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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Bradbury v. Chugach Electric Assoc. (6/20/2003) sp-5705

Bradbury v. Chugach Electric Assoc. (6/20/2003) sp-5705

     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
                                

LINDA BRADBURY,               )
                              )    Supreme Court No. S-10532
             Appellant,            )
                              )    Superior Court No.
     v.                       )    3AN-00-03750 CI
                              )
CHUGACH ELECTRIC              )    O P I N I O N
ASSOCIATION and FREMONT  )
INSURANCE COMPANY,       )    [No. 5705 - June 20, 2003]
                              )
             Appellees.            )
________________________________)



          Appeal from the Superior Court of the State
          of Alaska,  Third Judicial District,
          Anchorage, Sharon L. Gleason, Judge.

          Appearances:  Michael J. Jensen, Law Offices
          of Michael J. Jensen, Anchorage, for
          Appellant.  Patricia L. Zobel and John D.
          Harjehausen, DeLisio, Moran, Geraghty &
          Zobel, P.C., Anchorage, for Appellees.

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

          FABE, Chief Justice.


I.   INTRODUCTION

          Linda Bradbury died while working for Chugach Electric

Association, Inc. when a cyst in her liver ruptured causing a

deadly anaphylactic reaction.  Dennis Bradbury, her husband,

appeals the Alaska Workers' Compensation Board's denial of

benefits related to his wife's death.  Because the Board's

decision is supported by substantial evidence, we affirm it.

II.  FACTS AND PROCEEDINGS

A.             Factual History

          Linda Bradbury died on June 18, 1999, while working as

a bull cook for Chugach Electric Association, Inc. in Beluga.

According to the autopsy, Bradbury died from anaphylactic shock

when a hydatid cyst in her liver ruptured.  When the cyst

ruptured, its contents spilled into her abdomen and precipitated

a massive allergic reaction.  Hydatid cysts are parasitic

infections.  Dr. Franc Fallico, deputy medical examiner for the

state, noted on Bradbury's death certificate that during the

autopsy he found "[n]o evidence of significant traumatic injury."

          Bradbury first experienced abdominal pain, which led to

the discovery of her cyst, in early March 1999.  She went to the

Family Health Center in Palmer because of the pain and returned a

few days later for an abdominal ultrasound.  Dr. Gerald Phillips,

who performed the ultrasound, reported that the test revealed a

large cyst in the left lobe of her liver.  On March 12, 1999, a

practitioner at the Family Health Center noted in Bradbury's

records that a surgeon said the cyst was "not a problem" and that

he would watch it for any changes.

          A few months later, Bradbury began to experience pain

in the area of her cyst.  In June 1999 she told a nurse

practitioner that abdominal pain near her liver cyst had awakened

her from sleep.  The next day Bradbury went to the Health Center

because of the pain.  Other than abdominal pain, the nurse

practitioner noted that Bradbury's vital signs were stable and

advised her to return to the Health Center if she had a fever.

Bradbury made an appointment for a CT scan of her abdomen for

Wednesday, June 23, 1999, the day after she would have returned

home from her next work shift.

          Linda Bradbury had worked for Chugach Electric since

April 1997.  She worked seven 12-hour days straight followed by

seven days off.  She flew to Beluga on Wednesday mornings and

left on Tuesday nights.  On Wednesday, June 16, two days before

her death, Bradbury flew to Beluga to begin her week-long work

shift.

B.             Procedural History

          On February 7, 2000, Dennis Bradbury filed a workers'

compensation claim for death benefits and expenses stemming from

his wife's death.  On February 23, 2000, Chugach Electric

challenged his claim as not work-related.  The Alaska Workers'

Compensation Board heard the claim in September 2000.

1.                       Testimony presented to the Board

          The Board first heard testimony from Dennis Bradbury,

who noted that his wife complained of stomach pains about two

weeks before her death.  He testified that he spoke with her

after she returned to work on Wednesday, June 16, and that she

told him she had not slept well the night before.  He described a

note his wife had written that Wednesday, which was found among

her personal belongings after she died.  According to Dennis

Bradbury, his wife indicated in the note that she was in so much

pain she could not sleep that night.  This note was admitted into

evidence.

