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Anchorage v. Coffey (4/14/95), 893 P 2d 722
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, Alaska
99501, (907) 264-0607.
THE SUPREME COURT OF THE STATE OF ALASKA
MUNICIPALITY OF ANCHORAGE, )
POLICE AND FIRE RETIREMENT ) Supreme Court File No. S-6136
BOARD, ) Superior Court File No.
) 3AN-92-11506 Civil
LISA COFFEY, ) O P I N I O N
Appellee. ) [No. 4186 - April 14, 1995]
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Peter Michalski, Judge.
Appearances: Robert D. Klausner,
Klausner & Cohen, Hollywood, Florida and
Allan E. Tesche, Russell, Tesche & Wagg,
Anchorage, for Appellant. David W. Baranow,
Anchorage, for Appellee.
Before: Moore, Chief Justice,
Rabinowitz, Matthews, Compton and Eastaugh,
Lisa Coffey petitioned the Municipality of Anchorage
Police and Fire Retirement Board (Board) for permanent
occupational disability benefits under Plan III of Anchorage
Municipal Code (AMC) 3.85.230. The Board denied her claim and
awarded her non-occupational benefits under AMC 3.85.240. Ms.
Coffey appealed the Board's decision to the superior court. AS
22.10.020(d); Alaska R. Appellate P. 602. The superior court
reversed the Board's decision. It concluded that there was not
substantial evidence to support the Board's conclusion that Ms.
Coffey's disability was non-occupational. The Board appeals. We
affirm. II. FACTUAL AND PROCEDURAL BACKGROUND
A. FACTUAL BACKGROUND
Lisa Coffey was employed as a police officer and call
taker by the Municipality of Anchorage Police Department (APD)
for approximately six years. On January 1, 1990, she was
attempting to make an arrest. She was knocked down and kicked in
the left shoulder blade area by the arrestee. She was wearing a
three-to-four pound Kevlar protective vest when she was kicked.
Ms. Coffey sought treatment from Dr. James C. Emerson, a
chiropractor, for the injuries she sustained in this episode.
Although the parties do not agree when Dr. Emerson began treating
Ms. Coffey's left shoulder, Dr. Emerson's chiropractic records
from January 2, 1990 show that Dr. Emerson adjusted Ms. Coffey's
left hip and thoracic area, set her jaw, and took an x-ray of her
lumbar region the day after the accident.1 After four months of
treatment Dr. Emerson released Ms. Coffey to return to full duty.
After being released by Dr. Emerson, Ms. Coffey
returned to full duty until August of that year. During this
time she worked regular shifts for the APD with no medical
restrictions. She claims that she continued to experience
nagging minor symptoms in varying degrees during this period,
although there is no record of medical treatment. In August Ms.
Coffey reported to Dr. Denise Z. Anderson, her family physician,
that she had experienced pain and numbness in her left arm. Dr.
Anderson referred Ms. Coffey to Dr. Robert Fu, a physiatrist, for
testing. After evaluating Ms. Coffey's condition, Dr. Fu
diagnosed Ms. Coffey as suffering from thoracic outlet syndrome.
He recommended that Ms. Coffey change occupations.2
Ms. Coffey worked light duty in the training department
from September 1990 through December 1991. During this period
the physicians treating her never released her to return to full
duty. In December the APD terminated Ms. Coffey from her sworn
position as a patrol officer and rehired her in a non-sworn
position as a call taker. In September 1992, Ms. Coffey's
primary physician, Dr. Chang-Zern Hong, took her off this light-
duty work. He reasoned that her job duties, combined with the
stress of pressing her claim before the Board, rendered her
incapable of continuing to work as a call taker.
In addition to Doctors Emerson, Anderson, Fu, and Hong,
Ms. Coffey has consulted with at least thirteen other physicians
and health care providers.3 She conferred with many of these at
the request of the Board. In summarizing the testimony and
diagnoses given by these physicians and health care providers,
the Board's own physician, Lee Glass, J.D., M.D., stated that
virtually all of the physicians agreed that Ms. Coffey's current
complaints are secondary to trauma. Dr. Glass emphasized that
all of the physicians directly or by implication pointed to the
incident of January 1, 1990 as the cause of Ms. Coffey's chronic
pain complaints. Dr. Glass further remarked that no health care
provider had identified an alternative etiology for Ms. Coffey's
Although Ms. Coffey's medical history prior to January
1, 1990, is largely undisputed, it is significant because the
etiology of her disability is at issue. Most relevant to this
dispute are four injuries which Ms. Coffey sustained to her back
and neck prior to 1990: (1) in 1985 Ms. Coffey sustained a
strained right shoulder muscle in a physical training class; (2)
in 1986 she pulled a shoulder and neck muscle or nerve while
assisting an off-duty officer; (3) in 1987 she pulled a muscle on
the right side of her lower back while breaking up a fight; and
(4) in 1989 she experienced pain and limited movement of her
right shoulder after lifting a toilet bucket.
