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Palmer v. Municipality of Anchorage (3/7/2003) sp-5670
Palmer v. Municipality of Anchorage (3/7/2003) sp-5670
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,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
GEOFFREY PALMER, )
) Supreme Court No. S-10062
Appellant, )
) Superior Court No. 3AN-99-3431
CI
v. )
) O P I N I O N
MUNICIPALITY OF ANCHORAGE, )
POLICE AND FIRE RETIREMENT ) [No. 5670 - March 7, 2003]
BOARD, )
)
Appellee. )
________________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Dan A. Hensley, Judge.
Appearances: Charles W. Coe, Law Offices of
Charles W. Coe, Anchorage, for Appellant.
Constance E. Livsey, and Rebecca J. Hiatt,
Holmes, Weddle & Barcott, Anchorage, for
Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
EASTAUGH, Justice.
BRYNER, Justice, with whom FABE, Chief
Justice, joins, dissenting.
I. INTRODUCTION
The Anchorage Police and Fire Retirement Board denied
Geoffrey Palmer occupational disability benefits for heart
disease that worsened during his twelve-year tenure as a police
officer for the Municipality of Anchorage. Palmer appealed, and
the superior court affirmed. Because a board member's motion to
award Palmer benefits did not receive the requisite five votes,
we hold that the board correctly rejected Palmer's claim, even
though four board members - a majority of the seven deciding his
case - voted for the motion.
We also affirm the board's decision on the merits.
There was substantial evidence that Palmer's disability was
solely the result of his preexisting coronary artery disease, and
was not aggravated by his 1990 work-related heart attack. There
was also substantial evidence that work-related stress was not a
substantial factor in bringing about or aggravating Palmer's
heart disease. We therefore affirm the superior court judgment
upholding the board's decision.
II. FACTS AND PROCEEDINGS
A. Palmer's Heart Disease
Geoffrey Palmer suffered a minor heart attack during
the course of his employment as an Anchorage police officer in
April 1990. Palmer was diagnosed with coronary artery disease,
or atherosclerosis. Dr. Mohammed Sarwar performed a double
coronary artery bypass about a week after Palmer's attack.
Palmer returned to unrestricted duty with the Anchorage
Police Department. He experienced no symptoms of his disease for
the next six years.
In October 1996 a fellow police officer was killed in
the line of duty while executing an arrest warrant. The next
day, Palmer experienced chest and arm pains and had trouble
breathing shortly after discussing the officer's death with his
wife.1 Palmer went to the emergency room and was diagnosed with
a possible heart attack. Three days later a cardiologist
diagnosed unstable angina and a possible mild heart attack.
Tests revealed seventy to one hundred percent occlusions of
several arteries, including a seventy percent occlusion of one of
the two vein grafts used in the 1990 bypass surgery.
Palmer developed recurring angina pectoris after
release from the hospital. His treating physician, Dr. Thomas
Kramer, performed two coronary balloon angioplasties and placed a
stent in Palmer's mid-left anterior descending coronary artery in
November 1996. Palmer has not experienced significant chest
pains since these procedures. Palmer testified at his 1998
occupational disability hearing that he had been on leave from
the police force since his 1996 hospital admission.
B. The First Board Decision Denying Occupational
Disability Benefits
Palmer filed an application for occupational disability
benefits under Plan III of the Anchorage Police and Retirement
System in April 1997. The Police and Fire Retirement Board
("PFRB" or the "board") denied his claim, and scheduled a hearing
to review this denial. The only issue at the hearing was whether
Palmer's disability was work-related.
Palmer presented two theories under which he argued
that he was entitled to benefits. First, he introduced expert
medical evidence that his 1990 heart attack and subsequent bypass
operation were precipitated by work-related activities. He also
introduced evidence that one of the vein grafts had become
severely occluded by 1996, and that this occlusion occurred for
reasons unrelated to the progression of his underlying coronary
artery disease. He concluded that he was entitled to
occupational disability benefits because this occlusion
aggravated or contributed to his disability. Alternatively,
Palmer argued that he suffered a great deal of stress on the job
that aggravated or contributed to his underlying disease.
Only three of the seven participating members of the
board voted for a motion to award Palmer occupational disability
benefits. Accordingly, the board treated the motion as denied
under former Anchorage Municipal Code Regulation (AMCR)
3.85.010(B).2 The board relied extensively on the testimony of
Dr. William Breall, the independent medical examiner hired by the
board for this case, in concluding that Palmer's disability was
not work-related under either of his two theories.
On appeal by Palmer, the superior court held that the
board "erred in adopting Dr. Breall's opinions as `substantial'
evidence and erred in failing to resolve inconclusive and
doubtful medical testimony in favor of Palmer." The superior
court remanded the case to the board for "reconsideration of the
record, applying the proper legal standard," and ordered the
board to "reconsider its reliance on Dr. Breall's opinions."
C. The Second Board Decision Denying Occupational
Disability Benefits
Seven board members, including two who did not
participate in the original decision, reconsidered the record and
voted four to three to award Palmer occupational disability
benefits. But because the motion to award benefits did not
receive five votes, the motion failed under AMCR 3.85.075(B).3
Accordingly, the board issued a second ruling
explaining its denial of Palmer's claim. The board relied on the
testimony and reports of Dr. Breall and Dr. Werner Samson as well
as "other objective medical evidence" in the record.4
Palmer appealed, and the superior court affirmed the
board's second decision. The court found that the board properly
reconsidered its reliance on Dr. Breall's testimony in accordance
with the first superior court order, and that the board relied on
the testimony of Dr. Samson and objective medical evidence as
well as Dr. Breall's testimony in reaching its decision on
remand. The court concluded that "substantial evidence in the
record supports the Board's denial of occupational disability
benefits."
Palmer appeals the superior court's ruling, contesting
the board's procedures as well as its factual and legal
conclusions.
III. STANDARD OF REVIEW
This case first requires us to consider the
constitutionality of an administrative regulation. We conduct
this review using our independent judgment,5 adopting "the rule
of law that is most persuasive in light of precedent, reason, and
policy."6 We review an agency's interpretation of its own
regulations using our independent judgment, so long as that
interpretation does not implicate the agency's area of expertise
or questions of fundamental policy committed to the agency's
discretion.7 Even under the independent judgment standard
we "[give] some weight to what the agency has done, especially
where the agency interpretation is longstanding." Usibelli Coal
Mine, Inc. v. State, Dep't of Natural Res., 921 P.2d 1134, 1142-
43 (Alaska 1996). Further, when an agency interprets its own
regulation, as in this case, we presume that "the agency is best
able to discern its intent in promulgating the regulation at
issue." Rose v. Commercial Fisheries Entry Comm'n, 647 P.2d 154,
161 (Alaska 1982) (citing Kenneth Culp Davis & Richard J. Pierce,
Jr., Administrative Law Treatise 7.22, at 105-08 (2d ed.