          Robert Klemke, the head cook who worked on Linda

Bradbury's shift, described to the Board some of Bradbury's

duties as a bull cook.  The testimony that Klemke and others gave

concerning Bradbury's work duties and how she performed them is

significant because Dennis Bradbury's theory was that the

physical labor his wife performed inflicted trauma upon her

abdomen, resulting in the cyst's rupture.  Klemke explained that

a bull cook is responsible for cold food preparation and basic

cleanup.  Klemke testified that when Bradbury started work at

5:30 a.m., she first prepared breakfast by putting out fruit and

by stocking milk, juice, and water.  Klemke added that in

addition to breakfast preparation, Bradbury did some general

cleaning including washing baking pans that were soaking in the

sink.  He noted that because of Bradbury's size, five feet two

inches, she had to lean over the sink to reach the pans.

          Klemke testified that after Bradbury finished in the

dining area, she loaded ice, milk, fruit, juice, and water into a

truck to drive to the break rooms.  She would then stock the

break rooms with those items.  Klemke testified that he had seen

her bump into things occasionally and that he witnessed Bradbury

support objects on her hip and abdomen.

          In addition to Klemke, Claudia McLean testified in

support of Bradbury's claim.  McLean worked as a bull cook on the

shift opposite Linda Bradbury.  Because McLean and Bradbury

generally shared the same duties, McLean prepared a list of

morning duties Bradbury allegedly would have performed on the

morning of her death.

          Two doctors, Dr. Gerald Roberts and Dr. David Anaise,

testified in support of Bradbury's claim.  Dr. Roberts is a

gastroenterologist and internist and has never treated a patient

with a hydatid cyst.  He indicated that "the cause of the rupture

was most probably related to the work she was carrying out at her

job as a bull cook, particularly in the two hours prior to her

death on June 18, 1999."  Dr. Roberts based his opinion upon

Bradbury's medical records and medical articles about hydatid

cysts.  He specified that minor trauma, and even leaning over a

deep sink, could conceivably cause a cyst to rupture.  He

expressed the opinion that spontaneous rupture of hydatid cysts

is relatively rare and noted that Bradbury did fairly strong

physical labor.  He concluded that the cyst ruptured because

something must have struck Bradbury's abdomen while she was

working.

          Dr. David Anaise is a retired surgeon who now practices

law.  He has never treated a patient with a hydatid cyst.  He

testified that Bradbury's work activities in the two hours before

her death would have put enough pressure on her abdomen to

rupture the cyst.  Dr. Anaise admitted that the only cases of

traumatic rupture he had read about in the medical literature

involved a blunt trauma or blow to the abdomen.

          Two physicians, Dr. Kenneth Flora and Dr. David Nelson,

testified on behalf of Chugach Electric.  Dr. Flora is a

hepatologist whose subspecialty is the diagnosis and treatment of

chronic liver disease.  He is also a professor of medicine.  In

his practice, he has seen approximately ten patients with hydatid

cysts.  Dr. Flora gave the opinion that the cyst ruptured

spontaneously and that Bradbury's work activities were not a

substantial factor in her death.  He eliminated lifting heavy

objects as a cause of her cyst's rupture, explaining that from

his reading of the literature, he believes that it requires

significant force against the liver to rupture a cyst.  He

concluded that her cyst might have ruptured regardless of whether

she was at work.

          Dr. Nelson is a professor of medicine and a

hepatologist who has treated patients with hydatid cysts.  He

does not restrict his patients from lifting or working because he

does not believe that these activities rupture cysts.  Dr. Nelson

explained that hydatid cysts can rupture spontaneously or from

trauma, usually a blunt rapid blow, to the abdomen.  Dr. Nelson

indicated that Bradbury's cyst probably ruptured spontaneously.

2.                       The Board's decision and subsequent

               proceedings

          The Board issued its decision on October 13, 2000.  The

Board considered three issues: (1) whether Linda Bradbury's work

activities were a substantial factor in her death; (2) whether it

would award death benefits; and (3) whether it would award

attorney's fees.  In a 2-1 decision, the Board denied Bradbury's

claims and dismissed her case.

