Alaska Supreme Court Opinions made Available by Touch N' Go Systems and Bright Solutions

Touch N' Go, the DeskTop In-and-Out Board makes your office run smoother. Visit Touch N' Go's Website.
  This site is possible because of the following site sponsors. Please support them with your business.
www.gottsteinLaw.com

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Cowen v. Wal-Mart (06/25/2004) sp-5821

Cowen v. Wal-Mart (06/25/2004) sp-5821

     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


JACKIE L. COWEN,              )
                              )    Supreme Court No. S-10836
             Appellant,            )
                              )     Superior  Court  No.  3AN-01-
11761 CI
     v.                       )
                              )    O P I N I O N
WAL-MART and INSURANCE   )
COMPANY OF STATE OF      )    [No. 5821 - June 25, 2004]
PENNSYLVANIA,            )
                              )
             Appellees.            )
                              )



          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, William F. Morse, Judge.

          Appearances:   Robert A. Rehbock,  Rehbock  &
          Rehbock, Anchorage, for Appellant.  Robert L.
          Griffin,  Law Offices of Robert  L.  Griffin,
          Anchorage, for Appellees.

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

          EASTAUGH, Justice.

I.   INTRODUCTION

          Jackie  Cowen, claiming that her employment caused  her

left   breast   saline   implant  to  deflate,   sought   workers

compensation  benefits from her employer, Wal-Mart.   The  Alaska

Workers  Compensation Board rejected her claim.   We  affirm  the

superior  courts  affirmance of the boards  decision  because  we

conclude  that  the opinions of two physicians  were  substantial

evidence  permitting  the  board to  conclude  that  Cowens  work

activities did not cause her implant to deflate.

II.  FACTS AND PROCEEDINGS

          At the time of her injury, Jackie Cowen was employed as

a  Direct to Store Delivery Associate at Wal-Mart, where her  job

duties   included   loading  and  unloading   freight,   tracking

merchandise,   and  emptying  boxes.   She  has  a   history   of

fibrocystic  breast  disease  for  which  she  had  undergone   a

bilateral  mastectomy and multiple breast implant surgeries.   On

March 1, 2000, she felt lethargic and nauseated when she returned

home  at  the  end  of her shift.  She worked the  next  day  and

informed  her  store  manager on March 3  that  her  left  breast

implant  had  collapsed.  Although she stated in  her  Report  of

Occupational  Injury  that  she had hit  her  left  breast  while

lifting  a  box, she answered maybe on the attached questionnaire

to the question of whether anything had struck her body.

          Cowen informed her family physician, Derek Hagen, D.O.,

of  her  condition on March 2, 2000.  Dr. Hagen referred  her  to

plastic  surgeon Sarah Troxel, M.D., who examined Cowen on  March

6.   At  that time, Cowen denied any knowledge of trauma  to  her

breast.   Dr.  Troxel confirmed leakage and deflation  of  Cowens

left  breast  implant,   but  found no  evidence  of  chest  area

bruising.

          Dr.  Troxel  referred Cowen to George  Siegfried,  M.D.

Dr.  Siegfried  has  performed implant  surgery  since  1973  and

performs  approximately forty implant surgeries  per  year.   Dr.

Siegfried examined Cowen on March 14, 2000.  His October 24, 2000

affidavit  expressed his opinion that Cowen  would  remember  the

kind  of trauma necessary to induce acute implant deflation.   He

also  thought  that  a  blow sufficient to cause  an  implant  to

deflate  would probably cause the scar tissue around the  implant

to  bruise, even after multiple breast surgeries.  He stated that

it was not possible that lifting boxes of merchandise and bumping

them  against  the breast caused Cowens implant to  deflate.   He

stated  his  opinion that the deflation was most  likely  due  to

natural  wear  caused  by continuous abrasion.   He  stated  that

anything  that  would cause the pectoralis muscle to  move  would

contribute to implant failure.

          Cowen  revisited  Dr.  Hagen on March  20,  2000.   She

complained   of  cough,  congestion,  body  aches,  and   anxiety

associated  with the deflation.  Dr. Hagen expressed his  opinion

in  a  letter  dated May 5, 2000 that Cowens job duties  directly

caused  her  breast implant to deflate.  He later stated  in  his

deposition that he based his opinion on what Cowen told  him  had

happened  at  work.   Although he doubted  that  fluid  from  the

implant  directly  caused  her  symptoms,  he  thought  that  the

deflations   effect  on  Cowens  emotional  state  affected   her

pulmonary condition.

