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Doyon Universal Services V. Allen (4/14/00) sp-5260

     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
                                 


DOYON UNIVERSAL SERVICES and  )
ALASKA NATIONAL INSURANCE     )
COMPANY,                      )
                              )    Supreme Court No. S-8956
             Appellants,      )
                              )    Superior Court No.
     v.                       )    3AN-98-6609 CI
                              )
LAWRENCE ALLEN and the ALASKA )
WORKERS' COMPENSATION BOARD,  )    O P I N I O N
                              )
             Appellees.       )    [No. 5260 - April 14, 2000]
______________________________)



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


          Appearances: Richard L. Wagg, Russell, Tesche,
          Wagg, Cooper & Gabbert, Anchorage, for
Appellant.  Joseph A. Kalamarides, Kalamarides & Associates,
Anchorage, for Appellee.


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


          CARPENETI, Justice.


I.   INTRODUCTION

          Doyon Universal Services and Alaska National Insurance
Company (collectively, "Doyon") appeal the determination of the
Alaska Workers' Compensation Board that Lawrence Allen's small
bowel obstruction was work-connected and that the Brussels sprouts
he ingested at Doyon's facility were a "substantial factor" in
causing his disability.  Because substantial evidence supports the
Board's determination, we affirm.
II.  FACTS AND PROCEEDINGS    
     A.   Facts
          Lawrence Allen was employed as a cook by Doyon at a
remote site on the Trans-Alaska Pipeline.  While he was on duty,
Allen lived in an on-site dormitory and took his meals at the
employee cafeteria.  These employer-provided facilities are the
only available room and board for the employees who work at the
site.
          On August 21, 1997, Allen traveled from his home in
Anchorage to the pump station to begin a two-week rotation.  He
moved his belongings into his assigned room and went to the company
cafeteria for dinner.  At approximately 6:00 p.m., Allen ate a meal
of pork chops, mashed potatoes, gravy, and "three or four" Brussels
sprouts. 
          At 8:00 p.m. that night, Allen began his shift in the
kitchen.  Two hours later, he began to feel pain in his stomach. 
As the night progressed, his pains worsened and he began to feel
nauseous.  When his shift ended at 8:00 a.m. the next morning,
Allen called the camp medic.  When he saw the medic, Allen had a
terrible stomachache, was vomiting, and had blood in his stool. 
From that time until the following day, Allen vomited frequently
and had a form of diarrhea that was infused with blood.   
          On August 23, 1997, Allen was taken via medivac flight to
Anchorage, where he was admitted to the Alaska Native Medical
Center.  There, it was determined that Allen had a complete
obstruction of the small bowel caused by two bezoars [Fn. 1] in his
small intestine.  Surgeon Frank Sacco surgically removed the
obstruction in Allen's intestine.  Dr. Sacco's post-operative
report revealed that the bezoars contained dense necrotic vegetable
matter, including traces of undigested Brussels sprouts.   
          Allen was released to work in November 1997.  He has not
experienced continuing problems associated with the incident. 
     B.   Proceedings
          Allen filed a report of injury with Doyon on September 5,
1997.  Doyon responded by filing a Controversion Notice with the
Alaska Department of Labor in which it refused to pay Allen
benefits on the grounds that his condition did not arise in the
course and scope of his employment.  
          On October 8, 1997, Allen filed an Application for
Adjustment of Claim with the Department of Labor, seeking temporary
total disability benefits, permanent partial impairment benefits,
medical benefits, transportation costs, reemployment benefits,
interest, attorneys' fees, and legal costs.  This claim was heard
by the Alaska Workers' Compensation Board in Anchorage on May 12,
1998.  Allen testified.  The depositions of Allen's then-treating
physician, Stephen Livingston, M.D., and Doyon's medical expert,
Steven Kilkenny, M.D.,  were also submitted as evidence.  Pursuant
to a stipulation made by the parties at a March 1998 prehearing
conference, the Board limited its inquiry to whether Allen's
intestinal obstruction constituted a compensable injury occurring
within the course and scope of his employment. 
          In a split decision filed on June 5, 1998, the Board
found Allen's claim compensable, which entitled him to workers'
compensation benefits under AS 23.30. 
          Doyon appealed the Board's decision to the superior
court, which affirmed the Board's decision. 
          This appeal followed.
III. DISCUSSION
     A.   Standard of Review
          This court independently reviews the merits of an agency
determination and does not defer to the decision of a superior
court acting as an intermediate court of appeal. [Fn. 2]
          We review the Board's factual determinations under the
"substantial evidence" test, [Fn. 3] which requires us to determine
"whether there is substantial evidence, in light of the whole
record, such that a reasonable mind might accept the board's
decision." [Fn. 4]  When applying this test, we independently
review the evidence to determine whether the Board's conclusion was
based on substantial evidence. [Fn. 5]   However, our determination
is limited only to whether such evidence exists; [Fn. 6] we neither
reweigh the evidence nor choose between competing factual
inferences. [Fn. 7]  We have held that "if the Board is faced with
two or more conflicting medical opinions -- each of which
constitutes substantial evidence -- and elects to rely upon one
opinion rather than the other, we will affirm the Board's
decision." [Fn. 8]  
     B.   Substantial Evidence Supports the Board's Finding 
          that Allen Proved, by a Preponderance of the Evidence, 
          that His Injury Is Compensable. [Fn. 9] 
          Employees are entitled to receive workers' compensation
whenever they suffer injury arising out of and in the course of
their employment. [Fn. 10]  Injuries that have both work-related
and non-work-related causes are deemed compensable if the
employer's actions were a "substantial factor" in causing the
injury. [Fn. 11]  
          1.   Substantial evidence supports the Board's finding
that Allen was injured within the course and scope of his
employment.

