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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State, Dept. of Administration, Division of Retirement & Benefits v. Shea (4/21/2017) sp-7166

State, Dept. of Administration, Division of Retirement & Benefits v. Shea (4/21/2017) sp-7166

          Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  REPORTER.  

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                     THE  SUPREME  COURT  OF  THE  STATE  OF  ALASKA  



STATE  OF  ALASKA,  DEPARTMENT                                   )  

OF  ADMINISTRATION,  DIVISION  OF )                                    Supreme  Court  No.  S-15787  

RETIREMENT  &  BENEFITS,                                         )  

                                                                 )     Superior  Court  No.  3AN-13-06927  CI  

                              Appellant,                         )  

                                                                 )                        

                                                                       O P I N I O N  

          v.	                                                    )  

                                                                 )                                      

                                                                      No. 7166 - April 21, 2017  

                  

SHIRLEY SHEA,                                                    )  

                                                                 )  

                              Appellee.	                         )
  

                                                                 )
  



                                                                                                       

                    Appeal from the Superior Court of the State of Alaska, Third  

                                                                                              

                    Judicial District, Anchorage, Philip R. Volland, Judge.  



                                                                                                 

                    Appearances:              Joan  M.  Wilkerson,  Assistant  Attorney  

                                   

                    General, and Craig W. Richards, Attorney General, Juneau,  

                                                                                                            

                    for  Appellant.            Joseph  A.  Kalamarides  and  Randall  S.  

                                                                                                         

                    Cavanaugh,   Kalamarides                   &   Lambert,   Anchorage,                  for  

                    Appellee.  



                                                                                                           

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

                                 

                    Bolger, Justices.  



                                        

                    WINFREE, Justice.
  

                                             

                    FABE, Justice, dissenting.
  



I.        INTRODUCTION  



                                                                                                                               

                    A state employee applied for occupational disability benefits, claiming that  



                                                                                                                                 

prolonged sitting at work aggravated a preexisting medical condition.  The Division of  


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

 Retirement and Benefits denied the claim.                                                         An administrative law judge affirmed that                                                 



 decision,   determining   that   employment   was   not   a   substantial   factor   in   causing   the  



 employee's disability.                               On appeal the superior court reversed the administrative law                                                                          



judge's decision.                        Because the administrative law judge's decision was supported by                                                              



 substantial evidence, we reverse the superior court's decision and thereby affirm the                                                                                                        



 administrative law judge's decision.                          



 II.            FACTS AND PROCEEDINGS             



                A.             Underlying Facts And Prior Proceedings                                

                                                                                                                                 1      The  underlying  facts  and  

                               This   case   comes   to   us  for  a   third   time.                                                                                                        



                                                                                                                                                 2  

proceedings relevant to this appeal are fully set forth in Shea II.  

                                                                                                                                            



                               In brief, Shirley Shea suffers from chronic pain and has been unable to  

                                                                                                                                                                                                

work since 2001.3                              Shea was granted non-occupational disability benefits in March  

                                                                                                                                                                                      

 2003,4           but  was  denied  occupational  disability  benefits  because  the  Division  of  

                                                                                                                                                                                               



 Retirement and Benefits' retained expert, Dr. William Cole, concluded after reviewing  

                                                                                                                                                                              



 Shea's medical record that "[t]here is not evidence from the record that the pain was  

                                                                                                                                                                                            

 caused by her occupation."5                                         In response Shea underwent a series of medical exams  

                                                                                                                                                                                      



between August 2003 and August 2005 seeking to determine the connection, if any,  

                                                                                                                                                                                           



                1              See Shea v. State, Dep't of Admin., Div. of Ret. & Benefits                                                                          (Shea II), 267  



 P.3d 624 (Alaska 2011);                                Shea v. State, Dep't of Admin., Div. of Ret. &Benefits                                                                 , 204 P.3d     

 1023 (Alaska 2009).                             



                2              267 P.3d at 626-30.  

