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Safeway, Inc. v. Mackey (10/9/98), 965 P 2d 22


     Notice:  This opinion is subject to 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, phone
(907) 264-0608, fax (907) 264-0878.



             THE SUPREME COURT OF THE STATE OF ALASKA


SAFEWAY, INC.,                )    Supreme Court No. S-7991
                              )
             Petitioner,      )    Superior Court No.
                              )    3AN-95-04429 CI 
     v.                       )
                              )
CYNTHIA D. MACKEY,            )    O P I N I O N
                              )    
             Respondent.      )    [No. 5039 - October 9, 1998]
______________________________)



          Petition for Hearing from the Superior Court
of the State of Alaska, Third Judicial District, Anchorage,
Stephanie Joannides, Judge pro tem.


          Appearances: Patricia L. Zobel, Deirdre D.
Ford, DeLisio, Moran, Geraghty & Zobel, Anchorage, for Petitioner. 
Charles W. Coe, Anchorage, for Respondent.


          Before: Matthews, Chief Justice, Compton,
Fabe, and Bryner, Justices. [Eastaugh, Justice, not participating.]

          MATTHEWS, Chief Justice.



I.   INTRODUCTION
          Cynthia Mackey sought workers' compensation benefits for
her fibromyalgia, claiming that it was caused by her employment
with Safeway, Inc., and by her work-related tendinitis and knee
injuries.  The Workers' Compensation Board denied Mackey benefits
after the date that she was diagnosed with fibromyalgia, holding
that Safeway had rebutted the presumption of compensability by
providing substantial evidence that Mackey's fibromyalgia was not
work-related, and that Mackey had failed to prove by a
preponderance of the evidence that it was work-related.  The Board
also denied Mackey continuing benefits for her tendinitis after the
date that she was diagnosed with fibromyalgia, holding that Mackey
had failed to prove by a preponderance of the evidence that her
continuing condition was caused by work-related tendinitis rather
than by fibromyalgia.
          The superior court reversed the Board's denial of
benefits for Mackey's fibromyalgia, holding that Safeway had not
rebutted the presumption of compensability.  It held that the
medical testimony tending to rebut the presumption was speculative
and could not be substantial evidence because the doctors had
testified that the causes of fibromyalgia are unknown.  Since the
court held that Mackey should be compensated for her fibromyalgia
based on the presumption, it did not reach the issues of whether
Mackey had proved by a preponderance of the evidence that her
fibromyalgia was work-related, or alternatively, whether her
continuing condition was caused by work-related tendinitis.
          We granted Safeway's petition for review from the
superior court's decision and now reverse.  We hold that Safeway
presented substantial evidence to rebut the presumption of
compensability, and further hold that the Board's decisions that
Mackey had failed to prove by a preponderance of the evidence that
her fibromyalgia was work-related or that her continuing condition
was work-related tendinitis are supported by substantial evidence. 
II.  FACTS AND PROCEEDINGS
          Cynthia Mackey worked for Safeway from August 1977
through August 1991 as a checker and a stocker.  During that time,
she injured her right knee twice and also developed tendinitis in
her shoulders.  She received workers' compensation benefits for
these injuries. 
          After she stopped working, Mackey was diagnosed with
fibromyalgia. [Fn. 1]  She sought workers' compensation benefits
for her fibromyalgia, claiming that it was caused by her employment
with Safeway and by her previous work-related injuries.  A summary
of Mackey's injuries is necessary to understand her claim that her
fibromyalgia was work-related.  
          In 1981 Mackey tore the cartilage in her right knee while
working and had surgery to remove the cartilage.  She missed work
for about four months, and Safeway paid her temporary total
disability (TTD) and permanent partial disability (PPD) benefits. 
          In 1986 Mackey was treated for pain in her right knee and
pain in her left shoulder, which she claimed hurt when she stocked
items at work.  She was diagnosed with osteoarthritis in her knee,
and rotator cuff and bicipital tendinitis in her left shoulder.
Mackey again missed work for about four months, and Safeway paid
her TTD benefits.
          In May 1990 Mackey again injured her right knee at work. 
In June she was diagnosed with post-traumatic arthritis in her
right knee and again had knee surgery.  Safeway considered this to
be a new injury and awarded Mackey TTD benefits from May through
July.  Mackey returned to work in August, but only worked about
twenty-five hours per week, performing mainly sedentary office work
and some checking. 
          In April 1991 an Employer's Medical Evaluation (EME) was
performed on Mackey's right knee.  The doctors diagnosed Mackey
with severe degenerative arthritis of the right knee, which had
been caused primarily by the 1981 accident and temporarily
aggravated by the 1990 accident.   
          Mackey then began having additional problems with her
shoulders.  In June 1991 she was treated in an emergency room for
shoulder pain.  In July she was treated for left hip pain, which
had begun when she twisted away from the checkout stand.  She also
complained of pain in her right shoulder and generalized soreness
throughout her body.
          In August Mackey first saw Dr. Armstrong, a
rheumatologist.  He diagnosed her with tendinitis in both
shoulders, and advised her not to return to work.  She stopped
working, and Safeway began paying TTD benefits for her tendinitis
that month.
          At the time she stopped working, Mackey complained of 
pain in her hips and shoulders; within six months of leaving
Safeway she began to experience pain in various joints and muscles
all over her body.  This included pain in her left hip, shoulders,
neck, face, and back.  She described her pain as traveling through-

