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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Shea v. State, Dept. of Administration, Division of Retirement and Benefits (12/23/2011) sp-6629

Shea v. State, Dept. of Administration, Division of Retirement and Benefits (12/23/2011) sp-6629

        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, email 
        corrections@appellate.courts.state.ak.us. 

                THE SUPREME COURT OF THE STATE OF ALASKA 

SHIRLEY L. SHEA,                                  ) 
                                                  )    Supreme Court No. S-13887 
                       Appellant,                 ) 
                                                  )    Superior Court No. 3AN-07-08162 CI 
        v.                                        ) 
                                                  )    O P I N I O N 
STATE OF ALASKA, DEPARTMENT                       )
 
OF ADMINISTRATION, DIVISION                       )    No. 6629 - December 23, 2011
 
OF RETIREMENT AND BENEFITS,                       )
 
                                                  ) 
                       Appellee.                  ) 
                                                  ) 

                Appeal from the Superior Court of the State of Alaska, Third 
                Judicial District, Anchorage, Eric A. Aarseth, Judge. 

                Appearances:  Steven J. Priddle, Law Offices of Steven J. 
                Priddle,   Anchorage,   for    Appellant.     Joan   M.   Wilkerson, 
                Assistant   Attorney   General,   and   John   J.   Burns,   Attorney 
                General, Juneau, for Appellee. 

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

                CHRISTEN, Justice. 

I.       INTRODUCTION 

                Shirley   Shea   underwent   a   medical   procedure   in   1984   that   resulted   in 

intermittent soreness in her legs, back, and pelvic region.           She began working for the 

State of Alaska in 1993, which required her to sit at a desk for prolonged periods of time. 

Shea's pain began to worsen around 1998, and in 2001 it forced her to leave her job. 

----------------------- Page 2-----------------------

Shea filed for both nonoccupational and occupational disability benefits, claiming that 

the periods of prolonged sitting at work aggravated her condition.  An administrative law 

judge found that Shea's medical records indicated that prolonged sitting at work was one 

of the factors contributing to her chronic pain.         But the administrative law judge found 

that   many     of  Shea's    other   everyday     activities  were    also  "pain    triggers."    The 

administrative law judge concluded that because Shea's prolonged sitting at work was 

"simply   one   among   many   contributing   factors"   to   her   chronic   pain,   it   was   not   "of 

particular causal significance" to her condition.           Shea appealed to the superior court, 

which upheld the administrative law judge's decision.              Because Shea must prove only 

that her employment was a substantial factor - not the substantial factor - in causing 

her disability, we remand for the administrative law judge to reevaluate the evidence. 

II.     FACTS AND PROCEEDINGS 

                It is undisputed that Shea is disabled and had to leave her job with the State 

of Alaska due to debilitating pain.  The sole issue in this case is causation, i.e., whether 

substantial   evidence   supports   the   administrative   law   judge's   (ALJ)   conclusion   that 

Shea's employment was not a substantial factor in causing her disability. 

        A.      Facts 

                1.      1984 to 1993:      Initial injury 

                In 1984, when Shirley Shea was 22 years old, she received an abnormal test 

result after undergoing a gynecological examination.  A cone biopsy was performed as 

a follow-up procedure. The procedure resulted in damage to nerves in Shea's groin area. 

The day after the procedure, Shea experienced a great deal of stiffness in her back and 

lower     extremities.    The     pain  subsided,    but   over   the  next   few   years   it  returned 

intermittently. 

                                                  - 2 -                                           6629
 

----------------------- Page 3-----------------------

                 2.      1993 to 2001:       State employment 

                 Shea   obtained   a   job   with   the   State   of   Alaska   in   1993   as   an   eligibility 

technician      in  the  Department      of   Health    and   Social   Services'    Division     of  Public 

Assistance. This position required Shea to spend prolonged periods of time sitting at her 

desk.  Around 1995 to 1996 Shea began experiencing increased achiness in her right leg, 

hip, and foot, but the pain was not constant and it was no more frequent than before her 

state employment. 

                 During 1997 and 1998 Shea's pain increased in severity and consistency. 

She began propping up her feet and using a pillow on her chair at work.  Shea's primary 

care   physician,   Dr.   Alexander   Baskous,   referred   Shea   to   Dr.   Shirley   Fraser   for   a 

neurological evaluation.  Shea told Dr. Fraser that her pain had increased and that "if she 

takes part in physical activity, the leg gets worse and often will get worse in mid-period 

and sometimes during her menstrual cycle." 

                 Shea      was    examined       by   Dr.    Declan      Nolan,     an   orthopedist,      in 

November 1998.         Shea told Dr. Nolan that "[s]he [was] still reasonably functional but 

the pain bothers her a lot and limits her activities moderately."                 Dr. Nolan noted that 

"[t]he pain seems to have no significant aggravating or alleviating factors." 

                 Shea   traveled   to   the   Scripps   Clinic   in   California   in   July   1999   to   see 

Drs. Peter Sacks and Gary Williams.               Dr. Sacks noted that Shea's symptoms "ha[ve] 

become   progressively         worse   over   the   years."    Dr.   Williams   diagnosed   Shea   with 
"trochanteric bursitis."1 

        1        "Trochanteric bursitis" refers to "chronic, intermittent pain accompanied 

by tenderness" in the hip. Brian Williams and Steven Cohen, Greater Trochanteric Pain 
Syndrome:       A   Review   of   Anatomy,   Diagnosis,   and   Treatment,   108   ANESTHESIA             & 
A  N  A  L  G  E S  I A      1  6  6  2       (  M  a  y     2  0  0  9  )  ,  a  v  a  i  l  a  b  l  e  a  t 
http://www.anesthesia-analgesia.org/content/108/5/1662.full. 

                                                    - 3 -                                             6629
 

----------------------- Page 4-----------------------

                Dr. Baskous referred Shea to Dr. Leon Chandler, a pain specialist at A.A. 

