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Brown v. Patriot Maintenance, Inc. (10/08/2004) sp-5835
Brown v. Patriot Maintenance, Inc. (10/08/2004) sp-5835
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
DEBRA F. BROWN, )
) Supreme Court No. S-10955
Appellant, )
) Superior Court No.
v. ) 4FA-01-2713 CI
)
PATRIOT MAINTENANCE, INC., ) O P I N I O N
and CONTINENTAL INSURANCE )
CO., )
Appellees. ) [No. 5835 - October
8, 2004]
)
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District, Mark I.
Wood, Judge.
Appearances: James M. Hackett, Law Office of
James M. Hackett, Fairbanks, for Appellant.
Constance E. Livsey and Jeffrey D. Holloway,
Holmes Weddle & Barcott, Anchorage, for
Appellees.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe and Carpeneti, Justices.
BRYNER, Chief Justice.
I. INTRODUCTION
This appeal challenges a decision by the Alaska Workers
Compensation Board denying disability benefits to Debra Brown,
who claimed that she suffered from a disabling condition,
fibromyalgia, that arose because she fell from a ladder at work.
The board heard conflicting medical testimony some finding that
her condition probably stemmed from the fall and some finding no
work-related causation and decided that the testimony rejecting
causation was persuasive. We affirm the boards decision,
concluding that the board did not improperly fail to resolve
doubt in Browns favor and did not preclude meaningful appellate
review by disregarding the lay testimony concerning causation.
II. FACTS
While Debra Brown was working on a cleaning crew for
Patriot Maintenance, Inc., her stepladder collapsed. She fell to
the sidewalk, landing on the collapsed ladder with her hip and
striking the sidewalk with her back, neck, and head. Brown was
taken to the emergency room, where she reported having a headache
and feeling pain in her hip, scapula, and neck. X-rays showed no
fractures or other bone damage, and the emergency room physician
found no evidence of acute injury apart from abrasions and
bruises. The following week, Brown was examined by her primary
care physician, Dr. Daniel Junck, who found a contusion (which
seemed to be resolving) on Browns right buttock and noted that
Brown also had apparently suffered a cervical strain. Dr. Junck
predicted that Brown would continue to improve but recommended
that she wait another week before attempting to work, advising
her to pursue light activities such as walking.
In the ensuing months, however, Browns symptoms grew
progressively worse, became debilitating, and prevented her from
resuming her job. Brown began to experience tenderness and pain
radiating throughout her body; she also reported migraine
headaches, lethargy, disturbed sleep, and feelings of depression
with suicidal thoughts. She filed a claim for workers
compensation benefits, seeking temporary total disability.
In a followup examination about two months after the
accident, Dr. Junck tentatively noted that Brown might have
developed fibromyalgia syndrome. But in a separate evaluation
requested by Patriot Maintenance, Dr. James Dinneen, an
orthopedic surgeon, found no objective evidence of any measurable
impairment that can be attributed to the incident at this time.
Although Dr. Dinneen confirmed that Brown had experienced a
contusion on her right buttock and compression of her spine, he
expected her symptoms from these injuries to resolve within
thirty days. But during the next six weeks, Brown returned twice
to Dr. Junck, complaining of continuing and still growing
discomfort; Dr. Junck prescribed an antidepressant, directed
Brown to remain off work, and ultimately diagnosed her condition
as fibromyalgia.
Brown then underwent an independent medical evaluation
by a panel of three physicians: Dr. G. DeAndrea, a neurologist,
Dr. John E. Z. Caner, a rheumatologist, and Dr. Russell
Vandenbelt, a psychiatrist. Dr. DeAndreas report represented the
consensus view of the panel. Although each panel member
described the likely causes of Browns symptoms from a differing
medical perspective, the panel unanimously agreed with Dr.
DeAndreas conclusion that Ms. Browns present condition is
strictly psychiatric and that there is no non-psychiatric
condition or impairment as a result of [her on-the-job injury]
other than as reported of right buttock contusion and abrasions,
resolved, and without permanent partial impairment.
From his standpoint as a neurologist, Dr. DeAndrea
reported that there was no objective evidence of neurologic
impairment and found that Brown was fully employable. But he
deferred to Dr. Vandenbelt for a precise psychiatric diagnosis.
