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


Touch N' Go
, the DeskTop In-and-Out Board makes your office run smoother.

 

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Coppe v. Bleicher (2/14/2014) sp-6863

Coppe v. Bleicher (2/14/2014) sp-6863

        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  



MARILYN A. COPPE,                                 )  

                                                  )        Supreme Court No. S-14938  

                         Appellant,               )  

                                                  )        Alaska Workers' Compensation  

        v.                                        )        Appeals Commission No. 11-004  

                                                  )  

MICHAEL BLEICHER, M.D. and                        )        O P I N I O N  

LAURIE BLEICHER, M.D.,                            )  

and LIBERTY NORTHWEST                             )        No. 6863 - February 14, 2014  

INSURANCE COMPANY,                                )  

                                                  )  

                         Appellees.               )  

                                                  )  



                 Appeal  from  the  Alaska  Workers'  Compensation  Appeals  

                 Commission, Laurence Keyes, Commission Chair.  



                 Appearances:      Marilyn   A.   Coppe,   pro   se,   Anchorage,  

                 Appellant.    Randall  J.  Weddle  and  Selena  R.  Hopkins- 

                 Kendall, Holmes Weddle & Barcott, P.C., Anchorage, for  

                 Appellees.  



                 Before:  Fabe, Chief Justice, Winfree, Stowers, Maassen, and  

                                            

                 Bolger, Justices.  



                 FABE, Chief Justice.  



I.      INTRODUCTION  



                 Marilyn Coppe worked in the medical offices of Drs. Michael and Laurie  



Bleicher from 1994 to 2003.  In early 2003, she began to experience respiratory and pain  


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

symptoms, which she attributed to her work environment.  After her work with the  



Bleichers  ended  in  October  2003,  Coppe  sued  them  in  superior  court  for  wrongful  



discharge.  According to Coppe, she became aware during the course of the litigation that       



she could file a claim with the Alaska Workers' Compensation Board for work-related  



medical problems.  She filed a report of injury in August 2005, alleging that she had  



suffered an orthopedic strain from repetitive work.  She also alleged that she suffered  



                                                                           

respiratory symptoms due to her work environment.  After a hearing, the Board denied  



her claim, and the Alaska Workers' Compensation Appeals Commission affirmed the  



                                                                         

Board's decision.  Coppe argues that the Board and Commission made factual and legal  



errors in deciding her case.  We affirm the Commission's decision.  



II.      FACTS AND PROCEEDINGS  



                   Marilyn Coppe worked for Drs. Michael and Laurie Bleicher for almost  



                  

nine years, performing clerical and office work.  During the time she worked for the  



Bleichers, she occasionally strained her back from lifting and experienced some shoulder  



and  arm  pain.    According  to  Coppe,  she  did  not  have  employment-related  health  



insurance, and Dr. Laurie Bleicher treated her for some of her medical problems.  



                                                 

                   In April 2003 Coppe began to experience numerous symptoms, "including  



sore throat, dry mouth, headache, dizziness, and pain in the upper part of her chest."  She  



                                                                                                       

thought that her symptoms were caused by her work environment because the symptoms  



                                                                          

improved when she was not at work.  Coppe saw  a nurse practitioner, who ordered  



                                                                                

testing to rule out other conditions; the nurse practitioner did not give Coppe a definitive  



                                                                                                       

diagnosis, noting a "[p]ossible allergic reaction" related to her workplace.  Coppe visited  



the nurse practitioner again a few weeks later and asked for a note excusing her from  



work while environmental testing was performed.  Coppe was concerned that the testing  



                                                                                           

would cause her symptoms to increase, and the nurse practitioner provided the requested  



note.  



                                                           -2-                                                    6863
  


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

                                                                                                      

                    Coppe also wrote to other occupants of the building to learn if anyone else  



                                                                                                 

was experiencing symptoms like hers.  A few people responded, indicating that they had  



experienced  some  of  the  symptoms  Coppe  listed.    Coppe  asked  her  employers  to  



                                                         

investigate, and Dr. Michael Bleicher wrote the building manager to request that the duct  



system and fluorescent lights be cleaned.  



                    The building owners hired an environmental consultant to conduct indoor  



                                                                       

air quality tests.  The environmental consultant identified two possible areas of concern:  



                                                                                    

"a  possibility  of  decaying  organic  matter  generating  allergenic  bioaerosols  and  the  



potential for inadequate outdoor air being added"  to the indoor air.  The consultant  



                                                                  

suggested modifying the outdoor-air intake to bring in more outside air and cleaning the  



leaves, brush, and other organic material from the area near the air intake.  Monitors  



                                                   

placed in two of the office suites, including the Bleichers' offices, found no evidence of  



harmful levels of carbon monoxide or carbon dioxide.  



                    In July Coppe saw an allergist, who conducted tests and found that Coppe  



had  no  allergies.    Coppe  next  contacted  Alaska  Occupational  Safety  and  Health  



                                                                                                            

(AKOSH), asking it to inspect the office.  She continued to experience symptoms, and  



on October 3, 2003, she saw Dr. Robin Galloway, who diagnosed her with allergic  



                                                                                                          

rhinitis and possible bronchospasm.  The bronchospasm diagnosis was based on a report  



                                                                   

that Coppe sometimes wheezed at work. Dr. Galloway provided Coppe with medication,  



                                                                                                                             

noted that Coppe's symptoms were "consistent with allergies that have developed as a  



                                                                    

consequence of an environmental exposure," and instructed her to come back in a month.  