out her body and hitting without warning.
          Dr. Armstrong referred Mackey to Dr. Fu, who diagnosed
her with myofascial pain syndrome in January 1992.  She also
continued to see Dr. Armstrong.  On March 23, 1992, Dr. Armstrong
first diagnosed Mackey with fibromyalgia.  He found her to be
medically stable in May.
          In June Dr. Staver, an orthopedist, performed an EME on
Mackey.  He diagnosed her with bilateral impingement syndrome and
tendinitis, and found her to be medically stable.  He felt her
shoulder problems were related to her work.  Safeway continued
paying TTD benefits for Mackey's tendinitis through June 10, 1992,
and paid benefits under AS 23.30.041(k) from October 1992 to June
1993.
          In December 1992 Dr. Armstrong informed Safeway that in
his opinion, Mackey's shoulder condition was a "dominant
contributing factor to the development of fibromyalgia which is
preventing her from returning to gainful employment."
          In April 1993 Safeway arranged an EME in San Francisco to
evaluate Mackey's current condition.  The panel consisted of Dr.
Weber, a rheumatologist; Dr. Gunderson, an orthopedic specialist;
Dr. Petrakis, a psychiatrist; and Dr. Wilson, a specialist in
physical medicine.  Dr. Weber diagnosed Mackey with fibromyalgia,
but stated to a reasonable medical certainty that it was not
related to her employment.  Dr. Petrakis agreed that it was more
probable than not that Mackey's employment was not a cause of her
fibromyalgia.
          Based on this evaluation, Safeway controverted Mackey's
claim for fibromyalgia in June 1993, on the ground that it was not
a work-related injury. [Fn. 2]  The Workers' Compensation Board
sent Mackey for a Second Independent Medical Examination (SIME)
with a panel consisting of Dr. Krengel, an orthopedic surgeon; Dr.
Carlin, a rheumatologist; Dr. Chinn, a psychiatrist; and Dr.
Worsham, a specialist in physical medicine and rehabilitation.  Dr.
Carlin and Dr. Worsham stated that on a more-probable-than-not
basis, Mackey's fibromyalgia was not related to her employment or
to any injury that she received at work. 
          The Board held that Mackey had raised the presumption of
compensability based on Dr. Armstrong's testimony that Mackey's
tendinitis had metastasized into fibromyalgia; however, Dr. Weber's
testimony that Mackey's fibromyalgia was not work-related had
overcome that presumption.  The Board also held that Mackey had not
proved by a preponderance of the evidence that her fibromyalgia was
caused by her employment.  Further, it held that Mackey was not
entitled to TTD benefits for her bilateral tendinitis after March
23, 1992, the date that Dr. Armstrong had diagnosed her with
fibromyalgia.
          Mackey appealed the Board's denial of benefits for her
fibromyalgia, or alternatively for her continuing tendinitis, to
the superior court.  The court reversed the Board, remanding with
instructions to award benefits for Mackey's fibromyalgia.  It held
that Safeway failed to rebut the presumption of compensability
because the medical opinions that Mackey's condition was not work-
related were speculative as a matter of law since the doctors had
testified that the causes of fibromyalgia are unknown.
          We granted Safeway's petition for review.  The superior
court stayed its decision pending resolution of this petition.
III. DISCUSSION [Fn. 3]
          Alaska Statute 23.30.120(a)(1) creates a presumption that
a claim for workers' compensation is compensable.  This presumption
extends to the question of whether a disability is work-related. 
See Gillispie v. B & B Foodland, 881 P.2d 1106, 1109 (Alaska 1994). 
Application of this presumption includes a three-step process.  See
id. at 1109-11.  First, to raise the presumption of compensability,
the employee must establish a "preliminary link"between his or her
disability and the employment.  Id. at 1109. [Fn. 4]
          Second, the employer has the burden of overcoming the
presumption by presenting substantial evidence that the injury was
not work-related.  See id.  An employer can satisfy this burden 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. (quoting Grainger v.
Alaska Workers' Compensation Bd., 805 P.2d 976, 977 (Alaska 1991)). 
"It 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."  Big K Grocery v. Gibson, 836
P.2d 941, 942 (Alaska 1992).
          Substantial evidence is "such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion." 
Gillispie, 881 P.2d at 1109 (quoting Grainger, 805 P.2d at 977
n.1).  The issue of whether there is substantial evidence to
overcome the presumption is a question of law which this court will
independently examine.  See Norcon, Inc. v. Alaska Workers'
Compensation Bd., 880 P.2d 1051, 1054 (Alaska 1994).  In deciding
whether the presumption has been overcome, we will not weigh the
testimony or the credibility of the witnesses; instead, the
evidence tending to rebut the presumption is examined by itself and
is not compared to conflicting evidence in the record.  See id. 
          Third, once the employer produces substantial evidence to
rebut the presumption of compensability, the presumption drops out
and the employee must prove the elements of his or her claim by a
preponderance of the evidence.  See Gillispie, 881 P.2d at 1111. 
In reviewing the Board's decision on this issue, we determine
whether the Board's findings are supported by substantial evidence. 
See id.  We will not reweigh the evidence or choose between
competing inferences from the evidence.  See Norcon, 880 P.2d at
1055.  Instead, we are limited to determining whether there is
substantial evidence in the entire record which supports the
Board's decision.  See Gillispie, 881 P.2d at 1111.  The test here
is whether based on the whole record a reasonable mind could accept
a decision of non-compensability.  See Black v. Universal Servs.,
Inc., 627 P.2d 1073, 1075-76 (Alaska 1981).
     A.   Safeway Rebutted the Presumption of Compensability by
Presenting Substantial Evidence That Mackey's Fibromyalgia Was Not
Work-Related

