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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Parris-Eastlake v State Dept. of Law (07/20/2001) sp-5435

Parris-Eastlake v State Dept. of Law (07/20/2001) sp-5435

     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
                                 


JACQUELYN PARRIS-EASTLAKE,    )
                              )    Supreme Court No. S-9156
             Appellant,       )
                              )    Superior Court No.
     v.                       )    4FA-96-2544 CI
                              )
STATE OF ALASKA, DEPARTMENT   )    O P I N I O N
OF LAW,                       )
                              )    [No. 5435 - July 20, 2001]
             Appellee.        )
______________________________)



         Appeal from the Superior Court of the State of
          Alaska, Fourth Judicial District, Fairbanks,
                     Dale O. Curda, Judge.


          Appearances:  Dale W. House, and Brad E.
          Ambarian, Lane Powell Spears Lubersky LLP, 
Anchorage, for Appellant.  Kristin S. Knudsen, Assistant Attorney
General, Anchorage, and Bruce M. Botelho, Attorney General, Juneau,
for Appellee.


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


          EASTAUGH, Justice.


I.   INTRODUCTION
          An assistant district attorney applied for workers'
compensation, claiming that "[w]ork-related stress was a
substantial factor in creating headaches, neck and back pain and a
resulting addiction to prescription medication." The Alaska
Workers' Compensation Board held that AS 23.30.235(2), which
prohibits recovery for any injury proximately caused by an
"employee being under the influence of drugs unless the drugs were
taken as prescribed,"barred her claim for work-related drug
addiction.  The superior court affirmed, and the employee appeals. 
We reverse the superior court's decision and remand because we hold
that AS 23.30.235(2) does not bar recovery when the injury itself 
is addiction.
II.  FACTS AND PROCEEDINGS
     A.   The Development of the Addiction
          Jacquelyn Parris-Eastlake began working as an assistant
district attorney in Fairbanks in November 1990.  During her
employment she suffered recurring headaches and occasional neck and
back pain. 
          Dr. J. Michael Carroll began regularly prescribing
narcotic painkillers to treat her pain in June 1993.  Parris-
Eastlake's use of painkillers accelerated in April and May 1994. 
Parris-Eastlake testified that after taking painkillers in April
1994, she noticed that she was "enjoying"a "buzz." Parris-
Eastlake also began seeing Dr. Roy S. Pierson about neck pain, a
problem soon diagnosed as a herniated disk.  He also prescribed
painkillers.  Her psychiatrist, Dr. Robert D. Schults, testified
that Parris-Eastlake had a "heightened interest"in narcotics in
April and May 1994, but that it was "unlikely that she was
physiologically addicted"at that point. 
          Parris-Eastlake continued to receive prescription
painkillers from Dr. Carroll through the summer of 1994.  In August
1994 she saw a neurologist about headaches and neck and arm pain. 
He recommended that Dr. Carroll prescribe further painkillers. 
Parris-Eastlake also received painkillers from a dentist in late
August and early September for tooth pain. 
          On October 1, 1994, Parris-Eastlake was injured when she
fell down a flight of stairs at home.  She was admitted to the
hospital for three days for "pain control"and was treated with
several narcotic painkillers.  Dr. Pierson prescribed more
painkillers when she left the hospital, but she continued to have
headaches and pain from the herniated disk.  Parris-Eastlake
testified that at some point between April and October 1994, she
began lying to her doctors and exaggerating pain in order to get
more painkillers.
          Dr. Pierson had long encouraged Parris-Eastlake to have
neck surgery on her herniated disk.  She ultimately agreed, and
Dr. Pierson performed the surgery on November 11, 1994.  Parris-
Eastlake received morphine, Demerol, Percocet, and Vicodin while in
the hospital.  After she left the hospital, Parris-Eastlake began
showing signs that she was addicted to painkillers.  She stated in
an interrogatory answer that after this surgery, she began using
the painkillers to deal with stress, rather than to treat pain.  On
November 29 Parris-Eastlake visited Dr. Pierson to complain of a
growing dependency on the painkillers.  On December 20 Dr. Carroll
met with Parris-Eastlake and they began a program designed to
address her now full-blown addiction. 
          The Alaska Workers' Compensation Board later concluded
that Parris-Eastlake was physically addicted to painkillers no
later than December 1994, and Parris-Eastlake agrees.  Parris-