Dr. Vandenbelts psychiatric evaluation described Brown
as suffering from major depression and perhaps a miscellaneous
somatoform disorder. Dr. Vandenbelt saw no psychiatric reason
why Brown could not perform her original job. Referring to Dr.
Caners finding (discussed below) of possible fibromyalgia, Dr.
Vandenbelt observed: [T]he array of physical and mental symptoms
she presents with strikes me as more psychiatric than physical.
Specifically, Dr. Vandenbelt summarized his view of Browns
condition as follows:
It is likely she is overwhelmed with current
emotional and psychological stressors related
to her marriage, finances, and other
difficulties at home with her children. . . .
The occupational injury in question has
provided a convenient focus for her concerns
since it is easier for her [to] ask for care
for physical concerns and symptoms than for
emotional ones. The treatment she is in need
of, however, is not because of any condition
causally related to or aggravated by the
occupational injury.
Dr. Caner, as a rheumatologist, believed Brown to be
suffering from a general pain disorder that had characteristics
of fibromyalgia but was not caused by industrial injury. He
added that, in his view, [e]pidemiologic studies have failed to
demonstrate a causal relationship between accidental injuries and
the subsequent development of fibromyalgia, although the
association is frequently observed. After reviewing the results
of Browns most recent laboratory analysis, Dr. Caner noted that
he found no clear evidence of a pre-existing condition and was in
full agreement with the discussion of Dr. DeAndrea. In the
panels unanimous view, then, Brown was fully employable.
After receiving the panels report, Patriot Maintenance
controverted Browns claim for ongoing benefits. The board
ordered a second independent medical evaluation, referring the
case to two additional physicians: Dr. Walter Ling, a neurologist
and psychiatrist, and Dr. Stuart Silverman, a rheumatologist.
Dr. Ling endorsed the views expressed by the panel. He
specifically agreed with Dr. DeAndrea that Browns pain was not
neurologically based that she instead suffered from a pain
disorder associated with psychological factors. While
acknowledging that Browns pain disorder apparently arose within
the context of her fall, Dr. Ling believed it unlikely that the
fall and the resulting soft tissue injury played a significant
role in development of her pain disorder. In reaching this view,
Dr. Ling carefully considered, but discounted, the likelihood of
any causal relationship to Browns accident:
[Brown] seems convinced that the need for
these changes stems from her fall injury.
But from a medical perspective, it is much
more likely that her background psychological
make-up and her current life situation have
much more to do with her conviction than do
the consequences of her specific injury.
In Dr. Lings view, then, Browns accident was not a
substantial factor in causing her current condition. Moreover,
Dr. Ling saw little need to attach a precise medical tag to
Browns condition, observing that, whether or not her current
diffuse pain condition is labeled as fibromyalgia, it is not
medically probable that it is related to her specific fall.
By contrast, Dr. Silverman disagreed with the panel,
concluding that Brown suffered from fibromyalgia and that this
condition was probably work-related. While concurring with Dr.
Caners diagnosis of fibromyalgia, Dr. Silverman sharply disagreed
with his view that current medical research fails to establish
any causal link between traumatic injury and fibromyalgia. As
Dr. Silverman saw the issue,
What is in dispute is the relationship
between [Browns] traumatic injury on
September 15, 1999, and her later development
of fibromyalgia.
I, myself, participated in the Vancouver
Consensus Conference in June, 1994, (J. Rheum
1996, 23:3.) which stated that the
development of fibromyalgia following a
traumatic injury does not necessarily imply
causation alone. . . .
What has been recently understood, and
this has been reported in a second article, a
minority report in the Journal of
Rheumatology: 1997, 3:6, 324-27, is that
patients who have a chronic persistent pain
following a trauma may then go on, at a later
time, to progressively develop widespread
pain above & below the waist, consistent with
fibromyalgia.
Upon reviewing their original reports in light of Dr.
Lings and Dr. Silvermans positions, the physicians comprising the
original panel unanimously confirmed the panels position and
rejected Dr. Silvermans view of the case.
Specifically, Dr. DeAndrea refuted Dr. Silvermans
interpretation of his report, emphasizing that the entire panel
had agreed with the report and that Dr. Lings report had
independently confirmed the panels findings. As for Dr.
Silvermans criticism of the panels failure to agree whether Brown
suffered from a pain disorder or somatoform disorder, Dr.
DeAndrea observed: Quite frankly in my opinion, there is no
difference.
