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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Carlson v. Doyon Universal-0gden Services (1/20/00) sp-5233

Carlson v. Doyon Universal-0gden Services (1/20/00) sp-5233

     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
                                 

JEANNE CARROLL CARLSON,       )
                              )    Supreme Court No. S-8888
             Appellant,       )
                              )    Superior Court No.
     v.                       )    3AN-97-9059 CI
                              )
DOYON UNIVERSAL-OGDEN         )    O P I N I O N
SERVICES and ALASKA NATIONAL  )
INSURANCE COMPANY,            )    [No. 5233 - January 21, 2000]
                              )
             Appellees.       )
______________________________)




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


          Appearances: Chancy Croft, Chancy Croft Law
Office, Anchorage, for Appellant.  Theresa Hennemann and Robert
Bredesen, Holmes, Weddle & Barcott, Anchorage, for Appellees.


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


          FABE, Justice.


I.   INTRODUCTION
          Jeanne Carroll Carlson appeals the Alaska Workers'
Compensation Board's denial of her Permanent Total Disability (PTD)
claim.  Carlson maintains that the Board failed to consider factors
that she believes made it impossible for her to find suitable work. 
Because we conclude the Board did not err in deciding that
Carlson's employer has shown that regularly and continuously
available work is available in an area suited to Carlson's
capabilities, we affirm.
II.  FACTS AND PROCEEDINGS
          Jeanne Carol Carlson suffered a back injury in December
1995 while working as a housekeeper at the Doyon Universal-Ogden
Services (Doyon) facility on the North Slope.  Several doctors have
diagnosed her as having injured the discs in her lower back.  She
sought chiropractic care from Dr. David Mulholland and participated
in other rehabilitation programs.  After a few months of treatment
during which she received Temporary Total Disability (TTD)
payments, Carlson applied to the Reemployment Board seeking
reemployment benefits [Fn. 1] on June 7, 1996.
          At the request of Alaska National Insurance, the workers'
compensation insurance carrier for Doyon, Dr. Shawn Hadley examined
Carlson and determined that her situation had stabilized, which
made her ineligible for TTD benefits. [Fn. 2]  Dr. Hadley also
cleared her for light duty work.
          After this report, Alaska National requested that Carlson
undergo an eligibility evaluation.  Dr. Mulholland conducted this
examination, finding that her condition had not stabilized.  To
resolve a conflict in the reports of Dr. Mulholland and Dr. Hadley,
Carlson requested a secondary independent medical evaluation.  The
Board granted it in January 1997.
          While awaiting the evaluation and the Reemployment
Benefits Administrator's (RBA) recommendation, Carlson took other
steps to obtain benefits.  Carlson applied for an adjustment of her
claim, asking the Alaska Workers' Compensation Board for TTD
benefits as of September 1996.  In December 1996 the RBA's
evaluator recommended her for reemployment benefits.  But before
the RBA awarded benefits, it suspended the process pending the
outcome of the Board-ordered secondary independent medical
evaluation.
          Dr. Douglas Smith performed the independent evaluation. 
His report found that Carlson's condition had stabilized, and he
cleared her for light duty work.  Carlson's stable condition made
her ineligible for TTD benefits, so she modified her claim again,
asking for PTD benefits in March 1997.  After an October 1997
hearing, the Board denied Carlson PTD status.
          All three doctors, including her treating chiropractor,
believe that Carlson sustained a work-related injury but
nevertheless is capable of doing either sedentary or light-duty
work.  All three also maintain that she is not permanently
disabled.
          In addition to the medical evidence, the Board heard the
testimony of Carlson and two rehabilitation experts.  Jill Friedman
testified on Carlson's behalf.  She concluded that available jobs
within Carlson's physical capacity required skills that Carlson
either did not have or could not learn.  She described Carlson's
employment prospects as "very poor."
          Doyon's rehabilitation expert, Carol Jacobsen, disagreed
with Friedman about Carlson's prospects for procuring full-time
employment.  Jacobsen investigated several occupations that Dr.
Hadley had identified as within Carlson's physical capacities,
including receptionist and cashier.  Jacobsen testified that
Carlson either had held similar jobs in the past or could learn the
necessary skills with training. Jacobsen also surveyed the
Anchorage job market and concluded there were job openings for
Carlson given her physical limitations.  The Board ruled that the
employer had shown that regular, continuous work was available in
the area, supporting a finding that Carlson was not PTD.
          After the Board denied Carlson PTD status, the RBA
declared her eligible for rehabilitation benefits as of December
11, 1997.  Alaska National eventually paid benefits in accordance
with the RBA's decision.  Carlson appealed the Board's decision to
the superior court, and Judge Sigurd E. Murphy affirmed the Board's
decision.
          In this appeal Carlson claims that the Board erred when
it denied her PTD benefits for the time between September 21, 1996,
when her Permanent Partial Impairment (PPI) benefits expired, and
December 11, 1997, when she received reemployment benefits.
III. STANDARD OF REVIEW
          An individual's status as permanently, totally disabled
is a question of fact. [Fn. 3]  And when we review the Board's
determination of a factual question, we apply the substantial
evidence test. [Fn. 4]  Substantial evidence is 
          such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.  The Board's
decision need not be the only possible solution to the problem, for
it is not the function of the court to reweigh the evidence or
choose between competing inferences, but only to determine whether
such evidence exists.[ [Fn. 5]]