                                                          



                3             Id. at 627.  

                                            



                4             Id. at 628.  

                                            



                5             Id. at 627-28 (alteration in original).  

                                                                                             



                                                                                                -2-                                                                                       7166
  


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

                                                                                                                                                                                                   6  

between prolonged sitting at her employment and her chronic pain.                                                                                                                                      The Division found                        



the new information unconvincing:                                                                          



                                        In August 2005, at the Division['s] 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.                                    7 



 Shea appealed this decision to the Office of Administrative hearings, and a hearing was  

                                                                                                                                                                                                                                                      

held in March 2006.8  

                                                                      Both Dr. Michael Smith, whom Shea had seen in 2004 for an  

                                                                                                                                                                                                                                               

opinion on causation,9  and Dr. Joella Beard, whom Shea had seen in 2001 for a disability  

                                                                                                                                                                                                                                    

impairment rating,10  testified at the hearing.11  

                                                                                                          



                                        The Administrative Law Judge (ALJ) found by a preponderance of the  

                                                                                                                                                                                                                                                        



evidence that Shea "suffered some form of injury to her ilioinguinal nerve in the course  

                                                                                                                                                                                                                                              



of the 1984 procedure, resulting in long-term unresolved ilioinguinal neuralgia." But he  

                                                                                                                                                                                                                                                           



definedher "disabling condition[as]chronicpain syndrome, primarily resulting fromthe  

                                                                                                                                                                                                                                                         



nerve injury in 1984, and referred and secondary pain related to that injury."  He also  

                                                                                                                                                                                                                                                     



                    6                  Id.  at 628.
   



                    7                  Id.  at 628-29 (last two alterations in original).
                                                                                        



                    8
                 Id. at 629.  

                                                                        



                    9                  Id. at 628.  

                                                         



                    10                 Id.  at 627.   



                    11                 Id. at 629.  

                                                         



                                                                                                                             -3-                                                                                                                   7166
  


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

found   that   the initial                                 trauma   from 1984                                  left   Shea   "with   a   vulnerable   nerve,   which  



intermittently flared up . . . as a result of the activities of everyday life, leading eventually                                                                                                       



to secondary bursitis and referred pain in a variety of areas."                                                                                                         He noted that Shea's                    



bursitis, however, "is not disabling, and the chronic pain she suffers has many sources                                                                                                                        



other than her working conditions . . . . Her claim for disability benefits rests on whether,                                                                                                               



in light of the record as a whole, her employment was a substantial factor in a complex                                                                                                                   



chronic pain syndrome."                                            



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



evidence that her employment was a substantial factor in her disability" and affirmed the                                                                                                                                  

                                                                                                                                                  12 Shea appealed to the superior  

Division's denial                            of Shea's occupational disability claim;                                                                                                                        

court, and it affirmed the ALJ's decision.13   Shea appealed to this court, and we reversed  

                                                                                                                                                                                                            



the  superior  court's  decision  upholding  the  ALJ's  decision  and  remanded  for  

                                                                                                                                                                                                                        

proceedings consistent with our explanation of the appropriate causation standard.14  

                                                                                                                                                                                                



                  B.               The ALJ's Decision On Remand  

                                                                                                      



                                   The  ALJ  issued  his  decision  on  remand  in  February  2013.                                                                                                         No  new  

                                                                                                                                                                                                                      



evidence was considered, but the ALJ did consider the parties' briefs and our Shea II  

                                                                                                                                                                                                                              



decision, which authorized the ALJ to "reevaluate the evidence . . . as he deem[ed]  

                                                                                                                                                                                                         

necessary."15                         The sole issue again was whether Shea's employment was a substantial  

                                                                                                                                                                                                 



                  12               Id.   



                  13               Id.  at  630.  



                  14               Id.   at   636   (stating  that   a   factor   can   contribute  to   a  person's  disability  in  



equal  proportion  to  other  activities  and  still  be  a  substantial  factor  if  "reasonable  persons  

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

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



                  15               Id. ; see also Smith v. Univ. of Alaska, Fairbanks, 172P.3d 782, 792 (Alaska  

                                                                                                                                                                                                               

                                                                                                                                                                                               (continued...)  



                                                                                                              -4-                                                                                                    7166
  


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

 factor in causing her disabling pain.                                                                                                                                         



                                                                The ALJ examined evidence indicating that prolonged sitting at work was                                                                                                                                                                                                                                                                    



a   substantial   factor   in   causing  Shea's   disabling   pain.     Among   this   evidence   was:   



"(1) Dr. Smith's opinion [at the hearing] that prolonged sitting aggravated a physical                                                                                                                                                                                                                                                                                        



condition and her pain symptoms, . . . (2) sitting was painful to her, (3) her job duties                                                                                                                                                                                                                                                                                                       



involved long periods of sitting, and (4) during the time she worked for the State of                                                                                                                                                                                                                                                                                                                             



Alaska, her pain symptoms increased."                                                                                                                                                          