Pain Clinic in Anchorage, in September 1999.               The record does not show that Shea 

specifically mentioned her work environment as an aggravating factor, but she checked 

boxes on a pre-examination questionnaire to indicate that the following increased her 

pain:   cold, damp, weather changes, massage, pressure, movement, sleep/rest, sitting, 

standing, bowel movements, tension, and fatigue. She also checked boxes indicating that 

heat, sleep, lying down, and distractions decreased her pain. 

                In January 2000 Shea went to work as an "Eligibility Technician II" in the 

Fraud Control Unit of the Division of Public Assistance.               This position also required 

Shea to sit at her desk for prolonged periods. 

                October 2000 records from Dr. Chandler's office show that an aggravating 

factor for Shea's pain was "sitting" and that relieving factors included pillows, heat, and 

walking.    In December 2000 Shea saw Dr. Jon Slocumb, a pelvic pain specialist at the 

University of Colorado.        Dr. Slocumb diagnosed Shea with ilioinguinal neuralgia and 

recommended nerve block treatments. 

                Shea   notified   the   State   of   her   need   to   take   medical   leave   to   explore 

treatment options in July 2001.         A few weeks later, Dr. Dale Trombley completed a 

physician's statement for the Division of Retirement and Benefits on Shea's behalf.  He 

explained that "prolonged sitting or standing causes [Shea's] pain to increase."                  Shea 

filed an application for Public Employees' Retirement System (PERS) disability benefits 

on August 22, indicating on the form that she was only applying for "Nonoccupational 
Disability Benefits."2     Under "Cause of disability," Shea wrote:           "The nerve damage is 

        2       Eligibility for occupational disability benefits requires a state employee to 

(1) suffer a work-related injury or illness; (2) be permanently disabled as a result; and 
(3)   terminate   employment   because   of   the   disability.      AS   39.35.680   (27)   (defining 
                                                                                        (continued...) 

                                                  - 4 -                                             6629 

----------------------- Page 5-----------------------

believed to be from surgery 11-15-84 and Trochanteric bursitis from nerve damage of 

the Ilioinguinal Neuralgia." 

                 Shea    met   with   Dr.   Joella   Beard   in  October     2001    to  get  a  disability 

evaluation for an impairment rating.           Dr. Beard, a specialist in physical medicine and 

rehabilitation, noted that the "things that make [Shea's] pain worse are sitting, standing, 

walking, exercise, bending forward or backwards, cold and stairs.  Things that reduce the 

pain are lying down, pain pills, heat.   She does feel the pain is getting worse as she gets 

older." 

                 Shea     exhausted      her   Family     and    Medical     Leave     Act    benefits    in 

October 2001 and her Alaska Family Leave Act benefits in November 2001, but she was 

still   unable   to   return   to   work   due   to   pain. Shea   was   notified   that   she   was   being 

"separated" from her job with the State in December 2001 because of her "inability to 

return to work." 

                 3.      2002 to 2005:      Application for disability benefits 

                 On   January   31,   2002,   the   Director   of   the   Division   of   Retirement   and 

Benefits   sent   Shea   a   letter   deferring   her   application   for   nonoccupational   disability 

benefits because the Division's retained expert, Dr. William Cole, opined that there were 

still medical options available to her.          Shea obtained letters from her own physicians 

explaining why Dr. Cole's proposed treatment options were inappropriate for her. 

                 On May 2, 2002, Shea was seen by a new physician, Dr. John Ravits, for 

a neurological consultation.   Dr. Ravits recorded Shea's pain triggers much as her other 

(...continued)
 
"occupational disability"); AS 39.35.410.            Nonoccupational disability benefits require
 
the same showing, except the injury or illness does not need arise from employment.
 
AS 39.35.400; AS 39.35.680 (24) (defining "nonoccupational disability").
 

                                                   - 5 -                                               6629 

----------------------- Page 6-----------------------

care providers described them.3        He concluded that her neurological examination results 

were normal and that Shea should focus her attention on chronic pain management and 

rehabilitation. 

                Shea's counsel sent a letter to the Division of Retirement and Benefits in 

November       2002    requesting    that  it  amend   her   application    to  include   occupational 

disability    benefits   in  addition    to  nonoccupational      disability   benefits.    The    letter 

explained:     "[O]ur research indicates that [Shea's] pre-existing condition was likely 

aggravated by her working conditions and environment." 

                The Director of the Division of Retirement and Benefits granted Shea's 

claim for nonoccupational disability benefits on March 21, 2003, but the Director denied 

her claim for occupational disability benefits.          This decision was based on Dr. Cole's 

recommendation, which summarized Shea's doctors' reports and concluded that "[t]here 
is not evidence from the record that the pain was caused by her occupation."4 

                On   August   22,   2003   Shea   sought   a   medical   opinion   from   Dr.   Michael 

Gevaert     on   whether    her   pain  was    caused   by   her  work    for  the  State   of  Alaska. 

Dr. Gevaert's records show that Shea reported that her pain "is worse with standing and 

prolonged sitting. Sitting with a good posture, stress, physical activity, bathing, [lifting], 

squatting,   cold   environment,   menstrual   cycles,   and   sitting   without   her   legs   elevated 

        3       Dr. Ravits reported that "[Shea's pain] gets worse with standing, sitting, 

stress, and during menses.  It improves with medications, lying down, taking a hot bath, 
and getting on her side in the fetal position. . . . She thinks it is worsening in intensity of 
symptoms." 

        4       Shea also applied for Social Security disability benefits and was initially 

denied.    Her   nonoccupational   disability   benefits   were   terminated   as   a   result.   Shea 
subsequently won her Social Security disability benefits appeal and her nonoccupational 
disability benefits were reinstated. 