          Under the Alaska Workers' Compensation Act, [Fn. 12] an
employer is required to pay compensation to an employee who suffers
an injury "arising out of and in the course of employment,"
regardless of fault. [Fn. 13]  An injury has arisen "out of and in
the course of employment" if it occurred during (1)
"employer-required or supplied travel to and from a remote job
site"; (2) "activities performed at the direction or under the
control of the employer"; or (3) "employer-sanctioned activities at
employer-provided facilities." [Fn. 14] 
          In the instant case, the Board found that Allen's injury
occurred in an "employer sanctioned activity" in an "employer
provided facility," and therefore concluded that his injury was
within the course and scope of his employment.  While it is
undisputed that Allen ate the Brussels sprouts in an employer-
provided facility, Doyon contests the Board's conclusion that
Allen's act of eating was an "employer-sanctioned activity." 
          Because of the unique situation that remote worksites
present, [Fn. 15] we have adopted a particularly expansive view of
"work-connectedness," [Fn. 16] which we have articulated in the
now-familiar "remote site" doctrine.  The crux of this doctrine is
that everyday activities that are normally considered non-work-
related are deemed a part of a remote site employee's job for
workers' compensation purposes because the requirement of living at
the remote site limits the employee's activity choices. [Fn. 17] 
As we have stated:
          because a worker at a remote site is required,
as a condition of employment, to eat, sleep and socialize on the
work premises, activities normally divorced from his work become
part of the working conditions to which the worker is subjected.
[Fn. 18]  
          We have used this doctrine to extend workers'
compensation coverage to injuries sustained by remote site
employees while engaged in recreational pursuits, [Fn. 19] and
while running personal errands that were "reasonably contemplated
and foreseeable by the employment situation." [Fn. 20]
          Here, Allen's act of eating the Brussels sprouts was a
direct consequence of the limitations of working at a remote site. 
It is undisputed that the only food available on the premises was
at the employer-provided cafeteria.  Allen therefore had no
personal choices as to where he should eat; he also had no access
to a restaurant, grocery store, or kitchen facilities for his
personal use.   Unlike eating at home, Allen had little or no
choice as to what he could eat, how it would be prepared, who would
prepare it, or the quality of the ingredients.  The limits placed
on Allen's choices are further evident in the fact that he does not
cook or eat Brussels sprouts at home; rather, the only vegetable
dish he prepares is Costco's "California Blend," which contains
corn, string beans, lima beans, broccoli and cauliflower.  Because
Allen's act of eating the Brussels sprouts was "an activity choice
made as a result of limited activities offered at a remote site,"
[Fn. 21] it is precisely the type of activity the "remote site"
doctrine was meant to cover. [Fn. 22] 
          For these reasons, Allen's act of eating in the cafeteria
was incident to his employment under the "remote site" doctrine. 
Because the facts surrounding Allen's eating options are
undisputed, substantial evidence supports the Board's finding that
Allen has proven this aspect of his case by a preponderance of the
evidence.           
          2.   Substantial evidence supports the Board's finding
that the Brussels sprouts were a substantial factor in causing
Allen's injury.
          Doyon also argues that it should not be held liable for
Allen's disability because Allen presented no evidence that the
Brussels sprouts that he ingested in Doyon's cafeteria caused the
injury that led to his disability.  Under our workers' compensation
system, however, the fact that the Brussels sprouts were not the
initial cause of Allen's blockage is immaterial.  Doyon's argument
that Allen should not receive compensation because the obstruction
was the result of a pre-existing condition is invalid as well.  We
have upheld workers' compensation awards in numerous cases in which
a pre-existing problem was aggravated or accelerated by work-
related activity. [Fn. 23]  We have stated that workers'
compensation liability is to be imposed "whenever employment is
established as a causal factor in the disability." [Fn. 24]  A
"causal factor" is a legal cause if "it is a substantial factor in
bringing about the harm" at issue. [Fn. 25] 