          Dennis Bradbury petitioned for reconsideration of the

Board's decision in October 2000.  The Board denied and dismissed

the petition.  Bradbury then appealed to the superior court,

which, acting as an intermediate court of appeal, affirmed the

Board's decision.  Dennis Bradbury appeals this decision.

III. STANDARD OF REVIEW

          When the superior court acts as an intermediate court

of appeals, we independently review the merits of the

administrative decision.1  "We review the administrative agency's

findings to determine whether they are supported by substantial

evidence."2  "Substantial evidence is such relevant evidence as a

reasonable mind might accept as adequate to support a

conclusion."3  We do not determine witness credibility; the Board

makes those determinations exclusively.4  Therefore, even when

conflicting evidence exists, we uphold the Board's decision if

substantial evidence supports it.5

IV.  DISCUSSION

     A.   Dennis Bradbury Is Not Entitled to Workers'
          Compensation Benefits for His Wife's Death.
          
1.                       Burden of proof
               
          The Alaska Workers' Compensation Act creates a

presumption that an employee's claims are compensable.6

"Applying this presumption involves a three-step analysis."7

First, the employee must establish a link between her injury and

her employment.8  In this case, the Board found that Dennis

Bradbury introduced sufficient evidence to establish a link

between his wife's death and her work.  Chugach Electric does not

challenge the Board's finding that Dennis Bradbury satisfied his

burden of establishing this preliminary link.

          Next, we ask whether the employer rebutted the

presumption with substantial evidence.9  The employer's

substantial evidence must either "(1) provide[] an alternative

explanation [for the injury] which, if accepted, would exclude

work related factors as a substantial cause of the disability; or

(2) directly eliminate[] any reasonable possibility that

employment was a factor in causing the disability."10  The burden

of production at this stage shifts to Chugach Electric, but not

the burden of persuasion; thus, we examine Chugach Electric's

evidence in isolation from Dennis Bradbury's evidence to the

contrary.11  We have held that "[i]t has always been possible to

rebut the presumption of compensability by presenting a qualified

expert who testifies that, in his or her opinion, the claimant's

work was probably not a substantial cause of the disability."12

The Board found that Chugach Electric satisfied this burden by

presenting the testimony of Dr. Flora and Dr. Nelson, who both

gave the opinion that Linda Bradbury's cyst ruptured

spontaneously and not because her work activities caused trauma

to her abdomen.

          Finally, after an employer rebuts the presumption that

injuries are work-related, an employee can only prevail if his or

her claim is proven by a preponderance of the evidence.13  To

prove a claim by a preponderance of the evidence, the employee

must induce a belief in the trier of fact that the asserted facts

are probably true.14  The Board found that Dennis Bradbury failed

to satisfy this burden because there was no direct evidence that

his wife suffered trauma to her abdomen and because the

circumstantial evidence that he presented was insufficient to

prove his claim.  Dennis Bradbury argues that the Board's

decision is not supported by substantial evidence.

2.                       Chugach Electric produced substantial
               evidence that Linda Bradbury's work as a bull cook
               was not a substantial factor in her death.
               
a.                                 Chugach Electric provided an
                    alternative, non-work-related explanation for
                    Linda Bradbury's death, which  excludes work-
                    related factors as a substantial cause of her
                    death.
                    
          The Board relied upon Dr. Nelson and Dr. Flora's

testimony in concluding that substantial evidence indicated that

Linda Bradbury's death was not work-related. Both doctors are

medical professors and hepatologists who have seen and treated

patients with hydatid cysts.

          The doctors provided an alternative explanation for the

rupture that was not work related.15  Both doctors gave the

opinion that Bradbury's cyst ruptured spontaneously and that it

did not rupture because of trauma to her abdomen.  Moreover, Dr.