                                                  - 6 -                                           6629
 

----------------------- Page 7-----------------------

aggravates her pain."  Asked whether Shea's state employment substantially aggravated 

her condition, Dr. Gevaert responded: 

                It is my understanding that chronic pelvic pain is aggravated 
                by sitting.   Her present condition is a chronic irritation of the 
                nerve.   Sitting at work or at the home may increase the pain 
                and    .  .  .  substantially    aggravate     the  pathophysiologic 
                condition. 

                        It is therefore my opinion after careful review of the 
                medical records, obtaining a history from the patient and a 
                clinic   examination   that   her   present   condition   is   not   work- 
                related.    Her     work    did  not   substantially    aggravate    her 
                condition. 

Shea challenged a number of the statements in Gevaert's report as factually inaccurate. 

                Shea sought another medical opinion on causation from Dr. Michael Smith 

on February 11, 2004.        In describing the history of Shea's condition, Dr. Smith wrote 

that Shea "had pain almost all the time.   She began having trouble with her menses.  She 

missed two days of work every time she menstruated as the pain was intolerable.  She 

also described worsening of her pain due to sitting while working." Dr. Smith concluded 

that Shea should "avoid repetitive or prolonged bending and twisting.                 Squatting, stair 

climbing, and especially sitting for extended periods increase the symptoms and should 

be restricted." 

                Shea next sought an opinion on causation from Dr. Paul Blocher, who was 

qualified as an expert in general medicine.  Dr. Blocher evaluated whether Shea's work 

substantially aggravated her condition, but he did not independently examine her because 

he was not licensed to do so in Alaska.          Instead, Dr. Blocher's conclusions were based 

exclusively on his conversations with Shea and his review of Shea's medical records. 

Dr. Blocher's opinion was that Shea's "employment with the State from 1993 through 

                                                  - 7 -                                           6629
 

----------------------- Page 8-----------------------

2001 exacerbated her pre-existing condition" and that Shea's state employment was "the 

only plausible medical etiology of [her] disease." 

                In   August   2005,   at   the   Division   of   Retirement   and   Benefits'   request, 

Dr. William Cole reviewed all the information in Shea's medical record, including the 

opinions and medical reports Shea had obtained since Dr. Cole's opinion in March 2003. 

After considering this information, Dr. Cole maintained his opinion that "there is not a 

substantial presentation of an argument to support [Shea's] claim that her job activities 

were [a] significant contributing factor to this condition, no more than the rest of the 

activities of daily living of her life were."      As a result, the Division affirmed its denial 

of Shea's claim for occupational disability benefits. 

                Shea appealed to the Office of Administrative Hearings. 

        B.      Proceedings 

                1.      The administrative proceedings 

                The ALJ assigned to Shea's case, Andrew Hemenway, conducted a hearing 

on Shea's claim in March 2006.            The sole issue was causation, i.e., whether Shea's 

employment was a substantial factor in causing her disabling pain.  Shea called three lay 

witnesses to testify on her behalf:       her husband, her former boss, and herself.          She also 

called two expert witnesses:         Drs. Smith and Blocher.          The State called one expert: 

Dr. Beard. 

                The ALJ issued his decision on May 21, 2007, affirming the denial   of 

Shea's application for occupational disability benefits. The ALJ evaluated the credibility 
and persuasiveness of the four doctors who gave "clear" opinions5 on whether Shea's 

        5       The ALJ recognized that Dr. Gevaert also expressed an opinion on this 

issue, but the ALJ found that "it is unclear what [Dr. Gevaert] meant to say." 

                                                 - 8 -                                             6629 

----------------------- Page 9-----------------------

employment aggravated her condition: Drs. Cole, Blocher, Beard, and Smith.6                      Looking 

"only to the basis for their opinions, rather than to the substance," the ALJ gave greatest 

weight to the opinions of Dr. Smith and Dr. Beard.               The ALJ explained: 

                 Dr. Cole's and Dr. Blocher's opinions were less persuasive 
                 than   the   opinions    of   Dr.  Smith    and   Dr.  Beard:    neither 
                 Dr. Cole nor Dr. Blocher had examined Ms. Shea, neither had 
                 special    expertise    beyond     their   general    medical     training 
                 relevant to Ms. Shea's condition and symptoms, neither was 
                 shown   to   have   had   substantial   recent   experience   in   direct 
                 patient   care,   and   both   were   retained   by   the   party   offering 
                 their   testimony      for  the   purpose     of   this  administrative 
                 proceeding. 

                 The ALJ then evaluated the opinions of Drs. Beard and Smith.                     The ALJ 

noted   that   Dr.   Beard's   opinion   was   that   Shea's   employment   did   not   aggravate   her 

condition,   but   the    ALJ    discounted     this  testimony     because    it   did  "not   appear  that 

Dr. Beard applied the [correct] legal standard."             Dr. Beard's conclusion appeared to be 

based on a belief that sitting had to aggravate the underlying condition; but, as the ALJ 

recognized, "for purposes of occupational disability benefits an 'aggravation' includes 
increased pain, even if there is no change in the underlying physical condition."7 

                 Dr. Smith's testimony, on the other hand, supported the conclusion that 

prolonged sitting aggravated Shea's pain, even if there was no change in the underlying 

condition.      As    a  result,   the  ALJ   concluded     that   the  preponderance       of  the  "more 

persuasive   medical   opinion   testimony"   supported            the   finding   that   Shea's   working 

conditions contributed to her disabling pain.              But the ALJ also noted that Dr. Smith 

testified that prolonged sitting only aggravated Shea's symptoms by five to ten percent, 

        6        Drs. Smith, Beard, and Blocher testified at the hearing.              Dr. Cole did not 

testify, but the ALJ still considered his opinion based on Dr. Cole's written reports. 