          The substantial factor test requires the party with the
burden of proof to demonstrate that: (1) the disability would not
have happened "but for" an injury sustained in the course and scope
of employment; and (2) reasonable persons would regard the injury
as a cause of the disability and attach responsibility to it. [Fn.
26]
          Here, the Board based its conclusion that the Brussels
sprouts were a substantial factor in aggravating Allen's pre-
existing condition on two main considerations: (1) Dr. Sacco's
post-operative report, which states that undigested Brussels
sprouts were found in the bezoars; and (2) the testimony of each
party's medical expert, both of whom the Board felt expressed a
belief that the Brussels sprouts were a precipitating factor in
Allen's need for surgery. 
          The Board's finding that the Brussels sprouts were a
substantial factor in aggravating Allen's pre-existing condition is
consistent with the deposition testimony of both medical experts. 
Allen's expert, Dr. Livingston, stated that the Brussels sprouts
"may well have precipitated the small bowel obstruction" and that
it is "quite likely" that the Brussels sprouts were a precipitating
factor.  Doyon's expert, Dr. Kilkenny, echoed a similar opinion by
stating that the Brussels sprouts "may have been a contributing
factor" to Allen's disability and suggesting that eating the
Brussels sprouts caused Allen to have the surgery earlier than he
would have if he had not eaten them.  Other evidence indicating
that the Brussels sprouts played a critical role in Allen's
disability is that Allen had no indication that he suffered from
slow digestion or digestion problems prior to the event and that
Allen had no more bezoars or digestion problems after his surgery.
[Fn. 27] 
          Although there is evidence that casts doubt on the
Board's finding, our role in reviewing the Board's decision is
simply to determine whether it is supported by substantial evidence
in light of the whole record. [Fn. 28]  We do not reweigh the
evidence or choose between competing inferences; rather, we merely
determine whether a reasonable mind could accept a decision of
compensability in light of the record as a whole. [Fn. 29] 
          Evidence that casts doubt on the Board's finding includes
both experts' suspicions that "the bezoars developed over time" and
that "the employee may have suffered some intestinal malfunction
which slowed or impeded digestion."  However, the Board accorded
greater weight to the fact that both Allen's and Doyon's experts
regarded the Brussels sprouts as a factor in the blockage of
Allen's intestine.  Because the record indicates that Doyon's and
Allen's experts agree that the Brussels sprouts probably
precipitated and hastened Allen's need for surgery, the Board was
not unreasonable in concluding that Allen's obstruction would not
have occurred "but for" the Brussels sprouts. 
          Similarly, while the Board did consider Dr. Sacco's
statement that Allen's obstruction was caused from food material
unrelated to his employment, it gave greater weight to Dr. Sacco's
post-operative report, which was written immediately after the
surgery and stated that Brussels sprouts were found in the bezoars. 
The Board's decision to accord greater weight to the post-operative
report does not appear unreasonable because the other statement was
signed in anticipation of litigation, at Doyon's request. [Fn. 30] 
In addition, given Dr. Sacco's likely unfamiliarity with the
definition of work-connectedness in workers' compensation law, it
was not unreasonable for the Board to consider Dr. Sacco's post-
operative report as having "greater probative value." 
          The second prong of the substantial factor inquiry is
whether reasonable persons would regard the injury as a cause and
attach responsibility to it. [Fn. 31]  As we have noted above, the
experts' opinions that the Brussels sprouts played a role in
Allen's injury, as well as the fact that Brussels sprouts were
found in Allen's bezoar, provide ample evidence for reasonable
minds to conclude that the Brussels sprouts ingested at Doyon's
facility were responsible for Allen's blockage and need for
surgery.  We therefore find that the second prong of the
substantial factor inquiry is satisfied.
IV.  CONCLUSION
          Because substantial evidence supports the Board's
findings that Allen's injury arose in the course and scope of his
employment and that his work-related injury was a substantial
factor in causing his disability, we AFFIRM the decision of the
Board.