Dr. Caner similarly rejected Dr. Silvermans diagnosis
and favored Dr. Lings position. Warning that the distinction
between psychogenic pain and fibromyalgia remains a controversial
medical topic, moreover, Dr. Caner specifically challenged Dr.
Silvermans interpretation of the conclusions reached by the
Vancouver Consensus Conference; Dr. Caner insisted that, since
the necessary epidemiologic studies have not been performed, the
Vancouver Conferences consensus view would attach to Browns case
and would compel the conclusion that her work injury was not a
cause of her fibromyalgia.
Dr. Vandenbelt, too, stood by his prior evaluation.
After pointing out several flaws in Dr. Silvermans report, Dr.
Vandenbelt noted that his own view of the case remained
essentially unchanged.
Meanwhile, Brown had sought treatment from Dr. Lee
Schlosstein, a physician specializing in internal medicine and
rheumatology. Dr. Schlosstein found that Brown needed treatment
for fibromyalgia and depression but ventured no opinion as to
causation.
The board conducted an evidentiary hearing on Browns
claim for continuing disability benefits. In addition to
considering the medical evidence described above, the board heard
lay testimony presented by Brown. The boards decision summarized
the lay evidence as follows:
[T]he employee, her friends, family members
and coworkers uniformly testified that before
the fall, the employee was active, regularly
playing racquetball and working out at the
Fairbanks Athletic Club. She was a hard
worker and had performed the majority of work
required to complete the remodeling of their
house. Since the date of injury, she has
gained weight and become physically unable to
engage in most of her prior activities. Her
husband testified there is no doubt
concerning the link between the employees on-
the-job injury and her current condition. He
also presented a copy of Understanding Post-
Traumatic Fibromyalgia, by Mark J.
Pellegrino, which he believes helps document
the relationship between the employees trauma
and her fibromyalgia condition.
Rehabilitation counselor Robert Sullivan
testified that he believes the employee
cannot perform any jobs, other than odd lot
jobs, in her current condition.
After reviewing all the evidence, the board denied
Browns claim. Finding the opinions of Drs. Vandenbelt, Caner,
DeAndrea, and Ling to be most persuasive, the board concluded
that Brown had failed to meet her burden of proving that her
current condition was work-related.
The superior court affirmed the boards ruling, and
Brown filed this appeal.
III. DISCUSSION
Brown advances two main arguments, contending first
that the board failed to resolve doubtful medical evidence in her
favor and, second, that it failed to address her lay witnesses
testimony.
In an appeal from a decision entered by the superior
court as an intermediate court of appeal, we directly review the
boards ruling, without deferring to the superior court.1 But our
review of the boards decision is deferential. Alaska Statutes
23.30.122 gives the board the sole power to determine the
credibility of a witness2 and further gives the board conclusive
power to evaluate what weight to accord a witness testimony,
including medical testimony and reports, . . . even if the
evidence is conflicting or susceptible to contrary conclusions.3
Hence, in reviewing a finding on compensability, we do not
reweigh the evidence or choose among competing inferences;
instead, we limit our review to determining whether substantial
evidence supports the boards decision.4 Substantial evidence
exists when a reasonable mind viewing the record as a whole could
accept a decision of non-compensability.5 We have recently held
that uncertainty within the medical community concerning the
precise medical cause of a condition like fibromyalgia does not
prevent the board from finding that a qualified physicians
opinion on causation amounts to substantial evidence.6
We must decide Browns points on appeal with these
precepts in mind.
A. Failure To Resolve Doubt in Browns Favor
In contending that the board impermissibly failed to
resolve doubt in her favor, Brown cites Beauchamp v. Employers
Liability Assurance Corp. for the proposition that [i]f there is
any doubt as to the substance of medical testimony, it must be
resolved in favor of the claimant.7 Brown then points to several
supposed uncertainties that, she asserts, make this rule germane
to her case: (1) the three rheumatologists who dealt with her
case agreed that she suffers from chronic pain/fibromyalgia and
that her fall caused or could have caused this condition; (2) Dr.
Ling conceded that it was not medically impossible for a fall
such as hers to cause fibromyalgia; (3) the board disregarded a
book by a prominent rheumatologist supporting Browns theory of
causation; (4) Dr. Vandenbelt failed to physically examine her
and never definitively diagnosed her condition; and (5) Drs.