Eastlake testified that over the next eight months she "spent a lot
of time figuring out how I was going to get [more painkillers]."
She engaged in "drug-seeking"activities, including lying to her
doctors, exaggerating her pain to get medication, and hoarding
pills for later use in higher-than-prescribed doses.  During this
time, Parris-Eastlake had considerable difficulty at work on an
interpersonal level, due in part to her drug addiction.  In August
1995 Parris-Eastlake checked into a drug detoxification center, 
and agreed to resign from her job with the district attorney's
office.
     B.   The Workers' Compensation Claim
          Parris-Eastlake filed a workers' compensation claim in
October 1995 alleging work-related injuries including "headaches,
back & neck pain, and drug addiction." Two board members -- a
quorum under AS 23.30.005(f) -- formed a panel and held a hearing;
the board issued its decision in October 1996.  The board
acknowledged its obligation under AS 23.30.120(a) to presume that
the injury was both work-related and "not proximately caused . . .
by the employee being under the influence of drugs"used not as
prescribed by a physician.  But it found that Parris-Eastlake had
engaged in "drug-seeking behavior,"including "exaggerating
symptoms, and deceiving her physicians in order to obtain
narcotics"beginning in April or May 1994.  The board found that
Parris-Eastlake's own testimony regarding her drug-seeking behavior
was substantial evidence to rebut the presumption of AS
23.30.120(a)(3) that her addiction was not caused by her being
"under the influence." 
          The board then concluded that the "overwhelming
preponderance of the evidence"showed that Parris-Eastlake's drug
addiction "came about because of her systematic drug abuse and drug
seeking behavior under the influence of that abuse." The board
also found that "the drugs obtained by the employee during the
spring of 1994 [to treat her headaches] were not sufficient to
cause physical addiction." These two findings controlled the
board's ultimate decision, because AS 23.30.235(2) precludes
compensation for an injury "proximately caused by the employee
being under the influence of drugs unless the drugs were taken as
prescribed by the employee's physician." The board concluded that
Parris-Eastlake's addiction "was proximately caused by her being
under the ongoing influence of improperly obtained drugs,"and thus
that AS 23.30.235(2) barred her claim for compensation. 
          Although the board's conclusion that the statute barred
Parris-Eastlake's claim disposed of her claim, the board
nonetheless then addressed her contention that work had been a
substantial factor in the development of her drug addiction.  The
two panel members disagreed as to this contention; one found that
Parris-Eastlake's work was a substantial factor in the development
of her addiction; the other did not.  Because both panel members
agreed that subsection .235(2) applied, their disagreement on the
substantial-factor issue did not alter the outcome.  The board
therefore declined to appoint a third panel member to break their
"tie." The board made no findings at all regarding the work-
relatedness of Parris-Eastlake's headaches, neck pain, and back
pain.  
          Parris-Eastlake appealed to the superior court, which
affirmed the board's denial of her claim.  Parris-Eastlake appeals.
III. DISCUSSION
     A.   Standard of Review
          We directly review the merits of a decision of the Alaska
Workers' Compensation Board, giving no deference to the decision of
the superior court in its capacity as an intermediate court of
appeal. [Fn. 1]  When evaluating the board's factual findings, we
apply the "substantial evidence"test in order to ensure that there
is "'such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.'"[Fn. 2]  As we have previously
stated, "'it is not the function of the court to re-weigh the
evidence or choose between competing inferences, but only to
determine whether such evidence exists.'"[Fn. 3]  But on questions
of law where no agency expertise is involved, we will substitute
our judgment for that of the board. [Fn. 4]
     B.   Applying AS 23.30.235(2)
          Alaska Statute 23.30.120(a)(3) requires that the board
presume that the claimed injury was not "proximately caused by the
employee being under the influence of drugs unless the drugs were
taken as prescribed by the employee's physician."[Fn. 5]  If
substantial evidence rebuts this presumption, the board turns to AS
23.30.235, which provides:
          Compensation under this chapter may not be
allowed for an injury . . . (2) proximately caused by
intoxication of the injured employee or proximately
caused by the employee being under the influence of drugs
unless the drugs were taken as prescribed by the
employee's physician.[ [Fn. 6]]