                            FOOTNOTES


Footnote 1:

     Stedman's Medical Dictionary defines "bezoar" as "[a]
concretion formed in the alimentary canal of animals, and
occasionally man; formerly considered to be a useful medicine with
magical properties and apparently still used for this purpose in
some places; according to the substance forming the ball, may be
termed trichobezoar (hairball), trichophytobezoar (hair and
vegetable fiber mixed), or phytobezoar (foodball)."  Stedman's
Medical Dictionary 183 (25th ed. 1990); see also Webster's II New
College Dictionary 106 (1995) (defining "bezoar" as "[a] hard
gastric or intestinal mass found chiefly in ruminants and once
regarded as a magical antidote to poison").


Footnote 2:

     See Thompson v. United Parcel Serv., 975 P.2d 684, 687 (Alaska
1999) (citation omitted).


Footnote 3:

          See id. (citation omitted).


Footnote 4:

     State, Pub. Employees Retirement Bd. v. Cacioppo, 813 P.2d
679, 683 n.6 (Alaska 1991) (citing Delaney v. Alaska Airlines, 693
P.2d 859, 863 (Alaska 1985), overruled on other grounds by Wade v.
Anchorage Sch. Dist., 741 P.2d 634, 638-39 (Alaska 1987)).  


Footnote 5:

     See Dwight v. Humana Hosp. Alaska, 876 P.2d 1114, 1118 n.6
(Alaska 1994) (citation omitted).  


Footnote 6:

     See Handley v. State, Dep't of Revenue, 838 P.2d 1231, 1233
(Alaska 1992) (citing Interior Paint Co. v. Rodgers, 522 P.2d 164,
170 (Alaska 1974)).


Footnote 7:

     See Burgess Constr. Co. v. Smallwood, 623 P.2d 312, 317
(Alaska 1981) (citations omitted).  


Footnote 8:

     Yahara v. Construction & Rigging, Inc., 851 P.2d 69, 72
(Alaska 1993) (citations omitted).


Footnote 9:

     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.

     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."  Grainger v. Alaska Workers'
Compensation Bd., 805 P.2d 976, 977 (Alaska 1991).  We have held
that "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).

     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 the instant case, the Board held Dr. Livingston's testimony
that Allen's consumption of Brussels sprouts at the employer's
cafeteria was a "precipitating factor" in Allen's "need for
surgery" was sufficient medical evidence to raise the presumption
of compensability.  The Board next found that Doyon had
successfully rebutted this presumption by presenting the statement
of Dr. Sacco, the surgeon who had operated on Allen, that Allen's
bowel obstruction "was not related to his employment or his job." 
Neither Doyon nor Allen has challenged these rulings in this
appeal; therefore, these issues are considered abandoned.  See 
State v. O'Neill, 609 P.2d 520, 528 (Alaska 1980).  We therefore
begin our analysis in the instant case with the third step.  


Footnote 10:

     See AS 23.30.395(17); Fruit v. Schreiner, 502 P.2d 133, 141
(Alaska 1972).


Footnote 11:

     See Tolbert v. Alascom, 973 P.2d 603, 611-12 (Alaska 1999)
(citations omitted).


Footnote 12:

     AS 23.30.005-.400.


Footnote 13:

     See AS 23.30.045(a), (b), .395(2).  


Footnote 14:

     AS 23.30.395(2).


Footnote 15:

     The parties do not dispute that the injury occurred at a
remote worksite. 


Footnote 16:

     See Anderson v. Employers Liab. Assurance Corp., 498 P.2d 288,
290 (Alaska 1972) (footnotes omitted).


Footnote 17:

     See Norcon v. Alaska Workers' Compensation Bd., 880 P.2d 1051,
1053 n.1 (Alaska 1994) (citation omitted).  In M-K Rivers v.
Schleifman, we stated that because the "all-encompassing" nature of
the remote sites makes it impossible for a "worker at a remote
area" to "leave his work and residential premises to pursue an
entirely personal whim and thereby remove himself from work
connected coverage," remote worksites present a special situation
in which many commonplace activities must be deemed incidents of
employment, even though those same activities might not be
considered work-related if conducted at a non-remote site.  599
P.2d 132, 134 (Alaska 1979).


