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Steffey v. Municipality (4/28/00) sp-5266

     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
                                 

ROBERT E. STEFFEY,            )
                              )    Supreme Court No. S-8929
             Appellant,       )
                              )    Superior Court No.
     v.                       )    3AN-96-8705 CI
                              )
MUNICIPALITY OF ANCHORAGE,    )    O P I N I O N
and WARD NORTH AMERICA, INC., )
formerly known as SCOTT       )    [No. 5266 - April 28, 2000]
WETZEL SERVICES, INC.,        )
                              )
             Appellees.       )
______________________________)




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


          Appearances: Charles W. Coe and Robert B.
Mason, Law Office of Charles W. Coe, Anchorage, for Appellant. 
Trena L. Heikes, Law Office of Trena L. Heikes, Anchorage, for
Appellees.


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


          FABE, Justice.


I.   INTRODUCTION
          Robert Steffey suffered two work-related injuries in 1992
and received chiropractic care regularly until 1995, at which point
his employer controverted his claims.  Steffey filed numerous
reports of injury complaining that work had aggravated his
condition.  Because the employer presented substantial evidence
that work did not aggravate Steffey's symptoms, we affirm the
Board's decision denying Steffey benefits.
II.  FACTS AND PROCEEDINGS
          The Municipality of Anchorage has employed Robert Steffey
as a Refuse Disposal Utility III worker since 1988.  The job
requires him to drive a garbage truck and trailer between the
refuse transfer station in South Anchorage and the Eagle River
landfill.
          Steffey suffered a work-related injury on February 20,
1992, damaging his right shoulder and lower back while wrenching
some garbage free from his truck's trailer.  Steffey missed two
months of work.  Upon his return he complained that sitting in his
truck seat aggravated his injury because it offered him no lumbar
support.  Soon after he returned to work, Steffey suffered a second
work-related injury on June 6, 1992 and again stopped working.  He
returned to work in October 1992, and the Municipality installed a
new seat in his truck.  Nevertheless, Steffey continued to complain
that driving aggravated his injury.
          Steffey sought palliative chiropractic care from Dr.
James Martin, who treated Steffey for four and one-half years.  The
Municipality paid for all of Steffey's chiropractic care until
April 1995.  The Municipality's obligation to pay for Steffey's
chiropractic care is governed by the following regulation:
          [T]he standards for payment for frequency of
outpatient treatment for the injury will be as follows . . .
payment for a course of treatment for the injury may not exceed
more than three treatments per week for the first month, two
treatments per week for the second and third months, one treatment
per week for the fourth and fifth months, and one treatment per
month for the sixth through twelfth months.[ [Fn. 1]]