Schlosstein and Caner made certain statements during their
testimony that arguably favored Browns position.
Yet the rule for resolving doubt we mentioned in
Beauchamp will not readily stretch to cover Browns situation.
The claimant in that case, Beauchamp, suffered continuing pain
following back surgery and eventually filed a claim, attributing
his back problems to a work injury predating his surgery that he
had not previously reported.8 The only medical testimony
concerning causation was given by his surgeon, Dr. Mead, who
reluctantly expressed equivocal and uncertain views as to the
possible causes of Beauchamps condition.9 The board nevertheless
found Beauchamps claim compensable, relying principally on his
own description of how his problems arose.10 The superior court
vacated the boards decision as unsupported, pointing to Dr. Meads
uncertainty as precluding a finding of probable causation.11
We reversed the superior courts decision and reinstated
the boards award.12 Though acknowledging that Dr. Mead was
equivocal, we emphasized that the board was not restricted to or
bound by this intrinsically uncertain expert testimony, since
Beauchamps lay testimony could also be considered to be
substantial evidence supporting causation. We noted that the
board could have simply combined uncontradicted lay testimony
with medical evidence which was in itself inconclusive, to reach
a conclusion.13 Examining the evidence as a whole, including the
combined effect of Beauchamps and Dr. Meads testimony, we held
that the record supported the boards conclusion.14 And we noted
in passing that if there is any doubt as to the substance of
medical testimony, it must be resolved in favor of the claimant.15
As applied in Beauchamp, then, the rule requiring doubt
to be resolved in the claimants favor served to confirm the
boards broad fact-finding discretion and to narrow a reviewing
courts authority to reweigh the boards evidentiary
determinations. But here, by contrast, Brown paradoxically seeks
to invoke the rule for the opposite purpose: she urges us to
reverse the boards decision, and thereby narrow its factfinding
authority, by combing the record for signs of doubt that the
board itself did not consider important. Applying the rule in
this way would defeat Beauchamps basic purpose.
Beauchamp is distinguishable for another important
reason. In Beauchamp we dealt with a case involving
uncertainties arising from a single expert witnesss equivocal
testimony. Unlike the record in Beauchamp, the record here
includes the testimony of multiple medical experts who gave
unequivocal opinions rejecting causation. Here, each of the
medical reports the board found persuasive unequivocally
expressed the opinion that Browns condition probably was not
caused by her injury; when viewed individually, then, each of
these reports unquestionably presented the board with substantial
evidence against finding causation.16 Brown thus seeks to stretch
the rule of doubt beyond its original scope. She effectively
insists that the rule should apply not just to intrinsic doubt
emerging from a single witnesss equivocal opinion, but to all
doubts generated by conflicting medical testimony. As Patriot
Maintenance correctly responds, a conflict between divergent
medical views simply reveals a difference in firmly held medical
opinion. In prior decisions we have expressly recognized that
this form of doubt lies beyond reach of the doubt-rule applied in
Beauchamp.17 The rule requiring doubt to be resolved in the
claimants favor does not extend to Browns situation.
But even if it applied to doubts generated by
conflicting testimony, and even if it could be used to restrict,
rather than expand, the boards factfinding authority, the rule
requiring doubt to be resolved in the claimants favor would not
assist Brown, since the evidentiary problems she raises create no
significant doubt. Because the determination of medical
causation hinges on medical probability, not medical certainty,18
evidence suggesting that Browns fall could have caused her
condition or that a causal link was not medically impossible does
nothing to undermine the boards finding on causation. Dr. Ling
cogently made this point in responding to a letter questioning
his concession that a causal link was not impossible: I do not
think we are talking about possibilities. What I was expressing
[in the report] were medical probabilities. It would be
impossible to say something is impossible.
Similarly, neither Dr. Vandenbelts failure to
physically examine Brown nor his reluctance to attach a
definitive medical label to her condition creates any significant
basis for doubting his views. As the psychiatric member of a
three-physician panel that included a neurologist and a
rheumatologist, Dr. Vandenbelt could reasonably choose to rely on
his colleagues to perform the physical part of Browns
examination. And as demonstrated by his report and our case law,
his reluctance to attach a definitive name to Browns condition is
substantively inconsequential.19
Furthermore, any possible doubt implicit in the
passages of testimony that Brown attributes to Drs. Schlosstein
and Caner could have had no significant bearing on the potential
weight of their overall views.20
And no serious doubt can arise from the boards failure
to specifically discuss views expressed by Dr. Mark J. Pellegrino
in his book Understanding Post-Traumatic Fibromyalgia21 passages
of which were submitted during the testimony of Browns husband.