1979)). Next, we must consider a merit appeal of an agency
adjudication. "In considering an administrative appeal from a
decision issued by the superior court [sitting] as an
intermediate court of appeal, we review the agency's action
directly."8 We review questions of law not involving agency
expertise using our independent judgment.9 We review the
agency's factual determinations under the substantial evidence
standard.10 Whether the quantum of evidence is sufficient to
constitute "substantial evidence" supporting the agency's
conclusion to deny benefits is a legal question to which we apply
our independent judgment.11
IV. DISCUSSION
A. The Board's Voting Procedures Were Neither Invalid
Nor Unconstitutional. " \l 2 Palmer argues that
several flaws in the PFRB proceedings conflicted with
either his constitutional rights or municipal laws
governing the PFRB's adjudication of his claim. Only
two of these challenges deserve extended comment. " \l
3 1. AMCR 3.85.075(B)'s five-vote requirement
did not violate Palmer's right to a fair adjudication
of his claim.
First, Palmer argues that AMCR 3.85.075(B)'s five-vote
requirement infringed on his due process right to a fair
adjudication of his claim because it enabled his claim to be
denied by a minority of the participating board members.12 We
reject this contention because the regulation serves the
legitimate purpose of ensuring that only a majority of the full
board and a coalition of the former board's management-side and
labor-side appointees can decide to change the status quo.
Former chapter 3.85 of the Anchorage Municipal Code13
established an eight-member Police and Fire Retirement Board to
preside over disability claims brought by members of the Police
and Fire Retirement Plan,14 and authorized the board to promulgate
regulations consistent with its mandate.15 Anchorage Municipal
Code Regulation 3.85.075(B) provides that "[i]n order for any
motion to be passed by the board, it must be supported by not
less than five votes of board members." As a matter of practice,
the board makes all of its benefits decisions by motion.
Following a hearing, a member makes a motion to award benefits.
Benefits are awarded if five or more members vote in support;
otherwise, benefits are denied. Anchorage Municipal Code
Regulation 3.85.075(A) provides that five members of the board
constitute a quorum, and that absent a quorum the board "shall
not transact any business other than adjournment of [a] meeting."
Palmer argues that because of the five-vote
requirement, the burden of persuasion fluctuates arbitrarily
depending on the number of board members who actually participate
in a given case. If eight participate, then the claimant simply
has to persuade a majority that he is entitled to occupational
disability benefits. But if only five participate, the claimant
must persuade every participating board member. In Palmer's
case, four of the seven participating members voted to grant him
occupational disability benefits, but his claim was nonetheless
denied because of the five-vote requirement. Palmer insists this
procedural rule violated his due process right to a fair
adjudication of his claim, and asks us to hold AMCR 3.85.075(B)
unconstitutional. Alternatively, he impliedly asks that we allow
him to re-argue his case before a full board.
The board responds that because Palmer received notice
and an opportunity to be heard, he cannot claim the benefit of
any further procedural protections.16 But this court has never
held that such minimal protections are categorically sufficient
to insulate an administrative adjudication against due process
challenges. Rather, we conduct a full review to ensure that the
agency's adjudicative procedures are "consistent with a fair
trial."17
To determine whether specific procedures should be
added or substituted, we apply the three-part analytical
framework announced by the United States Supreme Court in Mathews
v. Eldridge.18 First, we look to the private interest in
question; second, we assess the risk of an erroneous deprivation
of that interest posed by current procedures and the probable
value of additional or substitute procedural safeguards; and
finally, we examine the government's interest, including the
function involved and the fiscal and administrative burdens that
the additional or substitute procedural requirement would entail.19
There is no dispute that occupational disability
payments constitute a substantial benefit. An officer with
Palmer's qualifications would have received fifty percent of his
final average compensation if entitled to occupational disability
benefits, as opposed to thirty percent if entitled only to non-
occupational disability benefits.20 Accordingly, the private
interest at stake is significant.
Palmer is arguably correct that his chances of
prevailing on his claim are lowered by each missing board member,
since absent board members are effectively counted as nay votes
when the board votes on a motion to award benefits. One of the
chief purposes of the due process clause is to "ensure that
individuals who have property rights are not subjected to
arbitrary governmental deprivation of those rights."21 The
board's procedures expose occupational disability claimants to
the risk of arbitrary deprivation.
Further, the solutions to this problem would be simple
and effective. Claimants can be given the right to require the
full board to hear their cases. Alternatively, when members
cannot participate in a particular case due to conflicts of
interest or other compelling reasons, the five-vote requirement
could be suspended, and motions to award benefits could be passed
by a simple majority of participating board members.22
But we must also consider the government interest
affected by the proposed corrective procedures. At all times
relevant to this case, the board was comprised of four members
appointed by the mayor and four members chosen by the retirement
plan participants.23 This corresponds to an even split between
management-side and labor-side board members. The five-vote
minimum ensured that any board member could not change the status
quo without persuading at least one member whose professional
background differed.24 By requiring a cross-section of the board
to approve any change, the five-vote minimum may have had the
effect of encouraging a spirit of cooperation and compromise.
Allowing fewer than five members to award benefits might
frustrate this legitimate goal.25
Likewise, a rule allowing a claimant to postpone a
hearing if less than a full board was present would constitute
substantial judicial interference with the board's ability to
conduct its business. While this approach would leave AMCR
3.85.075(B) intact, it would effectively substitute an eight-
member quorum rule for AMCR 3.85.075(B)'s five-member quorum
rule. The board has a significant interest in being able to set
its own calendar and hear claims in an orderly manner regardless
of whether all of its members participate in a given claim.26
At least one court has rejected a due process challenge
in a very similar procedural context. In Stanson v. San Diego
Coast Reg'l Comm'n, a property owner was denied a coastal
development permit despite the fact that a majority of the
participating regional commissioners voted to grant the permit.27
Only eight of eleven regional commissioners attended his hearing;
because only five of these eight voted to grant a permit, the
developer did not obtain the support of a majority of the total
appointed membership of the regional commission as required by
the relevant statute.28 The court noted that the developer
arguably bore a "more onerous burden" because he did not have a
chance to persuade the missing regional commissioners.29 But the
court concluded that this did not violate due process, because
the process ensured that "the issuance of a permit will be based
on the judgment of a broader cross-section of the commission"
than would be the case if permits could be granted by less than a
majority of the commission, and the government had a "substantial
interest in protecting the integrity of the decision-making
process."30 The same reasoning applies here. Accordingly,
Palmer's challenge to AMCR 3.85.075(B) fails.
Furthermore, full-body voting provisions and
supermajority requirements are both common and useful
administrative tools. The common law rule that a majority vote
requires a majority of those voting, in the presence of a quorum,
excluding blanks and abstentions, is merely a default
presumption.31 It can be modified and often is.32 Full-body
provisions and supermajority requirements help ensure a broad
consensus is reached for important governmental action. For this
reason, many states recognize full-body voting provisions for
municipal entities in abrogation of the common law presumption.33
Indeed, the Alaska Constitution includes provisions requiring
enhanced majorities among defined voting bodies.34 In this case,
the legislature clearly delegated responsibility for designing
rules of order and procedure to the board, and the board
permissibly adopted voting procedures designed to guard against
the expenditure of system funds on the vote of a minority of the
full membership. Similar rules are common among governmental
entities, and provide a useful procedural safeguard.
