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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Pietro v. Unocal Corporation (6/25/2010) sp-6484

Pietro v. Unocal Corporation (6/25/2010) sp-6484, 233 P3d 604

     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

PAUL D. PIETRO, )
) Supreme Court No. S- 13500
Appellant, )
) Superior Court No. 3AN-05-12980 CI
v. )
) O P I N I O N
UNOCAL CORPORATION, )
) No. 6484 June 25, 2010
Appellee. )
)

          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Mark Rindner, Judge.

          Appearances:  Michael J. Jensen,  Law  Office
          of   Michael   J.   Jensen,  Anchorage,   for
          Appellant.   Richard L.  Wagg  and  Vicky  A.
          Paddock,  Russell, Wagg, Gabbert & Budzinski,
          P.C., Anchorage, for Appellee.

          Before:   Carpeneti,  Chief  Justice,   Fabe,
          Winfree, Christen, and Stowers, Justices.

          FABE, Justice.

I.   INTRODUCTION
          A  worker  developed peripheral neuropathy in his  feet
and  was  later diagnosed with skin cancer.  He asked for workers
compensation benefits for both of these conditions, alleging that
they developed as a result of his exposure to arsenic during  the
course  of  his  work at a fertilizer plant.  The Alaska  Workers
Compensation Board rejected his claims, finding that he  had  not
proven  that  his conditions were work related, and the  superior
court affirmed the Board.  We affirm the Boards finding that  the
employer rebutted the presumption of compensability.  But because
the  Board  failed to make adequate findings to permit review  of
its  decisions  that the worker had not proven his  claims  by  a
preponderance of the evidence, we vacate the Boards decisions and
remand for further findings.
II.  FACTS AND PROCEEDINGS
     A.   Pietros Work And Medical History
          Beginning in 1982 Paul Pietro worked for UNOCAL at  its
urea  and  ammonia  plant in Kenai, first  as  a  physical  plant
operator and then as a unit coordinator. Sometime around 1985 the
physical  plant began to burn waste oxazolidone from ammonia  and
urea production as fuel in one boiler.  The waste oxazolidone was
considered   hazardous   because   it   contained   arsenic    in
concentrations  exceeding environmental standards.1   Oxazolidone
was  not  burned continuously.  According to one UNOCAL document,
when  it was used, oxazolidone constituted about five percent  of
the  total  heat  duty  of  the boiler.  UNOCAL  stopped  burning
oxazolidone in 1991 after the Environmental Protection Agency set
limits on ambient arsenic levels from burning hazardous waste and
UNOCAL  determined that the worst case emissions from its  boiler
at  the Kenai plant were several orders of magnitude greater than
these standards.
          Oxazolidone was sprayed into the boiler chamber with  a
gun.   When he worked as an operator in the utility plant, Pietro
was  required to put the gun into the boiler and clean the nozzle
of  the gun if it plugged up.  He and other workers reported that
oxazolidone  sprayed or spilled from the gun.  According  to  the
workers, fumes and smoke came out of the boiler when the gun  was
changed,  and exhaust from the boiler stacks reentered the  plant
because  of  what one worker described as a negative vacuum.   In
addition,  the  boiler where the oxazolidone  was  burned  had  a
number  of  leaks.  A UNOCAL document dated September  22,  1989,
indicated that water from a leak in the boiler contained 0.20 ppm
of  arsenic.   Pietro  and another worker testified  that  Pietro
experienced  skin  contact with arsenic  when  he  slipped  in  a
chemical  spill that contained arsenic and saturated his clothes.
UNOCAL  monitored  the arsenic exposure of  some  employees,  but
Pietro was never selected to wear a monitor for arsenic exposure.
Even   after  the  plant  stopped  burning  oxazolidone,  arsenic
remained in the boiler.  A 2001 memorandum to employees  set  out
detailed  procedures  to avoid arsenic and  lead  exposure  while
repairing the boiler.
          According to Pietro, he began to experience burning  in
his  feet  in  the late 1980s, which he initially  attributed  to
working  long  hours on his feet.  In 1991 Pietro  filled  out  a
health  questionnaire for UNOCAL, in which he  indicated  he  had
tingling  in  his hands, arms, feet, or legs and burning  in  his
arms  or legs.2  His health questionnaires from 1996 though  1999
did not repeat these complaints.
          Pietro was diagnosed with rheumatoid arthritis in  1997
and began taking medication to control its effects.  In spite  of
the  medication, he had flares of the disease that  impaired  his
ability  to work.  Pietro began treatment with Michael Armstrong,
M.D.,  a  rheumatologist, in August 2001.   In  March  2002,  Dr.
Armstrong  said that Pietro could never return to full duty  work
          because of his rheumatoid arthritis.  Pietro eventually received
both  private disability insurance and Social Security disability
benefits for his rheumatoid arthritis.
          Pietro first brought his foot pain to the attention  of
his  treating  physicians  in  late  2000  and  was  seen  by   a
podiatrist,  Matt  Heilala, D.P.M., in July  2001.   Dr.  Heilala
diagnosed  rheumatoid  arthritis and plantar  fasciitis.   Pietro
began  to see providers at Alaska Alternative Medicine Clinic  in
2001  after  a  friend from work had similar  complaints.   Chart
notes from the clinic showed a neuropathy diagnosis.
          In   2001   Pietros  physician  at  Alaska  Alternative
Medicine  Clinic  ordered hair testing for toxin  exposure.   The
hair  test showed highly elevated levels of arsenic.  In  January
2002  Pietro  had  a  urine test for toxic metals,  which  showed
arsenic levels within the reference range.  On the advice  of  an
attorney, Pietro consulted with occupational medicine doctors  at
Harborview  Medical  Center in Seattle.  The  Harborview  doctors
were  skeptical of the validity of the hair test  and  ordered  a
twenty-four-hour  urine test, even though  they  noted  that  the
urine  test  would only reveal current exposure.  The urine  test
showed  normal arsenic limits, and the Harborview doctors reports
indicated that arsenic exposure was not a likely explanation  for
Pietros  neuropathy.   But after nerve  testing  by  Dr.  Heilala
showed  evidence of peripheral neuropathy,3 one of the Harborview
physicians, Timothy Takaro, M.D., concluded in October 2002  that
the  nerve  studies  were consistent with arsenic  poisoning  and
advised Pietro to pursue a case against UNOCAL.
          Pietro  also  consulted with A.  Lee  Dellon,  M.D.,  a