Flora and Dr. Nelson believed that the cyst was either in the

process of rupturing or had ruptured by the time Bradbury arrived

at work on June 18.  Both doctors placed great significance on

the symptoms that she experienced in the weeks prior to her

death.  Dr. Flora noted that Bradbury complained of abdominal

pain for two weeks before her death and that during her week off,

a blood test revealed a higher than normal amount of eosinophils

in her blood.  Dr. Flora explained that the body produces

eosinophils in response to parasitic infections.  The heightened

level of eosinophils in her blood suggested to Dr. Flora that

Bradbury's cyst was slowly leaking and that it did not

necessarily rupture suddenly on the day that she died.  Dr. Flora

gave the opinion that fluid leaking from the cyst onto the liver

and into the abdominal cavity caused her severe abdominal pain.

He concluded that Linda Bradbury's cyst ruptured spontaneously.

          Dr. Nelson also focused on the severe abdominal pain

Bradbury experienced before she died.  Dr. Nelson explained that

pain severe enough to wake someone out of sleep is a worrisome

complaint to doctors because it suggests significant activity

within the abdomen.  He noted that Bradbury's symptoms changed

dramatically in the week before she returned to work.  He linked

these changes to the cyst's rupture: "It's well recognized that

sudden onset of changed symptoms with cysts usually herald[s]

cyst rupture."  He, like Dr. Flora, gave the opinion that the

cyst ruptured spontaneously.  A reasonable mind could accept Dr.

Flora and Dr. Nelson's testimony as adequate to support the

conclusion that Bradbury's cyst ruptured spontaneously and not

from work-related trauma to her abdomen.

b.                                 Chugach Electric presented
                    substantial evidence such that it directly
                    eliminated any reasonable possibility that
                    employment was a factor in causing Linda
                    Bradbury's death.
                    
          Dennis Bradbury argues that Dr. Flora and Dr. Nelson's

opinions do not constitute substantial evidence because their

opinions did not eliminate all work-related causes of his wife's

death.  Dennis Bradbury makes two points in support of this

argument.  First, he asserts that the experts simply did not rule

out all work-related causes of his wife's death.  Dennis Bradbury

points out that Dr. Flora said that he could not rule out the

possibility that work activities accelerated the cyst's

degeneration toward its ultimate rupture.  However, Dr. Flora

also testified that it was more likely than not that work

activities did not accelerate the cyst's rupture.  Because an

employer "may rebut the presumption of compensability by

presenting a qualified expert who testifies that, in his or her

opinion, the claimant's work was not a substantial cause of the

[injury]," Dr. Flora's testimony satisfies our standard for

substantial evidence.16

          Dennis Bradbury further claims that because Dr. Nelson

could not say with certainty how much pressure it would take to

rupture the cyst, he could not rule out work-related trauma as a

substantial factor in Linda Bradbury's death.  We addressed and

rejected a similar argument in Norcon, Inc. v. Alaska Workers'

Compensation Board.17  In Norcon, two physicians testifying for

the employer gave their opinions that the employee's heart attack

while on the job was not work-related.18  We held that the

physicians' testimony constituted substantial evidence.19

Significantly, we rejected the argument that because of medical

uncertainty regarding the causes of sudden cardiac death, the

physicians' opinions that the employee's work was not a

substantial factor in his death should be discounted.20  We

concluded that this argument, if accepted, would lead to an

irrebutable presumption of compensability whenever an employee

died of a heart attack.21  As in Norcon, medical uncertainty

exists here.  Dennis Bradbury's lawyer asked Dr. Nelson how much

pressure it would have taken to rupture the cyst.  Dr. Nelson

responded that there is no way to quantify the necessary amount

of pressure.  We have recognized that a medical professional's

testimony is not inconclusive and does not fail to exclude work-

related causes of death simply because the witness does not state

his or her opinion in absolute terms.22

          Both Dr. Flora and Dr. Nelson ruled out trauma as a

possible cause of the cyst's rupture, thereby eliminating a work-

related explanation for the rupture.23  Dr. Nelson explained that

the liver accommodates gentle pressure by moving; therefore,

neither holding a heavy object against one's chest nor leaning

over a sink would rupture a cyst.  Dr. Nelson also explained that

the medical literature dealing with traumatic ruptures of hydatid

cysts generally describes blunt, rapid trauma to the abdomen that

ruptures a cyst - the type of trauma that happens during sporting

events, when a player might be elbowed in the stomach.  Dr.