          Cowen  filed a workers compensation claim on April  12,

2000.  She alleged that her left breast implant had deflated  due

to  trauma that occurred while she was performing her regular job

duties.   Wal-Mart and its insurer controverted and answered  her

claim, asserting that the breast implant deflation was not  work-

related.   Cowen,  when deposed, testified  that  she  could  not

recall  any  specific event at work that could  have  caused  the

implant to deflate.

          At  Wal-Marts request, Cowen was evaluated  by  another

physician,  Ajit Arora, M.D., who declined to offer  his  opinion

regarding  the cause of the injury.  He noted that nausea  was  a

symptom  of  fluid overload in the body, but found no association

between  the  implant  deflation and Cowens pulmonary  condition.

Rather, he concluded that her chest symptoms were related to  her

asthma and interstitial fibrosis.

          The   board   ordered  a  second  independent   medical

evaluation, by plastic surgeon Phil Haeck, M.D.  He stated  in  a

letter  that he found no evidence of the type of trauma  required

to  deflate  Cowens implant.  He opined that Cowens prior  breast

surgeries would not result in a diminished ability to sense  pain

except  in the nipple areolar complex area of her breast and  the

adjacent skin.  He also stated that her multiple surgeries  would

not  alter the way bruising occurs after trauma.  In his opinion,

shell-fold  failure,  which occurs when  the  implant  is  under-

filled,  was  the most likely cause of Cowens implant  deflation.

He  noted  that  Cowens right breast implant was under-filled  by

approximately  ten  percent  at  the  time  of  his  examination.

Although  he stated that the relation between shell-fold  failure

and  physical  activity is unknown, he thought it  unlikely  that

Cowens  work  activities accelerated the shell-fold  failure  and

subsequent deflation of the implant.  He also stated that he  had

never  encountered a patient with a deflated saline  implant  who

had  any  symptoms  other  than urinary frequency  and  decreased

breast size.

          At  the  board hearing, Cowen testified that she  could

not  recall  a  specific blow that occurred the  day  before  she

noticed  her  implant had deflated.  She stated  that  she  lacks

normal sensation or the ability to bruise in her chest area.  She

also  testified that her only physical activity is  at  work  and

that   she   is   physically  inactive  at  home.   Her   husband

corroborated her testimony.

          The board denied and dismissed Cowens claim for medical

and temporary total disability benefits.  One member of the board

dissented.   Although the board found that Cowen  had  introduced

sufficient  minimal evidence to raise the presumption  that  work

was  a  substantial factor in her injury, it concluded that  Wal-

Mart   had   presented  substantial  evidence  to  overcome   the

presumption of compensability.  Further, it concluded that  Cowen

had failed to prove her claim by a preponderance of the evidence.

Superior  Court  Judge  William  F.  Morse  affirmed  the  boards

decision  on  September 24, 2002.  Cowen appeals.   She  contends

that  Wal-Mart failed to present evidence sufficient to  overcome

the presumption of compensability.

III. DISCUSSION

     A.   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  agencys

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  should  not  reweigh the evidence or choose between competing

inferences,  but  [we  should]  simply  determine  whether   such

evidence  exists.4  The workers compensation board has  exclusive

authority to decide the credibility of witnesses.5

     B.   The  Board  Did  Not  Err in Concluding  that  Wal-Mart
          Produced  Substantial Evidence To Rebut the Presumption
          that  Cowens  Claims Are Compensable Under the  Workers
          Compensation Act.
          
          The   Alaska   Workers  Compensation  Act   creates   a

presumption that an employees claims are compensable.6   Applying

the  presumption  requires a three-step  analysis.7   First,  the

employee   must  establish  the  preliminary  link  between   her

employment  and  her alleged injury.8  At this  step,  the  board

should  consider only evidence that tends to establish the link.9

Here  the  board  found that Cowen introduced sufficient  minimal

evidence to raise the presumption that her work was a substantial

factor in her injury.  It relied upon Cowens testimony describing

her  job  duties  and  Dr.  Hagens testimony  that  those  duties

directly  caused her breast implant to deflate.  The  parties  do

not  challenge  the  boards finding that  Cowen  established  the

preliminary link between her job and the implant deflation.