plastic surgeon whose practice was entirely devoted to peripheral
nerves.   Dr.  Dellon  rejected the idea that Pietros  rheumatoid
arthritis   caused  his  peripheral  neuropathy  and  recommended
testing to rule out other possible causes of the neuropathy.  Dr.
Dellon  stated  that  if  other  possible  causes  of  peripheral
neuropathy  were  ruled  out, then  the  most  likely  cause  for
[Pietros] peripheral neuropathy would be an occupational exposure
to toxins.
          Pietro filed a report of occupational injury in October
2002,  alleging that exposure to chemicals caused  neuropathy  in
both  his  feet.   UNOCAL controverted all benefits  in  December
2002,  relying  on  Harborviews  initial  medical  report,  which
downplayed   the  role  of  arsenic  in  causing  the  peripheral
neuropathy.   Shortly  after the controversion,  Pietro  filed  a
written  workers compensation claim alleging that the  neuropathy
was the result of work-related chemical exposure.
     B.   Other Medical Evidence
          UNOCAL  set up a panel of four doctors for an employers
independent  medical evaluation (EIME) in July 2003.   The  panel
consisted  of  a  podiatrist,  an  orthopedic  rheumatologist,  a
neurologist, and a toxicologist.  None of the EIME doctors  found
a  link  between  Pietros symptoms and chemical exposure  in  the
workplace.  The podiatrist was not able to confirm a diagnosis of
peripheral  neuropathy  on  examination  but  said  that  arsenic
exposure  could lead to peripheral neuropathy.  Dejan  Dordevich,
M.D.,  the EIME rheumatologist, concluded that Pietros peripheral
neuropathy  was a product of rheumatoid arthritis.   Lynne  Bell,
M.D.,   Ph.D.,  the  neurologist,  was  unwilling   to   diagnose
peripheral neuropathy because no nerve conduction or EMG  studies
had been done, and she recommended further testing.4
          Brent  Burton,  M.D., a specialist in occupational  and
environmental  toxicology,  also  examined  Pietro.   Dr.  Burton
reviewed  the material safety data sheets for the chemicals  that
Pietro listed on his workers compensation claim.  Dr. Burton  did
not  think  that Pietros peripheral neuropathy had been  properly
diagnosed  and  concluded that Pietro did not have a  diagnosable
medical condition stemming from any workplace exposure.
          Because  of  the differences in medical  opinions,  the
parties requested a second independent medical evaluation (SIME).
The  Board  arranged  for Pietro to see a  neurologist,  Jonathan
Schleimer, M.D., and a rheumatologist, Neal Birnbaum,  M.D.   Dr.
Birnbaum agreed that Pietro had rheumatoid arthritis but found no
evidence  that [Pietros] rheumatoid arthritis [was]  in  any  way
related  to  any industrial exposure because there is no  medical
literature to support the development of rheumatoid arthritis  as
a  consequence of toxin exposure.  Dr. Birnbaum concluded that if
Pietro had peripheral neuropathy, it should not be attributed  to
the   rheumatoid   arthritis.    According   to   Dr.   Birnbaum,
neurological  problems related to rheumatoid arthritis  are  rare
and  usually  occur[]  only  in  the  setting  of  severe  active
rheumatoid   disease.   He  noted  that  Pietros  foot   symptoms
predate[d] the development of any joint complaints by quite a few
years.
          Dr.  Schleimer did nerve conduction and EMG testing and
concluded  that  Pietro suffered from a mild polyneuropathy  with
distal degeneration of sensory axons. Dr. Schleimer thought  that
Pietros  neuropathy  was likely related to rheumatoid  arthritis.
He   acknowledged  that  peripheral  neuropathy  is  uncommon  in
rheumatoid  arthritis but considered it more common than  arsenic
poisoning  or toxicity.  Dr. Schleimer also noted no bone  marrow
suppression  or  evidence  for a blood count  suppression  during
Pietros   period   of  alleged  exposure  and  found   no   clear
documentation  of  a neuropathy antecedent to  the  diagnosis  of
rheumatoid  arthritis.   He wrote that if  Pietro  did  not  have
rheumatoid  arthritis,  he  would  consider  the  possibility  of
arsenic exposure more seriously.
          To  show  that  his  neuropathy  was  a  cause  of  his
inability to work, Pietro submitted to the Board letters from his
healthcare  providers  indicating that he  was  disabled  by  his
neuropathy.   Pietros attorney sent supplemental  interrogatories
and  documents to the SIME physicians, supplying the doctors with
          additional medical records and information about chemicals used
at  the plant.  After reviewing the records, Dr. Schleimer stated
that  he recognize[d] that there [was] potential for exposure  of
this  patient  to heavy metals, arsenic, and other chemicals  but
could  not  state  on  a  more likely than  not  basis  that  the
substantial  cause  of  this patients  peripheral  neuropathy  is
related  to  toxic  or  heavy  metal  exposure.   The  additional
information did not change Dr. Birnbaums opinion.
     C.   Board Hearing
          The  Board held a hearing on Pietros claim on September
1, 2005.  Several of Pietros coworkers testified about conditions
inside the utility plant and problems with the boiler that burned
oxazolidone.  Pietros wife testified that the pain  in  his  feet
began in the late 1980s.  Pietro also testified about his medical
history  and work conditions.  Five doctors testified  either  in
person or by deposition.
          The  doctors  gave sharply differing  analyses  of  the
cause  and  development  of  Pietros neuropathy.   Dr.  Dordevich
attributed  it  to  Pietros  rheumatoid  arthritis,  although  he
acknowledged  that  fewer  than  one  percent  of  patients  with
rheumatoid  arthritis develop a sensory neuropathy like  Pietros.
Dr.  Dordevich agreed that it was possible Pietro was exposed  to
some  arsenic  while he was working for UNOCAL, but  he  did  not
think  the peripheral neuropathy developed as a result of arsenic
exposure because Pietro did not show signs of arsenic toxicity in
other organs.
          Dr.  Burton testified that Pietros neuropathy  was  not
related  to  arsenic exposure at his work site.  His opinion  was
based  in part of the lack of objective evidence that Pietro  had
been  exposed to a toxic level of arsenic.  Dr. Burton  indicated
that there was a problem with trying to quantify Pietros exposure
but  thought  that  Pietros exposure level would  not  result  in
development   of  any  arsenic-related  symptoms.   Dr.   Burtons
testimony  suggested that low-level exposure to arsenic  was  not
harmful and that even doses of arsenic high enough to cause acute
symptoms did not always cause permanent damage.