Nelson concluded that none of Bradbury's work activities were

likely to rupture a cyst.  Again, this satisfies our standard for

substantial evidence.

          Second, Dennis Bradbury contends that Dr. Flora and Dr.

Nelson did not know about all of his wife's activities and

therefore based their opinions on incomplete information about

the amount of trauma she may have encountered in her job.  He

claims, for example, that the video reenactment of his wife's

work duties was incomplete and thus the basis of Dr. Flora and

Dr. Nelson's opinions was flawed.  Dr. Flora testified, however,

that unless Linda Bradbury suffered a blow to her abdomen,

regular work duties would not cause sufficient trauma to rupture

her cyst.  Dr. Flora and Dr. Nelson's testimony thus eliminated

work as a substantial factor in Linda Bradbury's death.  Their

testimony therefore constituted substantial evidence.

3.                       Substantial evidence supports the
               Board's decision that Dennis Bradbury failed to
               prove by a preponderance of the evidence that
               Linda Bradbury's death was work-related. " \l 3
               Because Chugach Electric overcame the presumption
               of compensability, Dennis Bradbury had to prove
               his claim by a preponderance of the evidence.24  To
               prove a claim by a preponderance of the evidence,
               the claimant must induce a belief in the trier of
               fact that the asserted facts are probably true.25
               We apply the substantial evidence test to
               determine whether a workers' compensation claimant
               has met this burden.26
               
                    The Board found that Dennis Bradbury failed
to prove his claim by a preponderance of the
               evidence.  The Board found the circumstantial
               evidence that he introduced, coupled with the lack
               of direct evidence, to be insufficient to prove
               his claim that his wife suffered any trauma to her
               abdomen on the day she died.27  The Board concluded
               that Linda Bradbury's cyst ruptured prior to her
               return to work and that it would have ruptured
               regardless of her work activities.
               
                    Dennis Bradbury argues that the Board's
               decision is not supported by substantial evidence.
               Rather than point to evidence that he presented to
               support his claim, he bases his argument upon
               perceived flaws in Dr. Flora and Dr. Nelson's
               testimony.  He argues primarily that the doctors'
               opinions lack scientific bases.  Dennis Bradbury
               essentially urges us to discount Dr. Flora and Dr.
               Nelson's opinions.  But we do not re-weigh
               evidence when we review Board decisions28 because
               the Board has the sole responsibility to determine
               witness credibility.29
               
                    A review of the testimony presented to the
               Board shows that substantial evidence supports the
               Board's decision that Dennis Bradbury failed to
               prove his claim by a preponderance of the
               evidence.  Dennis Bradbury offered circumstantial
               evidence of his wife's activities on the day that
               she died; namely, a list of job responsibilities
               prepared by Claudia McLean.  McLean worked the
               shift opposite Bradbury's shift; thus, the parties
               stipulated that this list represented activities
               that Linda Bradbury's job might have encompassed.
               However, no one actually saw Bradbury at work on
               that morning; therefore, her husband could not
               offer a witness to testify to what activities she
               performed.  No one could testify that Bradbury
               performed her duties in a way that would inflict
               trauma upon her abdomen.  The Board rejected the
               circumstantial evidence, concluding that to find
               for Dennis Bradbury they would have to speculate
               about what Linda Bradbury did that morning and
               whether it resulted in sufficient abdominal trauma
               to rupture her cyst.
               
                    The Board accepted Dr. Flora and Dr. Nelson's
               testimony that sudden changes in pressure are
               required to rupture a cyst and that placing an
               object against a cyst is not sufficient to rupture
               it.  Thus, the Board implicitly rejected Dr. David
               Anaise and Dr. Gerald Robert's testimony to the
               contrary.  When medical experts disagree about the
               cause of an employee's injury, we have held that
               as a general rule "it is undeniably the province
of the Board and not this court to decide who to
               believe and who to distrust."30  The Board acted
               appropriately in accepting Dr. Flora and Dr.
               Nelson's testimony over that of Dr. Roberts and
               Dr. Anaise.  Because substantial evidence
               supported the Board's decision that Dennis
               Bradbury did not prove his claim by a
               preponderance of the evidence, we affirm that
               decision.
               
