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Bolieu and Oliver v. Our Lady of Compassion Care Center (7/30/99) sp-5149
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
GWEN BOLIEU and BODHMATI )
OLIVER, ) Supreme Court No. S-8528
Appellants, ) Superior Court No.
) 3AN-97-1664 CI
) O P I N I O N
OUR LADY OF COMPASSION CARE )
CENTER, AETNA CASUALTY AND ) [No. 5149 - July 30, 1999]
SURETY CO., and the ALASKA )
WORKERS' COMPENSATION BOARD, )
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Sigurd E. Murphy, Judge pro tem.
Appearances: Charles W. Coe, Anchorage, for
Appellants. Allan E. Tesche, Russell, Tesche, Wagg, Cooper &
Gabbert, Anchorage, for Appellees Our Lady of Compassion Care
Center and Aetna Casualty and Surety Company.
Before: Matthews, Chief Justice, Eastaugh,
Fabe, Bryner, and Carpeneti, Justices.
Gwen Bolieu and Bodhmati Oliver appeal the Alaska
Workers' Compensation Board's denial of benefits for treatment of
rashes that they allegedly contracted while working at Our Lady of
Compassion Care Center. The employees argue that the Board
improperly limited its inquiry to whether they contracted staph A
infections. Because we agree that the Board's inquiry was too
narrow, we vacate the Board's ruling and remand for determination
of whether the rashes, even if caused by a source other than staph
A, were work related.
II. FACTS AND PROCEEDINGS
Gwen Bolieu and Bodhmati Oliver worked as nursing
assistants at Our Lady of Compassion Care Center (Our Lady), an
Anchorage care facility for long-term, seriously disabled
individuals. Bolieu started working for Our Lady in 1988; Oliver
began in 1989. Both employees were responsible for such tasks as
bathing patients and rendering oral care.
In July and August of 1990 Bolieu, Oliver, and seven
other employees at Our Lady developed skin rashes and filed
workers' compensation claims. The Director of Quality Management
at Our Lady, Kathleen Lum, sent the employees to First Care Medical
Clinic to see Dr. Scott Mackie. At no point did a physician come
to Our Lady to investigate the employees' rash complaints.
In March and April of 1991 Bolieu, Oliver, and fourteen
other employees again filed claims based on skin rashes. [Fn. 1]
On May 21, 1991, Bolieu and Oliver filed occupational illness
reports with Our Lady, both citing "skin rash"as the nature of
their injury. As a result, Our Lady sent both Bolieu and Oliver to
see Dr. Mackie, who diagnosed Bolieu as having a probable case of
impetigo and Oliver as having noninfectious dermatitis. In the
summer of 1991 Bolieu and Oliver saw their treating physician, Dr.
Michael Beirne, who diagnosed them both with staph A infections.
Our Lady began paying Temporary Total Disability (TTD)
benefits to Oliver in June 1991 and to Bolieu in July 1991. Oliver
stopped receiving TTD benefits when she resigned from Our Lady in
In January 1992 Bolieu was treated for an abscess on her
breast. Dr. Danny Robinette of Elmendorf Hospital testified before
the Board that the abscess was probably related to a staph
infection [Fn. 3] from which Bolieu suffered.
Our Lady then requested that both Bolieu and Oliver be
referred to a series of infectious disease specialists for
Independent Medical Evaluations (IMEs). In March 1992 Dr. Burton
Janis confirmed that Bolieu tested positive for staph A but could
not conclude whether or not the infection was work related. In
July 1992 Dr. Janis stated that he did not believe Bolieu was ever
medically unstable and that he did not think her lesions were work
related. He noted that "up to 40% of normal people have
staphylococcus aureus [staph A] in their nose." In response to Dr.
Janis's report, Our Lady discontinued Bolieu's TTD benefits on
August 31, 1992.