          In  contrast, Dr. Takaro testified that in his  opinion
arsenic  exposure  was the most likely cause  of  the  neuropathy
because  of  the type of neuropathy Pietro had.  He thought  that
other  possible  explanations for the neuropathy had  been  ruled
out,  leaving  arsenic exposure as the most  likely  cause.   Dr.
Takaro  identified the basis of his opinion that Pietro had  been
exposed   to  sufficient  arsenic  to  cause  medical   problems,
including  reliance  on  UNOCALs  documents.   Dr.  Takaro   also
testified that a burning sensation in either the hands or feet or
both  is  the  most  common  symptom of  longstanding,  low-level
exposure  to  arsenic.   He indicated that  very  low  levels  of
arsenic could cause damage.
          Dr.   Armstrong  testified  that  in  his  opinion  the
rheumatoid arthritis did not cause Pietros peripheral neuropathy.
He  stated that neuropathy with a burning sensation is as rare as
hens  teeth in patients with rheumatoid arthritis.  Dr. Armstrong
believed  more  likely  than not that arsenic  exposure  was  the
responsible  factor  in Pietros neuropathy.  Dr.  Armstrong  also
agreed   that  Pietros  peripheral  neuropathy  was   the   major
contributing factor in some of Pietros disabilities.
          In  its  decision  dated November 4,  2005,  the  Board
denied  Pietros  claim, finding that he had not proven  it  by  a
preponderance of the evidence.  The Board found that  Pietro  had
attached  the presumption of compensability.  It then found  that
UNOCAL  had rebutted the presumption through the opinions of  Dr.
Dordevich,  Dr.  Burton,  and  Dr. Schleimer.   In  weighing  the
evidence, the Board focused on objective evidence in finding that
Pietro  had not met his burden of proof. It found that  the  hair
test  for  arsenic was considered unreliable and the urine  test,
which  it  termed  the  gold standard, showed  normal  levels  of
arsenic.   It  also  found that the opinions of  Pietros  doctors
about  causation  were  not supported by the  objective,  factual
record in this case.  It gave more weight to the opinions of  Dr.
Dordevich,  Dr.  Burton, and Dr. Schleimer,  describing  them  as
based  on  objective findings.  The Board emphasized that  Pietro
had  not developed other symptoms that would have indicated toxic
arsenic  exposure,  such  as gastrointestinal  distress,  cardiac
issues, or dermatologic issues.  Pietro appealed the decision  to
the superior court.
     D.   Pietros Skin Cancer Claim
          In  April  2006 Pietro was diagnosed with skin  cancer.
He  had three lesions:  One was on his shoulder and was diagnosed
as  melanoma,  while the other two were on or near his  ears  and
were  diagnosed as basal cell carcinoma.  After the skin  cancers
were  diagnosed, Pietro obtained an opinion from Richard  Parent,
Ph.D.,  a  toxicologist.  Dr. Parent indicated that Pietros  skin
cancers  were  consistent  with  arsenic  exposure.   Dr.  Parent
concluded, with a reasonable degree of scientific certainty, that
Pietros  medical problems have been caused or contributed  to  by
his  exposures to arsenic during his employment . . . at  Unocal.
In  October  2006  Pietro filed a new workers compensation  claim
related  to  the skin cancers and petitioned for modification  of
the  2005  Board decision based on mistake.  At Pietros  request,
the superior court stayed the appeal and remanded the case to the
Board.
          The  Board held a hearing in June 2007 on the  petition
for modification.  There was some disagreement about the scope of
the  hearing:  Pietro  asked the Board to  consider  his  workers
compensation claim for the skin cancer because it was  identified
as  an  issue in the prehearing conference, but the Board decided
that  it was not comfortable deciding the compensability  of  the
skin cancer because of the possibility  that Pietro had also been
exposed  to  arsenic while working for Agrium, which  bought  the
ammonia  plant from UNOCAL.  The Board permitted testimony  about
the  skin  cancer  because it was a basis  of  the  petition  for
modification.  The Board heard testimony from Dr. Takaro and  Dr.
Burton  as well as some additional testimony from Pietro.  Pietro
again  testified about possible exposure to arsenic at his  work,
focusing  on  exposure to his skin.  He also discussed  his  skin
cancers and history of sun exposure.
          Dr.  Takaro  testified about regulatory  standards  for
arsenic exposure.  According to Dr. Takaro, based on documents he
reviewed,  arsenic was present in levels well above the threshold
level described in some regulations.  He testified that there  is
a  latency  period  of ten to fifteen years between  exposure  to
arsenic  and development of skin cancer.  In Dr. Takaros opinion,
there was absolutely no question that Pietro had been exposed  to
much more arsenic than the general population.  He also testified
that  even though sunlight could have contributed to Pietros skin
cancers,  animal  studies  showed that arsenic  and  [ultraviolet
radiation] together is a much more potent carcinogen than  either
one  apart.   Dr.  Takaro  expressed  the  opinion  that  Pietros
exposure  to  arsenic while working for UNOCAL was a  substantial
factor in the development of his skin cancer.
          Dr. Burton testified that in his opinion Pietro was not
exposed to excessive levels of arsenic during his employment with
UNOCAL.   Dr.  Burton  noted the absence of testing  results  and
industrial  hygiene  surveys to show exposure  levels.   He  also
based his conclusion on his understanding of workplace conditions
and  Pietros lack of symptoms while he was working.   Dr.  Burton
disagreed  with  Dr. Takaros use of data from  emissions  testing
from  the  plants  smokestack  as a means  of  showing  workplace
exposure.   He  also  noted that Pietro  never  showed  signs  of
certain  skin lesions that are consistent with arsenic  exposure.
In  Dr.  Burton s opinion, Pietros skin cancers were most  likely
the  result of sun exposure and aging because he did not  believe
that  Pietro  had been exposed to significant levels of  arsenic.
Dr.  Burton testified that the exposure level that triggered skin
cancer was not known, although it was a high level.
          The  Board found in an August 2007 decision that Pietro
had  provided  enough new evidence to permit it to  consider  his
petition  for modification of the neuropathy claim, but it  again
relied on Dr. Burtons opinion to decide that Pietro had failed to
prove  that  his peripheral neuropathy was work related.   Pietro
then  petitioned for reconsideration of the August 2007  decision
because  the Board had not resolved his 2006 workers compensation