Ms. Coffey sought medical attention for these injuries
from both Dr. Emerson and Dr. Anderson.4 The Board specifically
notes the importance of three entries in Ms. Coffey's medical
history: (1) in 1987 Dr. Emerson recorded that Ms. Coffey was
complaining of pain under her right shoulder blade; (2) as early
as 1987 Dr. Anderson diagnosed Ms. Coffey with "mild myofascial
syndrome;" and (3) in 1989 Ms. Coffey sought treatment from Dr.
Anderson because she could not lift her arm and had difficulty
turning to the right.
B. PROCEDURAL HISTORY
On May 23, 1991 Ms. Coffey applied for permanent
occupational disability benefits under the Municipality of
Anchorage Police and Fire Retirement Plan III.5 The Board
awarded Ms. Coffey temporary occupational disability benefits.
After further investigation, the Board concluded that Ms. Coffey
had failed to prove by a preponderance of the evidence that her
disability was permanent. On this theory it denied permanent
disability benefits. Ms. Coffey appealed the Board's decision,
and under AMC 3.85.004(C)(1993) requested a formal administrative
At the conclusion of the formal administrative hearing
the Board reversed its prior ruling on the permanency of Ms.
Coffey's disability and concluded that she was permanently
disabled. However, the Board also found that Ms. Coffey had
failed to prove by a preponderance of the evidence that her
disability was occupationally related. The Board ordered that
Ms. Coffey receive permanent non-occupational disability
benefits. These benefits are significantly less than
occupational benefits. See AMC 3.85.230, 3.85.240 (1989).
Ms. Coffey appealed to the superior court the issue of
whether her disability was non-occupational. The superior court
reversed the Board's determination and ordered the Board to award
Ms. Coffey permanent occupational disability benefits. The Board
A. STANDARD OF REVIEW
We review the merits of the Board's administrative
determination de novo. When we review a decision of the superior
court sitting as an intermediate court of appeal, we give no
deference to the superior court's decision. Tesoro Alaska
Petroleum Co. v. Kenai Pipe Line Co., 746 P.2d 896, 903 (Alaska
There are four recognized standards employed to review
administrative decisions: "the `substantial evidence' test for
questions of fact; the `reasonable basis' test for questions of
law involving agency expertise; the `substitution of judgment'
test for questions of law where no expertise is involved; the
`reasonable and not arbitrary' test for review of administrative
regulations." Jager v. State, 537 P.2d 1100, 1107 n.23 (Alaska
Both parties and the superior court agree that this
case should be reviewed under the substantial evidence test. We
concur, because the only Board ruling at issue is its
determination concerning the etiology of Ms. Coffey's disability.
The question of whether Ms. Coffey's disability was the result of
an injury she received while making an arrest on January 1, 1990
is purely a question of fact.7 The substantial evidence test
requires this court to determine "whether there is substantial
evidence, in light of the whole record, such that a reasonable
mind might accept the board's decision." State, Pub. Employees
Retirement Bd. v. Cacioppo, 813 P.2d 679, 682-83 n.6 (Alaska
1991) (citing Delaney v. Alaska Airlines, 693 P.2d 859, 863
(Alaska 1985) overruled on other grounds, Wade v. Anchorage
School Dist., 741 P.2d 634, 638-39 (Alaska 1987)). When applying
the substantial evidence test the court does not independently
reweigh the evidence. Yahara v. Construction & Rigging, Inc.,
851 P.2d 69, 72 (Alaska 1993). The court should only determine
whether such evidence exists, and not choose between competing
inferences. Handley v. State, Dep't of Revenue, 838 P.2d 1231,
1233 (Alaska 1992); Interior Paint Co. v. Rodgers, 522 P.2d 164,
170 (Alaska 1974).