The dissent, having analogized the PFRB to a jury,
would hold that the PFRB's former procedure violated due process.
But the PFRB is not analogous to a jury. Unlike a jury, its
constituent representative makeup was specified. And as an
administrative agency, it differs fundamentally from a jury: it
has repeat business and collective expertise; its members bring
individual expertise and different professional perspectives that
would probably preclude them from sitting as jurors if a jury
were somehow trying Palmer's claim; and it even has some policy-
setting capability entitling it to deference when it uses its
expertise to interpret its enabling provisions.
The dissent asserts that the "full-body" cases the
court cites above are distinguishable because it claims they do
not involve tribunals adjudicating rights. But the dissent would
hold that the municipality's procedure violates due process even
though the dissent cites no case holding that applying a full-
body voting requirement to a tribunal like the PFRB violates
procedural due process.
In short, we are unconvinced that requiring Palmer to
persuade five of the seven sitting board members denied him due
process.
2. The board's practice of deciding cases
by motions framed to require the claimant to
obtain votes of a majority of the board is not
inconsistent with the presumption of
compensability.
Palmer also argues that the board's practice of
requiring a majority of the board to vote in favor of awarding
benefits is inconsistent with the rebuttable presumption of
compensability applicable to his occupational disability claim.
Palmer argues that benefits should be awarded unless five members
support a motion to deny them. Because only three members of the
board voted to deny benefits in the board's second vote on his
claim, Palmer argues that he should prevail.
The board argues that framing the motion for benefits
in a way that requires the claimant to establish his claim is not
inconsistent with the presumption of compensability. The board
reasons that regardless of the legislature's decision "to lighten
[Palmer's] burden [of production] via a rebuttable presumption,"
Palmer is not entitled to occupational disability benefits until
a five-member majority of the board decides that he is.
The board is correct. Palmer overstates the effect of
the presumption of compensability. The presumption simply shifts
the burden of production from the claimant to the employer with
respect to certain types of favored claims. The presumption
bears no relationship to any aspect of the burden of persuasion -
in this case, how many board members Palmer must persuade in
order to prevail. The board's practice of framing motions to
award benefits rather than to deny them does not contradict
former AMC 3.85.230(C)(2)'s rebuttable presumption.
3. Palmer's remaining procedural challenges
are meritless.
We also reject Palmer's remaining contentions of
procedural error. First, the participation by two new board
members on remand did not violate Palmer's due process rights or
the board's regulations, despite Palmer's strained argument to
the contrary. Palmer overstates the effect of AMCR 3.85.075(C),
which provides that board members "who miss part of a hearing
shall not participate in the adjudication" unless the parties
agree to the members' participation and the members review "the
recorded testimony taken in their absence." Neither this
provision nor any other suggests that only those board members
who originally decided Palmer's claim may participate on remand.
The board correctly reasons that such a requirement would be
impractical given that the board's composition changes over time.
The two board members who participated for the first time in the
reconsideration of Palmer's claim on remand attested that they
"had reviewed the record and would be able to make an informed
decision on [Palmer's] claim." Neither the regulations nor the
due process provisions of the state and federal constitutions
require anything further.
Finally, Palmer alleges that the board's option to
frame motions as either motions to award benefits or motions to
deny them constitutes an equal protection violation, because the
board can vary the burden of similarly situated claimants
depending on how the motion is framed.35 But Palmer does not
allege that the board has ever made a motion to deny as opposed
to award benefits. There is no ground on which to begin an equal
protection analysis in the absence of some allegation of unequal
treatment. B. The Board Correctly Refused To Give
Preclusive Effect to the Alaska Workers' Compensation Board's
Ruling that Palmer's Disability Was Work-Related. " \l 2
The PFRB originally determined that Palmer's injury was not work-
related. While the first PFRB decision was pending on appeal to
the superior court, the Alaska Workers' Compensation Board (AWCB)
concluded that Palmer's disability was work-related under the
Alaska Workers' Compensation Act. The superior court reversed
and remanded the PFRB's first decision, holding that the board's
reliance on Dr. Breall's opinion was misplaced. The board held
on remand that the AWCB's opinion was not entitled to preclusive
effect,36 and again determined that Palmer's injury was not work-
related. In affirming the board's second decision, the superior
court held that the AWCB's contrary determination had no
preclusive effect because the PFRB's initial decision remained
the first final judgment despite the intervening reversal and
remand by the first superior court order.
The board reiterates this reasoning on appeal, and
further contends that collateral estoppel is inapplicable because
the real parties in interest in the two proceedings were neither
identical nor in privity with each other. Because we agree with
the latter argument, we need not address the superior court's
reasoning regarding the final judgment issue.37 Following the
reasoning in Holmberg v. State, Division of Risk Management,38 we
conclude that the defendants before the AWCB and the PFRB were
not in privity.
In Holmberg, we held that the Public Employees
Retirement Board's (PERB's) factual determination that a former
employee was physically unable to perform her duties did not
preclude relitigation of this issue before the AWCB because the
real parties in interest were not in privity.39 The real party
before the AWCB was the state as an employer, while the real
party before the PERB was the state as administrator of the
Public Employees Retirement System (PERS).40 The state represents
the interests of the PERS in proceedings before the PERB, and as
the court explained, PERS's interests are not identical to the
state's interests.41 Specifically, PERS awards are paid from the
trust fund to which all PERS members and employer-participants
contribute, whereas any amount awarded by the AWCB would come
directly from the state treasury.42 The state is only nominally
represented in the PERB proceeding to the extent it has an
interest in the trust fund.43 Accordingly, we held that the real
parties in the separate proceedings were not sufficiently related
to assure that the state's interests were adequately protected in
the PERB proceeding.44
Holmberg's reasoning applies here. First, in
proceedings before the board, the staff of the PFRB or its
appointed attorney represents the interests of the retirement
system, not the interests of the municipality as employer.45
Likewise, occupational disability benefits are paid from the
retirement system's trust fund, not from the municipality's
general coffers.46 Finally, the interests of all members of the
Police and Fire Retirement System other than the municipality
were not represented at all in the AWCB proceedings.47
Therefore, the real parties in interest before the AWCB
and the PFRB were not in privity, and the AWCB determination that
Palmer's disability was work-related did not preclude PFRB's
reconsideration of that issue.
C. Substantial Evidence Supports the Board's
Conclusions that the Presumption of Compensability Was
Successfully Rebutted and that Palmer Failed To Prove
by a Preponderance of the Evidence that His Injury Was
Work-Related. " \l 2 As a member of Plan III
of the Police and Fire Retirement System, Palmer enjoys
a rebuttable presumption that his heart condition is
work-related.48 The PFRB recognized that the Alaska
Workers' Compensation Act (AWCA) contained a similar
rebuttable presumption,49 and formally adopted this
court's interpretation of the AWCA's rebuttable
presumption in Resolution 85-1.
