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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Robles v. Providence Hospital (9/24/99) sp-5181

Robles v. Providence Hospital (9/24/99) sp-5181

     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
                                 


MARGARITA ROBLES,             )
                              )    Supreme Court No. S-8543
             Petitioner,      )
                              )    Superior Court No.
     v.                       )    3AN-96-9826 CI
                              )
PROVIDENCE HOSPITAL,          )    O P I N I O N
                              )
             Respondent.      )    [No. 5181 - September 24, 1999]
______________________________)



          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
                   Sigurd Murphy, Judge pro tem


          Appearances: Chancy Croft, Chancy Croft Law
Office, Anchorage, for Petitioner.  Constance E. Livsey, Holmes
Weddle & Barcott, Anchorage, for Respondent.


          Before:   Matthews, Chief Justice, Eastaugh,
          Fabe, Bryner, and Carpeneti, Justices.  


          CARPENETI, Justice.


I. INTRODUCTION
          Margarita Robles petitioned this court to vacate the
superior court's second remand of her case to the Alaska Workers'
Compensation Board.  Because the Board properly interpreted and
acted upon the original remand, we vacate the superior court's
second remand order. 
II.  FACTS AND PROCEEDINGS
     A.   Factual Background
          Margarita Robles is a 60-year-old former employee of
Providence Hospital (Providence) in Anchorage.  Robles ceased her
education at the eighth grade.  She began working at Providence in
1970 as a nurse's assistant.  She was promoted after approximately
twelve years to a sterile processing technician position, a job
which she held until December 1992.  At that time her physician,
Dr. McGuire, determined that her knees were degenerating and that
the job requirements had become too physically demanding for her. 
          Robles has suffered two separate knee injuries, one to
each knee.  The first was an on-the-job injury in 1989 and 
required surgery.  The second occurred off the job in 1992.  Robles
sought treatment from Dr. David McGuire for both injuries.  While
treating the latter, Dr. McGuire determined that Robles was
experiencing "considerable pain in both legs." On November 10,
1992, Dr. McGuire informed Providence that Robles "must have a job
that requires minimum walking and standing." To meet this
requirement, Dr. McGuire recommended to Providence that Robles
change her occupation. 
          On December 21, 1992, Robles met with Providence
representatives who informed her that as of that day she was
removed from her job.  They further informed her that she had
ninety days to secure another position within the hospital or she
"might be"terminated.  This meeting was memorialized in a letter
to Robles dated December 24, 1992.  
          On January 26, 1993, Robles filed a request for a
reemployment benefit evaluation, based on her 1989 on-the-job knee
injury, pursuant to AS 23.30.041. [Fn. 1] 
          Providence offered Robles a temporary job in its
Vocational Evaluation Program on February 12, 1993.  Robles
accepted the offer.  Providence later said she was able to perform
the sedentary non-skilled tasks assigned to her, such as filing and
assembling notebooks. 
          Aetna, Providence's insurer, controverted Robles's claim
for reemployment benefits, asserting that her current problems in
both knees were a result of her 1992 non-work-related injury.
          On April 8, 1993, Robles filed an application for various
other workers' compensation benefits.  Aetna/Providence also
controverted all of these claims. 
          Robles was deemed eligible for reemployment benefits by
a rehabilitation specialist on July 6, 1993. 
          On July 14, 1993, Robles was examined by Dr. Shawn Hadley
at the request of Aetna/Providence.  Dr. Hadley determined that
Robles suffered from degenerative joint disease in both knees, a
condition that Dr. Hadley said would worsen with time.  Like Dr.
McGuire, Dr. Hadley cleared Robles for sedentary work. 
          Robles met again with Providence representatives on July
29, 1993.  This meeting was memorialized in a letter which informed
her:
          At the present time we are unable to continue
your placement for task work which we have accommodated since
February 1993.  We have also been unsuccessful in locating a
position for you based on your current skills, work experience and
physical capacities.  Therefore, we will not be assigning you to
any other tasks effective Monday, August 2, 1993. 
          Robles was also notified that she had three options
available to her.  First, she could elect to participate in a
reemployment plan.  Under this option, Providence would place 
Robles on an "Educational Leave of Absence for up to one year."
Upon completion of the reemployment plan, Robles would "be eligible
to apply for transfers to available positions for which [she was]
qualified." Under this option, if Robles did not complete her
program in less than one year, she would  be ineligible to apply
for other jobs at Providence as a current employee.  At the time
this option was presented to Robles, Providence was undergoing a
"large layoff."
          Second, Robles could opt to apply for Long Term
Disability (LTD).  Providence explained to her that "[i]f you elect
Long Term Disability please be advised that the waiting period for
benefits may be six months and the usual requirement is that you
are unable to work." Under this option, Robles would have no
income for six months, after which time she would likely be denied
the benefit since she was able to work and had been doing so until
Providence ran out of "task work"for her.
          It should be noted that Aetna has historically used this
"unable to work"language in its LTD policies. [Fn. 2]  However, it
is undisputed that this language cannot be applied literally. [Fn.
3]  Aetna  has conceded that "unable to work"does not mean unable
to work at any gainful employment. [Fn. 4] But it is doubtful that
Robles understood this distinction when making her decision of
which of the three options to choose. 
          The third option Providence presented to Robles was early
retirement.  Providence informed her that "[a] review of the
records indicates you are eligible at the present time.  If you
elect early retirement the approximate monthly benefit is $294.92."
Robles chose this option. 
          A prehearing conference for Robles's various workers'
compensation claims was held on October 21, 1993. At that
conference, Robles -- now unemployed/retired -- added a claim for
permanent total disability benefits (PTD) under AS 23.30.180. [Fn.
5]  Aetna/Providence controverted this claim as well.
     B.   Procedural Background
          The Alaska Workers' Compensation Board heard Robles's
case on January 19, 1994 and issued an order denying all of her
claims on March 21, 1994.  The Board found that the "presumption of
compensability attaches to [Robles's] claim for PTD benefits."
Once an employee is presumed compensable, this court has found that
"the law presumes that the employee remains disabled unless and
until the employer introduces substantial evidence to the
contrary."[Fn. 6]
          The Board further found that Aetna/Providence had come
forward with substantial evidence to rebut the presumption.  The
evidence the Board cited was: 
          Dr. McGuire, her treating physician and
surgeon, and Dr. Hadley [Aetna's doctor] have stated in no
uncertain terms that Robles is physically capable of doing
sedentary work.  The only thing holding her back was the need for
retraining.  Further, it is undisputed that she had the physical
capacity to work eight hours a day, five days a week in the
employer's office from February through July 1993. 