          Safeway argues that the medical testimony of the doctors
from the EME and SIME panels, especially Dr. Weber's testimony,
rebutted the presumption of compensability because it established
to a reasonable medical certainty that Mackey's work was not a
substantial factor in the development of her fibromyalgia.  Mackey,
however, asserts that the superior court correctly held that the
medical testimony was not substantial, because the doctors admitted
that any theory on causation of fibromyalgia was speculative.
          The Board relied mainly on Dr. Weber's testimony to rebut
the presumption of compensability.  Dr. Weber testified that, in
his opinion, based on a reasonable medical probability, Mackey's
employment was not a substantial factor in her development of
fibromyalgia.  He stated that she "absolutely"would have developed
fibromyalgia regardless of whether she had worked at Safeway. [Fn.
5]
          However, Dr. Weber also stated that the causes of
fibromyalgia are unknown.  He testified that any statement about
causation was speculative, because no reliable information on
causation exists.  Further, he testified that the position of the
American Rheumatism Association is that the cause of fibromyalgia
is unknown.
          Dr. Weber's testimony that Mackey's employment was not a
substantial factor in her development of fibromyalgia is evidence
that "directly eliminates any reasonable possibility that
employment was a factor in causing the disability."  Gillispie, 881
P.2d at 1109 (quoting Grainger, 805 P.2d at 977).  It is also, to
use the Big K Grocery formulation, an opinion of a qualified expert
that "the claimant's work was probably not a substantial cause of
the disability."  Big K Grocery, 836 P.2d at 942.  However, merely
reciting the proper words as an opinion is not necessarily enough
to rebut the presumption of compensability, because the employer
must provide substantial evidence that the disability was not work-
related.  See id.  Substantial evidence is "such relevant evidence
as a reasonable mind might accept as adequate to support a
conclusion."  See Gillispie, 881 P.2d at 1109 (quoting Grainger,
805 P.2d at 977 n.1).  The dispositive question, therefore, is
whether a reasonable person could accept Dr. Weber's opinion that
Mackey's employment was not a substantial factor in causing her
fibromyalgia even though he admitted that the causes of
fibromyalgia are unknown.
          This question is controlled by our decision in Norcon,
where we held that medical testimony was sufficient to overcome the
presumption that the claimant's heart attack was work-related, even
though one doctor testified that the causes of heart attacks are
unknown.  See Norcon, 880 P.2d at 1054, 1056.  One doctor testified
that working long hours, as the plaintiff in Norcon had done, is
not recognized to be a risk factor for cardiac death.  See id. at
1054.  Another doctor testified that the claimant's work was not a
substantial factor in causing the cardiac death.  See id. at 1054-
55.  
          Significantly, the court rejected the dissent's argument
that this evidence was inconclusive because the causes of heart
failure are unknown.  See id. at 1055 n.4; see also id. at 1057-58
(Rabinowitz, J., dissenting).  The court emphasized that accepting
this conclusion would create an "irrebuttable presumption"whenever
the claimant suffers cardiac death.  Id. at 1055 n.4. [Fn. 6]
          Here, Dr. Weber testified that trauma and the development
of fibromyalgia have not been reliably related.  He also stated
that work was probably not a substantial factor in the development
of Mackey's fibromyalgia.  He based his opinion on his experience
and knowledge of the disease in general as well as on his knowledge
of Mackey's work environment.  He also rebutted the theories that
Dr. Armstrong presented to link Mackey's work with her
fibromyalgia.
          This is the same type of medical testimony we relied on
in Norcon to overcome the presumption of compensability. 
Determining that Dr. Weber's testimony was not substantial evidence
to overcome the presumption merely because he also testified that
the causes of fibromyalgia are unknown would create an irrebuttable
presumption that fibromyalgia is work-related.  We again "decline
to adopt such an irrebuttable presumption."  Id.
          When considering all the medical testimony in the record
which tends to rebut the presumption of compensability, a
reasonable person could conclude that it was adequate to eliminate
any reasonable possibility that work was a factor in causing
Mackey's fibromyalgia.  We thus hold that Safeway presented
substantial evidence to rebut the presumption of compensability.
     B.   The Board's Decision That Mackey Failed to Prove by a
Preponderance of the Evidence That Her Fibromyalgia Was Work-
Related Is Supported by Substantial Evidence [Fn. 7]