When reviewing the Board's decision, we give no deference to the
superior court's decision. [Fn. 6]
IV.  DISCUSSION
          Alaska's Workers' Compensation Act presumes that an
employee's claim is compensable. [Fn. 7]  We apply this presumption
in a three-step process. [Fn. 8]  For the presumption to attach,
the employee first must establish a preliminary link between her
disability and her employment. [Fn. 9]  After the employee
demonstrates the link, the employer may rebut the presumption with
substantial evidence that the employee is not PTD. [Fn. 10]  If the
employer shows substantial evidence, then the presumption
disappears and the employee must prove her PTD claim by a
preponderance of the evidence. [Fn. 11]  When reviewing the Board's
decision whether an employee has established her claim by a
preponderance of the evidence, we determine whether substantial
evidence supports the Board's findings. [Fn. 12]
     A.   Carlson Established a Preliminary Link Sufficient to
Raise the Presumption of Compensability.

          The Board erred when it failed to apply the statutory
presumption that work-related injuries are compensable.  To
implicate the presumption, an employee must simply demonstrate 
some evidence that her employment contributed to the disability.
[Fn. 13]  A mere showing that the injury occurred at work will
often suffice to establish the presumption. [Fn. 14]
          Because Carlson suffered a work-related injury and
produced evidence that she was unemployable, Carlson implicated the
presumption by establishing the preliminary link between her
disability and her employment. [Fn. 15]  But every doctor who has
examined her, including her own treating doctor, agrees that she is
not PTD and has cleared her for some combination of light duty and
sedentary work.  Both the Board and the superior court relied on
medical evidence to find that Carlson had not met the minimal
burden necessary to raise the presumption.
          The policy behind the preliminary link requirement,
however, favors a finding that the presumption attached.  "The
purpose of the preliminary link requirement is to rule out cases in
which the claimant can show neither that the injury occurred in the
course of employment nor that it arose out of it."[Fn. 16]  This
case does not raise that concern.  The parties do not dispute that
Carlson suffered a back injury at work.  Evidence of her injury and
testimony that she was unemployable sufficed to demonstrate the
preliminary link. [Fn. 17]
          In a case involving a similar injury, we held that the
employee's testimony and a doctor's testimony verifying her injury
sufficed to justify the Board's implication of the presumption.
[Fn. 18]  Similarly here, Carlson demonstrated that she suffered an
injury at work, and rehabilitation expert Jill Friedman testified
that Carlson's chances of returning to full employment were very
poor. These facts justify applying the presumption of
compensability. [Fn. 19]
          Doyon's argument that Carlson failed to demonstrate
medical evidence that she is PTD oversimplifies the concept of
"total disability." Alaska has adopted the odd lot doctrine in
defining what constitutes PTD. [Fn. 20]  The odd lot doctrine
states that "total disability may be found in the case of workers
who, while not altogether incapacitated for work, are so
handicapped that they will not be employed regularly in any well-
known branch of the labor market."[Fn. 21]  Under this formulation
of total disability, Friedman's testimony demonstrates evidence of
disability despite the overwhelming medical evidence that Carlson
can perform light duty work.
          Friedman testified that Carlson's chance of finding
employment was low given her physical limitations, skills,
education, and age.  Thus, Friedman considered more than medical
fitness in forming her opinion.  The Board also should have
considered factors such as Carlson's skills, education, and age in
determining whether the presumption attached. [Fn. 22]  Dismissing
this evidence prior to deciding whether the presumption attaches is
inappropriate, because the Board should not weigh the credibility
of the witnesses at this stage. [Fn. 23]  In this case Carlson
presented sufficient evidence to demonstrate that she suffered a
work-related injury which raised the presumption of compensability.
     