Accordingly, a three-step analysis governs our
review of the board's denial of Palmer's occupational
disability benefits claim. The first step requires
Palmer to offer "some evidence" that his disability
claim arose out of his employment.50 The board found
that Palmer met this test with respect to both of his
theories that his disability was work-related, and the
board does not challenge these findings on appeal.51
The second step requires us to examine whether the
board correctly determined that substantial evidence
was presented rebutting the presumption of
compensability with respect to each of Palmer's
theories.52 Because the presumption shifts only the
burden of production and not the burden of persuasion,
we review any evidence tending to rebut the presumption
in isolation, without reweighing the rebuttal evidence
against the evidence tending to establish causation.53
Finally, the third step requires us to review
whether substantial evidence supports the board's
decision that Palmer failed to prove his claim by a
preponderance of the evidence under either of his
proposed theories.54 As with the second step, we do not
reweigh the evidence or choose between competing
inferences.55
Palmer contends that the board's findings
regarding the second and third steps were erroneous,
and that the board failed to apply the correct
"substantial factor" test in both steps. But all of
the board's findings were supported by substantial
testimonial and objective medical evidence, and the
board explicitly applied the proper legal test in
reaching its conclusions. Therefore, Palmer's
challenge on the merits fails.
1. The board properly relied on Dr.
Breall's testimony in conjunction with other
objective evidence and expert testimony.
The board relied extensively on Dr. Breall's testimony
to determine that the presumption of compensability was
successfully rebutted and that Palmer failed to prove his
disability was substantially work-related. Palmer argues that
the superior court erred by accepting Dr. Breall's opinions as
substantial evidence supporting the board's conclusions.
a. Dr. Breall's testimony
supported a conclusion the disability was not
work-related.
Dr. Breall was hired by the board to conduct an
independent review of Palmer's medical history, offer his
diagnosis, and address whether he thought "any industrial
factors" might have been a "substantial factor" in bringing about
Palmer's disability. Dr. Breall interviewed Palmer over the
telephone, reviewed his medical records, and issued a report.
Dr. Breall concluded that Palmer's disability is solely
the product of his underlying "severe triple vessel
atherosclerotic coronary artery occlusive disease." Dr. Breall
found that this disease was the result of "a number of well-
recognized, but non-industrial, risk factors."56 Dr. Breall
concluded that "[a]ny disability which [Palmer] currently has is
due to the progressive non-industrial atherosclerotic development
within the coronary arteries and within his bypass grafts."
Dr. Breall found that Palmer's 1990 work-related heart
attack "resulted in negligible damage to the left ventricle," but
that the occlusions following the 1990 bypass surgery had nothing
to do with this attack. He explained that an angiogram performed
just after the 1990 attack revealed that Palmer's left ventricle
ejection fraction was within the normal range. That is, despite
the minor damage caused to the left ventricle by the heart
attack, Palmer "had no disability whatsoever[] with respect to
the heart muscle itself. Therefore, any and all disability that
he had, had to be because of impairing the blood flow through the
coronary arteries." Accordingly, Dr. Breall concluded that the
1990 heart attack "played no role in Mr. Palmer's current
disability."
Dr. Breall also concluded that "[i]n all likelihood,"
Palmer did not suffer a second heart attack in 1996. He
explained that Palmer's 1996 episode was not a second heart
attack because neither of the two indicia of a myocardial
infarction - changes in the electrocardiogram or elevated levels
of certain enzymes - was present. Dr. Breall concluded that the
1996 event was unstable angina or preinfarction angina. He
further noted that treadmill tests taken after Palmer's
hospitalizations in 1990 and 1996 revealed significant
improvement in aerobic function since the 1990 attack. Dr.
Breall inferred from this data that neither the 1990 heart attack
nor the 1996 episode caused any lasting disability.
Dr. Breall also found that job-related stress did not
contribute to Palmer's disability. Dr. Breall testified that
"Type A" behavior is the only emotional stress factor that has
been proven to cause, aggravate, or accelerate coronary artery
disease.57 Dr. Breall testified that while Palmer has "a severe
degree of [T]ype A behavior[,]. . . . this has absolutely nothing
at all to do with his job."58 Accordingly, Dr. Breall concluded
that Palmer's Type A, or coronary-prone, behavior was just
another nonindustrial risk factor that may have contributed to
the development of Palmer's disease and resulting disability.59
Dr. Breall was asked on cross-examination about his
failure to perform a physical exam. Dr. Breall testified that
his telephone interview and review of Palmer's extensive medical
records were sufficient for purposes of evaluating whether
Palmer's injury was work-related. Dr. Breall also acknowledged
that he had previously published an opinion that doctors
conducting evaluations for litigation purposes should not rely on
examinations, medical histories, or diagnostic testing obtained
or performed by non-medical or technical medical personnel.
b. The first superior court order
did not require the board to ignore Dr.
Breall's testimony.
Palmer argues that the superior court unequivocally
ordered the board to ignore Dr. Breall's report and testimony on
remand, but the court's opinion does not support Palmer's
interpretation.
The court first noted Palmer's concerns that unlike Dr.
Kramer, Dr. Breall never physically examined him and did not have
an ongoing professional relationship with him. The court further
noted that Dr. Breall's testimony was potentially inconsistent
with his prior published opinions. The court found "that the
Board's reliance on Dr. Breall's opinions with respect to the
relationship between the [effects] of Palmer's coronary artery
bypass of 1990 and his present disability does not constitute
`substantial evidence,' as required by law upon which the Board
can properly rely in reaching its decision." The import of this
finding is best deciphered in light of the court's subsequent
statement that "the Board must reconsider its reliance on Dr.
Breall's opinions applying the proper legal `substantial factor'
test." The latter statement resolves any doubts created by the
former: the court would not have ordered reconsideration of
testimony it intended the board to ignore.
The board adopted the correct interpretation of the
first superior court order; namely, that it should reconsider Dr.
Breall's testimony in light of Palmer's concerns, and that the
doctor's testimony and medical report was insufficient by itself
to clear the "substantial evidence" hurdle.
c. Substantial evidence supports
the board's conclusion that Dr. Breall's
testimony was conclusive and consistent with
objective medical data and other expert
testimony.
Palmer next argues that Dr. Breall's testimony cannot
support the board's conclusion because it conflicted with his
prior published opinions and the testimony of Dr. Kramer,
Palmer's treating physician. The board acknowledged our rule
that doubtful or inconclusive evidence must be resolved in favor
of the claimant.60 However, this rule is not triggered simply by
a lack of unanimity among experts, which clearly exists in this
case, but only when "the substance of a particular witness'
testimony is in doubt."61 The board correctly explained that Dr.
Breall's testimony was conclusive and consistent with both his
earlier published opinions and other evidence presented to the
board in this case.
The board explained that Dr. Breall's opinions
expressed in the professional publications brought to the board's
attention by Palmer were not inconsistent with his opinions in or
preparation for this case. Specifically, the board found that
Dr. Breall's opinion that non-medical personnel should not
perform medical examinations for litigation purposes was
completely consistent with the fact that in this case all of the
records Dr. Breall relied on were produced by other doctors, and
mostly by other cardiologists. Likewise, the board found that
Dr. Breall's conclusion that Palmer's work-related stress did not
aggravate his coronary artery disease was consistent with his
previously published opinions.