claim  for skin cancer.  The Board granted his petition in  order
to  make  findings  related to this claim and  issued  its  final
decision on the skin cancer claim on February 22, 2008.  It found
that  Pietro  had attached the presumption of compensability  and
that  UNOCAL had rebutted it; the Board decided that  Pietro  had
failed  to prove his skin cancer claim by a preponderance of  the
evidence.
          Pietro appealed the August 2007 and February 2008 Board
decisions  to the Alaska Workers Compensation Appeals Commission,
which  decided that it did not have jurisdiction over the appeal.
The  superior  court  consolidated the  appeals  of  all  of  the
decisions.   The  superior court affirmed the  Boards  decisions,
concluding that substantial evidence in the record supported  the
Boards  findings.  The court also decided that (1) the Board  had
properly   applied  the  presumption  analysis;  (2)  substantial
evidence  supported the Boards finding that UNOCAL  had  overcome
the  presumption; (3) the Board had made sufficient  findings  to
permit review; (4) the Board engaged in reasoned decision making;
and (5) the Board had adequately considered Pietros neuropathy as
an occupational disease.  Pietro appeals.
III. STANDARD OF REVIEW
          In  a  workers  compensation appeal from  the  superior
court, we directly review the Boards decision.5  Factual findings
are  reviewed  to  see  if  they  are  supported  by  substantial
evidence.6  Substantial evidence is such relevant evidence  as  a
reasonable mind might accept as adequate to support a conclusion.7
The  Board is required to make findings only about questions that
are  both  contested  and material.8  Whether  the  [B]oard  made
sufficient findings is a question of law that we review de novo.9
IV.  DISCUSSION
     A.    UNOCAL  Provided  Substantial Evidence  To  Rebut  The
Presumption.
          The  Board  applies  a  three-step  analysis  when   it
evaluates  a  workers  compensation claim.10   It  first  decides
whether   the   employee   has   provided   sufficient   evidence
establishing  a link between his injury and the employment,  such
that  the  presumption that his claim is compensable  attaches.11
The Board found here that Pietro had attached the presumption  in
both of his claims, and UNOCAL does not dispute this finding.
          In  order  to  rebut the presumption, the  employer  is
required to provide substantial evidence that either (1) provides
an  alternative  explanation  which  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.12  The Board found here  that
UNOCAL  had rebutted the presumption in Pietros neuropathy  claim
through  the testimony and reports of Dr. Dordevich, Dr.  Burton,
and  Dr.  Schleimer.   In the skin cancer claim,  it  found  that
UNOCAL had rebutted the presumption of compensability through Dr.
Burtons  testimony.  Pietro contends that UNOCAL did not  provide
sufficient evidence to rebut the presumption in either claim.
          The  Board did not err in finding that UNOCAL presented
enough  evidence to rebut the presumption.  At the second  stage,
the  Board does not weigh the evidence but looks at the  evidence
provided by the employer in isolation to see if it is adequate.13
In  his  neuropathy claim, Pietro contends that the opinions  the
Board  identified as providing evidence to rebut the  presumption
were not comprehensive and reliable because the doctors were  not
aware of the evidence of Pietros exposure to arsenic, assumed the
rheumatoid arthritis preceded the neuropathy, and could not  rule
out all work-related causes of Pietros neuropathy.
          In   Stephens  v.  ITT/Felec  Services,  we  held  that
physicians  opinions were adequate to rebut the presumption  when
[t]he physicians based their opinions on a state of facts, which,
although disputed, could be permissibly resolved in favor of  the
employer.14  Pietros case is analogous.  The physicians here based
their  opinions about causation in the neuropathy claim on  facts
that were disputed and could be resolved in favor of UNOCAL, such
as  whether  Pietro was exposed to enough arsenic to have  health
effects  and  whether Pietros neuropathy predated his  rheumatoid
arthritis.  And although Pietro asserts that the doctors opinions
did  not  rule out any reasonable possibility that the neuropathy
was  work  related, the doctors provided an explanation  (Pietros
rheumatoid  arthritis) which, if accepted, would exclude  arsenic
          exposure as a cause of the peripheral neuropathy.
          In  the  skin cancer claim, the Board relied solely  on
Dr.  Burtons  testimony  to rebut the  presumption.   Dr.  Burton
testified  that the most likely cause of Pietros cancer  was  sun
exposure  and  aging  because he did not think  Pietro  had  been
exposed  to arsenic at a high enough level to cause skin  cancer.
In  Dr.  Burtons  opinion, Pietro had been  exposed  to  no  more
arsenic than the general population.  Here again, Pietros case is
similar  to Stephens.  The level of Pietros arsenic exposure  was
disputed,  and  the toxicologists provided conflicting  testimony
about  what  level of arsenic exposure was needed to  cause  skin
cancers.  Because  the  Board  only  looks  at  the  evidence  in
isolation  at  the  second stage, without  assigning  it  weight,
UNOCAL provided enough evidence to overcome the presumption.  Dr.
Burtons opinion that Pietro had not been exposed to a high enough
level  of  arsenic  at work to cause skin cancer  eliminated  any
reasonable  possibility that employment was a factor  in  causing
the cancer.15
          Pietro   argues   that  in  order   to   overcome   the
presumption,  UNOCAL was required to present  objective  evidence
that  its workers were not exposed to arsenic in the workplace.16
This   overstates  UNOCALs  burden.   UNOCALs  experts  and   Dr.
Schleimer did not contest that Pietro was exposed to some arsenic
in  his  work  for UNOCAL.  The difficult question was  assessing
whether  he had been exposed to sufficient arsenic to  cause  the
health  effects  he  suffered:  peripheral  neuropathy  and  skin
cancer.   Both sides presented expert testimony supporting  their
positions,  and UNOCALs experts testimony, viewed  in  isolation,
provided sufficient evidence to rebut the presumption.
          If  the employer rebuts the presumption, the Board must
weigh  the testimony in deciding whether a worker has proven  his
claim by a preponderance of the evidence.17  The Board found that
Pietro had not proven either of his claims by a preponderance  of
the  evidence.  In the neuropathy claim, the Board found that the