Dr. Janis verified that Oliver had resigned from Our Lady
because of her skin disorders. Dr. Janis diagnosed Oliver with an
infection "probably associated [with a] staphylo[co]ccal species"
and possible allergic condition. Dr. Janis stated his belief that
Oliver's skin condition was not work related and that she was
medically stable on or before March 2, 1992.
Based on Dr. Janis's evaluations, Our Lady sent a
controversion notice to Bolieu in September 1992 and to Oliver in
December 1992 denying future benefits to both employees. In
response, Bolieu and Oliver, through counsel, each filed an
Application for Adjustment of Claim alleging that they contracted
work-related staph infections. [Fn. 4] Bolieu listed the nature of
her injury in her Application for Adjustment of Claim as "staph
infection"; Oliver listed hers as "skin rash."
Bolieu and Oliver saw another specialist, Dr. Paul
Roberts, for an IME in January 1994. Dr. Roberts reported that
Bolieu suffered from "[r]ecurring crops of papular pruritus"that
might be treatable by a dermatologist. He also stated that
although he could not tell whether Bolieu was still suffering any
ill effect from the staph infection, she had not received adequate
therapy for it up until that point. Nevertheless, he found "no
medical reason to restrict Ms. Bolieu from her prior employment as
a nurse's aide." With respect to Oliver, Dr. Roberts stated that
she was medically stable and that her lesions were gone.
The Board sent Bolieu and Oliver to Dr. Elaine Jong for
a second independent medical examination [Fn. 5] in June 1994. Dr.
Jong stated that she did not believe Bolieu suffered from a
recurrent staph A infection and that to determine whether Bolieu
had a different work-related infectious condition "one would have
to review other records relating to the health of patients [at Our
Lady]." Dr. Jong concluded that Bolieu became medically stable as
of January 13, 1992. Dr. Jong stated her opinion that Oliver was
medically stable in November 1991, and that Oliver might have an
allergic condition requiring future treatment. Dr. Jong did not
believe that either employee's condition was related to her
employment at Our Lady.
In May 1995 Our Lady filed a petition to dismiss both
employees' claims on the grounds that the injuries were not work
related. The Board conducted a hearing in December 1996. In its
February 1997 decision, the Board framed the issue as "[w]hether
the employee[s] contracted Staphylococcus aureus coagulase positive
(Staph A) from [their] employment with the employer." The Board
denied both Bolieu's and Oliver's claims, finding that "the
employee[s] did not contract Staph aureus while working for the
Bolieu and Oliver consolidated their cases in April 1997.
In January 1998 the superior court affirmed the Board's ruling,
stating that "substantial evidence supports the Board's finding
that Bolieu and Oliver did not contract [staph A] at the Center."
Bolieu and Oliver appeal. [Fn. 6]
A. Standard of Review
We independently review a Workers' Compensation Board's
decision to deny or award benefits. "Because the superior court
acted as an intermediate court of appeal, we give no deference to
its decision."[Fn. 7]
Generally, we will uphold the Board's decision "if
substantial evidence exists to support the Board's findings of
fact."[Fn. 8] We define substantial evidence as "that which a
reasonable mind, viewing the record as a whole, might accept as
adequate to support the Board's decision."[Fn. 9] We do not
independently reweigh the evidence on appeal; rather, we only
determine whether such evidence exists. [Fn. 10]
B. The Board Erred by Failing to Include Possible Rash
Causes Other Than Staph A in Its Inquiry. [Fn. 11]
Bolieu and Oliver argue that the Board erred by failing
to consider the possibility that they suffered from a work-related
rash caused by a source other than staph A. In its Decision and
Order as to Bolieu and Oliver's claims, the Board described the
sole issue as "[w]hether the employee[s] contracted Staphylococcus
aureus coagulase positive [staph aureus] from [their] employment
with the employer." Throughout its findings of fact and
conclusions of law, the Board applied its legal analysis solely to
the "link between working for the employer and the condition of
Staph aureus." The Board's ultimate conclusion was that neither
Bolieu nor Oliver "contract[ed] Staph aureus while working for the
employer." The Board thus limited its inquiry to whether the skin
rashes were caused by staph A, rather than the broader question of
whether the rashes were work related regardless of their cause.