Palmer argues that even if Dr. Breall's testimony is
conclusive and internally consistent, the board was obliged to
ignore it by our decision in Black v. Universal Services, Inc.62
We held in Black that the medical testimony of a doctor whose
examination consisted solely of a twenty-minute interview with
the claimant and a brief physical examination did not constitute
substantial evidence, especially in light of the fact that the
doctor's conclusions were "contrary to those of the numerous
physicians who treated her."63 Palmer argues that we should reach
the same conclusion regarding Dr. Breall's testimony because he
did not physically examine Palmer and his testimony was contrary
to that of Dr. Kramer, Palmer's treating physician since 1996.
Palmer's reliance on Black is misplaced. We have
limited our holding in that case by consistently refusing to
reverse a board's decision "where the reviewing physician's
statement did not stand alone and was consistent with other
evidence presented."64 We have held that a physician's reliance
on medical records rather than a physical exam is not fatal where
the testimony is consistent with other medical expert testimony
and objective test results.65 In this case, Dr. Breall's
testimony is a reasonable interpretation of Palmer's medical
records and objective medical data.66 Additionally, Dr. Breall's
opinion is shared in substantial part by Dr. Samson, who
physically examined Palmer in 1997 for the parallel AWCB
proceeding and whose report was admitted as evidence in the PFRB
proceeding.67
Dr. Samson interviewed Palmer and conducted a physical
examination, treadmill test, electrocardiogram, and chest X-ray.
Dr. Samson concluded that Palmer's 1990 work-related heart attack
caused no lasting damage and that Palmer's disability was not
caused by this attack.68 Dr. Samson took "strong issue" with Dr.
Kramer's opinion that the 1990 coronary bypass was necessitated
by the heart attack. Dr. Samson also found that the 1990 bypass
had "absolutely nothing" to do with Palmer's angina and 1996
angioplasty. Rather, Dr. Samson determined that Palmer's angina
pectoris was the result of his underlying coronary artery
disease, which he thought was "undoubtedly" caused by the same
nonindustrial risk factors identified by Dr. Breall. Like Dr.
Breall, Dr. Samson found that Palmer did not suffer a second
heart attack in 1996. Dr. Samson concluded that Palmer's angina
pectoris and angioplasty "in no way were related to his
employment."
Accordingly, the board did not violate the superior
court's order or otherwise err by relying in part on Dr. Breall's
testimony.
2. The board applied the correct
"substantial factor" test in both the second and
third steps of its analysis. " \l 3
Palmer contends that the board failed to properly
apply Tolbert v. Alascom, Inc.'s "substantial
factor" test in the second and third steps of its
analysis - i.e., its determinations that
substantial evidence rebutted the applicable
presumption of compensability and that Palmer
failed to prove that his disease was work-related
by a preponderance of the evidence.69 But the
board explicitly stated that it would award
benefits "where 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 [the] disability."
This is precisely the standard we adopted in
Tolbert to govern cases in which two or more
causal factors may operate in concert to produce
the disability.70 As discussed below, substantial
evidence supports the board's decision in both the
second and third steps of its analysis.
3. Substantial evidence supports the
board's findings regarding the second and third
steps of the analysis. " \l 3 The
"substantial factor" test announced in Tolbert is
consistent with our recognition in Grainger v.
Alaska Workers' Compensation Board that often "no
single factor can be isolated as the `cause' of .
. . arteriosclerosis."71 Grainger also recognized
the corollary that "several risk factors often
operate together to precipitate or accelerate the
development of [arteriosclerosis]."72 Thus,
whether nonindustrial risk factors associated with
Palmer's lifestyle and physiological
characteristics were the original cause of his
coronary artery disease is not determinative. He
may nonetheless qualify for occupational
disability benefits if either his 1990 work-
related heart attack or work-related stress
substantially combined with, aggravated, or
accelerated his disease.73
Given the evidence discussed in Part IV.C.1.,
the board's findings that the presumption of
compensability was rebutted with respect to each
of Palmer's theories were not erroneous. As to
each of Palmer's theories, the board was presented
with an alternative explanation of Palmer's
disability that excluded work-related factors as a
substantial cause.74
Palmer's first theory is that his occluded
vein graft, which was necessitated by his 1990
work-related heart attack, aggravated or
contributed to his disability. But Dr. Breall and
Dr. Samson both concluded that Palmer's disability
was caused solely by his underlying coronary
artery disease, and that Palmer's work-related
heart attack in 1990 did not aggravate or
contribute to that disease. Further, Dr. Samson
took "strong issue" with Dr. Kramer's opinion that
the 1990 bypass operation was necessitated by
Palmer's heart attack. The board could reasonably
infer that Palmer's bypass operation was
necessitated by his preexisting, nonindustrial
coronary artery disease, not his 1990 work-related
heart attack. Following this view, whether
occlusion of one of the 1990 vein grafts
contributed to Palmer's disability is irrelevant -
the vein grafts were required to address the
underlying disease, not the negligible damage
caused by the 1990 work-related heart attack.
Finally, both doctors agreed that the 1996 episode
did not constitute a second heart attack or
contribute to Palmer's disability. Thus, whether
the 1996 episode should be considered work-related
is likewise irrelevant.75
Palmer's second theory is that work-related
stress contributed to his disability. But Dr.
Breall testified that Palmer's work did not
aggravate his predisposition toward coronary-prone
or Type A behavior.76 Again, the fact that Dr.
Pecora was of a different view is unimportant.
The board could permissibly choose to credit the
testimony of a well-credentialed expert in the
relationship between emotional stress and coronary
artery disease over that of Dr. Pecora, a friend
of Palmer's parents. Conversely, the board was not
required to credit Palmer's testimony that his
stress was largely work-induced.
Despite Palmer's arguments to the contrary,
our opinion in Grainger does not render Dr.
Breall's testimony insufficient to rebut Palmer's
work-related stress theory. We held in Grainger
that the AWCB improperly relied on the
inconclusive testimony of the claimant's treating
physicians in determining that the employer had
rebutted the presumption that job-related stress
was a factor in causing Grainger's disability.77
As explained above in Part IV.C.1, Dr. Breall's
testimony is not inconclusive. Unlike the
physicians in Grainger,78 Dr. Breall explicitly
testified that Palmer's work-related stress did
not aggravate his underlying coronary artery
disease. Accordingly, we hold that substantial
evidence supports the board's decision that the
presumption of compensability was rebutted.
Based on all of this evidence, we further
hold that substantial evidence supports the
board's decision that Palmer failed to prove by a
preponderance of the evidence that his disability
was work related.79
V. CONCLUSION
For these reasons, we AFFIRM the decision of the
superior court upholding the board's second decision denying
Palmer's claim for occupational disability benefits.
BRYNER, Justice, with whom FABE, Chief Justice, joins,
dissenting.
I disagree with the opinion's due process analysis. In
my view the opinion misapplies Mathews v. Eldridge's balancing
test80 by treating it as if it were a rational basis analysis.