        7        Hester v. State, Pub. Emps.' Ret. Bd., 817 P.2d 472, 476 n.7 (Alaska 1991). 

                                                   - 9 -                                                6629 

----------------------- Page 10-----------------------

and the ALJ concluded:         "[I]t is not inherently unreasonable to conclude that 5 to 10 

percent is not a substantial proportion of a whole."           On this basis, the ALJ decided that 

the medical testimony did not establish that Shea's employment was a substantial factor 

in causing her disabling pain. 

                The ALJ also evaluated the non-medical testimony. First, the ALJ observed 

that the evidence showed Shea's symptoms substantially worsened during the time she 

was employed by the State, but that "Ms. Shea herself . . . has described her chronic pain 

syndrome as a progressive condition that became increasingly problematic over time as 

a result of the ordinary activities of daily life, such as sitting, standing and walking." 

Second, the ALJ emphasized that Shea's "own reports of pain during her first five years 

of [state] employment were no more frequent than they had been previously," and that 

Shea "did not tell a doctor that sitting was triggering pain until 1999, and she mentioned 

sitting only intermittently after that until her claim for occupational disability benefits 

had   been   denied."     The   ALJ   observed:      "If   prolonged   sitting   at   the   office   was   a 

substantial factor in her chronic pain syndrome, it is reasonable to expect that Ms. Shea 

would have told at least one of her doctors that prolonged sitting was a trigger for her 

pain   at   some   point   prior   to   1999   and   would   regularly   have   reported   sitting   as   an 

aggravating factor . . . before she quit working in 2001." 

                The ALJ concluded that Shea did not prove by a preponderance of the 

evidence that her employment was a substantial factor in her disability because "many 

of the ordinary activities of everyday life were pain triggers, and . . . if sitting at work 

was an 'aggravating factor,' it was no more or less so than anything else Ms. Shea was 

doing during the period of her employment." 

                                                 - 10 -                                            6629
 

----------------------- Page 11-----------------------

                2.      Appeal to the superior court 

                Shea   appealed   the   ALJ's   decision   to   the   superior   court,   where   it   was 
affirmed.8   The superior court observed that "[w]hile Shea correctly cites the fact that this 

court cannot reweigh the evidence or choose between competing theories, that is exactly 

what she is asking this court to do."         The superior court also explained that the ALJ's 

reference to Dr. Smith's five to ten percent estimate "does not mean that [the ALJ] was 

substituting the legal standard[,] it just shows that he used the 5-10% as one component 

in his analysis."    According to the superior court, the other factors the ALJ considered 

included:    (1) that Shea had been treated by doctors for many years before mentioning 

that sitting at work increased her pain; (2) that Shea only identified her employment as 

a specific cause of her pain after her claim for occupational disability benefits had been 

denied;   and   (3)   that   many   activities   and   circumstances   unrelated   to   her   work   also 

aggravated her condition. 

                Shea appeals. 

III.    STANDARD OF REVIEW 

                When the superior court is acting as an intermediate court of appeal in an 

administrative      matter,    we    independently      review    the   merits    of  the   agency     or 
administrative board's decision.9        We review an administrative board's factual findings 

"to determine whether they are supported by substantial evidence," which is defined as 

"such relevant evidence as a reasonable mind might accept as adequate to support the 

        8       Shea's appeal to the superior court was initially rejected as untimely.  We 

ruled that Shea's attorney had good cause for the delay and remanded the matter to the 
superior   court   to   hear   the   appeal. Shea   v.   State,   Dep't   of   Admin.,   Div.   of   Ret.   and 
Benefits, 204 P.3d 1023, 1025 (Alaska 2009). 

        9       See Hester, 817 P.2d at 474 (citing Tesoro Alaska Petroleum Co. v. Kenai 

Pipe Line Co., 746 P.2d 896, 903 (Alaska 1987)). 

                                                 - 11 -                                           6629
 

----------------------- Page 12-----------------------

Board's conclusion."10       "We determine only whether such evidence exists and do not 

choose   between   competing   inferences   or   evaluate   the   strength   of   the   evidence.     In 

determining   whether   evidence   is   substantial,   however,   we   must   take   into      account 
whatever in the record fairly detracts from its weight."11 

                The conclusion that a work-related injury or hazard is not a substantial 
factor in causing an employee's disability must be supported by substantial evidence.12 

It is a legal question whether the quantum of evidence is substantial enough to support 
such a conclusion in the contemplation of a reasonable mind.13 

IV.     DISCUSSION 

        A.      The Standard For Occupational Disability Benefits 

                1.      The statutory requirements for occupational disability benefits 

                Alaska Statute 39.35.410(a) provides:           "An employee is eligible for an 

occupational   disability   benefit   if   employment   is   terminated   because   of   a   total   and 

apparently permanent occupational disability . . . ." Alaska Statute 39.35.680(27) defines 

the term "occupational disability" as: 

                [A] physical or mental condition that, in the judgment of the 
                administrator, presumably permanently prevents an employee 
                from satisfactorily performing the employee's usual duties 
                for an employer or the duties of another comparable position 
                or job that an employer makes available and for which the 

        10      Lopez v. Adm'r, Pub. Emps.' Ret. Sys., 20 P.3d 568, 570 (Alaska 2001) 

(citing Hester, 817 P.2d at 476). 

        11      Id. (internal quotation marks and citations omitted). 

        12      Id. at 571. 

        13      Municipality of Anchorage, Police & Fire Ret. Bd. v. Coffey, 893 P.2d 722, 

726 (Alaska 1995) (citing Land & Marine Rental Co. v. Rawls, 686 P.2d 1187, 1188-89 
(Alaska 1984)). 

                                                - 12 -                                           6629
 

----------------------- Page 13-----------------------

                employee is qualified by training or education; however, the 
                proximate   cause   of   the   condition   must   be   a   bodily   injury 
                sustained, or a hazard undergone, while in the performance 
                and within the scope of the employee's duties and not the 
                proximate result of the wilful negligence of the employee. 