The Municipality paid for chiropractic treatments that were more
frequent than the guidelines permit until April 1995, when it
controverted his claims.
          Steffey sought continued chiropractic treatment for the
aggravation of his old injury at an Alaska Workers' Compensation
Board hearing in May 1995.  He wanted to receive the care without
having to file either a plan for continuing and multiple treatments
as required by AS 23.30.095 [Fn. 2] or additional claims of injury. 
The Board rejected Steffey's request for continued chiropractic
care because it did not comply with the requirements of AS
23.30.095.  The Board also required Steffey to file new reports of
injury if he wanted his treatments to continue.  Steffey did not
appeal the Board's decision.
          After the Board's decision, Steffey began filing numerous
Reports of Occupational Injury.  He filed eight reports in eight
months for injuries dating back to March 1994.  Specifically,
Steffey reported two injuries that roughly correspond with the days
of his chiropractor visits in the spring of 1995.  Late that summer
he reported additional injuries that occurred on August 1, 1995 and
August 22, 1995.  In February 1996 Steffey reported four more
injuries that all dated back to 1994. [Fn. 3]  Whether the eight
reported injuries were work related was the primary issue at the
Board hearing that is the subject of this appeal.
          After filing the four injury claims during the summer of
1995, Steffey continued to work until September 6, when his
chiropractor recommended that he stop working.  He did not return
to work until November, missing two and one-half months.  During
Steffey's work hiatus, he received treatment from Dr. Martin and,
at the Municipality's request, was examined by Dr. Bryan Laycoe, a
certified orthopedic surgeon, and Dr. Scott Fechtel, a chiropractor
and resident in medical neurology.  Dr. Fechtel had examined
Steffey in October of 1992 in conjunction with his original work-
related injuries.  Dr. Laycoe and Dr. Fechtel concluded that
Steffey's recent complaints did not arise from new work-related
aggravation of his injuries.  The report from Dr. Morris Horning's
exam of Steffey, performed a year earlier, also reached this
conclusion.  Based on these results, the Municipality controverted
Steffey's claim for benefits for the August 22, 1995 alleged
injury.
          Steffey has claimed a work-related aggravation of his
1992 injuries and attributes an increase in symptoms to the seat of
the truck that his job required him to drive.  All of the injury
reports filed after the May 1995 hearing cite his truck and its
seat as the cause of his injuries.  Steffey repeatedly demanded new
equipment, and the Municipality eventually complied with his
request in October 1995 and issued him a new truck with an air-
cushioned adjustable seat.  Since he has received the new truck,
Steffey claims that he has not sought further chiropractic care for
lower back pain.
          In the fall of 1996, the Board held a hearing on the
issue of whether Steffey suffered a compensable injury on any or
all of the eight occasions for which he filed a report.  The Board
heard testimony from Steffey, several doctors who had treated and
examined him, and Steffey's supervisors.  The Board concluded that
Steffey had not suffered a compensable injury on any of the eight
occasions.
          The Board relied heavily on the reports and testimony of
Dr. Laycoe and Dr. Fechtel.  The Board found that objective medical
evidence substantiated the doctors' conclusions that Steffey had
not suffered new work-related injuries, that further chiropractic
care should be curbed, and that Steffey's condition was stable.
          In reaching those conclusions, the Board discounted the
value of Dr. Martin's testimony.  Dr. Martin testified that Steffey
had suffered a series of new injuries which had aggravated and
worsened his pre-existing condition.  The Board remarked in its
findings, however, that with only one exception -- the August 22,
1995 alleged injury -- Dr. Martin's records continued to list the
date of Steffey's injury as 1992. The Board emphasized the failure
of Steffey's own treating chiropractor to record any "new" injuries
that may have combined with Steffey's preexisting infirmity to
bring about an aggravation.
          In concluding that Steffey had not suffered a new injury
on August 22, 1995, the Board found Steffey's conduct to be
inconsistent with that of someone who would subsequently miss two
and one-half months of work.  The Board heard substantial testimony
that Steffey was an avid golfer.  Dr. Laycoe testified that golfing
puts a great deal of strain on the lower back, and Steffey conceded
to Dr. Horning that golf increased his pain.  Steffey later
testified at the hearing:
          Q:   . . . Swinging the club made your back
pain worse?

          A:   That's right.  Yes.