                                                                                

Coppe then contacted the Bleichers about her work.  According to the Bleichers' notes,  



                                                                                         

they met with Coppe after her appointment with Galloway; Coppe asked them for leave,  



                                                

which they allowed. The notes reflect that Coppe was going to take two weeks of unpaid  



                                   

leave to look for other work and would "let [the Bleichers] know her thoughts" after the  



AKOSH response to her inspection request.  



                                                               -3-                                                         6863
  


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

                    AKOSH informed Coppe by letter on October 7, 2003 that it would not  



                                                                             

inspect  the  Bleichers'  office  because  regulatory  standards  did  not  "address  [her]  



                                                                                                 

complaint item at this time."  Coppe again talked to the Bleichers; their notes reflect that  



                              

they had a series of phone conversations with her on October 9 and 10, 2003 about her  



                                                         

respiratory symptoms and her work.  Coppe insisted that her symptoms had originated  



                                                           

in the work environment, maintaining that they had "escalated" after a wind storm in  



March 2003.  Coppe was convinced that whatever was causing her symptoms was in the  



                                                                                                      

ventilation system of the building and pointed out that other workers in the building had  



                                                               

complained about being sick as well.  Dr. Michael Bleicher responded that the building  



manager  had  reported  that  those  workers'  symptoms  had  improved.    Coppe  and  



                                                                                                                        1 

                    

Dr. Michael Bleicher spoke about ending Coppe's employment with the Bleichers;  they 



                                                         

also discussed Coppe's pension and a letter of recommendation.  Coppe was to pick up  



her belongings from the office the following Monday.  Coppe received unemployment  



with no waiting period after the state unemployment division decided she had left work  



"due to health reasons."  



                    Soon after Coppe stopped working for the Bleichers, she reported to her  



doctor that "her [respiratory] symptoms [had] completely resolved without the assistance  



                                                      

of medications," but she then began experiencing symptoms of depression.  Coppe also  



                                                                 

reported hand pain, which she thought was related to "repetitive use during her former  



                                                                                                                

employment."  Her doctor told her to take ibuprofen for the hand pain and offered her  



medication for depression; Coppe expressed an interest in psychotherapy rather than  



medication.  In December Coppe began taking an antidepressant, which she discontinued  



after  she  began  to  feel  better.    The  record  reflects  that  she  was  again  taking  an  



          1  

                                                                                                     

                    Whether Coppe quit or was fired was contested.  See  Coppe v. Bleicher,  

Mem. Op. & J. No. 1377, 2011 WL 832807, at *2 (Alaska, Mar. 9, 2011).  



                                                              -4-                                                           6863  


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

                                                                                                 

antidepressant in October 2005 but continued to experience symptoms of depression; her  



doctor referred her to psychotherapy at that time.  



                                                                                                                      2  

                                                                                                                          Dr. Michael  

                      In 2005 Coppe sued the Bleichers for wrongful discharge. 



                                                                                         

Bleicher moved for summary judgment based on AS 23.30.055, the exclusive liability  



                                                                         3  

provision of the workers' compensation act.   According to Coppe, someone told her  



                                                                                    

during the course of the employment litigation that she could file a claim with the Board.  



                                                                                          

She  signed  a  report  of  injury  on  August  26,  2005.                                The  Bleichers  filed  a  notice  of  



controversion   on   November   8   on   the   basis   that   the   claim   was   "barred   under  



                          4  

AS 23.30.100."   



                      On November 16, 2005, Coppe filed a written workers' compensation claim  



                                      

for  permanent  partial  impairment  (PPI),  medical  and  transportation  costs,  penalty,  



interest,  and  "unfair  or  frivolous  controvert."    She  alleged  that  she  suffered  from  



                                   

depression,  rhinitis,  and  bronchospasm  and  that  she  had  experienced  work-related  



                                                                                                                    

injuries to her back, hands, and knees, as well as her right shoulder and wrist.  The  



                                                                                                

Bleichers filed another controversion notice on December 1, listing a number of reasons  



to deny the claim.  



                                                                                                              

                      Coppe engaged in counseling and saw a psychiatrist for medication from  



                                                                     

late 2005 to about July 2006.  During this time she also consulted with Dr. Claribel Tan,  



who diagnosed Coppe with fibromyalgia.  Dr. Tan gave the opinion that "there is no  



           2          See id.  at *2-3 (setting out factual and procedural history).  Coppe initially     



sued only Dr. Michael Bleicher; she later added Dr. Laurie Bleicher as a defendant, but  

the superior court dismissed the case against Dr. Laurie Bleicher based on the statute of  

                                                              

limitations.  Id. at *2.  



           3          Id. at *2.  



           4  

                             

                      AS 23.30.100(a) requires that notice of a work-related injury be given to  

both the employer and the Board within 30 days of the injury.  



                                                                     -5-                                                              6863
  


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

                                                                          

current evidence for any environmental causes  for fibromyalgia" and recommended  



"psychiatric evaluation and consultation."  



                    In  March  2006  Coppe  testified  at  a  deposition  related  to  her  workers'  



                                  

compensation claim.  During the deposition she testified that her allergy-like symptoms  



ended  after  she  stopped  working  for  the  Bleichers.    She  testified  about  her  back,  



                                                                                     

shoulder, and wrist pain and her respiratory symptoms.  She said she hoped to get some  



back pay and compensation for doctor visits related to her earlier injuries.  