Without any meaningful attempt at balancing the competing private
and governmental interests, and despite conceding the importance
of Palmer's retirement benefits, the opinion summarily concludes
that his right to a rational and non-arbitrary ruling on his
entitlement to these benefits must yield to the city's
conjectural interests in the PFRB's five-minimum-vote requirement
- illusory interests that the city itself has not even bothered
to argue and that are incapable of withstanding even rational
basis scrutiny.
The opinion identifies two supposedly legitimate
governmental interests that a "full-body" voting requirement
might further: (1) to "help ensure a broad consensus is reached
for important governmental action;"81 and (2) to encourage "a
spirit of cooperation and compromise" among participating PFRB
members.82 Upon examination, however, neither interest proves
legitimate when a full-body voting requirement applies to a panel
like the PFRB.
A full-body voting provision can be eminently sensible
when applied to political or administrative bodies charged with
making, planning, or implementing public policy on a community-
wide basis for the good of the public as a whole. As the opinion
correctly observes, when used by public bodies that make policy-
level decisions of this kind - bodies like legislatures or
assemblies, zoning boards, and various planning or regulatory
commissions - a voting provision requiring broad-based consensus
can serve a legitimate governmental interest by ensuring that the
body's actions do what they are supposed to do: promote the
general public interest by reflecting community-wide perceptions
of sound policy.
Yet no comparable governmental interest is readily
apparent when a public board performs judicial, rather than
political, functions: when its actions are guided not by broad
notions of public policy meant to advance community interests as
a whole, but the traditional principles of case-specific
adjudication. When a panel's core duties require it to resolve
individual disputes concerning actionable rights and duties
through a formal process that entails an evidentiary hearing,
factfinding, and a binding decision based on applicable law, the
government has no legitimate interest in seeking broad-based
political consensus.83
Reflecting this disparity of interests, every example
of full-body voting discussed in the court's opinion involves a
public body engaged in political decision- making rather than
case-specific adjudication. The court cites no authority
supporting the proposition that full-body voting has any
legitimate place in administrative adjudication of legal claims.84
Here, the PFRB's decision indisputably involved an
adjudicative process, not a political process. Palmer is not
asking for discretionary public benefits. He is asserting a
straightforward contract claim. As the court's opinion
acknowledges, Palmer had a significant financial stake in
receiving the benefits guaranteed by his retirement plan. His
interest in those benefits arose under the terms of his municipal
employment contract; it accrued over his many years of service as
a city police officer; and, by the time he applied for
retirement, it had ripened into a fully vested and enforceable
property right. In asserting administrative jurisdiction over
Palmer's legal claim of right, the PFRB was obliged to resolve
the claim by finding the facts of Palmer's case through a fair
and impartial evidentiary hearing and by determining the legal
significance of those facts under his retirement plan and
applicable law. The board's duties were thus case-specific and
guided by legal principles that leave no legitimate room for
individual board members to assert partisan interests or make
general policy decisions for the broader public good.
Given the narrow adjudicative role played by the PFRB,
the city's ostensible interest in using full-body voting to
ensure broad-based consensus rings false: in this distinctly non-
political context, counting two absent board members as voting
against a claim is functionally indistinguishable from - and no
more defensible than - excusing two jurors from attendance at
trial and counting their absences as votes for the defendant.
The analogy between the PFRB and a jury is of course somewhat
inexact but is nonetheless apt. Its accuracy can be confirmed by
comparing the PFRB's voting rule to those used by other quasi-
judicial tribunals in Alaska whose composition and duties are
similar to the PFRB's. For example, Alaska's Teachers'
Retirement Board, Public Employees' Retirement Board, and
Workers' Compensation Board all have memberships with a specified
makeup; all sit as multi-member tribunals, engage in repeated
adjudication, and develop collective expertise; and all have
individual members who bring different expertise and professional
perspectives to the adjudicative process.85 Yet their voting
rules reflect no legitimate need for full-body voting: each of
these boards decides each case it considers by majority vote
based upon those members present and voting.86
The second purportedly legitimate government interest
in full-body voting - encouraging a "spirit of cooperation and
compromise" on the PFRB - is simply a variation on the first and
fares no better. A "spirit of cooperation and compromise" may be
a laudable and important goal when dealing with a governmental
body like a coastal regulatory commission, which addresses broad
issues of policy and renders decisions based on its individual
members' subjective perceptions of public interests. But
pressing for compromise becomes far more questionable when the
pressure is applied to an adjudicative body whose primary
obligation is similar to a jury's - to decide individual cases
fairly and impartially by hearing evidence, finding facts, and
applying settled legal rules to their findings. A policy
encouraging PFRB members to "cooperate and compromise" their
individually held views seems no more acceptable, and no worthier
of judicial deference, than would be a comparable policy
encouraging juries to compromise in judicial proceedings.
As applied in this case, then, the five-minimum-vote
requirement is fundamentally arbitrary and serves no legitimate
purpose. Moreover, as the court admits, the rule could be easily
be cured; in fact it has already been discarded by the city.
Given the countervailing importance of Palmer's right to
retirement benefits,87 I would hold that Mathews v. Eldridge's
balancing test compels the conclusion that the PFRB's voting rule
violated Palmer's right to due process.
I therefore dissent from the court's opinion affirming
the superior court's judgment.
_______________________________
1 Palmer was very upset both because he mistakenly thought
that executing the warrant was his responsibility and because
Palmer blamed the police department for failing to remedy the
radio communications problems that Palmer felt may have
contributed to the officer's death.
2 Former AMCR 3.85.010(B) provided that "[i]n order for any
motion to be passed by the board, it must be supported by not
less than five votes of the board members."
3 Former AMCR 3.85.010(B) was renumbered AMCR 3.85.075(B) in
September 1998, after the board rendered its first decision
earlier in 1998 but before it rendered its second decision in May
1999. Anchorage Ordinance 98-216 1 (1998).
4 The board explained why it found Dr. Breall's testimony
credible, consistent, and conclusive in general, and more
credible than contrary testimony submitted by Palmer's physicians
on both of Palmer's theories for establishing a connection
between his illness and his employment.
5 Lauth v. State, 12 P.3d 181, 184 (Alaska 2000).
6 Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).
7 Balough v. Fairbanks North Star Borough, 995 P.2d 245, 254
(Alaska 2000); Nat'l Bank of Alaska v. State, Dep't of Revenue,
642 P.2d 811, 815 (Alaska 1982). In contrast, when the agency's
expertise or questions of fundamental policy are involved, we
review the agency's interpretation of its own regulations under
the deferential "reasonable basis" standard. Balough, 995 P.2d
at 254.
8 Snyder v. State, Dep't of Pub. Safety, Div. of Motor
Vehicles, 43 P.3d 157, 160 (Alaska 2002).
9 Tolbert v. Alascom, Inc., 973 P.2d 603, 607 (Alaska 1999).
10 Id.
11 Id. (citing Fireman's Fund Am. Ins. Co. v. Gomes, 544 P.2d
1013, 1015 & n.6 (Alaska 1976)).
12 The parties refer to former AMCR 3.85.010(B) as the
controlling regulation throughout their briefs. However, the
identical but renumbered AMCR 3.85.075(B) is the proper focus of
this litigation because that provision governed the board's
proceedings on remand from the superior court. See supra note 3.