          Next,  the  employer has the burden  of  rebutting  the

presumption  that  the injury was work-related  with  substantial

evidence.10  Benefits are awarded if the record establishes that a

work-related  injury  is a substantial factor  in  the  employees

disability regardless of whether a non-work-related injury  could

independently  have  caused  the  disability.11   The   employers

substantial  evidence  must  either (1)  provide  an  alternative

explanation for the injury that, 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.12  The burden of production

shifts  to  the employer, but not the burden of persuasion;  only

the   employers  evidence  is  examined.13   We  have  held  that

presentation of a qualified expert who testifies that, in his  or

her  opinion,  the claimants work was probably not a  substantial

cause of the disability rebuts the presumption of compensability.14

Medical  testimony cannot constitute substantial evidence  if  it

simply points to other possible causes of an employees condition,

however.15

          The   board  found  that  Wal-Mart  had  rebutted   the

presumption  of  compensability with  substantial  evidence.   It

relied  upon  the opinions of Dr. Siegfried and  Dr.  Haeck  that

Cowens work activities were not the cause of the implant failure.

Both experts attributed the implant deflation to product failure.

Dr.  Siegfried  stated his opinion that the implant  failure  was

caused  by  product  fatigue.  He thought it  probable  that  the

implant  wore  out from everyday activity.  Dr. Haeck  attributed

the  implant collapse to shell-fold failure that occurred because

the  breast  implant was under-filled. He explained that  it  was

unlikely  .  . . that lifting activities at work accelerated  the

deflation  of  her  breast implant.  Only Dr.  Hagen  linked  the

implant deflation to Cowens work activities.

          Dr. Siegfried and Dr. Haeck also addressed the question

whether  Cowens  employment was a factor in causing  her  injury.

Dr.  Siegfried stated that a blow sufficient to cause an  implant

to  deflate  would  probably also cause scar  tissue  around  the

implant to bruise, even after multiple breast surgeries.  Because

Cowen  experienced  no bruising and could not recall  a  specific

event in which she was hit in her left breast, he concluded  that

her  work  activities  probably did  not  cause  her  implant  to

deflate.   Dr.  Haeck opined that Cowens multiple surgeries  were

unlikely to diminish her ability to sense breast pain or to alter

          the way bruises occur after trauma to the area.  He could find no

evidence  in the medical record or from [Cowens] history  of  any

specific trauma which caused the deflation of [her] implant.   He

thought it most likely that the implant was under-filled and that

deflation was inevitable.

          Cowen   argues  that  Dr.  Siegfrieds  and  Dr.  Haecks

opinions  are  based  on speculation and on  factual  assumptions

unsupported [by] and contrary [to] the record. Cowen  points  out

that Dr. Siegfried cannot exclude work as a substantial factor in

causing the implant failure.  Dr. Siegfried initially stated that

he could not rule out work as a substantial factor because he was

unaware of the type of activities Cowen performed at work.  After

Cowens work activities were described to him, he stated that  the

pressure  of  boxes  against  Cowens  chest  was  not  likely  to

accelerate implant failure, but that any activity that caused the

pectoralis muscle to move could contribute to it.  Dr.  Siegfried

seemed to doubt, however, that Cowens work activities caused  any

more  damage  than would ordinary, everyday activities,  such  as

lifting  a pencil or a glass of water or breathing.  Although  he

did  not  express  his  opinion in absolute  terms,  it  was  not

entirely inconclusive.16  In stating that everyday activities were

as  likely  to  cause damage as work activities,  he  effectively

discounted  work-related aggravation as a substantial  factor  in

Cowens  disability.   Although acceleration and  aggravation  are

justifiable bases for finding a compensable injury,17 it was  not

clear that Cowens work-related movements contributed more to  the

abrasion  than did her usual movements.  A reasonable mind  could

therefore conclude that Dr. Siegfrieds opinions were adequate  to

rebut the presumption of compensability.

          Cowen   also   argues  that  Dr.  Haecks  opinion   was

speculative  and  unsubstantiated.  Dr.  Haeck  opined  that  the

implant  deflation  was  not  a direct  consequence  of  physical

activity,   whether  undertaken  at  work   or   at   home.    He

acknowledged,  however, that no one seems to  know  whether  this

          phenomena is related to physical activity.