                "Occupational disability benefits . . . serve a distinct function and are not 
intended   to   replicate   the   protection   given   by   the   workers'   compensation   system."14 

Therefore, unlike the presumption of compensability in workers' compensation cases, 

an employee claiming occupational disability benefits bears the burden of proving by a 

"preponderance of the evidence that the disability was proximately caused by an injury 
which occurred in the course of employment."15 

                "If one or more possible causes of a disability are occupational, benefits 

will be awarded where the record establishes that the occupational injury is a substantial 

factor in the employee's disability regardless of whether a nonoccupational injury could 
independently have caused disability."16          The underlying injury need not be caused by 

the employment to receive occupational disability benefits.  We have explained that "[i]t 

is basic that an accident which produces injury by precipitating the development of a 
latent condition or by aggravating a preexisting condition is a cause of that injury."17 

This is because "increased pain or other symptoms can be as disabling as deterioration 
of the underlying disease itself."18 

        14      State, Pub. Emps. Ret. Bd. v. Cacioppo, 813 P.2d 679, 682 (Alaska 1991).
 

        15      Id. at 682-83.
 

        16
     Id. at 683. 

        17       Hester v. State, Pub. Emps.' Ret. Bd., 817 P.2d 472, 475 (Alaska 1991). 

        18      Id. at 476 n.7 (emphasis added) ("[W]e reject the distinction . . . between 

                                                                                         (continued...) 

                                                 - 13 -                                            6629
 

----------------------- Page 14-----------------------

                         2.      The substantial factor causation standard 

                 The    ALJ    concluded      that  Shea    established    sitting  contributed     to  her 

disabling pain, but that she did not prove her employment was a substantial factor in 

causing   this   disability.   There   were   two   reasons   for   this   conclusion:    (1)   Dr.   Smith 

testified that sitting only aggravated her condition by five to ten percent; and (2) sitting 

did not contribute to her pain any more or less than her other activities of daily life.  Shea 

argues the ALJ used the wrong legal threshold to determine that prolonged sitting was 

not a substantial factor in causing her disability.             She claims she   met the burden of 

proving that her employment was a substantial factor simply by "demonstrating that 

prolonged sitting at work aggravated her symptoms." 

                 One    of   the  primary    issues    in  this  case   is  whether    the  definition    of 

"substantial factor" requires Shea's employment to have been the substantial cause of her 

injury - i.e., the sole or predominant cause - or whether it must only have been a 

substantial   cause   of   her   injury.   We   have   previously   adopted   the   substantial   factor 

causation standard in occupational disability benefits cases, but we have not yet had the 

occasion to define the term "substantial factor" for purposes of these cases.                   We have 

defined the term in more detail in other contexts, such as negligence claims and workers' 

compensation   cases   and   we   look   to   these   other   contexts   to   guide   our   definition   of 

"substantial factor" here. 

                                 i.	     Employment need only be a substantial factor in 
                                         causing the disability, not the substantial factor. 

                 We first had the opportunity to define "substantial factor" in the realm of 

tort   law.  For   example,   the   passenger-plaintiff   in  State   v.   Abbott  was   harmed   in   an 

(...continued)
 
worsening   of   the   underlying   disease   process   and   worsening   of   the   symptoms   of   a
 
disease.").
 

                                                  - 14 -	                                              6629 

----------------------- Page 15-----------------------

automobile accident and sued the State claiming that it had been negligent in the design, 

construction, and maintenance of the road and in failing to post signs warning of the 
hazardous condition of a curve.19           The State claimed the automobile driver had been 

negligent, and therefore the road maintenance was not a proximate cause of plaintiff's 
injury.20   In rejecting the State's argument, we adopted the definition of "substantial 

factor" from the Restatement (Second) of Torts.              It provides: 

                 In   order   that  a  negligent    actor   may    be   liable  for  harm 
                resulting to another from his conduct, it is only necessary that 
                 it be a legal cause of the harm.       It is not necessary that it be 
                 the cause, using the word "the" as meaning the sole and even 
                 the predominant cause.         The wrongful conduct of a number 
                 of third persons may also be a cause of the harm, so that such 
                 third   persons   may   be   liable   for   it,   concurrently   with   the 
                 actor.[21] 

We further explained that "it [is] proper to find that a defendant's negligent conduct was 

the 'legal cause' of plaintiff's injury if the negligent act 'was more likely than not a 
substantial factor in bringing about (plaintiff's) injury.' "22           In other words, the actor's 

conduct need not be "the" legal cause of an injury for liability to attach to the actor; it is 
only   necessary   that   the   actor's   conduct   be   "a"   legal   cause.23   Because   the   State's 

        19       498 P.2d 712, 726 (Alaska 1972). 

        20      Id. at 726-27. 

        21      Id. at 727 (citing RESTATEMENT (SECOND) OF TORTS   430, cmt. d at 428 

(1965) (emphasis added)). 

        22      See id. at 726 (quoting City of Fairbanks v. Nesbett, 432 P.2d 607, 610-11 

(Alaska 1967)). 

        23      See id. (citing Nesbett, 432 P.2d at 610-11). 

                                                  - 15 -                                             6629
 

----------------------- Page 16-----------------------

negligence was a proximate cause of the accident, we concluded in Abbott that the State 
could be liable, regardless of the driver's negligence.24 

                 We have adopted this same definition of "substantial factor" in workers' 
compensation cases.25        Our initial use of the "substantial factor" causation standard in 

workers' compensation cases arose from the need to define which employer should be 

responsible for an employee's injury when an injury becomes progressively worse over 

a series of jobs.      To make this determination, we adopted the "last injurious exposure 

rule," which "imposes full liability on the employer at the time of the most recent injury 
that    bears    a   causal    relation    to   the    disability."26     This      rule   requires     two 

        24      Id. at 727-28. 

        25      See, e.g., Thurston v. Guys With Tools, Ltd., 217 P.3d 824, 828 (Alaska 

2009); Doyon Universal Servs. v. Allen, 999 P.2d 764, 770 (Alaska 2000); Fairbanks N. 
Star Borough v. Rogers & Babler, 747 P.2d 528, 532 (Alaska 1987) (citing Abbott, 498 
P.2d at 726-27). 