          The board found that substantial evidence rebutted the
initial presumption of subsection .120(a)(3).  The board then found
by a preponderance of the evidence that "being under the ongoing
influence"of drugs had proximately caused Parris-Eastlake's
addiction; the board consequently concluded that subsection .235(2)
barred her claim.
          We must determine whether subsection .235(2) applies
here.  Parris-Eastlake argues that it applies to cases in which an
employee's intoxication or state of "being under the influence"is
the proximate cause of another workplace injury, and not to cases
in which the claimed injury is the addiction itself.  Critical to
her claim is her assertion that her addiction was her injury.  The
state argues that the subsection plainly applies to any injury
proximately caused by the misuse of prescription drugs, and that
addiction should be treated no differently.  We agree with Parris-
Eastlake that where addiction to drugs or alcohol is itself the
injury claimed by a worker, subsection .235(2) does not act to bar
a claim.  In reaching this conclusion, we are informed by our
understanding of the purpose for which the legislature amended
subsection .235(2) to include impairment by drugs in its exclusion.
          We think it impossible to construe the meaning of "being
under the influence"without referring to the preceding clause in
the statute regarding "intoxication."The Alaska Workers'
Compensation Act has long included a provision barring any injury
caused by a worker's "intoxication."[Fn. 7]  The board has
interpreted "intoxication"according to its "common and approved
usage,"that being "[a] condition of being drunk, having the
faculties impaired by alcohol."[Fn. 8]  The board has applied the
clause to the claim of an intoxicated employee injured while
driving, [Fn. 9] the claim of an intoxicated construction worker
who fell off a roof, [Fn. 10] and the claim of an intoxicated
steelworker who fell off a ladder. [Fn. 11]
          The legislature amended subsection .235(2) in 1982 to add
the second clause, to deal with employees who are injured while
"under the influence"of drugs other than alcohol. [Fn. 12]  To
construe the scope of the term "under the influence,"we look to
the rest of the subsection. [Fn. 13]  The term "under the
influence"therefore must be read as parallel to "intoxication."
In both cases, the question is whether the worker was "impaired"as
a result of alcohol or drugs.  Moreover, although no direct
legislative history exists, when the legislature enacted this
amendment, there was some controversy about whether an employee
could be "intoxicated"by substances other than alcohol. [Fn. 14] 
The Larson treatise concludes that the modern view supports a
conclusion that "'intoxication' includes intoxication by drugs,"
but that view was by no means obvious in 1982. [Fn. 15]  The
language added in 1982 served to ensure that intoxication or
impairment by drugs was encompassed by the subsection .235(2)
exclusion. [Fn. 16]
          Our reading of the statute compels us to reject the
broader interpretation adopted by the board, which reasoned that
being "under the ongoing influence of drugs"includes drug-seeking
behavior, lying to get drugs, and drug abuse.  Instead, we conclude
that, for an injury to be "proximately caused by the employee being
under the influence of drugs"within the meaning of subsection
.235(2), the employee must be "under the influence of drugs"in the
sense that the employee's mental or physical faculties must be
impaired by use of drugs, and the employee's impaired condition
must proximately cause the injury.  A common example would be a
worker whose judgment or coordination becomes impaired by
consumption of drugs and who consequently suffers a traumatic
injury. [Fn. 17]  
          Here, Parris-Eastlake's drug use and drug-seeking
behavior undeniably contributed to her addiction.  But the only
physical or mental impairment that she suffered as a result of her
drug use was the addiction itself.  Because Parris-Eastlake's
addiction is the injury for which she seeks compensation, rather
than the proximate cause of her injury, and because the record
discloses no other drug-induced impairment of faculties that
proximately caused Parris-Eastlake's addiction, we conclude that
subsection .235(2) does not bar her from claiming that her
employment caused or contributed to her addiction. 
     C.   Remand for Consideration of the Work-Relatedness of
Parris-Eastlake's Addiction