                                                                The ALJ also considered evidence indicating that Shea's employment was                                                                                                                                                                                                                                                                     



not a substantial factor in her disability:                                                                                                  



                                                                (1)   Ms.   Shea   on   multiple   occasions  prior   to   becoming  

                                                                disabled reported that her pain was caused by a wide variety                                                                                                                                                                                                

                                                                of   common,  every-day   activities,   including   walking,   and  

                                                                physical activity in general; (2) Ms. Shea did not identify                                                                                                                                                                                            

                                                                sitting   as   a   causal   factor   until   February,   1999,   after   her  

                                                                symptoms had become highly problematic; (3) Ms. Shea in                                                                                                                                                                                                                             

                                                                 1998, and again in 1999, reported no significant or particular                                                                                                                                                                                 

                                                                aggravating   or   alleviating   factors;   (4)   Ms.   Shea   did   not  

                                                                herself identify working conditions as a causal factor until                                                                                                                                                                                                           

                                                                2003, long after she had ceased working; (5) Dr. Beard's                                                                                                                                                                                               

                                                                expert    medical    opinion    that    prolonged    sitting    did    not  

                                                                permanentlyaggravatetheunderlyingphysical                                                                                                                                                                                 condition; and   

                                                                (6)  Dr. Beard's observation that Ms. Shea's pain symptoms                                                                                                                                                                                 

                                                                could have been a result, in some degree, of psychological                                                                                                                                                                

                                                                factors.    



                                                                The ALJ determined that Shea had proved prolonged periods of sitting at                                                                                                                                                                                                                                                                             



work were a but-for cause of her disability.                                                                                                                                                                            But the ALJ concluded that reasonable                                                                                                            



persons would not attach responsibility to the State for Shea's disability because her                                                                                                                                                                                                                                                                                                                       



employment conditions were not a sufficiently "significant and important a cause" of her                                                                                                                                                                                                                                                                                                                      



                                15                              (...continued)  



                                                                                                                                                                                                                                                                                                                                                                             

2007) (noting reviewing court can permit agency to "reweigh the evidence on remand").  



                                                                                                                                                                                                         -5-                                                                                                                                                                                           7166  


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

disability; the ALJ therefore found Shea had not proved that prolonged sitting at work                                                                                                                                



was a substantial factor in causing her disability. Shea then appealed the ALJ's decision                                                                                                                                                                                                               



to the superior court.                                                           



                          C.                      Appeal To The Superior Court                                                                         



                                                   The superior court issued its decision in December 2014, reversing the                                                                                                                                                                                                 



ALJ's decision after determining that it was not supported by substantial evidence.                                                                                                                                                                                                                                    The  



superior court determined that "the factual findings upon which the ALJ based                                                                                                                                                                                                                                               his  



conclusion that reasonable persons would not attach responsibility to Shea's employer                                                                                                                                                                                                              



for her injury were not adequate to support his conclusion."                                                                                                                                                                              This determination was                                                        



driven in part by the notion that "[t]he ALJ cannot find on one hand that Dr. Smith's                                                                                                                                                                                                                    



testimony was substantial evidenceestablishing                                                                                                                                    actual causebutnot                                                       substantial evidence  



supporting the causal component of proximate cause."                                                                                                                                                            



                                                   The State appeals the superior court's decision.                                                                                                                                     



III.                      STANDARD OF REVIEW                                                    



                                                  When the superior court acts as an intermediate court of appeal in an                                                                                                                                                                                                      



                                                                                                                                                                                                                                                                                                                                  16  

administrative matter, we independently review the merits of the agency's decision.                                                                                                                                                                                                                                                        



                                                                                                                                                                                                                                                                                                                            

We review a board's factual findings "to determine whether they are supported by  



                                                                                                                                                                                                                                                                                                                

substantial evidence," which is "such relevant evidence as a reasonable mind might  



                                                                                                                                                                                                                  17  

                                                                                                                                                                                                                                                                                                                               

accept as adequate to support the board's conclusion."                                                                                                                                                                       "[W]e view the evidence in  



                                                                                         18  

                                                                                                                                                                                                                                                                                                                             

favor  of  the  findings,"                                                                         and  we  will  not  choose  between  competing  inferences  or  



                          16                      Shea II                     , 267 P.3d at 630.                               



                          17                      Id.   (quoting   Lopez v. Adm'r, Pub. Emps.' Ret. Sys.                                                                                                                                                     , 20 P.3d 568, 570                    



(Alaska 2001)).   