          Robles appealed this decision to the superior court.
Judge Andrews held that this evidence by itself was not enough to
overcome the presumption of disability because, among other things,
Aetna/Providence had not presented to the Board any evidence that
work was available to Robles "given her physical, educational and
other limitations." Judge Andrews further held: 
          [n]o evidence was presented that work suited
to the appellant's capabilities was regularly and continuously
available in the Anchorage community.   

          Judge Andrews's order remanding the decision to the Board
used the following language: "THEREFORE IT IS ORDERED that since
the Board's findings of fact are not supported by substantial
evidence, the decision of the Board is REVERSED and REMANDED to the
Board for further proceedings in accordance with this opinion."
          On remand, the Board found that Judge Andrews's choice of
language was "identical"to that employed by this court in Vetter
v. Alaska Workmen's Compensation Board. (Vetter I) [Fn. 7]
          In Vetter I, this court reversed and remanded a case back
to the Board after holding: "We thus find a lack of substantial
evidence to support the finding of the Board . . . . We remand this
case . . . for further proceedings in conformity with this
opinion."[Fn. 8]  The Board then reconsidered the issue and again
ruled against Vetter.  In Vetter II [Fn. 9] this court concluded:
"the Board erred in reconsidering an issue [the lack of substantial
evidence] previously determined by this court . . . ."[Fn. 10]  
          The Board, applying the Vetter cases to Robles's case,
stated: "In applying this test to the facts at bar, we find we are,
by judicial mandate, bound to award the employee PTD benefits." 
          Aetna/Providence appealed this second Board decision to
the superior court.  Judge Murphy ruled that the Board
misinterpreted Judge Andrews's order, stating that "the Board's
reliance on Vetter is entirely misplaced." Judge Murphy held:
          The difference between the Vetter decisions
and Robles'[s] case is obvious.  In Vetter, evidence on the issue
decided by the Appellate court was obtained in the first
proceeding.  But in  Robles'[s] case, no evidence on the existence
or absence of a stable job market [for Robles] was obtained in the
first proceeding.  Without such evidence, the Superior Court was
unable to make any ruling as to whether the evidence showed that a
stable job market did or did not exist, and, in fact, did not make
any such ruling.
          Judge Murphy then reversed and remanded Robles's case
back to the Board for another hearing to take further evidence on
three issues: (1) to determine Robles's physical capabilities and
educational limitations; (2) to determine what type of employment
is suited to Robles's educational limitations and physical
capacities; and (3) to determine if employment for Robles is
regularly and continuously available to her in the Anchorage
community.  Judge Murphy held that only after further evidence was
taken on these issues could the Board determine if a finding of PTD
for Robles was "appropriate."
          Robles petitioned this court for a review of Judge
Murphy's decision.  We granted the petition for review and directed
the parties to address three issues:
          1.  Did the superior court err in determining that "no
evidence was presented that work suited to the appellant's
capabilities was regularly and continuously available in the
Anchorage community?"
          2.  Assuming that the superior court did not err in this
determination, were the parties afforded a full and fair
opportunity to litigate these issues in the original hearing?
          3. Assuming that the original hearing afforded the
parties a full and fair opportunity to litigate the issue, should
disposition of the case be controlled by Vetter II?
III. DISCUSSION
     A.   Standard of Review
          When the superior court acts as an intermediate court of
appeal, no deference is given to the superior court's decision and
this court will independently review the merits of an
administrative determination. [Fn. 11]
     B.   The Superior Court Did Not Err in Determining that No
Evidence Was Presented that Work Suited to Robles's Capabilities
Was Regularly and Continuously Available in the Anchorage
Community.