Footnote 18:

     Norcon, 880 P.2d at 1053 n.1 (citation omitted).


Footnote 19:

     See Anderson, 498 P.2d at 292-93 (holding that an injury
sustained by an electrician employed at a remote site during a
recreational pole-climbing contest was incident to employment and
therefore covered by workers' compensation); see also Northern
Corp. v. Saari, [Fn. 32] 409 P.2d 845, 846-47 (Alaska 1966)
(holding that a remote camp employee's accidental death was
incident to his employment in a case in which the death occurred
while the employee was returning to the camp after using employer-
arranged recreational facilities at a nearby military base).


Footnote 20:

     M-K Rivers, 599 P.2d at 136 (holding that an employee's
injuries that were sustained in a motorcycle accident while he was
driving from his remote employment site to Glennallen to cash his
paycheck were compensable because it was foreseeable he might
travel to Glennallen for the purpose of cashing the check, and
because such an errand can be viewed as serving the mutual benefit
of both the employer and the employee).      


Footnote 21:

     Norcon, 880 P.2d at 1053 n.1.


Footnote 22:

     Doyon contends that the "remote site" doctrine is inapplicable
here in light of the first footnote in Norcon, in which we held
that a fatal cardiac arrest suffered by a worker while showering at
a remote site "does not fall within the parameters of the 'remote
site' theory" because "       [g]et
                              ting
ready for work is not an activity choice made as a result of
limited activities offered at a remote site.  It is an activity
that most employees engage in before they go to work, regardless of
their location. [Fn. 33]"  Id.
     
          The principle implicit in the result described in this
footnote is reflected in our analysis in the instant case: For the
"remote site" doctrine to attach, the employee's activity choices
must be limited by the remote site and that limitation must play a
causal role in the employee's injury.  For example, if we were
confronted with a case similar to Norcon in which an employee's
heart attack was caused by him or her being hit with a sudden burst
of cold water while in the shower, we would conclude that the
employee's limited choice of showers at the remote site contributed
to his or her injury, and that the remote-site doctrine therefore
applies.  


Footnote 23:

          See e.g., Tolbert v. Alascom, 973 P.2d 603, 608 n.15
(Alaska 1999); Williams v. State, Dep't of Revenue, 938 P.2d 1065,
1072-73 (Alaska 1997); Tinker v. Veco, Inc., 913 P.2d 488, 493
(Alaska 1996); Thornton v. Alaska Workmen's Compensation Bd., 411
P.2d 209, 210 (Alaska 1966); see also Burgess Constr. Co. v.
Smallwood, 623 P.2d 312, 315 (Alaska 1981)("Such aggravation or
acceleration must be presumed in the absence of substantial
evidence to the contrary.") (footnote and citations omitted in
original).


Footnote 24:

     Ketchikan Gateway Borough v. Saling, 604 P.2d 590, 597-98
(Alaska 1979) (emphasis in original).


Footnote 25:

     Id. at 598 (emphasis in original) (citations omitted).


Footnote 26:

     See Fairbanks N. Star Borough v. Rogers & Babler, 747 P.2d
528, 532 (Alaska 1987) (extending the substantial factor test
previously articulated in tort to a workers' compensation context);
see also State v. Abbott, 498 P.2d 712, 726-27 (Alaska 1972)
(discussing the substantial factor test). 



Footnote 27:

     A later procedure to check for other bezoars came back
negative and a CAT scan of the small bowel determined that Allen's
small bowel was in normal condition. 


Footnote 28:

     See Gillispie v. B & B Foodland, 881 P.2d 1106, 1111 (Alaska
1994) (citations omitted).


Footnote 29:

     See Black v. Universal Servs. Inc., 627 P.2d 1073, 1075
(Alaska 1981) (citation omitted).


Footnote 30:

     The statement is written on Alaska National Insurance Company
letterhead and was drafted by an Alaska National Insurance Company
employee. 


Footnote 31:

     Rogers & Babler, 747 P.2d at 532.


Footnote 32:

     409 P.2d 845, 846 (Alaska 1966).


Footnote 33:

     Norcon, 880 P.2d at 1053 fn. 1.