Whatever type of evidence is offered,
whether affirmative, negative or otherwise
relevant, the crucial question after
considering the whole record remains whether
the quantum of evidence is substantial enough
to support a conclusion in the contemplation
of a reasonable mind. The question whether
the quantum of evidence is substantial is a
Land & Marine Rental Co. v. Rawls, 686 P.2d 1187, 1188-89 (Alaska
1984) (citations omitted).
Therefore, if the Board is faced with
two or more conflicting medical opinions -
each of which constitutes substantial
evidence - and elects to rely on one opinion
rather than the other, we will affirm the
Yahara, 851 P.2d at 72.
B. THE BOARD'S RULING WAS NOT SUPPORTED BY
Under the Anchorage Municipal Code the Board must
"determine whether an occupational disability exists based upon
medical records and other evidence satisfactory to the Retirement
Board." AMC 3.85.230(B) (1989). The issue before this court is
whether there was substantial evidence upon which the Board could
have concluded that Ms. Coffey's injuries were not occupationally
Although the Board's ruling contradicts all of the
medical evidence presented at Ms. Coffey's hearing, the Board
asserts that its decision that Ms. Coffey's injury was not
occupationally related was based on substantial evidence. The
Board offers seven rationales for its decision not to award Ms.
Coffey occupational disability benefits. We address them
First, the Board argues that its decision was
substantially motivated by its belief that Ms. Coffey "simply was
not telling the truth." Its basis for this conclusion is Ms.
Coffey's admission that she never told any of the examining
physicians about her prior shoulder injuries.
Second, the Board argues that none of the physician's
diagnoses are reliable because they are all based on insufficient
evidence. The Board claims that Doctors Fu, Hong, and Rosomoff
had no knowledge of the toilet bowl incident for which Ms. Coffey
was hospitalized. It also avers that Dr. Hong testified that he
did not weigh prior possible causes when rendering his medical
opinion. The Board gives no record cite to substantiate these
claims. The closest it comes to identifying evidence supporting
its position is testimony by Ms. Coffey that she had not told any
of the examining physicians that she had been diagnosed with
myofascial pain syndrome in 1987. The Board omits the remainder
of Ms. Coffey's testimony in which she explains that until she
testified she had been unaware that in 1987 she had been
diagnosed with this condition.
The Board further emphasized Dr. Rosomoff's testimony,
which recognized that in making a diagnosis a physician is at the
mercy of what a patient tells him. Dr. Rosomoff actually
testified that he is at the mercy of what the patient tells him,
or of whatever medical records exist. Regardless of what Dr.
Rosomoff said, none of the physicians relied solely on Ms.
Coffey's description of her symptoms in creating their diagnoses.
They all used her medical records, independent testing, and
observations. At the time they examined Ms. Coffey all of the
physicians, except for the emergency room physicians, had access
to her medical records. Dr. Hong even testified that he may have
been aware of Dr. Anderson's 1987 diagnosis of myofascial pain
syndrome, and that he definitely knew that Ms. Coffey had
experienced other trauma previous to the January 1990 incident.
Similarly, Dr. Rosomoff clearly had Ms. Coffey's medical records
because he later noted that although she did not tell him that
she had fractured her arm, he was aware of this injury. Dr.
Rosomoff noted that there had been inconsistencies in the
descriptions Ms. Coffey gave to him, but that this was typical of
Third, the Board relied on a statement by Dr. Rosomoff
that myofascial pain syndrome can be hereditary, and thus need
not be caused by trauma. However, Dr. Rosomoff went on to
this depends entirely on Lisa Coffey's
testimony unless you have facts before you,
that I know nothing about, she tells me that
this began with her altercation, I have to
accept from there on out that all of the
sequence of events that followed, were due to
Dr. Rosomoff never testified that Ms. Coffey's injury was
hereditary. The only causal diagnosis he made linked her injury
to the January 1, 1990 injury.