                    The  Bleichers  arranged  an  employer's  independent  medical  evaluation  



                                                                             

(EIME) with Dr. Bryan Laycoe, an orthopedist; he examined Coppe on April 15, 2006,  



                                                                       

and reviewed her medical records.  Dr. Laycoe diagnosed Coppe with major depression  



                                                                                      

by history and multiple pain complaints. He did not think Coppe's "work activities were  



a substantial factor in her complaints of pain" and found "no diagnosis of a physical  



                                                                                         

condition which [could] be related" to her work activities.  He recommended treatment  



for depression, in part because he thought it might improve her perception of her pain,  



but he did not think the treatment would be for a work-related condition.  



                                                                                      

                    Coppe began treating with a chiropractor, Dr. James Pizzadili, in 2006.  



                                                                                        

Also in 2006, Coppe had thermograms performed and saw a naturopath.  The naturopath  



                                                                                       

ordered allergy testing as well as testing for heavy metals.  The tests showed no evidence  



                                                                                                                

of significant allergies but indicated that Coppe had high levels of some metals.  She  



received  chelation  therapy  for  elevated  levels  of  copper  in  her  blood.    Coppe  also  



                                                          

continued treating with Dr. Pizzadili; he diagnosed her with multiple problems related  



                                                                                 

to toxic encephalopathy from exposure to chemicals at work.  He ordered an MRI, the  



results of which were normal.  



                                                                                                    

                    In November 2006 Coppe filed an amended workers' compensation claim,  



                                                        

seeking increased medical costs, as well as  permanent total disability (PTD) and an  



                                                               -6-                                                         6863
  


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

                                                                                                                              5  

                                                                                 

additional  penalty  because  the  Bleichers  had  not  reported  her  injury  in  2003.                                          The  



Bleichers answered, denying all claims, and filed two more controversion notices.  



                     In February 2007 Dr. Eric Goranson, a psychiatrist, examined Coppe at the  



                                                                                

Bleichers' request.  He concluded that Coppe most probably suffered from a conversion  



                                                                

disorder, although he could not rule out malingering or factitious disorder.  He did not  



think  her  psychiatric  conditions  were  work  related.    The  Bleichers  then  filed  a  



controversion notice based on Dr. Goranson's report.  



                                                                            

                     The  Bleichers  scheduled  another  EIME,  to  take  place  in  July  2007  in  



                                                                                                  

Oregon, with two doctors, Dr. Emil Bardana, Jr., a professor of immunology and allergy,  



                                                      

and Dr. Brent Burton, a professor of toxicology and occupational medicine.  Coppe did  



not attend the EIME, so the doctors based their opinions on a review of her medical  



             6  

records.     Neither  Dr.  Bardana  nor  Dr.  Burton  thought  Coppe  had  a  work-related  



condition; both noted psychological diagnoses, but neither could find any evidence of  



disease or injury in his specialty.  



                                                                              

                     Coppe consulted with Dr. Gunnar  Heuser, a physician in California, in  



2007.    He  performed  some  testing,  including  tests  for  attention  deficit  disorder  and  



respiratory  problems,  and  concluded  that  her  symptoms  were  consistent  with  toxic  



exposure.  Dr. Heuser provided a report to the Board in February 2009 that explained  



                                                                                                   

why Coppe might be suffering from "sick building syndrome" even though she had not  



                          

worked for the Bleichers for several years.  Dr. Heuser diagnosed Coppe with toxic  



           5         An employer is required to report an employee's illness or injury to the   



Board  within  10  days  after  the  employer  knows  of  the  injury  or   illness;  the  statute  

permits the Board to assess a penalty equal to "20 percent of the amounts that were     

unpaid when due."  AS 23.30.070(a), (f).  



           6  

                                                                                                        

                     Evidently  Coppe  misread  the  departure  time  and  missed  her  flight  to  

Oregon.  



                                                                  -7-                                                           6863
  


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

encephalopathy, fibromyalgia, depression, orthopedic problems, and a sleep disorder.  



In his opinion, all of these conditions except the orthopedic problems were "due to a  



toxic work environment."  



                  Because of the conflicting opinions of Coppe's and the Bleichers' experts,  



                                           

the  Board  ordered  a  second  independent  medical  evaluation  (SIME)  and  selected  



                                                        

Dr. Thomas Martin, who specializes in occupational and environmental medicine and  



                                                                                                         

toxicology, as the SIME physician.  Dr. Martin performed a record review but did not  



                                                                             

examine Coppe because she was too ill to travel.  Dr. Martin concluded there was no  



evidence that Coppe had suffered a work-related exposure to any toxin, in part because  



                                                                          

"[t]here is no evidence of any toxins in the workplace that would or could be responsible  



for creating a sick building."  He also concluded that Coppe did not have any condition  



or disability related to her employment with the Bleichers.  Dr. Martin thought Coppe  



could work as an administrative assistant with no restrictions.  



                                   

                  The Board held a hearing on Coppe's claim in December 2010.  Coppe  



represented herself with the assistance of a lay representative.  Dr. Burton testified at the  



                                                                                                                  

hearing, as did Coppe, Dr. Michael Bleicher, Dr. Pizzadili, and Coppe's husband.  The  



Board   had   deposition   testimony   from   a   number   of   other   witnesses,   including  



Dr.   Bardana,   Dr.   Goranson,   and   the   employees   who   returned   Coppe's   2003  



questionnaire about symptoms.  