Our Lady claims that the Board found that the employees'
claims were solely based on a diagnosis of staph A and that
substantial evidence supports this finding. But the Board made no
such finding; the only reference in the Board's decisions to the
scope of the employees' pleadings is the Board's acknowledgment
that Oliver described her condition as a "rash on arms & stomach"
diagnosed as "Dermatitis Atopic." Thus, we cannot apply the
"substantial evidence"test to this issue. [Fn. 12] Instead, we
must decide the legal question of whether the Board erred by
failing to address other possible work-related causes of the
Although we have not yet had occasion to articulate a
standard for determining whether the Board erred in failing to make
findings of fact with respect to alternative work-related causes of
injury, other courts that have considered the issue have looked to
(1) whether the Board failed to decide a material and contested
issue; and (2) whether the difference between what the employees
pled and what they offered as proof during the hearing was so great
as to be fatal to their claims. [Fn. 13]
1. The employees raised a material and contested issue
as to whether they suffered from a work-related rash caused by a
source other than staph A.
When an employee makes a claim for compensation, the
Board "may hear and determine all questions in respect to the
claim."[Fn. 14] The Board need only make findings with respect to
issues that are both material and contested. [Fn. 15] When the
Board fails to make a necessary finding, we cannot fill the gap by
making our own determination from the record; we must remand to the
Board. [Fn. 16]
Here, the question whether Bolieu's and Oliver's rashes
were caused by a non-staph A source that was work related is a
material issue. An issue is material in a workers' compensation
dispute if it "affect[s] the right to compensation."[Fn. 17] If
the Board had determined that Bolieu's and Oliver's rashes were
caused by a work-related non-staph A source, it presumably would
have awarded compensation.
We also conclude that Bolieu and Oliver have created a
contested issue as to whether their rashes were work related and
caused by a source other than staph A. To contest an issue, a
claimant must produce some evidence beyond mere assertions. We
agree with the formulation used by the District of Columbia Court
of Appeals in reviewing workers' compensation boards' decisions:
For purposes of . . . deciding whether the
issue was truly a contested one, we must examine the record to
determine if there are sufficient indicia of factual development on
the point in contention . . . more than a bald assertion of a
theory of recovery for which the record contains no evidentiary
basis of support.[ [Fn. 18]]
The record in this case does contain such evidence of
potentially work-related causes of the employees' rashes other than
staph A. First, the fact that at least twenty-one employees
developed rashes at the same time, though not conclusive,
reasonably supports a theory that the rashes were work related.
[Fn. 19] Second, Dr. Jong, the infectious disease specialist whom
the Board asked to perform a second independent medical
examination, noted the possibility that a source of Bolieu's rashes
other than staph A might have been work related:
These two diagnoses [scabies and impetigo]
could have been possibly related to conditions present in the
workplace, and are concerns among healthcare workers with close
patient contact. However, one would have to review other records
relating to the health of patients that Gwen Bolieu cared for at
the time of the onset of her skin problem, to see if this
hypothesized chain of infection can be linked.
Dr. Jong concluded that "the etiology of [Bolieu's] skin lesions is
Dr. Jong concluded that Oliver did not have a work-
related infectious condition at the time of the examination but
might have "an underlying allergic condition which might predispose
her to infectious and non-infectious skin lesions." She suggested
that Oliver seek treatment from an allergist and a dermatologist
"so that her condition can be meticulously documented"if her
lesions continued. Dr. Jong did not comment on whether such a
noninfectious condition could have been work related.