          Parris-Eastlake must show by a preponderance of the
evidence that her addiction injury was work-related. [Fn. 18] 
Although the board unanimously agreed that subsection .235(2)
applied, precluding her claim, it nonetheless addressed the work-
relatedness of her addictions.  But the two-member panel did not
agree as to whether Parris-Eastlake had proved that her addiction
was work-related.  Panel member John Giuchici would find by a
preponderance of the evidence that "the employee's condition did
not arise in the course and scope of . . . her work." Panel member
William Walters would find that "the stress of the employee's work
was also a substantial factor in the development of her addiction."
The panel chose not to appoint a third member to resolve this
disagreement because both members of the panel had concluded that
subsection .235(2) barred recovery.
          On remand, if the board still disagrees on this issue, it
must appoint a third panel member to decide whether Parris-Eastlake
has proved by a preponderance of the evidence that her addiction
was work-related.  We have held that the board may appoint a third
member to a panel to break a tie, even if the third member only
reviews the record. [Fn. 19]  The board has discretion to decide
whether the newly appointed member should review the current
record, or whether additional evidence and argument should be
permitted. [Fn. 20]
          Parris-Eastlake asks us to review the record and hold
that substantial evidence does not support panel member Giuchici's
finding that her addiction was not work-related.  We decline to do
so, because further proceedings before the board will be necessary
on remand.  Assuming the two panel members still disagree on the
work-relatedness issue, the appointment and vote of a third member
may make our review unnecessary.  And the possibility that the
board may hear additional evidence on this issue confirms that we
should decline to perform the record review Parris-Eastlake
requests.  
     D.   Alternative Theories and Additional Considerations
Concerning Work-Relatedness

          Parris-Eastlake has offered two closely related but
analytically distinct theories of recovery on her addiction claim. 
First, she argues that workplace stress was a substantial factor
that directly caused her addiction.  In her brief before the board,
Parris-Eastlake argued that she became addicted after she used
painkillers, "not so much for dealing with the pain of the [neck]
surgery, but as a way of dealing with the stress of her work." In
other words, Parris-Eastlake claims that in order to treat
workplace stress she took prescription drugs not as prescribed. 
She also argued, however, that her addiction arose directly out of
her treatment for the separate headaches and back and neck pains. 
She argues in her appellate briefs that "her addiction was itself
a consequence of treatment for work-related headaches and other
pain"and that "but for her work-related stress which caused her
tension head and neck pain, she would not have become addicted to
the medication prescribed." This is a "direct consequences"theory
of recovery. [Fn. 21]  
          The board may consider either theory on remand.  However,
the board must also consider whether any intervening events or
conduct cut off any relationship between work and addiction.  For
example, the board should consider whether Parris-Eastlake's
intentional use of drugs not as prescribed during the pre-addiction
period of April 1994 to December 1994 was conduct outside the
course of employment, and whether the causal chain should be deemed
broken. [Fn. 22]  The board may also deem the causal chain broken
if it determines that Parris-Eastlake acted negligently or
intentionally by taking painkillers in violation of her
prescriptions in the same pre-addiction period. [Fn. 23]  And
finally, the board should consider whether any intervening events
occurred, such as Parris-Eastlake's exposure to painkillers during
her non-work-related hospital stays in October and November 1994,
that superseded the work-relatedness. 
     E.   Remanding to Consider the Work-Relatedness of Parris-
          Eastlake's Headaches, Back Pain, and Neck Pain