                                                                                   

                  Coppe's husband, who is a general contractor, testified about an inspection  



he had done of the office building in 2008.  He identified a number of deficiencies in the  



building and testified that because of water damage, the building might be susceptible  



to mold, which he said was part of sick building syndrome.  He also testified that his  



wife's symptoms arose after a storm in March 2003, but they did not know until 2006  



that her symptoms were associated with the building.  



                                                          -8-                                                   6863
  


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

                                                                                      

                     Dr. Pizzadili testified about his treatment of Coppe and his PPI rating.  He  



testified  that  the  tests  she  had  undergone  for  heavy  metals  and  brain  damage  were  



reliable, and he concluded that she had suffered an exposure to toxins in the workplace  



                                 

that had caused her current disability.  He noted that others in the building had also  



                                                                                               

suffered environmental illnesses.  Dr. Pizzadili testified that he had no formal training  



in toxicology or psychiatry; his training was in forestry and chiropractics.  



                                                                              

                     Dr. Michael Bleicher testified about maintenance in the office building as  



                                                                                                              

well as steps that had been taken to address Coppe's environmental complaints.  He  



                                                                                                 

testified  that  he  and  his  wife  had  displayed  a  notice  about  workers'  compensation  



                                                                                                          

insurance in the office; he also said that he told his employees how to file for workers'  



compensation when they reported an injury.  



                                       

                     Dr. Burton testified at length.  He agreed with Dr. Martin's SIME report as  



                                    

well as Dr. Bardana's EIME report.  Dr. Burton still held the same opinions he gave in  



                                                                                                                     

his written report.  According to Dr. Burton, Dr. Heuser had been "excluded as a witness  

based on the Da [u]bert[7] criteria" in at least one lawsuit.  He questioned the accuracy and  

                                                     



reliability of the testing Dr. Heuser had performed on Coppe; Dr. Burton also questioned  



                                                                                          

the value of thermographic testing. Dr. Burton denied that fibromyalgia could be caused  



                                                  

by  exposure  to  toxins,  saying  it  is  a  rheumatologic  disorder.    Although  Dr.  Burton  



                                                                                 

questioned the validity of the test used by Coppe's physicians to diagnose exposure to  



                               

toxins, he said that even if it were a valid measure of metals in her system, none of the  



                                              

values showed any cause for concern.  Dr. Burton added that even if there were mold in  



                                      

the building, there was no evidence to connect any of Coppe's medical problems with  



exposure to mold.  



          7  

                           

                     He was apparently referring to Daubert v. Merrell Dow Pharmaceuticals ,  

Inc. ,  509  U.S.  579,  592-93  (1993)  (setting  out  test  for  admissibility  of  scientific  

testimony).  



                                                                 -9-                                                              6863  


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

                      In its final decision, the Board denied Coppe's claim.  The Board first  



decided that Coppe's claim was filed late but that the Bleichers had actual notice of the  



                                 

injury.  As a result, the Board did not dismiss the claim, but it held that the presumption  



      

of compensability in AS 23.30.120 did not apply to the claim so that Coppe had to prove  



                                

all elements of her claim by a preponderance of the evidence.  The Board went through  



                                                                                                             8 

                                                                                                               deciding that if the  

the initial two steps of the presumption analysis in the alternative, 



                                                                                   

presumption  analysis  applied,  the  presumption  would  have  attached  through  the  



                                                         

testimony of Coppe, her husband, and Dr. Pizzadili.  The Board then concluded that the  



                                                                                                                    

Bleichers would have rebutted the presumption through the testimony of Drs. Bardana,  



Burton, Goranson, and Laycoe.  



                      In evaluating the evidence to determine whether Coppe had proved her  



                                                

claim by a preponderance of the evidence, the Board decided that Coppe had not met her  



                                                                                                                    

burden of proof.  The Board found Dr. Burton to be a credible witness and also decided  



                                                  

that Dr. Martin was credible.  The Board gave less weight to Dr. Pizzadili's testimony  



                                 

because he did not have specific training in toxicology and because his opinions relied  



in part on erroneous factual information, including Coppe's report that others in the  



                                                                                                                            

building  suffered  symptoms  similar  to  hers.                              The  Board  noted  that  (1)  Coppe  had  



                                           

reported to her doctor in November 2003 that her symptoms had resolved and (2) the  



other employees who initially responded to Coppe's questionnaire later denied that the  



                                                                                       

building caused their symptoms.  The Board further supported its decision by pointing  



           8          Before 2005, the presumption analysis consisted of three steps:                                              (1) the  



employee was first required to attach the presumption of compensability through some   

evidence  linking  her  work  and  her  disability;  (2)  if  the  presumption   attached,  the  

employer had to rebut the presumption by presenting evidence that the disability was not   

work related; and (3) if the presumption was rebutted, the employee had to prove all   

elements of her claim by a preponderance of the evidence.  See Smith v. Univ. of Alaska,  

Fairbanks , 172 P.3d 782, 788 (Alaska 2007).  



                                                                    -10-                                                              6863
  


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

out  that  an  environmental  consultant  had  found  "no  unsafe  levels  of  lead,  arsenic,  



                                                          

mercury, or nickel" in the office water and that the allergy doctor who examined Coppe  



in 2003 found no evidence of allergies.  