          Although  we have held that medical certainty regarding

the  causes  of a claimed injury is not necessary to satisfy  the

standard  for  substantial evidence,18 we have also  stated  that

merely reciting the proper words as an opinion is not necessarily

enough    to   rebut   the   presumption   of   compensability.19

Nevertheless,  we  have held that a doctors  testimony  that  the

employees  job  was  not  a substantial  factor  in  causing  her

disability  was substantial evidence to rebut the presumption  of

compensability even when the doctor admitted that the  causes  of

the  disability  were  unknown.20   We  reasoned  that  it  would

otherwise  create an irrebuttable presumption that the disability

was work-related.21

          A  similar  rationale  applies  here.   We  should  not

discount  Dr.  Haecks  opinion, which reflects  his  considerable

experience  with  and  knowledge of breast implants,  because  of

medical  uncertainty.  Dr. Haeck based his opinion  on  his  best

professional  judgment.   A  reasonable  mind  could  accept  his

opinions  as adequate to support the conclusion that Cowens  work

activities  were  not  a  substantial factor  in  the  shell-fold

failure  and  subsequent deflation of the  implant,  despite  his

inability to state definitely whether the failure was related  to

physical activity.

          After  an employer rebuts the presumption that injuries

are  work-related, the employee must prove his or her claim by  a

preponderance  of the evidence to prevail.22  The  employee  must

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

probably  true.23   The  claimed injury  is  compensable  if  the

employees work is a substantial factor in causing it.24

          The  board, after weighing the evidence, including  the

opinions and the medical records, found the preponderance of  the

evidence  demonstrated that Cowens breast implant  deflation  was

not  a work-related injury.  Dr. Siegfrieds opinion persuaded the

board  that  the implant spontaneously deflated due  to  abrasion

          when Cowen moved her pectoralis muscle.  The board also gave

great  weight to Dr. Haecks opinion that the breast  implant  was

going  to fail regardless of Cowens physical activity at work  or

home and that her job duties did not accelerate the failure.  The

board  gave  less weight to Dr. Hagens opinion because  he  is  a

family practitioner who has less experience with breast implants.

When  medical experts provide contradictory testimony, the  board

determines  credibility.25  [I]f the Board is faced with  two  or

more  conflicting  medical opinions  each  of  which  constitutes

substantial evidence  and elects to rely upon one opinion  rather

than  the  other, we will affirm the Boards decision.26   It  was

reasonable for the board to discount Dr. Hagens testimony because

he  had  limited experience with breast implants.   The  evidence

that  was  sufficient to rebut the presumption of  compensability

was  also  sufficient  to support the boards  determination  that

Cowen failed to show by a preponderance of the evidence that  her

injury was work-related.

IV.  CONCLUSION

          For  these  reasons we AFFIRM the superior court  order

that  affirmed  the  decision of the Alaska Workers  Compensation

Board.

_______________________________
     1    DeYonge v. NANA/Marriott, 1 P.3d 90, 94 (Alaska 2000).

     2    Id.

     3     Id.  (quoting Grove v. Alaska Constr. & Erectors,  948
P.2d 454, 456 (Alaska 1997)).

     4     Steffey v. Municipality of Anchorage, 1 P.3d 685,  689
(Alaska 2000) (quoting Thompson v. United Parcel Serv., 975  P.2d
684, 688 (Alaska 1999)).

     5    DeYonge, 1 P.3d at 94.

     6     AS  23.30.120(a); see also Bradbury v.  Chugach  Elec.
Assn, 71 P.3d 901, 905 (Alaska 2003).

     7    Bradbury, 71 P.3d at 905.

     8    Id.

     9    DeYonge, 1 P.3d at 95.

     10    AS 23.30.120(a); see also Bradbury, 71 P.3d at 906.

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

     12    Id. at 690-91.

     13    Bradbury, 71 P.3d at 906.

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

     15    Childs v. Copper Valley Elec. Assn, 860 P.2d 1184, 1189
(Alaska 1993).

     16     Bradbury, 71 P.3d at 907 (recognizing that a  medical
professionals 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).

     17    Williams v. State, Dept of Revenue, 938 P.2d 1065, 1072
(Alaska 1997).

     18    Bradbury, 71 P.3d at 907.
          
     19    Safeway, Inc. v. Mackey, 965 P.2d 22, 27 (Alaska 1998).

     20    Id. at 28.

     21    Id.

     22    Bradbury, 71 P.3d at 906.

     23    Id.

     24    DeYonge v. NANA/Marriott, 1 P.3d 90, 96 (Alaska 2000).

     25    Childs, 860 P.2d at 1189.

     26     Doyon Universal Servs. v. Allen, 999 P.2d 764, 767-68
(Alaska  2000)  (quoting Yahara v. Constr. & Rigging,  Inc.,  851
P.2d 69, 72 (Alaska 1993)).