Fourth, the Board focused on the three-to-four pound
Kevlar body armor which Ms. Coffey was wearing at the time she
was kicked. The Board asserts that Dr. Hong stated that because
of the vest, the kick could not have caused her disability. What
Dr. Hong said in fact was that because of the vest it is unlikely
that the impact of the kick was the cause of the disability. He
hypothesized that it is not unlikely that Ms. Coffey's condition
was the result of her falling when she was kicked. Additionally,
Dr. Rosomoff testified that he had treated other officers who had
incurred injuries similar to Ms. Coffey's while wearing Kevlar
Fifth, the Board argues that the fact that Ms. Coffey
sought no medical attention for pain from April through August
1990 is inconsistent with her disability having its onset in
January 1990. The Board relies on notes taken by Linda Glick, a
physical therapist, which report that Coffey suffered no physical
problems from April to August 1990. However, both Doctors
Rosomoff and Hong testified that this type of time lag is not
inconsistent with Ms. Coffey having incurred the disability in
Sixth, the Board asserts that Dr. Emerson's records
demonstrate that he did not begin treating Ms. Coffey's shoulder
until January 17, 1990, almost two weeks after the accident. The
Board claims this time lag is also inconsistent with the
disability having been incurred on January 1, 1990. However, a
closer examination of Dr. Emerson's notes reveals that the
annotation the Board referenced is in fact a progress report on
how Ms. Coffey's shoulder was improving. Such an annotation
clearly indicates Dr. Emerson was in the process of treating a
Seventh, the Board argues that Ms. Coffey's myofascial
pain syndrome was a preexisting condition evidenced by Dr.
Anderson's diagnosis of mild myofascial pain syndrome in 1987.
However, this court has held that the existence of a preexisting
condition will not bar an employee from receiving occupational
disability benefits. "It is basic that an accident which
produces injury by precipitating the development of a latent
condition or by aggravating a preexisting condition is a cause of
that injury." Hester v. State, Pub. Employees Retirement Bd.,
817 P.2d 472, 475 (Alaska 1991) (citing 22 Am. Jur. 2d Damages
None of the foregoing arguments articulates any
evidence which the Board could reasonably have relied on to
conclude that Ms. Coffey's disability was not the result of her
occupational injury of January 1990. All of the Board's
contentions focus on the credibility of testimony given. Not one
of the Board's assertions offers a fact or piece of evidence
which would contradict Ms. Coffey's claim that her disability is
work related. All of the physicians, including those the Board
asked Ms. Coffey to consult, related her condition directly or
indirectly to the trauma suffered during the January 1990 injury.
Yahara v. Construction & Rigging, Inc., 851 P.2d 69, 72
(Alaska 1993), provides that under the substantial evidence test
this court will affirm the Board's decision where the Board is
faced with conflicting medical opinions, and the Board elects to
rely on one opinion rather than the other. However, this case is
distinguishable from Yahara because, as we have already noted,
the Board did not have conflicting medical opinions from which to
choose. Although the Board correctly argues that this court
should not substitute its judgment for the Board's own preference
between competing medical opinions, the Board never references a
single medical opinion contrary to Ms. Coffey's claim. In fact,
there is a complete absence of contrary or conflicting medical
The Board further argues that there was substantial
evidence for its decision because it rejected all of Ms. Coffey's
proofs. It asserts that the trier of fact is entitled to
disbelieve witnesses or otherwise discount their testimony.
Credibility determinations made by the trier of fact are
generally left undisturbed by this court on review. See Richey
v. Oen, 824 P.2d 1371, 1376 (Alaska 1992); Jackson v. White, 556
P.2d 530, 532 n.4 (Alaska 1976). The Board cites Innes v.
Beauchene, 370 P.2d 174 (Alaska 1962), for the proposition that
where the trier of fact disbelieves a witness, that disbelief
may, in fact, prove the opposite of the witness' testimony. The
Board further insists that this court has applied this theory of
evidence in reviewing administrative decisions. The Board
contends that this court has held that substantial evidence
supporting an administrative agency's findings of fact may take
the form of circumstantial evidence or indirect proof. See
Commercial Fisheries Entry Comm'n v. Baxter, 806 P.2d 1373, 1375
In Innes, we held the witness's demeanor may convince
the trier of fact that the truth lies directly opposite of the
statements of the witness, especially where the witness is
interested in the outcome of the case. 370 P.2d at 177.
However, there are two flaws with the Board's application of
Innes to this case. First, the Innes court was concerned with
allowing trial courts the discretion to be skeptical of testimony
by biased or interested witnesses. The only interested witness
to testify was Ms. Coffey; the testifying physicians were not
interested parties. Second, this holding has nothing to do with
whether merely discrediting all of the witnesses would constitute
sufficient evidence for an administrative agency's decision.
Baxter is also distinguishable, because it involved a
question of whether circumstantial evidence could constitute
substantial evidence. 806 P.2d at 1375. In the case at bar the
agency had no evidence, circumstantial or testimonial, upon which
it based its decision.