                                                                                                   

                    The Board summarized the relevant testimony of the medical witnesses it  



found more credible, specifically recognizing that "there is no evidence the building  



                                                 

produced any contaminants that would be toxic to [Coppe]."  The Board also observed  



                                                                           

that Coppe's symptoms "improved by November 2003 so if the building were making  



                                                 

her  sick,  her  removal  from  the  building  cured  the  problem."    Additionally  Coppe's  



                                                                                                      

"symptoms did not actually worsen until more than two years later." The Board decided  



                                                                 

that "[t]he preponderance of the evidence . . . establishes the work environment was not  



toxic and is not the source of [Coppe's] current disability."  



                                              

                    The Board went on to decide Coppe's PTD claim separately, finding that  



the evidence showed that Coppe was able to work in 2003.  It also found that "[a]ny  



work  injury  was  at  most  temporary"  because  Coppe's  "symptoms  resolved  by  



                                                        

November 2003, and her depression resolved by July 2006."  The Board further noted  



                                  

that Coppe looked for work until early 2006, work was available in her occupation, and  



Coppe indicated that "the only reason she could not find work as a secretary was because  



[the Bleichers] would not give her a reference."  The Board denied the PTD claim.  



                                                                                                                   

                    Coppe appealed to the Commission.   During the course of the appeal, a  



                                                                              

dispute developed about whether certain documents had been filed with the Board.  The  



                              

Commission wrote to Coppe and told her that the documents in question were not in the  



                                      

record and, as a result, it could not consider them.  According to a memo in the record,  



Coppe responded by calling the Commission and claiming that she had filed the missing  



documents on June 11, 2009, along with other documents that were in the record.  The  



                                                                                                   

Commission's clerk advised Coppe to include the documents in her excerpt of record and  



                                                             -11-                                                        6863
  


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

to provide record citations in her brief to support her contention that she had discussed  



the missing documents at the Board level.  



                    Coppe  included  the  pages  in  her  excerpt;  the  Bleichers  asked  the  



                                                                                                                      

Commission to order Coppe to "cure defects" in her brief and excerpt of record and to  



                              

dismiss the appeal.  One of the defects they identified was the inclusion of documents in  



                                                           

her excerpt that were not in the Board record.  The Commission ordered that Coppe  



                                                                             

remove six documents from her excerpt, including a report of injury for allergic rhinitis  



and bronchospasm, and revise her brief.  The Commission issued a supplemental order  



in  which  it  acknowledged  that  the  report  of  injury  was  in  fact  in  the  record;  the  



Commission nevertheless determined that the document was "inadmissible" for purposes  



                                                                                                       

of Coppe's appeal because it had a different workers' compensation number and the  



Board had "issued no decision or order" related to that case.  



                                              

                   The Commission affirmed the Board's decision.  The Commission decided  



that any problem with the Board's application of the presumption analysis was moot  



                                                                   

because the Board had provided two different analyses of the evidence, one applying the  



                                                         

presumption and one not applying it.  The Commission determined that the Board had  



                                                                                 

not overlooked evidence and that substantial evidence supported the Board's decision.  



                                                                

The Commission also decided that Coppe had waived or abandoned certain issues -  



"the orthopedic and cigarette smoke inhalation issues" - because of inadequate briefing.  

                    Coppe now appeals to this court.9  



          9         Coppe included in her excerpt of record before this court some of her recent              



medical records.   She apparently filed another claim with the Board, alleging that neck  

pain and surgery she had in 2012 were compensable.  The neck surgery is not an issue   

in this appeal.  



                                                            -12-                                                          6863  


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

III.	    STANDARD OF REVIEW  



                  In an appeal from the Workers' Compensation Appeals Commission, we  



                                                                                                10  

                                                                                                    We apply our  

review the Commission's decision rather than the Board's decision. 

independent judgment to questions of law that do not involve agency expertise.                                 11  We  



independently  review  the  Commission's  conclusion  that  substantial  evidence  in  the  

                                                                                                                



record supports the Board's findings, which "requires us to independently review the  

                                                      

record and the Board's factual findings."12  We interpret the pleadings of pro se litigants  

                                                                  

less stringently than those of lawyers.13  



IV.	     DISCUSSION  



         A.	       The  Board's  Error  In  Applying  The  Presumption  Analysis  Was  

                  Harmless.  



                   Coppe contends that the Board improperly applied the presumption analysis  



to her claim.  The Board decided that Coppe did not have the benefit of the presumption  

                                                                                    



of compensability because she filed her claim late, but the Board then performed an  



alternative analysis in which it found that if the presumption applied, the presumption  



had attached, and the Bleichers had rebutted it.  The Commission decided the issue was  

                                                                                           



moot because of the Board's alternative analysis.  



                  Alaska  Statute  23.30.100(a)  requires  an  employee  to  report  her  work- 



                                                                      

related injury to the Board and to the  employer  within 30 days of the injury.  If an  



         10       Shehata v. Salvation Army, 225 P.3d 1106, 1113 (Alaska 2010) (citing  



Barrington v. Alaska Commc'ns Sys. Grp., Inc. , 198 P.3d 1122, 1125 (Alaska 2008)).  



         11       Id.  



         12       Smith v. CSK Auto, Inc., 204 P.3d 1001, 1007 (Alaska 2009).  



         13       Id. at 1011 (citing DeNardo v. Calista Corp. , 111 P.3d 326, 330 (Alaska  



2005)).  