        26      Ketchikan Gateway Borough v. Saling, 604 P.2d 590, 595 (Alaska 1979) 

(citing   4   A.   Larson,  The   Law   of   Workmen's   Compensation     95.12   (1979)).            Our 
decision today should not be read as an adoption of the last injurious exposure rule for 
occupational disability benefits cases.          In State, Pub. Empls. Ret. Bd. v. Cacioppo we 
expressly rejected such an application of that rule, explaining: 

                 The [trial] court's emphasis on the event nearest in time to the 
                 disability is misplaced.        If this test were applied, once the 
                 employee met the minimal requirement of establishing that 
                 the   injury   occurred   during   the   course   of   employment,   the 
                burden      would    be   effectively   shifted    to  the  employer     to 
                 establish   that   the   more   remote   occurrence   was   in   fact   the 
                 cause of the employee's injury.  Thus, a presumption similar 
                 to  the   last   injurious  exposure     rule  would    be   created   for 
                 occupational disability claims. 

813 P.2d 679, 683 n.4 (Alaska 1991).             We cite to the last injurious exposure rule here 
                                                                                           (continued...) 

                                                  - 16 -                                             6629
 

----------------------- Page 17-----------------------

determinations:     "(1) whether employment with the subsequent employer 'aggravated, 

accelerated, or combined   with' a pre-existing   condition; and, if so, (2) whether   the 

aggravation, acceleration or combination was a 'legal cause' of [the] disability, i.e., 'a 
substantial factor in bringing about the harm.' "27       In Ketchikan Gateway Borough v. 

Saling, the Borough argued that we should limit application of the last injurious exposure 

rule to cases where "the last injurious exposure is the 'substantial cause' in producing 
disability."28  We rejected that position and explained that liability should be imposed 

whenever "employment is established as a causal factor in the disability. . . . [A] causal 

factor is not a legal cause of the injury unless it is a substantial factor in bringing about 
the harm."29   We concluded that the employee "need only have shown that employment 

with the [B]orough was a legal cause of his disability," not the legal cause.30        We later 

elaborated on this definition in Fairbanks North Star Borough v. Rogers and Babler and 

held that an employment-related "act, omission, or force" will not be a substantial factor 

unless "reasonable persons would regard this act, omission, or force as a cause and attach 
responsibility to it."31 

               In State, Public Employees Retirement Board v. Cacioppo, we explained 

that   "workers'   compensation     and  occupational    disability  benefits  claims  draw   on 

(...continued)
 
solely to help explain our definition of "substantial factor."
 

       27      United Asphalt Paving v. Smith, 660 P.2d 445, 447 (Alaska 1983) (quoting 

Saling, 604 P.2d at 590). 

       28      604 P.2d at 597. 

       29      Id. at 597-98. 

       30      Id. at 598 (emphasis added). 

       31      747 P.2d 528, 532 (Alaska 1987). 

                                             - 17 -                                        6629
 

----------------------- Page 18-----------------------

common principles and raise similar issues," and we incorporated the "substantial factor" 
causation standard into our occupational disability benefits jurisprudence.32           We clarify 

here that the same definition of "substantial factor" applies in the occupational disability 
context;33 Shea must show that prolonged sitting at work was  a substantial factor in 

causing her disability, such that reasonable persons would recognize the employment as 

a legal cause of her injury. 

                               ii.	    The "substantial factor" test requires both actual 
                                       and proximate cause. 

                The fact that multiple causes contribute to an injury does not automatically 

preclude   recovery.     The   substantial   factor   test   requires   a   claimant   to   demonstrate 

that:  "(1) the disability would not have happened 'but for' an injury sustained in the 

course and scope of employment; and (2) reasonable persons would regard the injury as 

        32	     813 P.2d 679, 683 (Alaska 1991). 

        33     In   2005    the  legislature  amended     the  causation    standard   in  workers' 

compensation cases from "a substantial factor" to "the substantial cause."  See ch. 10,  
9, FSSLA 2005, codified at AS 23.30.010(a); see also Rivera v. Wal-Mart Stores, Inc., 
247 P.3d 957, 959 n.2 (Alaska 2011) (citing Pietro v. UNOCAL Corp., 233 P.3d 604, 
616 n.31 (Alaska 2010)).         That amendment does not change our analysis here.  The 
legislature did not amend the occupational disability statute to require employment to be 
"the substantial cause," even though we previously adopted the substantial factor test for 
occupational disability cases.      Compare AS 23.30.010 (workers' compensation) with 
AS 39.35.410 and AS 39.35.680(27) (occupational disability benefits).  We assume the 
legislature is aware of the common law when it passes legislation.  See Young v. Embley, 
143 P.3d 936, 945 (Alaska 2006).           Further, the State does not argue that the amended 
causation standard applies here; it asserts that Shea did not prove prolonged sitting at 
work was a substantial factor in causing her disability. 

                                               - 18 -	                                        6629
 

----------------------- Page 19-----------------------

a cause of the disability and attach responsibility to it."34       The first element is commonly 

referred to as "cause-in-fact" and the second as "proximate cause."35 

                The    cause-in-fact     or  "but-for"   test  only   requires   a  showing     that  the 

plaintiff's damages would not have been incurred "but for" the complained-of conduct, 
in   this   case   the   conditions   of   Shea's   employment.36  But   not   every   cause   results   in 

liability or the award of benefits.        "Once it has been established that the defendant's 

conduct has in fact been one of the causes of the plaintiff's injury, there remains the 
question whether the defendant should be legally responsible for the injury."37  To satisfy 

the substantial factor requirement, a claimant must prove that her employment was "so 

important in bringing about the injury that reasonable [persons] would regard it as a 
cause and attach responsibility to it."38       We have described this requirement as asking 

"whether the conduct has been so significant and important a cause that the defendant 
should be legally responsible."39 

        34      Doyon Universal Servs. v. Allen, 999 P.2d 764, 770 (Alaska 2000) (internal 

citations omitted); see also Thurston v. Guys With Tools,Ltd ., 217 P.3d 824, 828 (Alaska 
2009). 