Contrary to Browns assertions, the boards decision did not
disregard this book. As mentioned already above, the board
expressly acknowledged that selected passages of the book had
been filed, and summarized their general content, which describes
case studies suggestive, in Dr. Pellegrinos view, of a strong
association between the onset of fibromyalgia and physical
trauma. But these views do not purport to apply to the
particular facts of Browns claim. Furthermore, other readily
accessible publications disagree with Dr. Pellegrinos views;22 the
experts who actually testified at Browns hearing generally
acknowledged that the existence of a causal association between
trauma and fibromyalgia the major assertion of Dr. Pellegrinos
book remains controversial and eludes definitive proof; and Dr.
Pellegrinos position on this issue essentially parallels the
views forcefully and much more specifically advocated by Dr.
Silverman. Given these circumstances, Dr. Pellegrinos book was
cumulative at best and did not require more specific discussion.
For all these reasons, we reject Browns claim that the
board erred in failing to resolve doubt in her favor.
B. Failure To Discuss Lay Testimony
Browns second major claim is that the board erred by
focusing solely on the medical evidence of causation and
disregarding the testimony by Brown, her husband, and other lay
witnesses who supported her claim of causation.
Preliminarily, we note that Brown is mistaken in
suggesting that the board ignored her lay evidence. As we have
already noted above, the boards decision expressly acknowledged
and summarized the lay testimony. Although the board did not
analyze this testimony in its findings and conclusions, its
summary belies Browns claim that the board simply disregard[ed]
this evidence.
More important, our cases did not require the board to
discuss the lay evidence at length in deciding this case. Brown
builds her claim of error on two cases, Ayele v. Unisea, Inc.,23
and Stephens v. ITT/Felec Services.24 Neither supports her
position. Our opinion in Ayele usefully illustrates this point
by describing and narrowing the relevant holding in Stephens.
Ayele dealt with a former Unisea worker, Ayele, who
claimed to have been injured on the job by exposure to ammonia,
asserting that this exposure caused injuries that progressed into
a debilitating mental illness after he ended his employment.25 At
his hearing before the board, Ayele and Unisea agreed that Ayele
was disabled but disagreed as to the disabilitys cause.26 Unisea
relied on a three-physician panel that found no work-related
causation.27 Ayele relied on his treating physician and attempted
to bolster his claim with four lay witnesses relatives and
friends who had seen him soon after his alleged exposure and who
described his complaints, conduct, and visible symptoms in a way
that supported Ayeles account of his original injury.28 The board
rejected Ayeles claim, finding Uniseas medical evidence to be
more persuasive than his.29 In explaining its decision, the board
extensively discussed the medical evidence but completely failed
to discuss Ayeles lay witnesses.30
On appeal Ayele raised a single point: relying on
Stephens, he claimed that the board erred by disregarding his lay
witnessess testimony.31 We rejected this argument, observing that
Ayele mistakenly assumes that the lay-witness testimony in this
case is potentially material to the Boards decision.32 In
explaining this conclusion, we began by distinguishing Ayeles
case from the circumstances in Stephens:
There, an injured worker, Stephens, sought
compensation for a heart attack that he had
suffered while working at a remote job site.