Of course, the fact that the cause of an employee's
injuries is unknown is not sufficient to label an employer's
proffered medical evidence as inconclusive or contested. In
Norcon, Inc. v. Alaska Workers' Compensation Board, [Fn. 20] we
cautioned that such a result would create an "irrebuttable
presumption"against the employer whenever the claimant suffers an
injury whose cause is difficult to diagnose. [Fn. 21] But in
concluding that the Board erred in ruling against Bolieu and
Oliver, we do not rely on Our Lady's failure to identify the exact
cause of their rashes. Rather, we rely on the Board's failure to
make reviewable findings of fact concerning evidence suggesting the
existence of work-related causes other than staph A.
2. The variance between the employees' pleadings and
proof was not fatal to their non-staph A claims.
We must also address whether Bolieu's and Oliver's
description of their injuries in their benefit claims was so
different from their recovery theory at the hearing as to preclude
their receipt of benefits for anything other than staph A-related
injuries. We have not previously addressed the issue of variance
between pleadings and proof in workers' compensation cases. The
employees argue that courts traditionally allow wide latitude
between pleadings and proof in workers' compensation cases. In
most of the cases they cite on this point, courts upheld a board's
decision to grant benefits for an injury different from that
alleged in the original claim. [Fn. 22] Although these cases are
relevant, they do not establish that a board must, as a matter of
law, allow evidence of such related injuries when not explicitly
included in the claims for compensation.
When courts have affirmed a denial of benefits based on
variations between pleadings and proof, the main concern appears to
be with claimants attempting to take a "second bite at the apple"
[Fn. 23] -- or, as Our Lady describes it -- attempting to
"resuscitate"rejected claims. Here, Bolieu's and Oliver's non-
staph A claims are not merely attempts to advance eleventh-hour
recovery theories. On the contrary, the record, both in the
hearing transcript and in documents the employees submitted to the
Board before and after the hearing, reflects that Bolieu and Oliver
did make clear they were seeking compensation for their skin
rashes, whatever the cause.
The employees' initial claims were for skin rashes, not
for staph infections. In their reports of occupational injury,
both women described the nature of their injuries as "skin rash"
and listed the causes of the rash as something other than staph A
-- Oliver listed dermatitis and Bolieu listed impetigo. Upon
receiving Dr. Janis's report concluding that the employees' skin
conditions were not work related, Our Lady sent both women a
controversion notice. The notice sent to Bolieu listed her injury
as "recurrent staph infection"; the one sent to Oliver listed her
injury as "dermatitis/staph infection." In response, each woman
filed an Application for Adjustment of Claim. In these
applications, Bolieu listed her injury as a "staph infection"and
Oliver described hers as a "skin rash"caused by contracting staph.
The employees most likely shifted from the general to the
specific in labeling their injury because they had been diagnosed
with staph A infections both by Dr. Mackie, whom Our Lady first
sent them to see, and by Dr. Beirne, their treating physician.
Bolieu and Oliver did not change their claim from a skin rash to
some other type of injury; rather, they merely used more precise
language -- based on a physician's advice -- in their Applications
for Adjustment of Claims to describe what they believed caused
their injuries. The underlying injury -- skin rash and lesions --
remained constant in all of the employees' claims, reports, and
Bolieu and Oliver also asserted throughout the hearing
process their right to compensation for their rashes and lesions,
whatever the cause. In their pre-hearing brief submitted to the
Board, the employees defined the issue to be determined as
"causation of their injuries." The employees complained that
opposing counsel had "only viewed these cases for Staph A, not as
to the nature and extent of the on-going rashes or other staph
At the hearing, the employees' attorney limited neither
his examinations nor his arguments to the staph A issue; instead,
he focused on the nature and cause of the skin conditions
generally. [Fn. 24] Indeed, even Our Lady's attorneys identified
the issue as being broader than whether the employees contracted
staph A. [Fn. 25] The employees stated in their written closing
argument to the Board that they sought compensation for their
rashes even if such rashes were not caused by a staph A infection.