opinions  of  Pietros  physicians  were  not  supported  by   the
objective, factual record in this case.  It then noted  that  the
twenty-four-hour  urine test was negative  and  that  Dr.  Takaro
ultimately  concluded  that  the  employees  neuropathies  [were]
inexplorable.   The Board [found] it telling that Pietro  had  no
other  symptoms associated with toxic arsenic exposure, including
dermatologic issues.
          The  Board  listed three reasons for rejecting  Pietros
skin  cancer claim: (1) UNOCAL stopped burning arsenic more  than
eleven years before Pietros cancer diagnosis; (2) the most common
cause  of skin cancer is exposure to ultraviolet light (the sun);
and  (3)  Dr.  Burton testified that there is  zero  relationship
between  the  type  of carcinoma/melanoma the  employee  had  and
arsenic exposure.  In its decision denying the skin cancer claim,
the Board did not specifically reject Dr. Takaros opinions.
     B.    The Boards Findings Are Inadequate To Permit Appellate
Review.
          Pietro contends that the Boards findings are inadequate
to  permit review because the Board failed to make findings about
material and contested facts.  According to Pietro, the Board was
          required to make findings about the lay testimony here because
that  testimony  undermined the opinions of UNOCALs  experts.  He
also  argues that the Board made many significant errors  in  its
decisions.   UNOCAL concedes that there are errors in the  Boards
decisions  but asserts that the errors were not significant.   It
maintains that the Boards factual findings were adequate.
          The  Board  is  required to make findings about  issues
that are both contested and material.18  Findings are adequate to
permit  appellate review when at a minimum, they  show  that  the
Board  considered  each  issue of significance,  demonstrate  the
basis for the Boards decision, and are sufficiently detailed.  19
Here, the Boards findings failed to meet this standard.  Not only
did the findings neglect to address significant, disputed issues,
such  as  when Pietros neuropathy began relative to his arthritis
and whether his work conditions exposed him to enough arsenic  to
cause  health  complaints, but the Boards analyses also  did  not
evaluate  the lay testimony and its interaction with the  experts
opinions.   The  Boards  lack  of  detailed  analysis  makes   it
difficult   to  discern  its  reasoning,  which  is  particularly
troubling in light of the conceded errors in its decisions.
          1.    The  Board erred in failing to evaluate  the  lay
testimony.
          As  we  discussed  in  Smith v. University  of  Alaska,
Fairbanks, lay testimony does not always have probative value  in
complex  medical cases.20  But at times lay testimony  is  highly
relevant,  especially when it tends to support or contradict  the
assumptions  as  to the facts of the claimants history  on  which
expert  medical  witnesses  rely.21  In  Pietros  case,  the  lay
testimony  was  relevant to two contested issues  underlying  the
medical  experts  opinions:  when  Pietros  neuropathy  developed
relative  to  his  rheumatoid  arthritis  and  whether  his  work
conditions  exposed  him  to  enough  arsenic  to  cause   health
complaints.  These issues were both contested and material.
          Pietro  introduced three types of evidence  to  support
his claim that he had been exposed to hazardous levels of arsenic
at  work:  lay  testimony about his work and  health  conditions,
documentary evidence from UNOCAL obtained through discovery,  and
expert  testimony.22  The UNOCAL  documents contained information
about  boiler  problems and levels of arsenic in the  environment
both  inside  and  near  the plant.  The toxicologists  expressed
opinions  about  Pietros potential exposure, and  their  opinions
were based in part on their understanding of his work conditions.
Dr.  Takaro used environmental testing data from UNOCAL documents
together  with  information about Pietros workplace  to  conclude
that  Pietro  had been exposed to significant levels of  arsenic.
Dr.  Burton  testified  that to evaluate exposure  he  looked  at
Pietros description of his work practices.
          The lay testimony Pietro presented was relevant to the
doctors  assumptions about his exposure to arsenic.   The  Board
briefly  summarized the lay testimony in the neuropathy decision
but  did not mention it in its analysis of either the neuropathy
or  cancer  claim  and  made no findings about  either  the  lay
witnesses  or  their testimony.  Information about Pietros  work
conditions was necessary to evaluate the compensability  of  his
          claim because that testimony could support or contradict the
toxicologists assumptions about Pietros work conditions, as  the
lay testimony did in Smith.23  For example, Dr. Burton testified
that burning oxazolidone would not present an exposure hazard if
the  fumes were contained in the boiler; he also said that there
was no history . . . to indicate that [Pietro] was working in an
environment  where  there were products  of  combustion  in  the
workplace.  Yet the lay witnesses testified that there was smoke
in  their work area; witnesses also testified that exhaust  from
the  boiler was drawn back into the building.  Because  the  lay
testimony was relevant to the experts assumptions about  Pietros
work  conditions and his potential exposure to arsenic at  work,
the  Board was required to evaluate and make findings about  it.
The  Boards  failure to make findings about the work conditions,
especially as it related to Pietros exposure to arsenic  in  the
workplace, impedes adequate appellate review of its decision.24
          Pietro  also presented lay testimony that he  suffered
from  peripheral  neuropathy in the late 1980s  to  support  his
contention  that his neuropathy developed before his  rheumatoid
arthritis.   The  relative date of onset of the  neuropathy  and
arthritis  was an important, contested issue in this case.   Dr.
Schleimer,  the  SIME  neurologist,  did  not  think  there  was
adequate  medical  evidence  that Pietros  neuropathy  developed
before  his rheumatoid arthritis but also stated that  he  would
consider  the possibility of arsenic exposure more seriously  in
the  absence  of rheumatoid arthritis.  The lay testimony  here,
like  the  lay testimony in Smith, provided information relevant
to  the experts assumptions about the development and course  of
Pietros  symptoms.25  On remand, the Board  must  make  findings
about the lay testimony.
          2.   The Boards findings do not show consideration  of
               significant issues.
               