          The board also must determine on remand the work-
relatedness of Parris-Eastlake's initial claim for "headaches, neck
& back pain." The board's decision did not determine whether the
headaches, back pain, or neck pain were work-related.  The superior
court concluded that the board's silence regarding the work-
relatedness of the headaches, back pain, and neck pain should be
read as a failure on Parris-Eastlake's part to "adequately address
and prove"those injuries.  Parris-Eastlake argues that the board
erred by failing to make any findings on this question. [Fn. 24]
          Parris-Eastlake established a prima facie link between
these injuries and her work.  As early as December 1993, Dr.
Carroll had identified "a heavy court schedule"as being
potentially related to her headaches.  In February 1994 he noted
that "work related tension"aggravated her headaches.  Parris-
Eastlake herself had told Dr. Carroll that she thought the
headaches were related to job stress.  She satisfied the need for
a prima facie link.
          Once the prima facie link was shown, the presumption of
compensability attached and the burden shifted to the state to
demonstrate by substantial evidence that the injury was not work-
related. [Fn. 25]  "The Board need only make findings with respect
to issues that are both material and contested."[Fn. 26]  Once
Parris-Eastlake made her prima facie showing of work-relatedness,
it was clearly contested.  But the board made no findings on this
claim.  "When the Board fails to make a necessary finding, we
cannot fill the gap by making our own determination from the
record; we must remand to the Board."[Fn. 27]  We therefore remand
and instruct the board to determine whether Parris-Eastlake's
headaches, neck pain, or back pain were work-related.
     F.   Treating Parris-Eastlake's Addiction as a Physical Injury

          The state argues in the alternative that substance abuse
disorder is a mental illness and that Parris-Eastlake's case is
more appropriately considered under the mental illness standard of
AS 23.30.395(17).  The board treated Parris-Eastlake's drug
dependency as a physical addiction.  Dr. Schults testified that any
addiction such as Parris-Eastlake's is partially a physical
dependency.  The state has produced no evidence to rebut the
settled medical authority that treats drug addiction or dependence
as having a physiological component. [Fn. 28]  We cannot conclude
that the board erred by treating Parris-Eastlake's addiction claim
as a physical injury.
IV.  CONCLUSION
          We REMAND for further proceedings consistent with this
opinion.  If the two-person panel does not unanimously resolve the
issue of work-relatedness as to each of Parris-Eastlake's claims,
it must appoint a third member to consider that issue. 


                            FOOTNOTES


Footnote 1:

     See Thompson v. United Parcel Serv., 975 P.2d 684, 687-88
(Alaska 1999).


Footnote 2:

     Id. at 688 (quoting Interior Paint Co. v. Rodgers, 522 P.2d
164, 170 (Alaska 1974)).


Footnote 3:

     Id. (quoting Interior Paint Co., 522 P.2d at 170)


Footnote 4:

     See id.


Footnote 5:

     Functionally, this subsection must be read to presume that the
injury was not proximately caused by the employee "being under the
influence of drugs [if] the drugs were taken as prescribed by the
employee's physician."


Footnote 6:

     AS 23.30.235(2).


Footnote 7:

     See ch. 193, sec. 33(2), SLA 1959.


Footnote 8:

     Beebe v. Nabors Alaska Drilling, 1987 WL 95328 at *2 (Alaska
Workers' Comp. Bd. 1987) (quoting Webster's Ninth New Collegiate
Dictionary (1984 ed.)).


Footnote 9:

     See id. at *1.