                                                         -13-	                                                  6863
  


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

                                                                                                                    14  

employee  does  not  give  the  required  notice,  her  claim  may  be  barred.                                           Alaska  

                                                                          



Statute 23.30.100(d) sets out "three enumerated circumstances" in which late filing is  

                                                                            



              15  

excused.            Alaska  Statute  23.30.100(d)(1)  excuses  late  notice  if  the  employer  had  



knowledge of the injury and was not prejudiced by the failure to give notice.  In Coppe's  

                                                   



case, the Board decided that her claim was filed late, but it found that the Bleichers had  

                                                                   



notice of the injury.  The Board then determined, relying on AS 23.30.120, that although  



                                                                                                           

it would consider Coppe's late claim, the presumption did not apply.  The Commission  



                                                      

interpreted the Board's decision as relying on subsection (d)(1) because the Board found  



that the Bleichers had actual notice of the sick building syndrome complaints.   The  



                                                                            

Commission observed that the Bleichers had not challenged this part of the decision on  



appeal and that substantial evidence supported this part of the Board's decision.  The  



                                                                                             

Commission decided that any issue related to the Board's decision not to apply the  



presumption was moot because of the Board's alternative analysis.  



                                                                                  16  

                    McGahuey  v.  Whitestone  Logging,  Inc.                          presented  a  similar  issue.    In  



                                                                                                                                  17  

                                      

McGahuey the claimant filed a report of injury more than a year after the date of injury. 



                            

The Commission and Board both decided the notice was not timely but did not analyze  



                                                                                      18  

                                                                                                                       

when  the  time  period  for  giving  written  notice  began.                               We  decided  that  both  the  



                                                      

Commission and the Board erred in failing to identify the date on which the 30-day  



period began to run, but that the error was harmless because the Board had performed  



          14        McGahuey v. Whitestone Logging, Inc.                        , 262 P.3d 613, 619 (Alaska 2011)  



(citing AS 23.30.100(d)).  



          15        Alaska State Hous. Auth. v. Sullivan , 518 P.2d 759, 761 (Alaska 1974).  



          16        McGahuey , 262 P.3d at 613.  



          17        Id. at 615.  



          18        Id. at 619.  



                                                               -14-                                                         6863
  


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

                                                                                                                    19  

                                                                          

an  alternative  analysis  in  which  it  analyzed  the  compensability  of  the  claim.                                 We  

concluded that the Board's alternative analysis was correct.20  



                                         

                    Coppe's case is analogous:  We conclude that the Board erred but that the  



error   was   harmless.      The   Commission's   determination   that   the   Board   applied  



AS 23.30.100(d)(1) is unchallenged on appeal, and the Commission correctly decided  



                                                                                                       

that substantial evidence in the record supports the Board's finding that the Bleichers had  



                                                                                      

notice of Coppe's claim that the building was causing her respiratory complaints.  The  



           

Board   erred   in   deciding   that   the   presumption   analysis   did   not   apply   because  



       

AS 23.30.120(b) only deprives a claimant of the presumption of compensability "[i]f  



delay in giving notice is excused by the board under AS 23.30.100(d)(2)."  If the delay  



is excused under AS 23.30.100(d)(1), the presumption applies.  



                    The  Board's  error  in  failing  to  apply  the  presumption  analysis  was  



                                             

harmless, however, because it provided an alternative analysis in which it hypothetically,  



                                                                       21  

but correctly, applied the presumption analysis.                           It decided that the presumption of  



compensability would have attached through the combined testimony of Coppe, her  



                                                                                      

husband, and Dr. Pizzadili, and that the Bleichers would have rebutted it through the  



          19       Id. at 619-20.  



          20       Id. at 620-22.  



          21        The  issue  was  not  moot,  as  the  Commission  said,  because  Coppe's  



eligibility for benefits was still a live controversy.  See Williams v. Williams, 252 P.3d  

998, 1007 (Alaska 2011) ("A claim is moot if it has lost its character as a present, live  

controversy . . . ." (quoting Akpik v. State, Office of Mgmt. & Budget , 115 P.3d 532, 535  

                     

(Alaska 2005)) (internal quotation marks omitted)).  Instead, it was harmless error.  See  

                                                    

RLR v. State , 487 P.2d 27, 45 (Alaska 1971) (distinguishing between mootness and  

harmless error).  



                                                            -15-                                                       6863
  


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

testimony of their medical experts.  The Board's alternative approach of attaching the  

presumption was correct as a matter of law.22  



          B.       The Board Applied The Correct Legal Standard To Coppe's Claim.  



                   Coppe asserts that the Board incorrectly applied the post-2005 causation  



                                                                                23  

                                                                                                            

standard to her claim rather than the pre-2005 standard.                           Her argument is based on the  



Board's statements that her work environment was not "the source" of her disability.  



The Commission did not discuss this issue, and it is unclear whether Coppe raised it  



before the Commission.  



                                                                                      

                   Assuming that Coppe preserved this issue for appeal, we conclude that the  



           

Board applied the correct legal test to her claim.  Although the Board did not use the  



                                                                                                 

words  "a  substantial  factor"  in  its  concluding  sentence,  it  used  these  words  in  the  



                                   

narrative related to the presumption analysis.  The Board noted that if the presumption  



                                                                                        

analysis applied, Coppe had provided enough evidence that "her place of employment  



                                                                                                           

[was] a substantial factor in her current disability and need for medical treatment" to  



                

attach the presumption.  The Board also determined that the Bleichers had to "overcome  



                                                                

the presumption with substantial evidence [that her place of employment was] not a  



substantial factor."  It further stated that the EIME physicians "ruled out employment as  



                                                                           

a  substantial  factor."    From  these  statements,  we  conclude  that  the  Board  correctly  



applied "a substantial factor" as the legal test rather than "the substantial cause."  