B.             The Board Engaged in Reasoned Decision-Making .

          Dennis Bradbury argues that the Board failed to engage

in reasoned decision-making and that this violated his due

process rights.  He argues primarily that the Board ignored

evidence refuting Dr. Nelson and Dr. Flora's testimony.

          The Board summarized the evidence presented by each

witness in its eighteen-page decision.  The Board also reviewed

the list of possible job activities prepared by Claudia McLean

and the video reenactment of Linda Bradbury's possible work

activities.  A review of the Board's decision and of the evidence

in the record shows that the Board engaged in reasoned decision-

making.  Dennis Bradbury's argument to the contrary essentially

asks us to re-weigh the evidence, which we will not do.31  The

Board's decision that the testimony of certain doctors is more

persuasive than that of others is precisely the type of

credibility determination that only the Board may make.32

V.   CONCLUSION

          Because Chugach Electric produced substantial evidence

that Linda Bradbury's death was not work-related and because

Dennis Bradbury failed to prove his claim by a preponderance of

the evidence, we AFFIRM the Board's denial of benefits.

_______________________________
1DeYonge v. NANA/Marriott, 1 P.3d 90, 94 (Alaska 2000).
2Id.
3Id. (internal quotations omitted).
4Id.
5Id.
6Temple  v.  Denali Princess Lodge, 21 P.3d 813,  815-16  (Alaska
2001).
7Id. at 816.
8Id.
9Id.
10DeYonge, 1 P.3d at 96.
11Childs  v. Copper Valley Elec. Ass'n, 860 P.2d 1184,  1188  n.5
(Alaska 1993).
12Big K Grocery v. Gibson, 836 P.2d 941, 942 (Alaska 1992).
13Temple, 21 P.3d at 816.
14Saxton v. Harris, 395 P.2d 71, 72 (Alaska 1964).
15See DeYonge, 1 P.3d at 96.
16Norcon, Inc. v. Alaska Workers' Comp. Bd., 880 P.2d 1051,  1054
(Alaska 1994) (quoting Big K Grocery, 836 P.2d at 942).
17880 P.2d 1051 (Alaska 1994).
18Id. at 1054.
19Id. at 1055.
20Id. at 1055 n.4
21Id.
22Childs v. Copper Valley Elec. Ass'n, 860 P.2d 1184, 1189 (Alaska
1993) ("The weight of [medical] testimony . . . should not be too
sharply  discounted  because of the  disposition  of  the  highly
trained scientific mind to refrain from unqualified statements or
opinions on such matters as causation.") (quoting Arthur  Larson,
The  Law  of  Workmen's  Compensation  80.32,  at  15-834  -  835
(1992)).
23See DeYonge v. NANA/Marriott, 1 P.3d 90, 96 (Alaska 2000).
24Norcon, 880 P.2d at 1055.
25Saxton v. Harris, 395 P.2d 71, 72 (Alaska 1964).
26Norcon, 880 P.2d at 1055.
27Dennis  Bradbury  challenges  the  Board's  finding  that   the
circumstantial  evidence he presented was insufficient  to  prove
his  claim.  He argues that "the best evidence of the effects  of
[Linda  Bradbury's]  work on the hydatid  cyst  was,  in  effect,
circumstantial.  It was her death."  He contends  that  once  the
presumption  of  compensability attached, "it was  wrong  of  the
Board  to require more than circumstantial evidence" for  him  to
prove  his claim.  This argument lacks merit; the Board  did  not
require more than circumstantial evidence, it simply rejected the
circumstantial evidence presented as insufficient.
28Safeway, Inc. v. Mackey, 965 P.2d 22, 29 (Alaska 1998).
29Id.; see also AS 23.30.122.
30Childs v. Copper Valley Elec. Ass'n, 860 P.2d 1184, 1189 (Alaska
1993)  (quoting Kessick v. Alyeska Pipeline Serv. Co.,  617  P.2d
755, 758 (Alaska 1980)).
31Safeway, Inc., 965 P.2d at 29.
32Bolieu v. Our Lady of Compassion Care Ctr., 983 P.2d 1270, 1274
n.11 (Alaska 1999).