The ultimate concern underlying this rule against
claimants taking a "second bite"is that the employer will be
prejudiced by insufficient notice of a worker's claim. Larson
notes in his treatise that "if the variance is so great that the
defendant is prejudiced by having to deal at the hearing with an
injury entirely different from the one pleaded, the variance may be
held fatal."[Fn. 27] In nearly all the cases Larson cites for
examples of such fatal variances, the employee attempted to offer
proof of injury to a different body part. [Fn. 28]
Here, Our Lady made no objection at the hearing to lack
of notice regarding other causes of the rash besides staph A. [Fn.
29] And Our Lady was alert to the employees' claim that the rashes
might have been caused by something other than staph A; Our Lady's
attorneys questioned physicians at the hearing about the
possibility of the employees having a different infectious or
noninfectious skin condition. Although such questioning should not
by itself be sufficient to prove that the employer had proper
notice of a claim, it does discount Our Lady's argument that Bolieu
and Oliver were merely trying to "resuscitate"their claims with
new recovery theories.
Additionally, this court has held that a layperson
"should not be expected to diagnose a condition which physicians
whom he had consulted . . . failed to diagnose."[Fn. 30] Bolieu
and Oliver's use of the term "staph A"to describe their skin
rashes was a direct result of several doctors' diagnoses. If such
diagnoses turned out to be wrong, but the employees also presented
evidence that the skin rashes could have been caused by one of
several different work-related sources, then the employees should
not be denied a hearing on their non-staph A claims merely because
they sometimes referred to their injuries as staph A infections.
In an analogous case, Davis v. District of Columbia
Department of Employment Services, [Fn. 31] the D.C. Court of
Appeals held that the Board's failure to consider evidence of
alternative injury causes was reversible error. In Davis, a bus
driver filed a claim for injuries he sustained when he slipped on
ice while boarding his bus. [Fn. 32] Specifically, he claimed he
had a rare disease called "stiff-man syndrome"as a result of the
fall. [Fn. 33] During closing arguments, the driver claimed that
he also suffered from back strain as a result of the fall. [Fn. 34]
The parties conducted post-hearing depositions of several other
physicians, most of whom agreed that the employee suffered from
back strain but could not identify the cause. [Fn. 35]
Nonetheless, the hearing examiner determined that the employee
"sought compensation only on the basis of a fall-produced . . .
stiff-man syndrome"and refused to consider any other issue or
cause of injury. [Fn. 36]
The Davis court reversed the hearing examiner's decision,
holding that the examiner should have considered the "material,
contested"issue of whether the back strain was work-related. [Fn.
37] The court found it significant that the employee had raised
the "new"recovery theory in good faith based on the evidence:
[S]nippets in the record suggest that the
parties and the hearing examiner may have agreed among themselves
. . . that petitioner's case would rise or fall on the issue of
stiff-man syndrome. This is not, however, a case where the
petitioner, having seen the proposed compensation order and
realizing his failure to convince the examiner that compensation
was due, attempted to take a second bite at the apple by advancing
a new theory of recovery. . . . Rather, the instant case is more
akin to a proceeding in which the hearing examiner failed to
consider an issue raised during the hearing itself.[ [Fn. 38]]
Our research uncovers no case in which a court either
vacated an award or affirmed denial of benefits for an injury on
the grounds that only the cause of injury on the written claim
differed from that advanced by the claimant at the hearing. In
fact, at least one court has held that, when the variance between
pleading and proof relates only to the medical cause of the injury,
the variance is not material. [Fn. 39] This proposition rests on
the notion that when an employee claims a general disability,
regardless of whether the medical cause is unknown, the employer is
on notice to investigate whether the disability is work related.
C. The Board's Error Was Not Harmless.
Even if the Board should not have limited its inquiry to
whether Bolieu and Oliver had work-related staph A infections, such
an error would be harmless if Our Lady's previous payment of TTD
benefits to Bolieu from July 1991 to August 1992 and to Oliver from
June to November 1991 was sufficient to compensate them for any
work-related injuries they ultimately proved.