          The  fundamental question before the Board was whether
Pietros neuropathy was caused by exposure to toxins over a  long
period  of  time or by his rheumatoid arthritis.   In  order  to
decide  this question, the Board needed to resolve a  number  of
issues:   whether  the peripheral neuropathy  arose  before  the
arthritis, whether low levels of arsenic are toxic over  a  long
period  of  exposure, and, relatedly, whether  Pietro  had  been
exposed to levels of arsenic that caused health effects.   After
Pietros  skin  cancer diagnosis, the Board  needed  to  consider
whether  that diagnosis altered its assessment of his neuropathy
claim.   We  agree  with Pietro that the Board  failed  to  make
findings about these significant issues.
          The  date of onset of the neuropathy was an important,
disputed  fact underlying several doctors opinions.   Both  SIME
physicians  mentioned  the time of onset of  the  neuropathy  in
assessing  whether  Pietros  rheumatoid  arthritis  caused   his
neuropathy.   Dr.  Birnbaum concluded  that  Pietros  rheumatoid
arthritis  could not be a causative factor in the neuropathy  in
part  because  he thought the neuropathy predated the  arthritis
diagnosis.   In  contrast,  Dr.  Schleimer  thought   that   the
neuropathy  arose  after  the  rheumatoid  arthritis   and   the
          arthritis caused the neuropathy.  Pietro provided lay testimony
as well as his health questionnaire to support his position that
his  neuropathy  developed before his arthritis.  UNOCAL  argued
that  no  medical evidence supported Pietros position.  Yet  the
Board  failed  to  discuss  or  make  findings  about  when  the
neuropathy arose relative to Pietros rheumatoid arthritis.
          The  Board also failed to make findings about  Pietros
potential exposure to arsenic or about the conditions in Pietros
workplace,  even though these conditions bore upon  the  crucial
question  of  his exposure level.  Aside from the lay  testimony
about  work  conditions  at the plant,  the  Board  had  UNOCALs
documents,  which  had  some testing data,  as  well  as  expert
testimony   from   the  toxicologists.   The   experts   reached
significantly different conclusions about the level  of  Pietros
exposure to arsenic and its possible health effects.  Dr. Burton
thought that Pietros exposure level was similar to that  of  the
general population and inadequate to cause health effects.   Dr.
Takaro concluded that Pietros workplace exposure was much higher
than that of the general population and was more than sufficient
to  cause Pietros symptoms.  The Boards findings do not  mention
Pietros  work  conditions.  Although the evidence may  not  have
permitted   the  Board  to  come  up  with  a  number  precisely
quantifying  Pietros  exposure level, the Board  had  sufficient
evidence  to  evaluate  the  expert testimony,  make  a  finding
regarding Pietros exposure to toxins, and explain the finding.
          Finally,  the toxicologists gave conflicting testimony
about  whether low levels of arsenic exposure could cause health
effects.  Dr. Burton testified that arsenic exposure would  have
to  rise  to the level of intoxication or poisoning in order  to
cause  health effects.  Dr. Takaro testified that arsenic  could
cause  damage at much lower levels than the levels discussed  by
Dr.  Burton and cited medical literature to support his opinion.
The  Board did not resolve this conflict.  Nor did it adequately
explain  its reasoning rejecting Pietros modification  petition.
The Board denied Pietros neuropathy claim in part because Pietro
did  not  have a dermatologic condition consistent with  arsenic
exposure.   Yet after he presented evidence of a skin  condition
that  could be related to arsenic exposure, the Board failed  to
reconcile  its  first opinion with this new fact,  except  in  a
conclusory fashion that provided no insight into its reasoning.
          3.   The  Boards findings are not detailed  enough  to
               show the basis for its decisions.
               