Footnote 10:

     See Naccarato v. Naccarato Constr., AWCB No. 97-0074, 1997 WL
1049300 at *1 (Alaska Workers' Comp. Bd. 1997).


Footnote 11:

     See Cottrell v. Northern Rental Serv., AWCB No. 98-0300, 1998
WL 1119670 at *1 (Alaska Workers' Comp. Bd. 1998).


Footnote 12:

     See ch. 93, sec. 20, SLA 1982.


Footnote 13:

     Professor Singer explains that "the meaning of doubtful words
may be determined by reference to their relationship with other
associated words and phrases . . . [because] ordinarily the
coupling of words denotes an intention that they be understood in
the same general sense." 2A Norman J. Singer, Sutherland on
Statutory Construction sec. 47.16, at 265-69 (6th ed. 2000).


Footnote 14:

     See 2 Arthur Larson & Lex K. Larson, Larson's Workers'
Compensation Law sec. 36.03[9], at 28-30 (1999) (discussing then-
unsettled interpretation of "intoxication").


Footnote 15:

     See id. at 30.


Footnote 16:

     In a recent case interpreting and applying subsection .235(2),
the board treated the term "being under the influence"in terms of
"impairment." See Peart v. C-Xpress, Inc., AWCB No. 00-0165, 2000
WL 1126771 at *25 (Alaska Workers' Comp. Bd. 2000).


Footnote 17:

     See, e.g., Goebel v. Warner Transp., 612 N.W.2d 18, 20-22
(S.D. 2000) (upholding denial of benefits to truck driver who
crashed vehicle while under influence of methamphetamine and
marijuana because drug use was substantial factor in causing
accident).  See also the board decisions cited above in footnotes
8, 10, and 11.  


Footnote 18:

     See Steffey v. Municipality of Anchorage, 1 P.3d 685, 690
(Alaska 2000).


Footnote 19:

     See Schmidt v. Beeson Plumbing & Heating, Inc., 869 P.2d 1170,
1177-78 (Alaska 1994).


Footnote 20:

     See AS 23.30.135.


Footnote 21:

     See 1 Larson & Larson, supra note 14, sec. 10.01, at 3 ("The
basic rule is that a subsequent injury, whether an aggravation of
the original injury or a new and distinct injury, is compensable if
it is the direct and natural result of a compensable primary
injury.").


Footnote 22:

     See id. sec. 10.05, at 12 ("When, however, the injury
following
the initial compensable injury does not arise out of a quasi-course
activity, as when a claimant with an injured hand engages in a
boxing match, the chain of causation may be deemed broken by either
intentional or negligent claimant misconduct.").


Footnote 23:

     See id. sec. 10.06[3], at 17-20 (discussing negligent acts by
employees that cause subsequent injuries); id. sec. 10.06[4], at
26-27
(noting that "intentional violation of an express or implied
prohibition"of treatment may break causal chain").


Footnote 24:

     The state argues that Parris-Eastlake waived this argument by
failing to list the issue in her points on appeal.  But the
fifteenth and sixteenth points on appeal are broad enough to
encompass this argument.


Footnote 25:

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


Footnote 26:

     Bolieu v. Our Lady of Compassion Care Ctr., 983 P.2d 1270,
1275 (Alaska 1999).


Footnote 27:

     Id.


Footnote 28:

     See, e.g., 3A Lawyer's Medical Cyclopedia sec. 17.15, at 23
(Richard M. Patterson ed. 4th ed. 1996) ("Substance dependence is
a more severe and chronic form of abuse marked by physiologic
dependence on the substance . . . ."); Diagnostic and Statistic
Manual of Mental Disorders 176 (Michael B. First et al. eds., 4th
ed. 1994) ("The essential feature of Substance Dependence is a
cluster of cognitive, behavioral, and physiological symptoms
indicating that the individual continues use of the substance
despite significant substance-related problems."(emphasis added)).