Several medical experts testified that the
heart attack was not work related. The
experts had only limited information about
the actual work conditions under which
Stephenss heart attack occurred, and they
expressly based their opinions as to work-
relatedness on various assumptions concerning
those work conditions. Although Stephens
presented lay-witness testimony tending to
undermine these assumptions, the Board
adopted the experts opinions and denied
Stephenss claim without even mentioning his
witnesses.[33]
While acknowledging that the lack of express findings
concerning the lay testimony required us to order a remand in
Stephenss case because we were unable to review the disputed
decision without knowing how the board viewed Stephenss lay-
witness testimony, we stressed in Ayele that this ruling in
Stephens hinged on the lay testimonys highly material role under
the particular facts there disputed:
[W]e by no means held [in Stephens] that the
Board must discuss all lay-witness testimony
touching on a disputed issue. Instead, we
relied on the specific nature of the evidence
that the Boards decision failed to address
and its peculiar relevance to the issue
actually contested: whether Stephenss work
environment caused or contributed to the
heart attack which undisputably occurred at
work and resulted in his injuries or whether
the attack resulted from his preexisting
physical condition. Thus, our decision
requiring the Board to address Stephenss lay-
witness testimony simply recognized the
potential materiality of that testimony in
the specific factual setting of Stephenss
case.[34]
Applying Stephenss rationale to the circumstances
presented in Ayele, we concluded that the board did not err in
failing to mention Ayeles lay testimony under the particular
facts at issue there, since that testimony would not have been
material:
In this case, the lay-witness testimony
bears little relevance to the Boards ultimate
finding of lack of causation. The lay
witnesses testified about Ayeles statements,
appearance, and treatment by Unisea during
the months immediately following the August
31, 1991, incident, describing him as
consistently complaining of exposure to
ammonia and of headaches, nosebleeds, and
vomiting. At most, these accounts supported
Ayeles theory of causation by tending to
confirm that during that period Ayele had in
fact been exposed to ammonia.
The medical experts did not seriously
question that Ayele had made the complaints
described by his lay witnesses, or even that
he might have been exposed to ammonia. They
did question whether Ayeles complaints had
been corroborated by any objective medical
observations. But the lay-witness testimony
sheds little light on this issue. Moreover,
the issue of Ayeles condition in 1991 is
itself of minor importance. Despite Ayeles
assertions to the contrary, the experts
ultimate opinions concerning Ayeles present
condition did not hinge on assumptions
concerning the August 1991 incident. Rather,
they drew on years of medical history and on
recent, thorough examinations of Ayele.
. . . .
Because the lay-witness testimony merely
supported Ayeles claim of past exposure to
ammonia and did not cast doubt on the
validity of the expert testimony which the
Board accepted, the Boards failure to mention
those witnesses in its decision denying
benefits does not preclude meaningful
appellate review.[35]
Comparing Ayele and Stephens to the circumstances at
issue here, we think that Browns case falls decidedly closer to
Ayele than Stephens. Here as in Ayele, the existence of an
initial work-related physical injury was not in dispute. And
also as in Ayele, it was undisputed here that the evidence
established an apparent temporal link between the initial work-
related injury and a more serious, progressively developing
condition; and in both cases, too, the existence of the more
serious condition was not contested. The controversy centered
primarily on the conditions likely medical causes.
Just as it did in Ayele, then, the lay testimony here
strongly corroborated the claimants contentions that a serious
condition currently existed and appeared to be temporally linked
to the original work-related occurrence. And in both cases the
medical experts largely accepted these points. But here as in
Ayele, the medical experts nonetheless disagreed on causation,
grounding their opinions on medical observations that the lay
testimony realistically could not have addressed.
Thus, despite Browns claim to the contrary, the lay
witness evidence here did not materially erode the medical
opinions of the physicians whose testimony the board chose to
accept. Unlike the record in Stephens, the record here fails to
suggest that Drs. DeAndrea, Caner, Vandenbelt, or Ling either
individually or collectively relied on any significant factual
assumptions that the lay testimony might have refuted or altered.
To the contrary, the lay witnesses described facts that the
experts had already received and for the most part accepted.
Brown and her husband testified about matters that Brown had
repeatedly covered in the course of her many prior medical
interviews virtually all of which the medical panelists had
studied. Other lay witnesses mainly bolstered the testimony
presented by Mr. and Mrs. Brown. On the whole, then, the lay
evidence contained few surprises and was not controversial. Just
as they did in Ayele, the medical experts here keyed their
divergent opinions on the differing medical inferences they drew
from a fairly settled record of facts.
Since our review of the record fails to convince us
that the lay testimony here was material in the sense described
by Ayele and Stephens, we conclude that the boards summary of
this evidence suffices and that more elaborate discussion was not
needed to give us a meaningful basis for appellate review.
IV. CONCLUSION
Because we conclude that the boards decision is
adequately explained and finds support in substantial evidence,
we AFFIRM the boards order denying Browns claim.