          Although the Board erred in finding that the presumption
did not attach, it undertook an alternative analysis based on the
assumption that the presumption had attached.  Because we conclude
that this alternative analysis is correct, we hold that the Board's
error was harmless. 
     B.   Alaska National Presented Substantial Evidence that
Carlson Was Not PTD.
          When the presumption of compensability applies, the
burden shifts to the employer to produce substantial evidence that
the employee is not PTD.  In determining whether the employer
presented substantial evidence, we must find "such relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion."[Fn. 24]  We look to the employer's evidence
standing alone without reweighing it. [Fn. 25]  The evidence must,
however, be comprehensive and reliable, and account for relevant
factors defining disability. [Fn. 26]
          Although the Board found that Carlson failed to establish
the preliminary link requirement, it nevertheless considered
whether Doyon presented substantial evidence to overcome the
presumption.  We agree with the Board's conclusion that Doyon
presented substantial evidence.
          To avoid paying PTD benefits, an employer must show that
"there is regularly and continuously available work in the area
suited to the [employee's] capabilities, i.e., that [she] is not an
'odd lot' worker."[Fn. 27]  The Board concluded that the three
doctors' unanimous view that Carlson was not PTD and Jacobsen's
testimony identifying continuous and suitable work sufficed to
overcome the presumption.  This evidence satisfies the
"comprehensive and reliable"requirement propounded in Stephens.
[Fn. 28]  The Board considered Carlson's medical limitations and
her competitiveness in the job market, specifically referring to
the testimony of rehabilitation expert Jacobsen and her Anchorage
area labor market survey.
          Because Doyon produced substantial evidence that Carlson
is not PTD, we conclude that Doyon has overcome the presumption of
compensability.
     C.   Carlson Did Not Prove Her PTD Claim by a Preponderance of
the Evidence.
          The last question in our three-step analysis is whether
Carlson proved her PTD claim by a preponderance of the evidence.
[Fn. 29]  At this stage the Board may weigh the evidence. [Fn. 30] 
The Board emphasized that no doctor, not even her treating
chiropractor, ever concluded that Carlson was PTD.  Moreover, every
doctor testifying in the case cleared her for light duty or
sedentary work.  The Board also relied on rehabilitation specialist
Jacobsen's finding that a regular, stable labor market existed for
people with Carlson's skills and capabilities.  The Board decided
that Jacobsen's testimony was sufficient to support its finding
that Carlson was not PTD.
          We have upheld a denial of disability status based on the
testimony of rehabilitation counselors. [Fn. 31]  Much like
Jacobsen in this case, the expert in Summerville v. Denali Center
[Fn. 32] based his testimony on his review of the employee's claim
file and a labor market survey.  He identified job classifications
suitable to the employee given her physical and educational
limitations.  Based on this information, he concluded that suitable
employment was available.  We acknowledged that the record
contained evidence that regular and continuous employment was not
available to the employee, but decided it was the Board's role to
weigh such evidence. [Fn. 33]  We similarly defer to the Board's
evaluation of the evidence in this case.
          Carlson points to the testimony of Jill Friedman to
support her argument that she established her PTD status by a
preponderance of the evidence.  But the Board may weigh differences
in expert testimony and decide in favor of one side. [Fn. 34]  In
Harp v. ARCO Alaska, Inc., [Fn. 35] the medical records and
testimony favored a finding that the employee was disabled. [Fn.
36]  But one expert testifying for the employer vehemently
disagreed.  Nevertheless, we upheld the Board's conclusion that the
employee was disabled, holding that substantial evidence existed to
support the finding. [Fn. 37]  The present case is analogous.  The