        35      Rogers & Babler, 747 P.2d at 532. 

        36      Id. at 533. 

        37      W. KEETON,D. DOBBS,R. KEETON,& D. OWEN, PROSSER AND KEETON ON 

THE LAW OF TORTS   42, at 272-73 (5th ed. 1984). 

        38      See Vincent by Staton v. Fairbanks Mem'l Hosp., 862 P.2d 847, 851-52 

(Alaska 1993) (quoting State v. Abbott, 498 P.2d 712, 727 (Alaska 1972)). 

        39      Id. at 851. 

                                                 - 19 -                                           6629
 

----------------------- Page 20-----------------------

        B.	      The ALJ's Decision 

                 The ALJ concluded that Shea did not prove that prolonged sitting at work 

was   a   substantial   factor   in   causing   her   disability. Several   doctors   offered   opinions 

regarding whether the prolonged periods Shea spent sitting were a substantial factor in 

causing her chronic pain, but the ALJ found three of those opinions unpersuasive and 

concluded that the fourth doctor, Dr. Smith, merely testified that prolonged sitting could 

aggravate Shea's symptoms.   This description of Dr. Smith's testimony is not supported 

by the record. 

                 1.	     The ALJ's description of Dr. Smith's testimony is not supported 
                         by substantial evidence. 

                 The ALJ considered the opinions of the four doctors who clearly articulated 

whether prolonged periods of sitting while employed by the State were a substantial 

factor in causing Shea's disabling chronic pain:  Drs. Blocher, Cole, Beard, and Smith. 

The ALJ found the opinions of Drs. Blocher and Cole less persuasive because neither 

had examined Shea, neither had special expertise beyond their general medical training 

relevant to Shea's condition and symptoms, neither was shown to have had substantial 

recent experience in direct patient care, both were retained by the party offering their 

testimony   for   the    purpose   of   the   administrative   hearing,   and   both   had   incorrectly 

characterized      other   doctors'    opinions    in  their  reports.    The    ALJ    also   discounted 

Dr. Beard's testimony because: 

                 [It did] not appear that Dr. Beard applied the legal standard 
                 that   applies   in   occupational   disability   benefit   cases.    She 
                 defined an 'aggravation' as a 'permanent worsening or flare 
                 [up]'   of   the   underlying   physical   condition.    However,   for 
                purposes of occupational disability benefits, an 'aggravation' 
                 includes   increased   pain,   even   if   there   is   no   change   in   the 
                underlying physical condition. 

                                                  - 20 -	                                            6629
 

----------------------- Page 21-----------------------

The   ALJ   considered   that   Dr.   Smith   had   personally   examined   Shea,   had   experience 

treating patients with similar conditions, believed that Shea's consultation was not just 

for use in the proceeding, and applied the correct legal standard. The ALJ concluded that 

Dr. Smith's opinion "supports the conclusion that for an individual with a pre-existing 

ilioinguinal     neuralgia,    prolonged     sitting   could   increase    the   level  of  pain   for   that 

individual, even if there was no change in the underlying [condition]."                      But the ALJ 

continued:   "Dr. Smith's opinion, while persuasive as an expression of medical opinion, 

offers   only   limited   support   for   the   claim   that   [Shea's]   working   conditions   were   a 

substantial   factor   in   her   disability:   Dr.   Smith   testified   that   prolonged   sitting   could 

aggravate her symptoms, but only by 5 to 10 percent." 

                 On appeal we do not re-weigh the evidence or choose between competing 

inferences, but we do analyze the record in its entirety to ensure that the ALJ's factual 
findings   are   supported   by   substantial   evidence.40       Here,   the   ALJ's   conclusion   that 

        40       See Lopez v. Adm'r, Pub. Emps.' Ret. Syst., 20 P.3d 568,   570   (Alaska 

2001).   On the surface, there appears to be tension between the principle that we do not 
re-weigh      the   evidence   on   appeal   and   our   duty   to   determine   whether   findings   are 
supported   by   substantial   evidence,   but   the   two   standards   are   reconcilable.       As   one 
leading administrative law treatise explains, although the substantial evidence test is 
highly deferential, the test "precludes affirmance of an agency finding in the extreme 
case where the evidence that detracts from the finding is dramatically disproportionate 
to the evidence that supports the finding, e.g., a finding based on the testimony of one 
obviously   biased   witness   that   is   contradicted   by   the   testimony   of   multiple   unbiased 
witnesses   or   powerful   documentary   or   circumstantial   evidence."            RICHARD      PIERCE, 
ADMINISTRATIVE LAW  TREATISE 979-80 (Wolters Kluwer Law & Bus., 5th ed. 2010). 

                 The United States Supreme Court has also explained how to reconcile the 
apparent tension between the two standards: 

                 To    be  sure,   the   requirement     for   canvassing     "the   whole 
                 record" in order to ascertain substantiality does not furnish a 
                 calculus of value by which a reviewing court can assess the 
                                                                                           (continued...) 

                                                   - 21 -                                             6629
 

----------------------- Page 22-----------------------

"Dr. Smith testified that prolonged sitting could aggravate [Shea's] symptoms" is not 

supported by the record.         Dr. Smith actually testified that it was "more likely than not" 

that Shea's disability was aggravated by prolonged sitting at work.                  He defined "more 

likely than not" as 51 percent.          In other words, Dr. Smith testified that the evidence 

showed prolonged sitting at work likely did aggravate Shea's condition, not that it could 

have.    The   summary   of   Dr.   Smith's   testimony   in   the   administrative   decision   is   not 

supported by the record. 