Injured employees may receive TTD benefits if they are
totally disabled for a temporary period of time. [Fn. 41] Once an
employee is disabled, the law presumes that the employee remains
disabled until the employer produces substantial evidence to the
contrary. [Fn. 42] The employer must pay TTD benefits until the
claimant reaches the point of medical stability, [Fn. 43] defined
as "the date after which further objectively measurable improvement
from the effects of the compensable injury is not reasonably
expected to result from additional medical care or treatment."[Fn.
Further payment by Our Lady to the employees would be
unnecessary if the Board made a finding, supported by substantial
evidence, that Bolieu and Oliver were medically stable, whatever
the cause of their injuries, prior to the dates Our Lady stopped
paying their TTD benefits. [Fn. 45] But the Board made no such
In the "evidence"section of its Decision and Order, the
Board noted both Dr. Janis's and Dr. Jong's findings as to the
dates when the employees reached medical stability. But the
Board's discussion of the doctors' findings does not constitute
adoption of those findings; its discussion also included an
analysis of Dr. Beirne's testimony, which supported the staph A
theory and most of which the Board eventually discounted. In its
findings of fact, the Board noted its agreement with Drs. Janis,
Roberts, and Jong that the employees did not suffer from work-
related staph A infections but the Board did not address the dates
of medical stability. Indeed, considering that Dr. Janis and Dr.
Jong disagreed as to the dates of medical stability, [Fn. 46] the
argument that the Board adopted both of the doctors' assessments as
findings of fact is untenable.
Even if the Board's references to the specialists'
opinions constitute findings of fact on medical stability, it is
unclear whether those findings are supported by substantial
evidence and whether they apply only to staph A. Both Dr. Janis's
and Dr. Jong's determinations of medical stability could be read to
encompass other possible causes of the rashes. But the Board's
analysis is so entirely focused on staph A that it is difficult, if
not impossible, to determine whether the Board would also have
found the employees medically stable with respect to a condition
such as noninfectious dermatitis -- an illness presumably having an
entirely different course of treatment than staph A.
Because the Board did not make a finding that Bolieu and
Oliver were medically stable whatever the cause of their condition,
we cannot determine whether Our Lady has sufficiently compensated
the employees for their injuries. Thus, the Board's error in
focusing solely on staph A was not harmless.
Because the employees adequately raised the material and
contested issue of compensation based on alternative infectious and
noninfectious causes of their skin rashes, we REMAND the case to
the Board for redetermination of the claims based on such
Two of these employees were also part of the group that filed
claims in July and August 1990.
Both Dr. Beirne and his physician's assistant, Kenneth Ryther,
treated Bolieu and Oliver.
As several physicians explained at the hearing, staphylococcus
bacteria can cause different types of infections, some of which are
more dangerous than others. For example, staph aureus (staph A) is
a more aggressive species than staph coagulase negative (staph
negative). The physicians who examined Bolieu and Oliver differed
in their description of the employees' infections; some diagnosed
them as having "staph infections"; others made specific diagnoses
of staph A or staph negative. We describe the diagnoses as they
appear in the doctors' reports.
Neither Oliver nor Bolieu specified what type of staph (staph
A, staph negative, etc.) they thought they had.
See AS 23.30.095(k).
In a related personal injury suit against Our Lady, Bolieu v.
Sisters of Providence in Washington, 953 P.2d 1233, 1241 (Alaska
1998), we addressed the question of whether Our Lady owed the
spouses of nursing assistants a duty to take reasonable steps to
minimize the spread of infectious disease.
Meek v. Unocal Corp., 914 P.2d 1276, 1278 (Alaska 1996)
(citing Rydwell v. Anchorage Sch. Dist., 864 P.2d 526, 528 (Alaska
Yahara v. Construction & Rigging, Inc., 851 P.2d 69, 72
(Alaska 1993) (citing Morrison v. Afognak Logging, Inc., 768 P.2d
1139, 1141 (Alaska 1989)).
Id. (citing Morrison, 768 P.2d at 1141).
See Stephens v. ITT/Felec Servs., 915 P.2d 620, 624 (Alaska
Our Lady also briefed the issue of whether substantial
evidence supports the Board's finding that Bolieu and Oliver did
not have work-related staph A infections. Rather than arguing this
point, the employees merely claim that the substantial evidence
test cannot be applied to the Board's lack of findings on other
potential work-related sources.
We conclude that substantial evidence does support the
Board's ultimate finding that the employees did not suffer from
work-related staph A infections. The Board determined that the
findings of Drs. Janis, Roberts, and Jong were more persuasive than
those of Dr. Beirne, the family physician who diagnosed the
employees with staph A. This is the type of credibility
determination that lies squarely within the province of the Board.
See Hodges v. Alaska Constructors, Inc., 957 P.2d 957, 963 (Alaska
1998) (noting that the Board has authority to choose between
conflicting medical testimony).
Even if the Board had made an implicit finding that the
employees based their claims solely on staph A, such a finding
would not meet the "substantial evidence"test given our ultimate
conclusion that the record as a whole indicates the employees'
claims were not limited to staph A. See infra at IV.A.2
(concluding that the record, as a whole, indicates that the
employees' claims were not limited to staph A).
See 7 Arthur Larson & Lex K. Larson, Larson's Workers'
Compensation Law sec. 77A.40-45 (1998) (discussing when unpled
raised at a later stage of the process are still valid).
See Stephens, 915 P.2d at 627 (remanding because, "[g]iven the
dispute about [the employee's] work conditions, and the potential
materiality of that dispute, the Board did not make sufficiently
specific findings"); see also Davis v. District of Columbia Dep't
of Employment Servs., 542 A.2d 815, 819 (D.C. 1988) (concluding
that a remand was necessary in part because the Workers'
Compensation Board failed to make findings on a material and
See Stephens, 915 P.2d at 627; see also Davis, 542 A.2d at
McCormick on Evidence sec. 185 (John William Strong ed., 4th
Davis, 542 A.2d at 820.
Evidence of work-relatedness need not consist solely of
medical or scientific testimony. See, e.g, Beauchamp v. Employers
Liab. Assurance Corp., 477 P.2d 993, 996 (Alaska 1970).
880 P.2d 1051 (Alaska 1994).
See id. at 1055 n.4; see also Safeway, Inc. v. Mackey, 965
P.2d 22, 28 (Alaska 1998) (citing Norcon with approval).
See National Auto. & Cas. Ins. Co. v. Industrial Accident
Comm'n, 212 P.2d 1, 2-3 (Cal. Dist. App. 1949); Bassemier v. W.S.
Young Constr. Co., 110 So. 2d 766, 768 (La. App. 1959); Ruso v.
Beverwyck Breweries, Inc., 93 N.Y.S.2d 845, 846-47 (Sup. 1949);
City of Altoona v. Workmen's Compensation App. Bd., 411 A.2d 1322,
1323-34 (Pa. 1980).
Davis, 542 A.2d at 821.
Bolieu and Oilver's counsel, Charles Coe, described the
employees' duty as proving that the workplace was the "cause of the
skin conditions"; noted the possibility that coworkers were
suffering from similar conditions but not necessarily staph A;
noted the possibility of a staph negative infection; disputed Our
Lady's assertion that staph A was the only claim; explained that
Bolieu and Oliver had "probably more than one type of condition"
related to employment; argued that, in addition to other
conditions, both women had staph infections; called the employees'
condition "infectious dermatitis"; and cross-examined Dr. Janis
about the "recurrent eruption[s]"of "questionable cause."
Our Lady's attorneys, Allan Tesche and Dr. Lee Glass,
described the relevant issue as "whether or not either applicant
has any sort of infectious disease or noninfectious problem after
the date of medical stability related to their employment . . .
regardless of the source"and argued that "whatever the conditions
claimed by both applicants, whatever their source may be, . . . the
Board doesn't need to address the source of that." Tesche urged
the Board "to ask . . . about staph, Staph a., red bumps, itchy
bumps, any of the conditions that Mr. Coe and his clients bring to
the Board for resolution." Dr. Glass also asked Dr. Janis about
other diseases besides staph A, and asked Dr. Roberts whether any
infectious or noninfectious condition, including but not limited to
staph A, was related to the employees' work at Our Lady.
The employees requested that the Board look beyond staph A as
a possible cause:
This [coworker and patient contact] is the
common source whether it is infectious or derma[to]logical in
origin. Even if it is not infectious in origin[, that fact] does
not rule out that it is not work related in origin. The disease
that Ms. Oliver and [Ms.] Bolieu have can still be work related
even if it is a rash obtained from a detergent, change in soap, or
other institutional materials. They do not rule these factors out.
The employees also stated in their closing argument that they were
not filing "claims for Staph A but generically for their rash
conditions." The closing argument contained an entire subsection
titled "Staph A vs. Rash"in which the employees argued that
rashes, not merely staph A, were at issue. The employees concluded
by telling the court: "Do not be mislead [sic] in this case. It is
not about Staph A nor fully about an infectious disease. It is
about a work related skin condition."
Larson & Larson, supra note 13, sec. 77A.45.
See, e.g., id. (citing Sun Control Tile Co. v. Industrial
Comm'n, 571 P.2d 1064 (Ariz. App. 1977) (disallowing award of
benefits where claimant originally reported a knee injury and
sought benefits at the hearing for a subsequent unreported back
AS 23.30.100 requires employees to give notice to their
employer of the "time, place, nature, and cause of the injury."
Failure to give notice does not bar claims "unless objection to the
failure is raised before the board at the first hearing of a claim
for compensation in respect to the injury."[Fn. 47] AS
W.R. Grasle Co. v. Alaska Workmen's Compensation Bd., 517 P.2d
999, 1004 (Alaska 1974) (quoting Employers' Liab. Assurance Corp.
v. Bradshaw, 417 P.2d 600, 601 (Alaska 1966)); see also id. at 1005
n.17 ("It is unreasonable to conclude that an injury is not latent
merely because the plaintiff suffered pain, when thereafter several
physicians were unable to correctly diagnose his injury.").
542 A.2d 815 (D.C. 1988).
See id. at 816.
See id. at 816 & n.2.
See id. at 818.
See id. at 817-18.
Id. at 816.
Id. at 822.
Id. at 820-21 (citations and quotations omitted).
See Travelers Ins. Co. v. Strech, 416 S.W.2d 591, 594-95 (Tex.
Civ. App. 1967) (holding that, although original diagnosis of heart
attack was incorrect, employee's assertion of a new cause at the
hearing was proper because the employee's description of the nature
of his symptoms and disability remained constant throughout the
claim and pleadings).
See id. at 594.
See AS 23.30.185.
See Olson v. AIC/Martin J.V., 818 P.2d 669, 672 (Alaska 1991).
See AS 23.30.185.
Our Lady paid TTD benefits to Oliver from June 20, 1991 to
November 25, 1991, one day before she quit her job. Our Lady paid
TTD benefits to Bolieu from July 11, 1991 to August 31, 1992,
terminating payment shortly after receiving Dr. Janis's report.
Dr. Janis concluded that Bolieu had never been medically
unstable, while Dr. Jong estimated that she became stable on
January 13, 1992. Dr. Janis estimated that Oliver was medically
stable on or before September 21, 1992. Not only is this date
potentially inconsistent with Dr. Jong's estimate of November 19,
1991, but it also is potentially several months after Our Lady
stopped paying Oliver TTD benefits. Thus, even if the Board had
adopted Dr. Janis's estimate as a finding of fact, a remand would
be necessary to determine whether Oliver's rash was work related.