litigants have presented conflicting experts, but we defer to the
Board's resolution of their conflicting testimony.
     D.   The Board's Findings Were Sufficient.
          Although Carlson has objected to the adequacy of the
Board's findings, we hold that they suffice to facilitate
meaningful judicial review.  Relying on our decision in Stephens,
[Fn. 38] Carlson argues that "the Board failed to recognize,
address[,] or resolve much conflicting testimony." But the
circumstances in Stephens, in which we reversed a Board decision
for insufficient findings, are not present in this case.  In
Stephens, the Board did not resolve a material dispute about work
conditions, failing to discuss the issue or "even acknowledge"the
testimony of Stephens's witnesses. [Fn. 39]  The Board in Stephens
never mentioned how it resolved the work conditions dispute, simply
siding with the employer's medical experts. [Fn. 40] 
          The findings in this case, although terse, provide more
guidance than those in Stephens.  The Board addressed the critical
issue in the case -- the availability of regular and continuous
work -- and acknowledged the testimony of Carlson's expert, Jill
Friedman.  But "based on the opinions of Carol Jacobsen,"the Board
found "that the employer has shown regular and continuous work in
our area suited to the employee's light sedentary capabilities."
Because the Board addressed the relevant issues and because the law
grants the Board broad discretion in resolving conflicting expert
testimony, we hold that the findings were adequate.
     E.   Carlson Is Not Entitled to PTD Benefits.
          Because we uphold the Board's conclusion that Carlson
failed to prove her PTD claim, we hold that she is not entitled to
compensation for the period after her PPI benefits expired and
before her rehabilitation benefits began.  Carlson argues that she
should be permitted to pursue her rehabilitation claim concurrently
with her PTD claim.  Although we have observed that "a claim for
PTD benefits is not incompatible with a request for reemployment
benefits,"[Fn. 41] Carlson must still prove her claim by a
preponderance of the evidence in order to receive PTD benefits.
[Fn. 42]  This she has failed to do, and nothing in Meek relieves
her of her burden of proof. [Fn. 43]
          Carlson makes a valid point about a potential "gap"in
benefits for the period between the expiration of PPI and the
initiation of rehabilitation benefits.  We do not believe, however,
that the circumstances of this case justify a retroactive award of
rehabilitation benefits for the time that Carlson received no
compensation.  Because the legislature intended the rehabilitation
process to be voluntary, [Fn. 44] the onus was on Carlson to pursue
rehabilitation vigorously.
          Although the RBA suspended consideration of her
application pending the outcome of the secondary independent
medical evaluation that Carlson requested, the record before us
does not indicate that Carlson made any attempt to reinitiate
processing of her rehabilitation benefits application after the
secondary evaluation. [Fn. 45]  Instead, she chose to emphasize her
pursuit of PTD benefits.  Because she did not actively pursue her
rehabilitation benefits during the period she sought PTD benefits,
however, no retroactive award of rehabilitation benefits is
warranted in this case.
V.  CONCLUSION
          The Board erred when it ruled that Carlson had failed to
raise the presumption of compensability.  This error, however, was
harmless.  The Board and the superior court correctly determined
that, even if the presumption had been raised, the employer
presented substantial evidence to rebut the presumption.  The Board
and the superior court also correctly concluded that Carlson failed
to prove her case by a preponderance of the evidence.  Because
Carlson failed to demonstrate she was PTD and did not reinitiate
the rehabilitation process until after the Board denied PTD
benefits, she is not entitled to benefits for the time between her
PPI expiration and the commencing of her rehabilitation benefits. 
We therefore AFFIRM the Board's decision.