After learning that Steffey played thirteen holes of golf within a
week of the August 22 injury, the Board doubted the veracity of
Steffey's claims.  The Board also noted that Steffey waited a week
after the injury before seeking treatment from Dr. Martin and that
Steffey continued to work for two and one-half weeks after his job
ostensibly aggravated the injury.
          Accordingly, the Board found that Steffey had not
suffered a compensable injury in 1994 or 1995.  The Board concluded
that Steffey's treatment for his February 20, 1992 and June 6, 1992
injuries should be governed by the standards prescribed by 8 AAC
45.082(f).  Because the parties did not address whether the
Municipality had paid for chiropractic care pursuant to those
standards, the Board retained jurisdiction to determine how much
the Municipality should pay.
          Steffey appealed to the superior court.  Judge Sigurd E.
Murphy affirmed the Board's decision, which Steffey now appeals.
III. STANDARD OF REVIEW
          Because the question of whether Steffey suffered a work-
related injury in 1994 or 1995 is a question of fact, [Fn. 4] we
apply the substantial evidence test.  Substantial evidence is "such
relevant evidence as a reasonable mind might accept as adequate to
support a conclusion." [Fn. 5]  When applying the substantial
evidence test this court should not "reweigh the evidence or choose
between competing inferences," but simply determine whether such
evidence exists. [Fn. 6]  Whether the quantum of evidence is
substantial, however, is a legal question. [Fn. 7]
          The question of whether the Board applied the correct
legal standard is a question of law to which this court applies its
independent judgment. [Fn. 8]  When reviewing the decision of a
superior court acting as an intermediate court of appeal, we accord
no weight to the superior court decision. [Fn. 9]
IV.  DISCUSSION
          Steffey claims that on eight separate occasions he has
suffered work-related aggravations of his 1992 injury.  The Board
was required to decide whether Steffey's employment was a
substantial factor in the aggravation of his injuries. [Fn. 10] 
Our recent decision in Tolbert v. Alascom clarified that the work-
related factor need not be the sole factor in causing the
disability. [Fn. 11]  "[B]enefits will be awarded where the record
establishes that the work-related injury is a substantial factor in
the employee's disability regardless of whether a non-work-related
injury could independently have caused disability." [Fn. 12]  In
addition, "[w]e reject the distinction between worsening of the
underlying disease process and worsening of the symptoms of
disease." [Fn. 13]
          In deciding whether work-related factors were a
substantial factor in causing an employee's injury, the Board
applies the Workers' Compensation Act presumption that an
employee's claim is compensable. [Fn. 14]  For the presumption to
attach, the employee must first establish a preliminary link
between his disability and his employment. [Fn. 15]  When the
presumption attaches, the burden shifts to the employer to rebut
the presumption. [Fn. 16]  The employer may rebut the presumption
by demonstrating substantial evidence that the injury was not work
related. [Fn. 17]  If the employer shows substantial evidence, then
the presumption disappears and the employee must prove his claim by
a preponderance of the evidence. [Fn. 18]  If the employer fails to
meet the burden, then the presumption remains. [Fn. 19]  We will
uphold the Board's determination if substantial evidence supports
the Board's findings. [Fn. 20]
     A.   The Municipality Presented Substantial Evidence
Sufficient to Rebut the Presumption.

          Because the Municipality does not dispute that Steffey
triggered the presumption of compensability through Steffey's own 
testimony and the testimony of Dr. Martin, we begin our analysis by
examining whether the Municipality produced substantial evidence
that Steffey did not suffer a work-related aggravation of his
injury.  In order to overcome the presumption of compensability
          an employer must present substantial evidence
that either (1) provides an alternative explanation which, if
accepted, would exclude work related factors as a substantial cause
of the [aggravation or acceleration]; or (2) directly eliminates
any reasonable possibility that employment was a factor in causing
the [aggravation or acceleration].[ [Fn. 21]]

Substantial evidence is "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." [Fn. 22] 
And we look simply for the presence of substantial evidence without
reweighing it. [Fn. 23]
          We conclude that the Municipality presented substantial
evidence that work was not a substantial factor in aggravating
Steffey's disability.  The Board accorded "great weight to Dr[].
Laycoe and Dr. Fechtel's opinion[s]."  Both doctors examined
Steffey in October 1995, and both testified at Steffey's hearing. 
Dr. Laycoe stated that, "[Dr. Fechtel and I] did not believe that
there was a specific work injury in August of 1995."  Instead, Dr.
Laycoe offered an alternative, non-work-related explanation for
Steffey's August 22, 1995 symptoms:
          Q:   [M]y question is, Doctor, of the
activities I've described, driving a truck with an air-cushioned
suspension seat between Anchorage and Girdwood and back, versus
playing golf a couple days later, which of those activities would
you anticipate would more likely than not cause those symptoms he
was complaining about or aggravate his condition as he was
claiming?

          A:   Again, this is answerable, basically, by
understanding what puts the most force on the back.  So if you're
trying to assess a change in physical condition, you'd have to [be]
most suspicious of the physical activity that put more force on the
back, and in that case the golf would put more force on the back.

Dr. Laycoe's alternative explanation for the cause of Steffey's
injury was substantiated in part by Steffey's own hearing testimony
and his admissions to Dr. Horning.  Because the Board had heard
evidence that work was not a substantial factor in causing
Steffey's symptoms, the Board did not err in concluding that the
Municipality had rebutted the presumption of compensability.  "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 her disability." [Fn. 24]
          Steffey argues that our recent decision in Tolbert
requires us to conclude that the Board erred in finding that the
Municipality overcame the presumption.  In Tolbert we concluded
that the employer failed to rebut the presumption because the
expert testimony did not rule out another expert's diagnosis of an
alternative cause of the disability. [Fn. 25]  Steffey argues in
this case that the Municipality has not ruled out Dr. Martin's
testimony that the truck seat aggravated his injury.  But Dr.
Laycoe concluded that swinging a golf club was more likely to cause
Steffey's symptoms than driving a truck.  Because the
Municipality's experts provided this alternative explanation for
Steffey's symptoms, thus excluding work-related factors as a
substantial cause of the aggravation, Tolbert does not require us
to reverse the Board's conclusion.
     B.   Steffey Did Not Prove His Claim by a Preponderance of the
Evidence.