          22       This court has reviewed the question whether the presumption should attach  



as a matter of law.  See, e.g., DeYonge v. NANA/Marriott , 1 P.3d 90, 95 (Alaska 2000).  



          23       The legislature changed the standard for compensability from "a substantial  



factor" to "the substantial cause" in 2005.  See 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)) (noting change in causation standard).  Coppe's claim arose before the  

                        

statutory amendments took effect.  



                                                            -16-                                                      6863
  


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

          C.	      The  Commission  Correctly  Concluded  That  Substantial  Evidence  

                   Supported The Board's Decision.  



                   The central issue in this appeal is whether the Commission erred in deciding  



                                                                                                     

that substantial evidence in the record supported the Board's decision.  Coppe contends  



                                                   

that the Board ignored or failed to evaluate substantial evidence to support her claim.  



                                  

The Bleichers respond that substantial evidence supports the conclusion that Coppe did  



not suffer a work-related injury.  



                                                                                                            

                   We  agree  with  the  Commission  that  substantial  evidence  in  the  record  



                                                                                           

supports the Board's decision.  The Board found Dr. Burton, the EIME toxicologist, and  



                                                                                         

Dr. Martin, the SIME toxicologist, to be credible witnesses.   The Board's credibility  

                                                                 24  Both doctors concluded that Coppe did  

determinations are binding on the Commission. 



not  suffer  any  work-related  exposure  to  toxins  that  would  cause  her  to  suffer  the  

                                                             



disabling  conditions  she  described.    Because  Coppe  alleged  that  her  debilitating  



conditions were related to toxins in her work environment, these physicians' opinions  



                                                                      

were substantial evidence supporting the Board's decision that she did not suffer a work- 



related injury.  Moreover, we have held in many cases that when the Board is presented  



with two or more conflicting medical opinions, each of which constitutes substantial  



                                                                                            25  

                                                                                                Because the Board  

evidence, we will defer to the Board's weighing of the evidence. 



assigned Coppe's evidence less weight than the Bleichers' evidence, she did not meet her  

                                                        



burden of proof at the last step of the presumption analysis.  



                   Coppe contends that the Board did not discuss her medical evidence, but  



the Board in fact did summarize the testimony and reports of her doctors.  The Board  



                                                                      

decided to give their opinions less weight in part because the doctors relied on Coppe's  



          24       AS 23.30.128(b).  



          25       See, e.g., Cowen v. Wal-Mart, 93 P.3d 420, 426 (Alaska 2004) (quoting  



Doyon Universal Servs. v. Allen , 999 P.2d 764, 767-68 (Alaska 2000)).  



                                                          -17-                                                        6863  


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

representations that others were also sickened by the building environment.  The Board  



                                  

had depositions of the three employees who responded to Coppe's earlier survey; all  



           

three employees testified that their symptoms arose from causes other than their work  



environment.  



                                                                                                                          

           D.	         The Commission Did Not Err In Deciding That Coppe Waived Some  

                       Issues On Appeal Due To Inadequate Briefing.  



                                                                                                                               

                       Coppe argues that the Commission and Board erred in failing to deal with  



                          

her orthopedic complaints and her concerns about smoking in the office.  The Board did  



                                                                      

not address them, and the Commission  decided that she had waived these issues on  



appeal.  



                                                                                                

                       Because Coppe is pro se, her brief is subject to a more relaxed standard than  

                                                    26   Coppe complains that the Commission did not tell her  

a brief prepared by an attorney.                                                               



that her brief was inadequate.  The Commission reviews briefs to determine whether they  

                              



meet the technical requirements set out in its regulations, and it can reject a brief that  



                                                                     27  

                                                                          The adequacy of briefing an issue is not a  

does not meet its technical requirements.                                                                                   



technical requirement covered by the regulation; rather, it is a legal judgment subject to  

                                                          



                                  28  

independent review.                    Thus the Commission had no legal duty to notify Coppe that she  



had inadequately briefed an issue.  



                       The  Commission  did  not  err  in  deciding  that  Coppe  waived  due  to  



                                                        

inadequate briefing issues about second-hand smoke and her orthopedic complaints.  In  



           26          Smith  v.  CSK  Auto,  Inc.,  204  P.3d  1001,  1011  (Alaska  2009)  (citing  



DeNardo v. Calista Corp. , 111 P.3d 326, 330 (Alaska 2005)).  



           27          8 Alaska Administrative Code (AAC) 57.150 (2011).  



           28          See Bluel v. State, 153 P.3d 982, 986 n.5 (Alaska 2007) (citing                                           Wilkerson  



v.  State, Dep't of Health & Soc. Servs.                        , 933 P.2d 1018, 1021 (Alaska 1999)) (reviewing   

adequacy of briefing as question of law).  



                                                                      -18-	                                                              6863
  


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

her brief before the Commission, she listed evidence that she thought the Board had  



ignored  in  making  its  decision,  including  her  testimony  that  Dr.  Michael  Bleicher  



                                       

smoked in the office.  Second-hand smoke was presented as an environmental toxin at  

the hearing; the Board addressed her environmental complaints, as did the Commission.29  



                                                                                                                            

But as the Commission noted, Coppe's brief consisted principally of a summary of the  



                                                                                                                              

evidence; only four pages had any legal argument, and those arguments were primarily  



                            

directed at her toxic-exposure claim.  Her argument about the orthopedic complaints  



                                                                                                   30  

lacked citation to authority or a legal theory to support it.                                          We therefore conclude that  



the Commission correctly decided that Coppe inadequately briefed these issues.  