                            FOOTNOTES


Footnote 1:

     These benefits are also called rehabilitation benefits.


Footnote 2:

     When an employee's condition stabilizes, she becomes
ineligible for TTD benefits.  See AS 23.30.185.


Footnote 3:

     See AS 23.30.180(a) ("permanent total disability is determined
in accordance with the facts").


Footnote 4:

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


Footnote 5:

     Thompson v. United Parcel Serv., 975 P.2d 684, 688 (Alaska
1999) (quoting Interior Paint Co. v. Rodgers, 522 P.2d 164, 170
(Alaska 1974)).


Footnote 6:

     See National Bank of Alaska v. State, Dep't of Revenue, 642
P.2d 811, 816 (Alaska 1982).  


Footnote 7:

     See AS 23.30.120(a)(1).


Footnote 8:

     See Stephens v. ITT/Felec Servs., 915 P.2d 1106, 1109 (Alaska
1996).


Footnote 9:

     See id.


Footnote 10:

     See Meek v. Unocal Corp., 914 P.2d 1276, 1280 (Alaska 1986).


Footnote 11:

     See Veco, Inc. v. Wolfer, 693 P.2d 865, 870 (Alaska 1985).


Footnote 12:

     See Stephens, 915 P.2d at 624.


Footnote 13:

     See Fox v. Alascom, Inc., 718 P.2d 977, 984 (Alaska 1986).


Footnote 14:

     See Resler v. Universal Servs., Inc., 778 P.2d 1146, 1148
(Alaska 1989).


Footnote 15:

     See Burgess Constr. Co. v. Smallwood, 623 P.2d 312, 316
(Alaska 1981).


Footnote 16:

     Resler, 778 P.2d at 1148 (internal punctuation omitted).


Footnote 17:

     See id. at 1149 (ruling that a housekeeper injured while
changing beds at a facility on the North Slope -- precisely the
injury sustained by Carlson -- had established the preliminary
link).


Footnote 18:

     See Resler, 778 P.2d at 1148-49.


Footnote 19:

     See id.


Footnote 20:

     See Meek, 914 P.2d at 1279.


Footnote 21:

     Olson, 818 P.2d at 674 (quoting 2 Arthur Larson, Workers'
Compensation sec. 57.51, at 10-53 (Desk Ed. 1990)).


Footnote 22:

     See Meek, 914 P.2d at 1279.


Footnote 23:

     See Resler, 778 P.2d at 1148-49.


Footnote 24:

     Thompson, 975 P.2d at 688. 


Footnote 25:

     See Gillispie, 881 P.2d at 1109. 


Footnote 26:

     See Stephens, 915 P.2d at 625.


Footnote 27:

     Sulkosky v. Morrison-Knudsen, 919 P.2d 158, 167 (Alaska 1996)
(internal quotations omitted).  Carlson has attempted to
distinguish Sulkosky.  It is true that the employee in Sulkosky
appealed a Board decision revoking the previous grant of PTD
status, distinguishing that case factually.  Nevertheless, Sulkosky
addresses the broader question of the standards for finding someone
PTD.  See id. at 166-67.  Carlson has sought PTD benefits in this
proceeding, making Sulkosky quite relevant.  


Footnote 28:

     915 P.2d at 625.


Footnote 29:

     See id. at 624.


Footnote 30:

     See id. at 627.


Footnote 31:

     See Summerville v. Denali Center, 811 P.2d 1047, 1051 (Alaska
1991).  


Footnote 32:

     Id.


Footnote 33:

     See id. at 1051 (citing Miller v. ITT Arctic Servs., 577 P.2d
1044, 1049 (Alaska 1978)).


Footnote 34:

     See Harp v. ARCO Alaska, Inc., 831 P.2d 352, 357 (Alaska
1992).


Footnote 35:

     831 P.2d 352.


Footnote 36:

     See id. at 357.


Footnote 37:

     See id.


Footnote 38:

     915 P.2d at 627.


Footnote 39:

     Id.


Footnote 40:

     Id. at 627 n.8.


Footnote 41:

     Meek, 914 P.2d at 1279.


Footnote 42:

     See Veco v. Wolfer, 693 P.2d 865, 870 (Alaska 1985).


Footnote 43:

     914 P.2d at 1278-80.


Footnote 44:

     See Joint House & Senate Labor & Commerce Committee, Jan. 19,
1988, Tape 1, side 2, tab 586.  Further evidence of this intent can
be found in AS 23.30.041(g).


Footnote 45:

     If Carlson had presented evidence that she repeatedly
attempted to reinitiate the rehabilitation process while she
pursued PTD benefits or that her employer had used tactics which
delayed the award of rehabilitation benefits, then an award of
benefits retroactively might be appropriate.