C. THE SUPERIOR COURT PROPERLY DECLINED TO REMAND THE
CASE FOR FURTHER EVIDENTIARY PROCEEDINGS
The superior court did not err in reversing the Board,
rather than remanding the case to the Board for further
evidentiary proceedings. The Board argues that the superior
court had misgivings over the sufficiency of the Board's inquiry
into the work relatedness of Ms. Coffey's disability. It claims
that the superior court erred in deciding the issue in the face
of such uncertainties. The Board asserts that where the superior
court finds that an administrative agency failed to consider an
important factual issue, that issue is not to be decided by the
superior court, but rather the case should be remanded to the
agency for further fact finding. The Board advances a series of
cases in which this court held that remand was necessary because
the factual record was inadequate and further evidentiary
hearings were needed: Southeast Alaska Conservation Council v.
State, 665 P.2d 544 (Alaska 1988); Arkanakyak v. State,
Commercial Fisheries Entry Comm'n, 759 P.2d 513 (Alaska 1988);
City of Nome v. Catholic Bishop of N. Alaska, 707 P.2d 870
The Board correctly articulates the circumstances under
which remand to an agency is appropriate. However, it fails to
note that the case at bar is distinguishable from these cases.
In each of the cases cited, this court clarified which
interpretation of an agency rule or regulation should be applied
to the given case. Remand was necessary for evidentiary hearings
which applied the new rule. These further evidentiary
proceedings were required because the agency had an incomplete
record or had made insufficient findings of fact with regard to
the newly settled law. In City of Nome, we held that the
superior court had properly remanded the case to the relevant
administrative agency because equity required additional
investigation. 707 P.2d at 877. The court concluded that the
Board had made incomplete findings of fact because the Board
awaited judicial clarification of the legal "mess" involved in
the case. Id. In Southeast Alaska Conservation Council, we held
that the superior court could have remanded to the agency if it
found that the decisional document issued by the agency contained
an inadequately reasoned explanation. 665 P.2d at 549.
Similarly, in Phillips v. Houston Contracting, Inc., 732 P.2d 544
(Alaska 1987), a case not discussed by the Board, we remanded the
case after we determined how to interpret a rule. The Board had
not made all of the findings of fact which were necessary to
apply the new interpretation of this rule. See Phillips, 732
P.2d at 547. Likewise, in Arkanakyak, we remanded the case
because we determined that an exception not previously considered
by the court might be applicable. 759 P.2d at 517.
In the case at bar the superior court did not reverse
due to the Board's failure to consider a factual issue, or
because it found that the record needed to be supplemented with
further fact finding. Instead, the superior court reversed the
Board because even presuming that all of the inferences made by
the Board were accurate, "there was still not substantial
evidence to justify the Board's determination that Appellant's
permanent disability was not caused by the work-related injury
she suffered on January 1, 1990." The Board contends that
the following statement, which appears in a footnote to the
superior court's order, demonstrates that the superior court
found the fact finding incomplete, and therefore, should have
Perhaps the lack of "substantial
evidence"to support the Board's decision is
a consequence of the fact that the focus of
the hearing was the permanence of the injury
rather than the cause of injury. The Board's
decision on an issue that was not the focus
of the dispute shifted the decision from what
Appellant had successfully proved to what
neither party had focused on and which was
not really an issue. The court recognizes
that the Board was free to review all aspects
of appellant's claim. Though it may not
technically violate due process for an agency
to rule on a matter parties don't view as
primary, one can see how a sense of fairness
in the proceeding might be jeopardized.
Although this language emphasizes that the occupational
relatedness of Ms. Coffey's injury was not the focus of the
Board's hearing, the superior court does not assert that the
Board did not make sufficient findings of fact as to this issue.
It is disingenuous for the Board to
argue that this case should be remanded.
This is not a case where necessary findings
of fact were not made. The Board's "Findings
of Fact and Conclusions of Law" include a
section specifically noting the Board's
ruling on the occupational nature of Ms.
Coffey's injury: The Board finds that
the Applicant failed to meet her burden of
proof that her disability arises out of an
occupational injury. After weighing the
evidence presented by the Applicant and the
Staff, the Board finds that the evidence does
not preponderate in favor of finding the
disability is occupational.