            E.	        The Commission's Error In Deciding That A Document In The Record  

                       Was "Inadmissible" For Purposes Of The Appeal Was Harmless.  



                       Coppe argues that some documents, which the Commission required her  



                                                 

to remove from her excerpt in the Commission appeal, should have been included in the  



                                                                                            

record and that the Commission deprived her of the opportunity to "challenge missing  



                                                                                               

records."  The regulation she cites in support of her argument, 8 AAC 57.180(a)(4),  



                                                                                                                     

permits a party in a Commission appeal to include in her excerpt of record any evidence  



                                          

that was excluded at the Board level when the appeal challenges the Board's ruling about  



admissibility.  This regulation does not apply here because the Board did not make a  



ruling about the admissibility of the documents and Coppe did not challenge a Board  



            29         To the extent Coppe was attempting to link second-hand smoke to heart                                              



disease in her brief to the Commission, she did not make a claim for heart disease and   

did not present medical evidence about it at the hearing.  The doctor's testimony that  

Coppe cited in her brief before the Commission did not in any way link her medical test  

                                                                                                 

results to heart disease, nor did it link heart disease and second-hand smoke.  Her doctor  

                                                

was describing medical tests he ordered to investigate Coppe's complaints of joint pain.  

                                                                                              



            30  

                                                                                                                     

                       See Thoeni v. Consumer Elec. Servs., 151 P.3d 1249, 1257 (Alaska 2007)  

(discussing waiver of inadequately briefed issues when litigant is pro se).  



                                                                        -19-	                                                                 6863
  


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

                                                                                                      

ruling about admissibility.  Instead, Coppe contended that she had filed the documents  



                                                                                  31  

                                                                                      Coppe found documents from  

with the Board but that the Board had misplaced them. 



another claim in the record in her appeal and argues that this supports her contention that  

                                                                                     



the Board misplaced documents she filed.  We have reviewed the documents, which were  

                                                                



included  in  her  excerpt  before  this  court,  and  see  no  prejudice  to  Coppe  from  their  

                                                 



exclusion.  



                    But the Commission also prohibited Coppe from discussing a document that  



                                                                                                                  

was part of the record. The Commission noted that Coppe's initial report of injury about  



                              

her  environmental  complaints,  with  case  number  200324746,  was  in  the  record  on  



                                                          

appeal. The Commission nonetheless decided that it was "inadmissible" for purposes of  



                                                                                        

the appeal and ordered Coppe not to refer to this document in her brief.  The Commission  



                                                                                                                     

did not cite any legal authority for its order, stating only that "no issues arising out of that  



case" were part of the appeal.  



                    The  Commission  erred  in  deciding  that  a  document  in  the  record  was  



                                                                                                                    

"inadmissible" for purposes of the appeal, but the error was harmless in this case.  One  



                                                                                                                    

of the Commission's regulations states that the record on appeal consists of "the entire  



                                                              32  

                                                                  Because it is uncontested that the report of  

board file, including all original papers." 



injury was part of the Board's record, the Commission had no basis for excluding it from  

                                              



the record on appeal.  A report of injury could potentially be used to rebut a charge of  

                                                                                          

recent fabrication33 or simply to show that a report had in fact been filed.  



          31        The documents in question are correspondence from the insurance company  



and a transcript of a recorded conversation from September 2005 between Coppe and an  

                                                                                                  

unnamed person about her claim.  



          32        8 AAC 57.110(a)(2).  



          33  

                                                                                                

                    Cf. Alaska R. Evid. 801(d)(1)(B) (defining as not hearsay prior consistent  

                                                                                                               (continued...)  



                                                              -20-                                                         6863
  


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

                                                                                                             

                  But the Commission's error was harmless.  Coppe fails to show how her  



rights  were  affected  by  her  inability  to  refer  to  this  document;  moreover,  other  



                                                                  

documents discussed her respiratory symptoms and her allegations that these symptoms  



were work related.  Because the exclusion of this report of injury did not substantially  

affect her rights, the Commission's error was harmless.34  



V.       CONCLUSION  

                  For the foregoing reasons, we AFFIRM the Commission's decision.35  



         33       (...continued)  



statements that are offered to rebut charges of recent fabrication).  



         34       See Hill v. Giani, 296 P.3d 14, 22 n.23 (Alaska 2013) (stating that a court  



should disregard errors that "have no substantial effect on the rights of the parties or on  

                                                                                                                 

the outcome of the case." (citing Fairbanks N. Star Borough v. Rogers & Babler , 747  

P.2d 528, 531 (Alaska 1987))).  



         35       Coppe's brief mentions a number of other issues that we do not address;  



they have been waived because they were inadequately briefed or not preserved for  

                                                                                           

appeal.  Some issues were never raised before the Board or the Commission and are  

                                                

waived for that reason.  Rude v. Cook Inlet Region, Inc., 294 P.3d 76, 101 (Alaska 2012)  

                                            

(quoting Brandon v. Corr. Corp. of Am., 28 P.3d 269, 280 (Alaska 2001)) (holding that  

an issue may not be raised for first time on appeal).  



                                                         -21-                                                      6863  

Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC