section 16 of the Alaska Constitution.
1 In October, prior to the third back injury, Ms.
Gillispie had also fallen and broken her wrist. She missed one
week of work as a result of this injury.
2 Whether substantial evidence has been presented to
rebut the presumption is a question of law, subject to
independent review by this court. Grainger v. Alaska Workers'
Comp. Bd., 805 P.2d 976, 977 (Alaska 1991).
3 Gillispie argues that the testimony of Drs. Peterson
and Peterson cannot constitute substantial evidence in light of
their limited examination of Gillispie. The doctors' evaluation
consisted of an interview with Gillispie, a review of her medical
history, and a thirty-minute physical examination.
In support of her argument, Gillispie relies on Black
v. Universal Serv. Co., 627 P.2d 1073 (Alaska 1981). In Black,
we held that the medical testimony of a doctor whose examination
consisted solely of a twenty-minute interview with the claimant
and a brief examination did not constitute substantial evidence.
Id. at 1075-76 and n.9. We based our holding on the fact that
the testimony in question stood alone in its conclusions and was
contrary to the testimony of the numerous physicians who had
actually treated the claimant. Id. at 1075.
In the present case, the Petersons' testimony does not
stand alone as evidence that Gillispie's injuries were not
compensable, nor does it contradict the testimony of Gillispie's
treating physician, Dr. Davidhizar. Thus, this case is more
analogous to Childs v. Copper Valley Electric Ass'n, 860 P.2d
1184, 1189-90 (Alaska 1993), in which we approved the Board's
partial reliance upon the medical testimony of a doctor who had
reviewed the claimant's medical records, but had not examined the
claimant. In Childs, we expressly noted that the doctor's
testimony did not stand alone and was in fact consistent with
other evidence presented. Id. at 1189.
4 Gillispie also relies on Rawls and Kessick, two cases
in which we concluded that the employer failed to present
substantial evidence to rebut the presumption. In both Rawls and
Kessick, the Board held the employee's claim not compensable. In
reaching this conclusion, the Board disregarded the only medical
testimony presented, on the grounds that the testimony was based
on information given to the treating doctor by the claimant, whom
the Board determined to be untrustworthy. Rawls, 686 P.2d at
1189; Kessick, 617 P.2d at 757-58. In reversing the Board's
decision in both cases, we found determinative the fact that the
evidence in question was the only competent medical testimony
presented. Rawls, 686 P.2d at 1190; Kessick, 617 P.2d at 758.
In the present case, however, substantial medical testimony was
offered indicating that Gillispie's injuries were not
compensable. Thus, Rawls and Kessick are clearly
5 Under AS 23.30.122, it is for the Board to determine
and weigh the credibility of witnesses.