          Neither of the parties argues that evidence regarding the
availability of work in Anchorage for Robles was presented at the
original Board hearing.  In its original decision denying Robles
PTD benefits the Board did not address this issue.  Additionally,
a review of the excerpted record of the proceedings reveals no
reference to work availability for Robles.  Finally, both Judge
Andrews and Judge Murphy concluded that no such evidence was
presented.  Therefore, the superior court did not err in
determining that no evidence was presented regarding the
availability of work for Robles.
     C.   The Parties Were Afforded a Full and Fair Opportunity to
Litigate these Issues in the Original Hearing.

          This is essentially a due process issue.  In determining
whether due process has been observed by an administrative agency,
this court reviews the proceedings:
          [T]o assure that the trier of fact was an
impartial tribunal, that no findings were made except on due notice
and opportunity to be heard, that the procedure at the hearing was
consistent with a fair trial, and that the procedure was conducted
in such a way that there is an opportunity for a court to ascertain
whether the applicable rules of law and procedure were observed.
[Fn. 12] 

          Surprisingly, Aetna/Providence chose not to brief this
question (or any of this court's questions).  As a result, we do
not have the benefit of its position on the matter.  Robles
correctly contends neither party was limited in the number of
witnesses they could call, nor as to the time allotted for
testimony.  Furthermore, there is no indication that any testimony
offered by Aetna/Providence was excluded.
          Aetna/Providence does not argue, nor could it, that it
did not know that the availability of employment for Robles was
relevant to the proceedings.  This requirement is clearly outlined
in AS 23.30.180, the PTD section of the Alaska Workers'
Compensation Act. [Fn. 13]  
          Therefore, Aetna/Providence was not denied a fair and
full opportunity to litigate the issue of availability of
employment for Robles in Anchorage because it had both notice as to
the relevancy of the issue and an opportunity to litigate the issue
before the Board.  Aetna/Providence simply chose not to do so, and
such a choice, even if erroneous in hindsight, does not constitute
a violation of due process. 
     D.   The Disposition of the Case is Controlled by Vetter II.

          This case is nearly identical to the Vetter cases. 
First, the Board determined that Robles, just like Vetter, was
entitled to the presumption of compensable disability.  Second,
both Robles and Vetter were denied PTD benefits by the Board
because the Board found that the employer had presented substantial
evidence sufficient to overcome the presumption of compensable
disability.  Third, in both cases a court of appeal (the supreme
court in Vetter's case, and the superior court in Robles's case)
held that the Board's finding was not supported by substantial
evidence.  Fourth, both appellate courts reversed the Board's
decision and remanded the cases back to the Board for proceedings
in accordance with their rulings.  In Vetter I, the Board
incorrectly interpreted this order to mean that it should hear
additional evidence.  In Robles's case, the Board appropriately
applied Vetter II.  The Board determined that when an employee,
such as Robles, is presumed compensable and an appellate court
finds no substantial evidence supporting the Board's finding
against compensability, the Board has no choice but to reverse the
unsupported finding and award the benefit.
          Judge Murphy attempted to distinguish the Vetter cases
from Robles's case by noting that "no evidence was presented on the
existence or absence of a stable job market"in Robles's case,
unlike in the Vetter decisions.  Judge Murphy is correct in this
observation.  But Judge Murphy focused on the wrong issue; no
evidence was presented because Aetna/Providence chose not to
present any.  In light of that choice, or oversight, the issue then
becomes:  Did Judge Andrews or Judge Murphy have the authority to
remand Robles's case back to the Board for further evidentiary
findings?  Judge Murphy held that he had this power and it is the
crux of Aetna/Providence's argument.
     E.   Aetna/Providence's Argument
          Aetna/Providence correctly asserts that a superior court
has the discretion to remand a case back to the Board to hear
further evidence on an issue.  But Aetna/Providence inappropriately
relies on Employers Commercial Union Insurance Group v. Schoen [Fn.
14] for the proposition that both Judge Andrews and Judge Murphy
had the discretionary authority to remand Robles's case back to the
Board for additional evidentiary findings.  In Schoen, the Board
denied the employer the right to cross-examine Schoen's medical
expert. [Fn. 15]  This court held that this denial was an improper
exclusion of evidence. [Fn. 16]  By contrast, Providence/Aetna was
not denied the right to present evidence at the original hearing. 
Rather, it chose not to do so.
          The superior court's remand language in Schoen was also
specific in that the Board was only "to allow the requested cross-
examination, and to pursue such other evidence as might be raised
by the cross-examination."[Fn. 17]  This court held that language
meant: "[T]he remand is so limited and is not intended to create an
opportunity for Schoen to relitigate his claim before the Board to
cure alleged defects in his proof."[Fn. 18]
          By seeking to present evidence on the availability of
work for Robles at this late date, Aetna/Providence is asking this
court for an opportunity to cure defects in its proof and thus an
opportunity to relitigate its claim.  It is not entitled to a
second bite at the apple.
          Aetna/Providence argues that 
          if Ms. Robles'[s] case is to be analogized to
eating fruit, Providence has not received a "second bite at the
apple." Rather, [Judge Andrews] took away Providence's apple when
[she] reversed the Board on the 'withdrawal from the labor market'
issue.  The Superior Court [Judge Murphy] then directed the Board
to consider new evidence, such as oranges or bananas, on an issue
not previously decided.

          This analogy is wrong.  Judge Andrews did not reverse the
Board on the withdrawal from the labor market issue.  Rather, she
reversed the Board because Aetna/Providence did not meet its burden
of coming forward with substantial evidence -- specifically, the
availability of work for Robles -- to overcome the statutory
presumption of compensability.
IV.  CONCLUSION
          The remand order by Judge Murphy is VACATED with
directions to the superior court to reinstate the Board's decision
and order of November 14, 1996.  Aetna/Providence is precluded from
further litigation before the Board.  Our holding does not
foreclose Aetna/Providence's right to appeal to this court once the
superior court enters its final order as directed in this opinion.


                            FOOTNOTES


Footnote 1:

     AS 23.30.041 states in part:
               (f) An employee is not eligible for
reemployment benefits if
                    (1) the employer offers employment
within the employee's predicted post-injury physical capacities at
a wage equivalent to at least the state minimum wage under AS
23.10.065 or 75 percent of the worker's gross hourly wages at the
time of injury, whichever is greater, and the employment prepares
the employee to be employable in other jobs that exist in the labor
market . . . .


Footnote 2:

     See Ace v. Aetna Life Ins. Co., 139 F.3d 1241, 1244 & n.7 (9th
Cir. 1998) (citing Aetna Life Ins. Co. v. Orr, 169 S.W.2d 651, 654
(Ark. 1943)).


Footnote 3:

     See id.


Footnote 4:

     See id. at 1244.


Footnote 5:

     AS 23.30.180  Permanent total disability.
               (a) In case of total disability adjudged
to be permanent 80 percent of the injured employee's spendable
weekly wages shall be paid to the employee during the continuance
of the total disability.  If a permanent partial disability award
has been made before a permanent total disability determination,
permanent total disability benefits must be reduced by the amount
of the permanent partial disability award, adjusted for inflation,
in a manner determined by the board. Loss of both hands, or both
arms, or both feet, or both legs, or both eyes, or of any two of
them, in the absence of conclusive proof to the contrary,
constitutes permanent total disability.  In all other cases
permanent total disability is determined in accordance with the
facts. In making this determination the market for the employee's
services shall be
                    (1) area of residence;
                    (2) area of last employment;
                    (3) the state of residence; and
                    (4) the State of Alaska.
               (b) Failure to achieve remunerative
employability as defined in AS 23.30.041(q) does not, by itself,
constitute permanent total disability.


Footnote 6:

     Baker v. Reed-Dowd Co., 836 P.2d 916, 919 (Alaska 1992) 
(citing Olson v. AIC/Martin J.V., 818 P.2d 669, 672 (Alaska
1991))(internal quotation marks omitted) (footnote omitted). 


Footnote 7:

     524 P.2d 264 (Alaska 1974).


Footnote 8:

     Id. at 268.


Footnote 9:

     Vetter v. Wagner, 576 P.2d 979 (Alaska 1978) (Vetter II).


Footnote 10:

     Id. at 982.


Footnote 11:

     See Handley v. State, Dep't of Revenue, 838 P.2d 1231, 1233
(Alaska 1992)(citation omitted).


Footnote 12:

     In re Hanson, 532 P.2d 303, 305 (Alaska 1975)(footnote
omitted). 


Footnote 13:

     See supra note 4.


Footnote 14:

     519 P.2d 819 (Alaska 1974).


Footnote 15:

     Id. at 821.


Footnote 16:

     Id. at 824.


Footnote 17:

     Id. at 821 (footnote omitted).


Footnote 18:

     Id. at 821 n.1.