                 2.	     The     ALJ     must     reevaluate      the    evidence     in   light   of   the 
                         "substantial factor" causation standard. 

                 Shea     claims    she   met   her   burden     of  proving     causation     simply    by 

demonstrating that employment aggravated her chronic pain.                     She argues that "[t]he 

evidence      before   the   ALJ   proved     that  the  demands      of  [her]   work    materially    and 

substantially aggravated her condition."   And she emphasizes the ALJ's statement that, 

"It   is   clear   from   the   testimony   and   the   medical   records   that   Ms.   Shea's   symptoms 

(...continued) 
                 evidence. . . . Nor does it mean that even as to matters not 
                requiring expertise a court may displace the Board's choice 
                between two fairly conflicting views, even though the court 
                would justifiably have made a different choice had the matter 
                been before it de novo. [But under the substantial evidence 
                 test,]   a   reviewing   court   is   not   barred   from   setting   aside   a 
                 Board decision when it cannot conscientiously find that the 
                 evidence supporting that decision is substantial, when viewed 
                 in the light that the record in its entirety furnishes, including 
                 the body of evidence opposed to the Board's view. 

Universal Camera Corp. v. Nat'l Labor Relations Bd., 340 U.S. 474, 488 (1951).  The 
substantial evidence test is highly deferential, but we still review the entire record to 
ensure   that   the   evidence  detracting   from   the   agency's   decision   is   not  dramatically 
disproportionate to the evidence supporting it such that we cannot "conscientiously" find 
the evidence supporting the decision to be "substantial." 

                                                  - 22 -	                                            6629
 

----------------------- Page 23-----------------------

substantially worsened during the time that she was employed by the [S]tate."  Although 

the ALJ found that Shea's pain worsened during the time she was employed by the State, 

it does not necessarily follow that her employment was the cause. Shea's pain may have 

worsened over this period for a variety of reasons, such as new or increased activities 

outside of her job or as the natural progression of her underlying condition.                   Shea's 

conclusion regarding causation does not follow from the mere fact that her condition 

worsened.     The State argues that prolonged sitting was not a substantial factor because 

"sitting at work was no more of an aggravating factor" than any of the other activities of 

her everyday life. 

                The ALJ found: 

                Ms. Shea did not tell a doctor that sitting was triggering pain 
                until 1999, and she mentioned sitting only intermittently after 
                that until her claim for occupational disability benefits had 
                been    denied.     If  prolonged     sitting   at  the  office  was    a 
                substantial     factor   in  her   chronic    pain   syndrome,      it  is 
                reasonable to expect that Ms. Shea would have told at least 
                one of her doctors that prolonged sitting was a trigger for her 
                pain at some point prior to 1999 and would regularly have 
                reported sitting as an aggravating factor after she began her 
                extensive search for pain relief, before she quit working in 
                2001. 

The ALJ went on to conclude: 

                [Shea]   reported   that   her   pain   was   made   worse   by   sitting, 
                standing, walking, and physical activity generally.           Nothing 
                in that recitation or in the medical records generated before 
                she had to stop working suggests that prolonged sitting at the 
                office was a particular source of pain in comparison to other 
                factors.  To the contrary, the medical records both preceding 
                and following the date of disability indicate that many of the 
                ordinary activities of everyday life were pain triggers, and 
                that if sitting at work was an "aggravating factor," it was no 

                                                 - 23 -                                           6629
 

----------------------- Page 24-----------------------

                 more or less so than anything else Ms. Shea was doing during 
                 the period of her employment. 

                 The ALJ's emphasis on the word "substantial" might suggest that he did 

not find sitting to be a substantial cause, or one to which reasonable people would attach 

responsibility. This is also suggested by the ALJ's conclusion that prolonged sitting was 

"not of particular causal significance with respect to [Shea's] chronic pain syndrome." 

On the other hand, the ALJ's finding that prolonged sitting was "no more or less [of a 

contributor]      than   anything     else   Ms.   Shea    was    doing    during    the   period    of  her 

employment" implies that the ALJ thought Shea was required to show sitting was the 

substantial factor of her disability - meaning more of a contributor than her other daily 

activities.   And the ALJ's conclusion that Dr. Smith's estimated five to ten percent 

contribution "is not a substantial proportion of a whole" could mean the ALJ ruled that 

five to ten percent is not substantial (i.e., reasonable persons would not regard the injury 

as   a   cause   of   the   disability   or   attach   responsibility   to   it), or   it   could   mean   the   ALJ 

required sitting to be more than 51 percent of the total causation before awarding benefits 

(i.e., the substantial factor). 

                 In Alaska, a prolonged work-related factor could contribute to a person's 

disability in equal proportions to her other daily activities and still be considered "a 

substantial factor"; even a five to ten percent contribution could suffice if "reasonable 

persons would regard the injury as a cause of the disability and attach responsibility to 
it."41 

                 Given the ALJ's findings, we must remand this case to the superior court 

with instructions to remand to the ALJ.  The ALJ should reconsider his decision in light 

of the causation standard explained in this opinion and clarify whether Shea's prolonged 

        41       Doyon Universal Servs. v. Allen, 999 P.2d 764, 770 (Alaska 2000). 

                                                   - 24 -                                               6629 

----------------------- Page 25-----------------------

sitting at work was a substantial factor in causing her disability. The ALJ may reevaluate 

the evidence or allow for supplemental evidence and hearings, as he deems necessary. 

V.      CONCLUSION 

               For   the  reasons   above,   we   REVERSE      the  superior   court's  decision 

upholding   the   ALJ's   decision   and   REMAND   for   proceedings   consistent   with   this 

opinion. 

                                             - 25 -                                        6629
 
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