13 Former chapter 3.85 was repealed and reenacted in April
2000, after the board's second decision denying Palmer's claim
for occupational disability benefits. Anchorage Ordinance No.
2000-65, 1, 3 (2000). Accordingly, the current chapter's
provisions are inapplicable in this case. We note, however, that
the current code provisions are substantially similar in all
aspects relevant to our decision.
14 Former AMC 3.85.010-.030.
15 Former AMC 3.85.040(G).
16 The board also argues that Palmer waived all of his
constitutional challenges by failing to raise them below. The
board correctly asserts that Palmer failed to raise his
constitutional challenges before the PFRB, in his points of
appeal to the superior court or this court, or in his briefs to
the superior court. We do not generally reach the merits of
arguments not presented to the agency whose decision is appealed.
Amerada Hess Pipeline Corp. v. Alaska Pub. Utils. Comm'n, 711
P.2d 1170, 1181 n.22 (Alaska 1986). But we will do so if the
arguments do not depend on new facts and are sufficiently related
to a theory argued below such that they could have been gleaned
from the pleadings. See, e.g., Baxley v. State, 958 P.2d 422,
430 (Alaska 1998) (citing Zeman v. Lufthansa German Airlines, 699
P.2d 1274, 1280 (Alaska 1985)). Palmer's constitutional
arguments fit within this exception: they are simply variations
of procedural objections he has raised throughout the litigation
below, and do not depend on any new facts.
17 State, Dep't of Revenue, Child Support Enforcement Div. v.
Maxwell, 6 P.3d 733, 737 n.18 (Alaska 2000) (quoting In re
Hanson, 532 P.2d 303, 305 (Alaska 1975)).
18 424 U.S. 319, 334-35 (1976); see also Whitesides v. State,
Dep't of Pub. Safety, Div. of Motor Vehicles, 20 P.3d 1130, 1135
(Alaska 2001) (using the Mathews v. Eldridge framework to analyze
due process challenge to administrative procedure).
19 Mathews, 424 U.S. at 334-35.
20 Compare former AMC 3.85.230 with former AMC 3.85.240.
21 Davis & Pierce, Administrative Law 9.4, at 35 (3d ed.
1994).
22 Claimants' odds of success would still fluctuate under this
rule depending on the number of participating board members.
23 Former AMC 3.85.030(B)-(C).
24 Palmer actually made a similar argument in support of the
five-vote requirement in his second appeal to the superior court.
Thus, his claim before this court that the five-vote requirement
"makes no sense" is disingenuous.
25 The current board is comprised of nine members - three
members appointed by the mayor, and three each of police and fire
retirement plan members elected by the membership. AMC
3.85.020(B). Disability benefits determinations are now
delegated to a standing disability committee comprised of one
police trustee, one fire trustee, and two municipal trustees.
AMC 3.85.080(A). Three of these trustees constitute a quorum,
and three concurring votes are required for a decision by the
committee. AMC 3.85.080(C). Thus, the reasoning in this case
would apply to the current disability committee. Requiring three
votes means that a claimant must persuade at least one
municipality trustee to grant benefits. See AMC 3.85.080(C).
26 Palmer's solution would not even necessarily afford his
desired relief. For example, a claimant surely could not require
the participation of a board member who initially recused herself
due to a conflict of interest.
27 161 Cal. Rptr. 392, 395-96 (Cal. App. 1980).
28 Id. (interpreting Cal. Pub. Res. Code 30315 (West 1980)).
29 Id. at 397.
30 Id.
31 See, e.g., Henry M. Robert, Robert's Rules of Order Newly
Revised 43 (Sarah Corbin Roberts et al. eds., 9th ed. 1990);
Scheipe v. Orlando, 739 A.2d 475, 476-77 (Pa. 1999)
(acknowledging common law presumption and state legislature's
right to modify common law with respect to municipal body voting
requirements).
32 Robert, supra note 31.
33 City of Haven v. Gregg, 766 P.2d 143, 145-47 (Kan. 1988);
Braddy v. Zych, 702 S.W.2d 491 (Mo. App. 1986) (holding that "all
the members" referred to full authorized membership of board of
aldermen rather than actual membership at time vote was taken and
declining to enforce common law rule regarding majority voting);
Mountain Hill, LLC v. Middleton Township, 801 A.2d 412, 416-18
(N.J. App. 2002); Scheipe, 739 A.2d at 476-77.
34 See, e.g., Alaska Const. art. IV, 8 (seven-member judicial
council constitutionally sanctioned to act by concurrence of four
or more members). See also Alaska Const. art. II, 12, 14, 16,
20; and art. IV, 15 (full-body accounting and enhanced majority
voting procedures constitutionally required to effectuate certain
legislative actions).
35 Alaska's equal protection clause mandates equal treatment of
those similarly situated. E.g., State, Dep't of Health & Soc.
Servs. v. Planned Parenthood of Alaska, Inc., 28 P.3d 904, 909
(Alaska 2001).
36 The PFRB held that the AWCB determination was not entitled
to collateral estoppel effect because the superior court
"directed [the board] to reconsider only the evidence presented
to us - not the evidence presented to another tribunal."
37 A judgment only has collateral estoppel effect if three
requirements are met: the party to be precluded was either the
party or in privity with the party in the first action; the issue
to be precluded is identical to that decided in the first action;
and the issue in the first action was resolved by a final
judgment on the merits. Holmberg v. State, Div. of Risk Mgmt.,
796 P.2d 823, 827 (Alaska 1990).
38 796 P.2d 823, 827 (Alaska 1990).
39 Id. at 827-29.
40 Id. at 828-29.
41 Id. at 828.
42 Id.
43 Id. at 829.
44 Id.
45 AMCR 3.85.040(B). We refer to Palmer's adverse party as the
"board" throughout this case simply as convenient shorthand -
Palmer's actual adverse party before the board and on appeal is
the Police and Fire Retirement System. See AMCR 3.85.040(A)-(B).
46 See AMC 3.85.090-105.
47 See Holmberg, 796 P.2d at 829 (noting same difference
between AWCB and PERB proceedings).
48 Former AMC 3.85.230(C)(2) provided, "[h]eart, lung, and
respiratory system illnesses shall be rebuttably presumed by the
board to be occupational disabilities for a member of Plan III."
49 AS 23.30.120(a)(1).
50 Tolbert v. Alascom, Inc., 973 P.2d 603, 610 (Alaska 1999).
51 As noted above in Part II.B., Palmer argues that his
disability was work-related because his occluded vein graft and
work-related stress aggravated his underlying disease.
52 Veco, Inc. v. Wolfer, 693 P.2d 865, 869 (Alaska 1985); see
also Miller v. ITT Arctic Servs., 577 P.2d 1044, 1046 (Alaska
1978) ("[S]ubstantial evidence [is] such relevant evidence as a
reasonable mind might accept as adequate to support [the board's]
conclusion.") (internal quotes and citation omitted)).