          Mackey argues that the Board's decision that she failed
to prove her fibromyalgia was work-related is not supported by
substantial evidence.  First, she argues that the Board should not
have relied on the opinions of the doctors from the EME and SIME
panels, because they did not have the opportunity to perform in-
depth examinations of Mackey.
          In Black v. Universal Services, Inc., 627 P.2d 1073,
1075-76 (Alaska 1981), we held that relying on one doctor's opinion
to deny benefits was unreasonable where that doctor had no
opportunity to examine the patient in any depth and disagreed with
the opinions of her treating physicians.  We have limited our
holding in Black, however, by refusing to reverse the Board's
decision where the reviewing physician's statement did not stand
alone and was consistent with other evidence presented.  See
Gillispie, 881 P.2d at 1110 n.3; Childs v. Copper Valley Elec.
Ass'n, 860 P.2d 1184, 1189 (Alaska 1993).  Further, we have never
suggested that Black stands for a general rule that the opinion of
a physician hired for litigation is not substantial evidence when
it conflicts with that of treating physicians.  The question in
each case is whether based on the whole record "a reasonable mind"
would accept the opinion "as adequate to support the Board's denial
of compensation."  Black, 627 P.2d at 1076.
          Here, Dr. Armstrong is the only doctor who linked
Mackey's fibromyalgia to her employment.  All of the other doctors
who gave an opinion on this issue stated that Mackey's
fibromyalgia, more likely than not, was not work-related.  Their
opinions could reasonably be accepted by the Board. 
          Mackey also argues that Dr. Armstrong's testimony that
her condition metastasized from tendinitis to fibromyalgia should
have been given more weight by the Board, because he had the
opportunity of observing Mackey as her fibromyalgia developed.  The
Board, however, has the sole authority to determine credibility and
we will not reweigh the evidence in reviewing a Board's decision. 
See AS 23.30.122; Childs, 860 P.2d at 1189.
          The Board was not required to accept Dr. Armstrong's
theory of causation over the testimony of the other doctors who
testified that her fibromyalgia was not work-related.  Safeway
presented substantial evidence that the cause of the disease is
unknown, and that it is not linked with trauma.  In addition, Dr.
Weber discredited each of Dr. Armstrong's theories of causation. 
We therefore hold that the Board's decision that Mackey failed to
prove her fibromyalgia was work-related is supported by substantial
evidence.
     C.   The Board's Decision That Mackey Failed to Prove by a
Preponderance of the Evidence That Her Condition after March 23,
1992, Was Tendinitis Instead of Fibromyalgia Is Supported by
Substantial Evidence [Fn. 8]