          We must next examine the Board's conclusion that Steffey
failed to prove that his work was a substantial factor in the
aggravation of his injuries.  In making this determination, the
Board may weigh the evidence presented by both sides. [Fn. 26] 
When we examine whether substantial evidence supports the Board's
conclusion, we defer to the Board's determination of witness
credibility. [Fn. 27]
          In concluding that Steffey failed to prove his claim, the
Board found that Steffey did not present credible evidence. 
Steffey presented his own testimony and the testimony of Dr.
Martin, his treating chiropractor.  The Board discounted the
testimony of Dr. Martin and placed more weight upon his written
medical records.  In his records from June 1992 through August 1,
1995, Dr. Martin listed 1992 as the date of Steffey's injury.  The
Board reasoned that if Steffey had reported significant injuries
after that date, Dr. Martin would have noted it, as he did on
August 22, 1995.  Because we defer to the Board's determination of
witness credibility, we give little weight to Dr. Martin's
testimony.  
          Dr. Martin's reports did indicate that Steffey suffered
a new injury on August 22, 1995.  Accordingly, the Board gave
particular scrutiny to Steffey's claim that he suffered a work-
related injury during that week in August 1995.  In doing so, the
Board relied heavily on the report of Drs. Laycoe and Fechtel,
which concluded that the August 22, 1995 alleged injury did not
aggravate the 1992 injury.
          The Board was skeptical of the veracity of Steffey's
claims.  The Board found that Steffey's attempt to play golf within
a week of the alleged injury, his failure to see Dr. Martin for a
week thereafter, and his ability to continue working for two and
one-half weeks after August 22 were inconsistent with an
aggravation of the significance claimed by Steffey.  The Board
agreed with the conclusion of Drs. Laycoe and Fechtel and denied
Steffey benefits. [Fn. 28]
          We affirm the Board's decision under the deferential
substantial evidence standard.  Although Steffey points to
testimony by Drs. Laycoe and Fechtel indicating that the doctors
were not absolutely certain that work was not a substantial factor
in Steffey's injury, it is not our role to reweigh the evidence.
[Fn. 29]  Because the Board determined that the evidence presented
by Steffey was not credible, we conclude that it was reasonable for
the Board to find "that the employee did not suffer an aggravation
or acceleration of his June 6, 1992 injury, nor did his work
combine with the 1992 injury to produce the 1994 and 1995
condition."  Because Steffey's symptoms result from his 1992
injuries, and because the Board properly concluded that his job did
not aggravate or accelerate those injuries, his employer's
obligation to pay for chiropractic treatment should be governed by
8 AAC 45.082(f).
V.   CONCLUSION

          Because we conclude that substantial evidence supported
the Board's finding that Steffey's condition was not work related,
we AFFIRM the Board's decision to deny Steffey workers'
compensation benefits.


                            FOOTNOTES


Footnote 1:

          8 Alaska Administrative Code (AAC) 45.082(f) (1999).


Footnote 2:

     AS 23.30.095 provides:

               (a)  The employer shall furnish medical,
surgical, and other attendance or treatment, nurse and hospital
service . . . for the period which the nature of the injury or the
process of recovery requires, not exceeding two years from and
after the date of injury to the employee . . . . [I]f continued
treatment or care or both beyond the two-year period is indicated,
the injured employee has the right of review by the board.

          . . . .

               (c)  . . . When a claim is made for a
course of treatment requiring continuing and multiple treatments of
a similar nature, . . . the physician or health care provider shall
furnish a written treatment plan if the course of treatment will
require more frequent outpatient visits than the standard treatment
frequency for the nature and degree of the injury and the type of
treatments.  The treatment plan shall be furnished to the employee
and the employer within 14 days after treatment begins.  The
treatment plan must include objectives, modalities, frequency of
treatments, and reasons for the frequency of treatments.  If the
treatment plan is not furnished as required under this subsection,
neither the employer nor the employee may be required to pay for
treatments that exceed the frequency standard [as prescribed by 8
AAC 45.082(f)].