          In  its  decision on the neuropathy claim,  the  Board
found that Dr. Takaros, Dr. Armstrongs, and Dr. Dellons opinions
regarding  causation  [were]  not supported  by  the  objective,
factual record in this case.  The Boards finding is difficult to
review  because  it does not explain what facts  in  the  record
undermined  these  doctors  opinions.   Dr.  Takaro  based   his
opinions in part on the objective findings in the EMG and  nerve
conduction studies, which showed that Pietro had a specific type
of   nerve  damage.   Dr.  Takaro  also  looked  at  data   from
environmental testing provided by UNOCAL to support his  opinion
about exposure levels.  The Boards conclusory statement does not
provide enough information to assess its accuracy.  By contrast,
we  determined  in  Lindhag  v.  State,  Department  of  Natural
Resources  that  the Boards decision was adequately  detailed.26
There,  the case involved only medical issues; the Board  relied
on  one  doctor,  the SIME physician, and gave its  reasons  for
crediting that doctors opinions instead of two others opinions.27
The  reasons given there  that one doctor lacked training  in  a
relevant  specialty and the other doctor made factual errors  in
his report (which the Board identified)  were amenable to review
and  readily  understandable.28  Because the Board  provided  no
concrete reasons for rejecting the testimony of Dr. Takaro,  Dr.
Armstrong,  and  Dr.  Dellon,  we  are  unable  to  review  this
decision.
          In  rejecting Pietros neuropathy claim, the Board also
focused on the results of the twenty-four-hour urine test, which
were  normal,  and  the unreliability of the  hair  test,  which
showed  elevated arsenic levels.  We agree with Pietro that  the
Board placed too much emphasis on the results of the twenty-four-
hour  urine test.  UNOCAL defends the Boards reasoning,  arguing
that  Pietro  needed to provide a positive medical  test  result
showing work-related arsenic exposure to substantiate his claim.
But  there is no rigid requirement that a worker prove his claim
by means of a specific medical test,29 and by requiring Pietro to
do so here, without consideration of the circumstantial evidence
of  arsenic exposure, the Board erred.  This is particularly  so
when  the test at issue measured ongoing exposure and had little
probative  value  of  Pietros exposure  to  arsenic  during  his
employment  at  UNOCAL.   The experts  agreed  that  arsenic  is
excreted  rapidly from the body, and the doctor who ordered  the
twenty-four-hour urine test indicated that it  would  only  show
ongoing  exposure, not exposure that had occurred  years  before
the  test.   Pietro  underwent the urine test about  two  months
after  Dr. Armstrong took him off work because of his arthritis;
this  suggests  that  the negative urine  test  result  was  not
probative of Pietros exposure at UNOCAL.
          Medical   testing  can  provide  important   objective
evidence  in workers compensation cases, but it is not the  only
way  a worker can prove his claim.30 Dr. Burton, Dr. Takaro, Dr.
Armstrong, and Dr. Schleimer arrived at their conclusions  about
causation using differential diagnosis methodology, not by using
different  objective tests.  None of the doctors  disputed  that
the  type  of  nerve damage Pietro suffered could be  associated
with arsenic exposure.  Dr. Schleimer stated that he [could] not
rule  out  the possible work-related contributing causes,  i.e.,
exposures  and  [i]f [Pietro] had no other explanation  for  the
neuropathy,  i.e.  did not have rheumatoid  arthritis,  I  would
consider [arsenic poisoning or toxicity] more seriously.31   The
doctors  reached different conclusions about the  cause  of  the
neuropathy  based  on  differences  in  their  understanding  of
Pietros  exposure  level,  his  other  health  conditions,   the
likelihood that those conditions could cause the type  of  nerve
damage Pietro had, and the dates of onset of the conditions.
          The  Boards findings on the skin cancer claim are also
inadequate.   The Board did not, in its decision rejecting  this
          claim, explicitly reject Dr. Takaros testimony; in fact, it
cited  his  testimony  to support its finding  that  ultraviolet
radiation  is  the most common cause of skin  cancer.   But  Dr.
Takaro  testified  that  arsenic and  ultraviolet  radiation  in
combination are a more potent carcinogen than either  one  alone
so that the combination on a sun-exposed area, like in this case
the  ears,  would  make  it even more likely  that  there  is  a
relationship between the two.  The Boards finding that  sunlight
is the most common cause of skin cancer also does not adequately
explain  its reasoning in light of its references to Dr. Takaros
testimony and Dr. Takaros statement that Pietros cancers in sun-
exposed areas made arsenic causation more likely.
          The  Board found that Dr. Burton testified that  there
[was]  zero  relationship between the type of carcinoma/melanoma
the employee had and arsenic exposure.  Our review of the record
does  not  support  this  finding.  Dr.  Burton  testified  that
squamous  cell cancer was most commonly associated with  arsenic
exposure, but that it was possible for basal cell carcinoma  one
type  of  cancer  Pietro had  to be caused by arsenic  exposure.
Dr.  Burton thought that arsenic exposure was not a likely cause
of  Pietros  cancer  because he did not think  Pietro  had  been
exposed   to  enough  arsenic,  not  because  there   was   zero
relationship between basal cell carcinoma and arsenic  exposure.
And, as noted above, the Board failed to make any findings about
Pietros level of arsenic exposure.
          We are troubled by the errors in the Boards decisions.
UNOCAL  concedes  that the Boards decisions contain  errors  but
argues that they are harmless.  Some of the Boards mistakes  are
harmless:   As we explained above in Part IV.A, even though  the
Board  incorrectly stated that Pietro acknowledged  that  UNOCAL
had  rebutted the presumption, the Board cited adequate evidence
to support its finding that UNOCAL had done so.
          But  other  mistakes are not so easily  excused.   The
Boards  statement, which UNOCAL concedes is incorrect, that  Dr.
Takaro  ultimately  concluded that  the  employees  neuropathies
[were]  inexplorable  is part of the Boards analysis  explaining
why  it  did not give Dr. Takaros opinion as much weight as  Dr.
Burtons.  UNOCAL  asserts that this finding was not  significant
because  there  [was]  still a lack  of  evidence  showing  that
arsenic was a substantial factor in causation of this condition.
But    besides   testifying   that   after   a   certain   point
demyelinization just continues inexorably, Dr. Takaro  testified
that a burning sensation in either the hands or feet or both  is
the  most common symptom of longstanding, low-level exposure  to
arsenic.   He  indicated that very low levels of  arsenic  could
cause  damage  if the exposures occurred over a long  period  of
time.  Similarly, UNOCAL agrees that the Board was incorrect  in
finding  that  all doctors [had] opined that Pietros  neuropathy
would  be  accompanied by other symptoms if it were  related  to
arsenic  exposure;  it nonetheless contends that  the  error  is
harmless.   But this erroneous factual finding was  one  of  the
Boards chief reasons for denying Pietros neuropathy claim.   The
Boards   factual   mistakes  cast  doubt  on  its   conclusions,
particularly given the lack of a detailed or rigorous  rationale
explaining its decision.32
V.   CONCLUSION
          For  the  reasons stated, we AFFIRM the Boards finding
that  UNOCAL  rebutted  the presumption of  compensability.   We
VACATE the Boards decisions denying Pietros claims and REMAND to
the  Board to make appropriate findings regarding whether Pietro
proved his claims by a preponderance of the evidence.
_______________________________
     1     Arsenic is not a component of oxazolidone, but  sodium
arsenite,  which does contain arsenic, was added  during  ammonia
and urea production to prevent corrosion of processing equipment.