          The Board ruled that Mackey was only entitled to benefits
for her tendinitis until March 23, 1992, the date that Dr.
Armstrong diagnosed her with fibromyalgia.  Mackey argues that if
we hold that her fibromyalgia was not work-related, we should
reverse the Board's determination that she is not entitled to
continuing benefits for her tendinitis.
          We hold, however, that the Board's decision that Mackey's
condition after March 23, 1992, was caused by fibromyalgia instead
of tendinitis is supported by substantial evidence.  Dr. Weber
indicated that fibromyalgia and tendinitis are mutually exclusive,
because a patient with fibromyalgia cannot have any objective
manifestations, while a patient with tendinitis should have
objective manifestations like swelling or inflammation.  In
addition, Dr. Armstrong diagnosed Mackey with fibromyalgia on March
23.  Both Dr. Carlin and Dr. Weber agreed that Mackey had developed
fibromyalgia by that time.  Dr. Armstrong testified that Mackey
probably did not have tendinitis at the time of the hearing and
that it was more likely that she had mainly fibromyalgia.
IV.  CONCLUSION
          We hold that Safeway presented substantial evidence to
rebut the presumption of compensability.  In addition, we hold that
the Board's decisions that Mackey failed to prove that her
fibromyalgia was work-related or that her continuing disability was
caused by work-related tendinitis were supported by substantial
evidence on the whole record.  We thus REVERSE the judgment of the
superior court and REMAND with instructions to reinstate the
Board's decision denying Mackey benefits after she was diagnosed
with fibromyalgia.


                            FOOTNOTES


Footnote 1:

     Fibromyalgia is a disease in which the patient has
musculoskeletal complaints of pain throughout the body, but does
not exhibit any medically objective symptoms.


Footnote 2:

     Safeway never contested that Mackey had fibromyalgia.


Footnote 3:

     We will not defer to a decision of the superior court acting
as an intermediate court of appeal.  See Williams v. State, Dep't
of Revenue, 938 P.2d 1065, 1069 (Alaska 1997).  Instead, we
independently review the merits of the underlying administrative
decision.  See id.


Footnote 4:

     Since Safeway did not appeal the Board's conclusion that
Mackey had presented sufficient evidence to raise the presumption
of compensability, we will assume that the evidence was sufficient
to support this finding.  See Gillispie, 881 P.2d at 1109.


Footnote 5:

     Further, none of the other doctors on the EME or SIME panels
who voiced opinion on the issue believed Mackey's fibromyalgia was
work-related.


Footnote 6:

     The court stated:

               The dissent focuses on the experts'
uncertainty regarding causes of sudden cardiac death.  The dissent
reasons that because there is medical uncertainty regarding causes
of sudden cardiac death, an expert's opinion that a specific event
was not a substantial cause in the employee's sudden cardiac death
should not be given any weight.  If we accept the dissent's
reasoning, an employer would be unable to rebut the presumption of
compensability of work relatedness whenever an employee suffers
sudden cardiac death.  We decline to adopt such an irrebuttable
presumption.

Norcon, 880 P.2d at 1055 n.4.


Footnote 7:

     The superior court did not reach the issue of whether Mackey
had proved her claim by a preponderance of the evidence, because it
determined that she should be compensated based on the presumption
of compensability.  Even though the court did not rule on this
issue, the Board made findings on this issue.  We find it
appropriate to reach the issue since our review of the superior
court's decision is de novo and since no interest would be served
by remanding this issue to the superior court.


Footnote 8:

     The superior court also did not reach this issue because it
determined that Mackey should be compensated for her fibromyalgia. 
For the reasons expressed previously, we reach this issue.  See 
supra note 7.