53 Wolfer, 693 P.2d at 869-70.
54 Id. at 870.
55 Beauchamp v. Employers Liab. Assurance Corp., 477 P.2d 993,
997 (Alaska 1970).
56 Specifically, Dr. Breall noted that Palmer had been a heavy
smoker before 1996, and was an overweight middle-aged man with
low levels of high density lipoprotein. Palmer does not contest
these findings or their relevance to his coronary artery disease.
57 Dr. Breall explained that he used the "Type A" designation
as shorthand for "a coronary-prone behavior pattern that will
include not only time urgency, but hostility, anger, as well as
irritability, aggravation, impatience, and so forth."
58 Dr. Breall concluded that Palmer exhibited significant Type
A behavior after observing his mannerisms during the hearing and
listening to his responses to the board's attorney's questions
involving Palmer's reactions to potentially stressful non-work
episodes such as dealing with traffic or waiting in lines.
Palmer does not contest this characterization; in fact, he
admitted that he had a Type A personality.
59 On cross-examination, Dr. Breall acknowledged his prior
published opinion that workplace stress can sometimes aggravate
coronary artery disease in Type A individuals. He explained that
normally workplace stress has no aggravating effect because the
"Type A behavior . . . is an inherent part of a person's behavior
pattern both on and off the job," but that especially stressful
work conditions can elevate Type A reactivity "in exceedingly
rare cases." But Dr. Breall cited numerous indications of
Palmer's Type A reactivity off the job and concluded that he
could not "visualize how the work for the Anchorage Police
Department caused Type A [above] and beyond what it is normally."
Dr. Breall testified that "irrespective of how stressful [an]
occupation appears to people outside that occupation, . . .
[t]here is no predilection for an increased amount of coronary
artery disease in one occupation or another."
60 Miller v. ITT Arctic Servs., 577 P.2d 1044, 1048 (Alaska
1978).
61 Id. at 1049.
62 627 P.2d 1073 (Alaska 1981).
63 Id. at 1075-76 & n.9.
64 Safeway, Inc. v. Mackey, 965 P.2d 22, 29 (Alaska 1998)
(citations omitted) (limiting Black). "Further, we have never
suggested that Black stands for a general rule that the opinion
of a physician hired for litigation is not substantial evidence
when it conflicts with that of treating physicians." Id.
65 Childs v. Copper Valley Elec. Ass'n, 860 P.2d 1184, 1189-90
(Alaska 1993).
66 See Part IV.C.1.a (summarizing Dr. Breall's use of objective
medical data to support his conclusions).
67 We further note that physical examinations are not always
critical or even helpful. A telephone interview combined with a
thorough review of medical records, even for purposes of
litigation, may produce an evaluation as accurate as the routine
physical examination performed by a treating physician. In this
case, it is difficult to understand why Dr. Breall's testimony
should be viewed skeptically simply because he did not personally
administer the treadmill tests he relied on in reaching his
conclusions.
68 Like Dr. Breall, Dr. Samson made specific mention of
Palmer's "preserved ejection fraction" in concluding that the
1990 attack caused no lasting damage.
69 973 P.2d 603, 612 (Alaska 1999) (describing "substantial
factor" test).
70 Id. (explaining that applying but-for test in lieu of
substantial factor test would tend to absolve all forces from
liability). Palmer argues that the court could not have
permissibly concluded that stress did not aggravate his heart
disease where all of the experts acknowledged that stress could
aggravate coronary artery disease. But the issue before the
board was not whether stress can aggravate coronary artery
disease in general, but whether Palmer's work-related stress
should be deemed a substantial cause of his coronary artery
disease.
71 805 P.2d 976, 977 (Alaska 1991).
72 Id.
73 Id. (noting that work-related factors need not be unique or
primary cause of compensable disability).
74 Id. ("[A]n employer can overcome [the presumption of
compensability] by presenting 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.")
(citations omitted).
75 The fact that Palmer's treating physician (Dr. Kramer) and
two other physicians (Drs. Mayer and Pecora) either partially or
fully disagreed with these opinions is irrelevant to our review
of the board's finding. Like the AWCB, the PFRB has the sole
authority to determine witness credibility, and we do not reweigh
the evidence when reviewing the decisions of either body.
Safeway, Inc. v. Mackey, 965 P.2d 22, 29 (Alaska 1998).
76 See Big K Grocery v. Gibson, 836 P.2d 941, 942 (Alaska 1992)
("It has always been possible to rebut the presumption . . . by
presenting a qualified expert who testifies that . . . the
claimant's work was probably not a substantial cause of the
disability.") (citation omitted).
77 805 P.2d at 978-79.
78 Id.
79 See Miller v. ITT Arctic Servs., 577 P.2d 1044, 1049 (Alaska
1978) (concluding that same evidence introduced to rebut
presumption of compensability was adequate to support board's
determination that claimant failed to prove job-relatedness by
preponderance of evidence).
80 424 U.S. 319, 334-35 (1976).
81 Slip Op. at 13.
82 Slip Op. at 11.
83 Suppose for example that a city official acting with
appropriate authority entered into a contract for services with a
party who performed the services and then submitted a claim for
payment to the appropriate municipal board after the city refused
to pay. The city's only legitimate interest in this situation
would be to ensure that the board fairly resolved the dispute by
a case-specific application of governing law; it could hardly
claim a legitimate interest in a voting process that allowed the
board to renege on the city's promise unless it garnered board-
wide support reflecting diverse perceptions of public policy.
84 The court faults this dissent for failing to cite any cases
holding that a full-body voting rule is unconstitutional when
used by a quasi-judicial administrative tribunal. But the
abundance of cases addressing the practice when it is used in the
context of political decision-making and the absence of
comparable cases involving quasi-judicial administrative
tribunals provide telling evidence that, for quasi-judicial
tribunals, the practice itself is rare, if not unprecedented.
And as pointed out in the text of this dissent, a comparison of
the PFRB's voting rule with those of similar quasi-judicial
boards in Alaska yields further evidence that the PFRB's voting
rule is unique in this context.
85 See AS 14.25.035(a)(1) & (2) (teachers' retirement board);
AS 39.35.030 (public employees' retirement board); AS
23.30.005(a) (workers' compensation board).
86 See 2 AAC 36.130(b) (teachers' retirement board); 2 AAC
35.170(b) (public employees' retirement board); AS 23.30.005(f)
(workers' compensation board).
87 The court's willingness to condone this requirement is
especially perplexing in light of the court's recognition that
the requirement deprived Palmer of an important property right.
Given this recognition, today's holding adds an odd twist to our
recent decision in Whitesides v. State, 20 P.3d 1130 (Alaska
2001). There, applying Mathews v. Eldridge, we held that if
credibility plays a role in deciding the issue - as the court
acknowledges it did here - Alaska's due process clause prohibits
administrative tribunals from depriving litigants of important
property interests without affording them the right to an in-
person hearing. Id. at 1135-37. In light of today's opinion,
our case law now paradoxically holds that due process guarantees
a litigant in Palmer's shoes the right to an in-person
administrative hearing but grants no right to insist that members
of the administrative tribunal participate in the hearing before
voting.