     2     Numbness, tingling, and burning sensations can all  be
symptoms of peripheral neuropathy.

     3     The test done by Dr. Heilala was called [q]uantitative
neurological testing.

     4     Dr.  Bell  did not feel that the testing done  by  Dr.
Heilala confirmed the diagnosis.

     5     Dougan v. Aurora Elec., Inc., 50 P.3d 789, 793 (Alaska
2002).

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

     7     Id.  (quoting Grove v. Alaska Constr. & Erectors,  948
P.2d 454, 456 (Alaska 1997)) (internal quotation marks omitted).

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

     9     Leigh v. Seekins Ford, 136 P.3d 214, 216 (Alaska 2006)
(citing Bolieu, 983 P.2d at 1276).

     10    Smith v. Univ. of Alaska, Fairbanks, 172 P.3d 782, 788
(Alaska  2007)  (citing Bradbury v. Chugach Elec. Assn,  71  P.3d
901, 905 (Alaska 2003)).

     11    Id.

     12    Id.

     13     Bouse  v. Firemans Fund Ins. Co., 932 P.2d  222,  232
(Alaska  1997)  (citing Veco, Inc. v. Wolfer, 693 P.2d  865,  869
(Alaska 1985)).

     14    915 P.2d 620, 625 (Alaska 1996).

     15     See  Smith, 172 P.3d at 788 (holding that an employer
may rebut the presumption by presenting substantial evidence .  .
.  that  directly  eliminates  any  reasonable  possibility  that
employment  was  a  factor  in  causing  the  disability  (citing
Bradbury, 71 P.3d at 906)).

     16    Pietro also claims that the Board erred in saying that
he  acknowledge[d]  UNOCAL overcame the presumption.  Even though
the  Boards  statement was inaccurate, we see no indication  that
this  misperception  influenced the Boards decision.   The  Board
identified  the evidence on which it relied to find  that  UNOCAL
rebutted the presumption, and that evidence was adequate.

     17    Smith, 172 P.3d at 788.

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

     19     Lindhag v. State, Dept of Natural Res., 123 P.3d 948,
953  (Alaska 2005) (quoting Stephens, 915 P.2d at 629  (Matthews,
J., dissenting in part)).

     20    172 P.3d at 789.

     21    Id. at 790.

     22     UNOCAL suggests that Pietro was required to  quantify
precisely his exposure to arsenic at work.  It asserts that  [a]t
no  point  is [Pietro] able to document duration, level,  nature,
and  amounts  of exposure.  We disagree with UNOCAL that  Pietros
inability  to  quantify exactly his exposure at work  would  have
been a proper basis for the Boards rejection of his claim.

     23    172 P.3d at 790.

     24    See Stephens, 915 P.2d at 627.

     25    172 P.3d at 790.

     26    123 P.3d 948, 953-54 (Alaska 2005).

     27    Id.

     28    Id. at 952-54.

     29     See  AT  & T Alascom v. Orchitt, 161 P.3d 1232,  1242
(Alaska  2007)  (citing  Beauchamp v. Employers  Liab.  Assurance
Corp.,  477  P.2d  993, 996-97 (Alaska 1970)) (holding  that  the
Board  permissibly relied on expert medical and lay testimony  to
find   that  a  worker  suffered  work-related  overexposure   to
radiation).

     30     See  Bolieu v. Our Lady of Compassion Care Ctr.,  983
P.2d 1270, 1275 n.19 (Alaska 1999) (citing Beauchamp, 477 P.2d at
996)  (Evidence  of work-relatedness need not consist  solely  of
medical or scientific testimony.).

     31     Pietro  asserts that the Board applied the  incorrect
legal  standard for causation because it relied on Dr. Schleimers
report.   In his later report, Dr. Schleimer wrote that he  could
not  say  that  the substantial cause of Pietros  neuropathy  was
related  to  toxic or heavy metal exposure.  The  relevant  legal
standard that applied to Pietros claim was a substantial  factor.
See  Carter  v. B & B Constr., Inc., 199 P.3d 1150, 1157  (Alaska
2008)  (noting that the work-related injury must be a substantial
factor  in  causing a disability).  The legislature  changed  the
standard  to the substantial factor in 2005.  Ch. 10,   9,  FSSLA
2005.  Pietro equates Dr. Schleimers use of the substantial cause
with  use of the substantial factor as a legal standard.   Pietro
was  unable  to identify any indication that the Board  used  the
substantial  factor as the legal test to evaluate  Pietros  claim
rather than a substantial factor.  Although Dr. Schleimers use of
the phrase the substantial cause was unfortunate given the change
in  the  law,  we  see  no evidence that the  Board  applied  the
incorrect causation test to Pietros claim.

     32     Pietro  contends that the Board failed to  apply  the
definition of occupational disease to his case.  Because  we  are
remanding  the case for further findings, we do not address  this
issue.

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