_______________________________
1 Handley v. State, 838 P.2d 1231, 1233 (Alaska 1992).
2 AS 23.30.122 provides:
The board has the sole power to
determine the credibility of a witness. A
finding by the board concerning the weight to
be accorded a witnesss testimony, including
medical testimony and reports, is conclusive
even if the evidence is conflicting or
susceptible to contrary conclusions. The
findings of the board are subject to the same
standard of review as a jurys finding in a
civil action.
3 Resler v. Universal Servs., Inc., 778 P.2d 1146, 1149
(Alaska 1989).
4 Safeway, Inc. v. Mackey, 965 P.2d 22, 27 (Alaska 1998)
(citations omitted); see also Bradbury v. Chugach Elec. Assn, 71
P.3d 901, 905 (Alaska 2003).
5 Safeway, 965 P.2d at 27.
6 Id. at 28.
7 477 P.2d 993, 997 (Alaska 1970) (citing Thornton v.
Alaska Workmens Comp. Bd., 411 P.2d 209, 211 & n.7 (Alaska
1966)).
8 Beauchamp, 477 P.2d at 993-94.
9 Id. at 995.
10 Id. at 994.
11 Id.
12 Id. at 996.
13 Id.
14 Id. at 997.
15 Id. (citing Thornton, 411 P.2d at 211 & n.7).
16 See, e.g., Big K Grocery v. Gibson, 836 P.2d 941, 942
(Alaska 1992) (It has always been possible to rebut the
presumption of compensability by presenting a qualified expert
who testifies that, in his or her opinion, the claimants work was
probably not a substantial cause of the disability.); Safeway,
965 P.2d at 28 (holding that uncertainty concerning the ultimate
cause of fibromyalgia does not defeat an experts opinion on
causation, and affirming the boards denial of benefits based on
physicians opinion finding traumatic injury probably has no
causal link to later fibromyalgia).
17 See, e.g., Miller v. ITT Arctic Servs., 577 P.2d 1044,
1048 (Alaska 1978) (Millers survivors apparently would have us
apply the rule whenever the evidence reveals lack of unanimity or
shows uncertainty among medical experts about ultimate causation.
We are not persuaded that the rule should be applied in [this]
manner.).
18 Safeway, 965 P.2d at 28.
19 For example, we stressed in Beauchamp, 477 P.2d at 996,
that, [i]n determining causation, exact medical certainty is not
required. Compare, e.g., Black v. Universal Servs., Inc., 627
P.2d 1073, 1075-76 & n.9 (Alaska 1981) (finding that a reasonable
mind would not accept diagnosis when physician had no opportunity
to examine Black in any depth), with Palmer v. Municipality of
Anchorage, Police & Fire Retirement Bd., 65 P.3d 832, 846 (Alaska
2003) (limiting Black to situations where reviewing physicians
statement stands alone and is inconsistent with other evidence);
cf. Steffey v. Municipality of Anchorage, 1 P.3d 685, 692 (Alaska
2000) (observing that it is not our role to reweigh the evidence
simply because medical experts were not absolutely certain that
work was not a substantial factor in [claimants] injury).
20 Although her argument on this point is unclear, Brown
evidently finds conflict between Dr. Schlossteins observation
that depression is commonly associated with fibromyalgia and Dr.
Caners testimony (agreeing with Dr. Silvermans view) that he had
seen no evidence that Brown suffered from any significant
emotional problem before her accident. The materiality of this
conflict is far from apparent: Dr. Schlosstein attached no
particular significance to the association between fibromyalgia
and depression, and Dr. Caners testimony that he had seen no
evidence of prior depression was specifically limited to evidence
existing in Browns medical records.
21 Anadem Pub. Co. (1996).
22 See, e.g., Gardner, Fibromyalgia Following Trauma:
Psychology or Biology?, Current Review of Pain (U. Wash. 2000)
([T]he current state of the literature does not allow the
conclusion that trauma and fibromyalgia are causally
associated.); compare Fibromyology Consensus Conference Report,
Journal of Rheumatology 23:3 (1996), with Fibromyalgia Consensus
Report: Additional Comments, Journal of Rheumatology 3:324-27
(1997).
23 980 P.2d 955 (Alaska 1999).
24 915 P.2d 620 (Alaska 1996).
25 Ayele, 980 P.2d at 955-56.
26 Id. at 956.
27 Id.
28 Id.
29 Id. at 956-57.
30 Id.
31 Id. at 957.
32 Id.
33 Id. (footnotes omitted).
34 Id.
35 Id. at 958.