Footnote 3:

     Although AS 23.30.100 requires injury reports to be made
within 30 days of the injury, the timeliness of the filing of
injury reports is not presented on appeal.


Footnote 4:

     See Wade v. Anchorage Sch. Dist., 741 P.2d 634, 641 (Alaska
1987).


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:

     Id.


Footnote 7:

          See Tolbert v. Alascom, 973 P.2d 603, 607 (Alaska 1999).


Footnote 8:

     See Phillip Weidner & Assocs., Inc. v. Hibdon, 989 P.2d 727,
730 (Alaska 1999).


Footnote 9:

     See Tolbert, 973 P.2d at 606-07.


Footnote 10:

     See Fairbanks N. Star Borough v. Rogers & Babler, 747 P.2d
528, 532 (Alaska 1987).  The question is not whether Steffey
suffered a new injury but whether his work worsened his symptoms. 


Footnote 11:

     973 P.2d at 611-12.  


Footnote 12:

     Id. at 612 (internal punctuation omitted).


Footnote 13:

     DeYonge v. NANA/Marriott, ___ P.2d ___, Op. No. 5265 at 13
(Alaska, April 21, 2000) (internal punctuation omitted) (quoting
Hester v. State, Pub. Employees' Retirement Bd., 817 P.2d 472, 476
n.7 (Alaska 1991)) (rejecting the distinction between the worsening
of symptoms and the worsening of the underlying disease in the
context of workers' compensation cases).  Steffey correctly points
out, and the Municipality concedes, that the superior court used
the wrong standard when it stated, "the work injury must cause more
than a mere increase in symptoms." We need not remand on this
issue, however, because this court accords no weight to the
superior court acting as the intermediate court of review, and the
Board correctly considered whether work was a substantial factor in
aggravating Steffey's symptoms.


Footnote 14:

          See AS 23.30.120(a)(1); Tolbert, 973 P.2d at 610.


Footnote 15:

          See Stephens v. ITT/Felec Servs., 915 P.2d 620, 624
(Alaska 1996).


Footnote 16:

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


Footnote 17:

          See Tolbert, 973 P.2d at 611.


Footnote 18:

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


Footnote 19:

     See Land & Marine Rental Co. v. Rawls, 686 P.2d 1187, 1189
(Alaska 1984).


Footnote 20:

          See Stephens, 915 P.2d at 624.


Footnote 21:

          Williams v. State, Dep't of Revenue, 938 P.2d 1065, 1072
(Alaska 1997) (quoting Gillispie v. B & B Foodland, 881 P.2d 1106,
1109 (Alaska 1994) (internal quotations omitted)).


Footnote 22:

          Thompson v. United Parcel Serv., 975 P.2d 684, 688
(Alaska 1999). 


Footnote 23:

          See Gillispie, 881 P.2d at 1109; Wolfer, 693 P.2d at 869-
70. 


Footnote 24:

     Big K Grocery v. Gibson, 836 P.2d 941, 942 (Alaska 1992).


Footnote 25:

     973 P.2d at 611.


Footnote 26:

          See Stephens, 915 P.2d at 627 (stating that the evidence
"could be weighed only after the Board determined that the
presumption had been overcome").


Footnote 27:

     See AS 23.30.122. 


Footnote 28:

     Steffey argues that the Board erroneously applied the last
injurious exposure rule test and required him to show "an objective
change to the underlying preexisting condition."  Steffey cites
Jones v. Alaska Workmen's Compensation Bd., 600 P.2d 738, 740
(Alaska 1979), for the proposition that the Board should have
awarded compensation upon a showing of "an increase in symptoms
caused by the current employment."  But the Board denied benefits
on the proper basis.  It addressed Steffey's concern about his work
causing his symptoms when it stated, "nor did his work combine with
the 1992 injury to produce the 1994 and 1995 condition."  The Board
concluded that Steffey's work was not a substantial factor in
determining the symptoms he experienced in 1994 and 1995, and it
appropriately denied him benefits.  


Footnote 29:

     See Thompson, 975 P.2d at 688 (citations omitted).