Additionally, the Board itself argues that all four elements of a
disability claim were presented and argued at the hearing.10
While making another point the Board even emphasizes that the
counsel for the Board spent "a substantial amount of his argument
pointing out the pre-existence of the very complaints which
Coffey states originated on January 1, 1990." There is further
evidence in the record that although the main focus of the
hearing was on the permanency of Ms. Coffey's injury, the Board
addressed questions about the etiology of Ms. Coffey's disorder
to the different doctors who testified.
D. THE SUPERIOR COURT DID NOT ERR IN COMMENTING THAT
THE TESTIMONY OF ALL THE PHYSICIANS WAS CLEAR AND
The Board argues that the superior court's finding that
the medical evidence was "clear and consistent" exceeded the
court's permissible scope of review.11 The Board emphasizes that
when conflicting medical opinions are present, deciding between
the theories is a matter exclusively for the Board and not for
the court. See Hester v. State, Pub. Employee Retirement Bd.,
817 P.2d 472, 477 (Alaska 1991). However, this case is
distinguishable from Hester and its progeny because no
conflicting medical evidence was produced relating to the issue
of work relatedness. All of the physicians consulted either
would not hypothesize about the source of Ms. Coffey's
disability, or agreed that Ms. Coffey's disability was directly
or indirectly caused by her occupational injury of January 1,
1990. The Board does not cite one physician's opinion which
affirmatively contradicts Ms. Coffey's claims about the etiology
of her disability.
E. THE SUPERIOR COURT'S AWARD OF ATTORNEY'S FEES WAS
NOT AN ABUSE OF DISCRETION
"Appellate Rule 508(e), rather than Civil Rule 82,
controls any award of attorney's fees when the superior court
determines an administrative appeal." Diedrich v. City of
Ketchikan, 805 P.2d 362, 371 (Alaska 1991); see also Kodiak W.
Alaska v. Bob Harris Flying Serv., 592 P.2d 1200 (Alaska 1979);
Alaska R. App. P. 601(b). Appellate Rule 508(e) provides that
"[a]ttorney's fees may be allowed in an amount to be determined
by the court." Thus, the superior court has broad discretion to
award a party reasonable attorney's fees, and we will only
reverse were there is an abuse of discretion. See Cook Inlet
Pipe Line Co. v. Alaska Pub. Util. Comm'n, 836 P.2d 343, 348
(Alaska 1992). The superior court awarded Ms. Coffey $3,200.00
in attorney's fees and $2,056.00 in appellate costs. This award
was within the discretion of the court. We affirm the superior
court's award of attorney's fees to Ms. Coffey.
We AFFIRM the superior court's reversal of the Board's
denial of permanent occupational benefits to Ms. Coffey. The
superior court correctly concluded that substantial evidence did
not support the Board's determination that Ms. Coffey's permanent
disability was not caused by the work-related injury she suffered
on January 1, 1990. The Board has not pointed to any evidence
upon which it could have relied in concluding Ms. Coffey's
disability was not occupationally related.
The superior court did not err by reversing rather than
remanding this case. The superior court concluded that the lack
of sufficient evidence was not the result of the Board failing to
consider an important factual issue. Over fifteen physicians and
health care providers testified at the hearing, and all who
opined on the etiology of Ms. Coffey's disability related it to
the January 1, 1990 incident. Thus, the Board had ample
opportunity to, and in fact did, consider the factual issue in
The superior court did not exceed its authority or
inject itself into the role of the trier of fact when it
commented that the physicians' testimony was clear and
consistent. All of the physicians who offered an opinion on the
etiology of Ms. Coffey's disability testified that it was
directly or indirectly caused by the occupational injury of
January 1, 1990.
The superior court did not abuse its discretion in
awarding attorney's fees and costs. The award of attorney's fees
also is AFFIRMED.
1. Ms. Coffey claims that the x-ray indicates that she was
treated for severe back pain as early as January 2, 1990.
Conversely, the Board claims that there is no record of left
shoulder treatment until a notation by Dr. Emerson made on
January 17, 1990. This notation suggests that Dr. Emerson had
already begun treatment of Ms. Coffey's shoulder. The note states
that Ms. Coffey is "feeling better with improved range of motion
and much reduced shoulder pain." The notation does not suggest
that onset of the pain was the reason for the appointment,
particularly in light of Dr. Emerson's January 2 notation.
2. The Board found it significant that Ms. Coffey does not
remember whether she told Dr. Fu that she had previously pulled
her shoulder muscles and is sure that she did not inform him of a
diagnosis of mild myofascial pain syndrome made by Dr. Anderson
3. These other health care providers included: Dr. David M.
Dietz, Ms. Linda I. Glick, Dr. Paul L. Craig, Dr. Ronald E.
Mertens, Dr. Kenneth M. Wilson, Dr. Paul J. Duewelius, Dr. John
N. Porter, Dr. Lee S. Glass, Dr. Hubert L. Rosomoff, Dr. Alan
Saltzman, Dr. Morris R. Horning, Dr. Bruno M. Kappes, and Dr.
Lawrence M. Blume.
4. Both parties also note that over the course of her
employment as a law enforcement officer, Ms. Coffey made workers'
compensation claims for a tailbone fracture, a broken nose, a
fractured wrist and a pulled shoulder muscle.
5. AMC 3.85.230 (1989).
6. It is the usual rule that when the superior court,
sitting as an intermediate appellate court, remands a case to the
administrative agency for further proceedings, the remand is not
a final judgment from which an appeal may be taken. City &
Borough of Juneau v. Thiboudeau, 595 P.2d 626, 629-30 (Alaska
1979). However, we will review the remand in this case because
its effect was to order the Board to perform a ministerial act,
i.e., enter an order directing payment of permanent occupational
benefits to Ms. Coffey. This is sufficient to constitute a final
judgment for the purpose of Appellate Rule 202.
7. In addition to arguing for the application of the
substantial evidence test, Ms. Coffey also contends that pursuant
to AS 44.62.570 this court may exercise its independent judgment
on the evidence. However, as the Board correctly notes, this
contention is based upon the mistaken belief that AS 44.62, the
Administrative Procedure Act (APA), should dictate the scope of
review employed in this case. Alaska Statute 44.62.570 does not
apply. Alaska Statute 44.62.330(b) specifically limits coverage
of the APA to agencies either listed in AS 44.62.330(a) or made
subject to the APA by other statutes. Galt v. Stanton, 591 P.2d
960, 962 n.8 (Alaska 1979); see also, Hertz v. Carothers, 784
P.2d 659, 660 (Alaska 1990). The Board is not among the agencies
enumerated, nor is it made subject to the APA by another statute.
See AS 44.62.330; AMC 3.85.010-.095 (1990).
8. The issue is not, as the Board argues, whether there was
substantial evidence upon which the Board could have concluded
that Ms. Coffey did not carry her burden of proof at the
administrative hearing. Both parties agree that an applicant
seeking benefits from the Retirement Board bears the burden of
proving all of the elements required by AMC 3.85.230 and any
implementing regulations. This differs from the workers'
compensation system where there is a presumption of
compensability. State, Pub. Employees Retirement Bd. v.
Cacioppo, 813 P.2d 679, 683 (Alaska 1991).
9. The causation standard which the Board might have
applied is whether the occupational injury was a substantial
factor in aggravating the preexisting condition. See Hester v.
State, Pub. Employees Retirement Bd., 817 P.2d 472, 475 (Alaska
1991)(citing Delaney v. Alaska Airlines, 693 P.2d 859, 863
(Alaska 1985) overruled on other grounds, Wade v. Anchorage
School Dist., 741 P.2d 634, 638-39 (Alaska 1987)). The employee
bears the burden of establishing by a preponderance of the
evidence that their work or a work related injury was a
substantial factor in causing the disability. Hester, 817 P.2d
at 475; State, Pub. Employees Retirement Bd. v. Cacioppo, 813
P.2d 679, 683 n.6 (Alaska 1991). This is the causation standard
used to determine worker's compensation benefits. We have held
that it should also apply in occupational disability cases.
Hester, 817 P.2d at 475. Under this causal standard occupational
disability benefits can be awarded where the disability resulted
from a work related aggravation of a preexisting condition. Id.
Although the Board argues there is evidence of a preexisting
condition (the early diagnosis of myofascial pain syndrome), the
Board produces no evidence that the January 1990 incident was not
a substantial factor in aggravating this condition.
10. The four elements of the administrative decision tree:
(1) Does a disability exist?
(2) Is the disability permanent?
(3) Is the disability caused by employment?
(4) If the member is disabled what is the
effective date of the disability?
11. Ms. Coffey argues that the superior court did not inject
itself into the role of fact finder by holding that the medical
evidence was clear and consistent because this finding was
statutorily warranted by AS 44.62.570(c). However, as discussed
in section III., C. of this opinion, AS 44.62.570(c) does not
apply to a decision by this Board.