                          18                      Raad v. Alaska State Comm'n for Human Rights, 86 P.3d 899, 903 (Alaska  

                                                                                                                                                                                                                                                                                                          

2004) (citing Alaska State Comm'n for Human Rights v. Yellow Cab , 611 P.2d 487, 490  

                                                                                                                                                                                                                                                                                                                         

                                                                                                                                                                                                                                                                                     (continued...)  



                                                                                                                                                               -6-                                                                                                                                                   7166
  


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

                                                                          19  

evaluate the strength of the evidence.                                        We will look only to determine if substantial                        



evidence exists in the record, taking into account evidence in the record detracting from                                                                      

                                                                20  "The conclusion that a work-related injury or hazard  

the supporting evidence's weight.                                                                                                                          



is not a substantial factor in causing an employee's disability must be supported by  

                                                                                                                                                                  



substantial  evidence.                         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."21  



IV.          DISCUSSION  



                          To qualify for occupational disability benefits, Shea had the burden of                                                                  



               22  

proving                                                                                                                       

                    that  her  employment  was  "terminated  because  of  a  total  and  apparently  



                                                                     23  

                                                                                                                                        

                                                                          An "occupational disability" is  

permanent occupational disability." 



                                                                                                                                        

                          a physical or mental condition that, in the judgment of the  

                                                                                                                            

                          administrator,presumablypermanentlyprevents 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  

                                                                                                                                        

                          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  



             18           (...continued)  



                 

(Alaska 1980)).  



             19           Shea  II,  267  P.3d  at  630  (quoting  Lopez,  20  P.3d  at  570).   



             20           Id.  



             21           Id.   (footnote   omitted)   (first   citing   Lopez,   20   P.3d   at   571;   then   citing  



Municipality  of  Anchorage,  Police  & Fire  Ret.  Bd.  v.  Coffey,  893  P.2d  722,  726  (Alaska  

 1995)).   



             22           See id. at 631 (stating that employee bears burden of proof).  

                                                                                                                                 



             23           AS 39.35.410(a).  

                                                             



                                                                                 -7-                                                                          7166
  


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

                        and within the scope of the employee's duties and not the                                             

                        proximate result of the wilful negligence of the employee.                                             [24]  



The presumption of compensability from the workers' compensation context does not  

                                                                                                                                             



apply in the occupational disability benefits context, and the employee must prove by a  

                                                                                                                                                          



"preponderance of the evidence that the disability was proximately caused by an injury  

                                                                                                                                                 

which occurred in the course of employment."25   An employee's underlying injury does  

                                                                                                                                                    



not need to have been caused by the employment; instead, an employee can qualify for  

                                                                                                                                                       



occupational  disability  benefits  by  showing  that  the  employment  aggravated  a  

                                                                                                                                                         

preexisting condition by causing increased pain or other symptoms.26   This aggravation  

                                                                                                                                       

must be shown to be a substantial factor in contributing to the employee's disability.27  

                                                                                                                                       



                        The ALJ concluded that Shea had established sitting contributed to her  

                                                                                                                                                      



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

                                                                                                                                                        



causing her disability.  This conclusion rested on the ALJ's determination that "some  

                                                                                                                                                 



reasonablepersons wouldconsider prolonged sittingatworksosignificant and important  

                                                                                                                                           



a cause as to attach legal responsibility for it and others would not" and that "the latter  

                                                                                                                                                   



group is larger." Five reasons supported this conclusion: (1) Dr. Beard's testimony that  

                                                                                                                                                      



            24          AS 39.35.680(27).   



            25  

                                                                                                                                          

                        Shea II, 267 P.3d at 631 (quoting State, Pub. Emps. Ret. Bd. v. Cacioppo,  

                                                                       

813 P.2d 679, 682-83 (Alaska 1991)).  



            26          See  id.  ("[A]n  accident  which  produces  injury  by  precipitating  the  

                                                                                                                                                     

development of a latent condition or by aggravating a preexisting condition is a cause of  

                                                                                                                                                         

that injury." (quoting Hester v. State, Pub. Emps.' Ret. Bd., 817 P.2d 472, 475 (Alaska  

                                                                                                                                              

 1991))).  

                 



            27          Id. at 631-34.  

                                   



                                                                           -8-                                                                     7166
  


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

                                                                                                     28  

 Shea's   ilioinguinal   neuralgia                                                                          had   resolved  weakened   Dr.   Smith's   opinion   that  



prolonged sitting at work was a substantial factor of Shea's disability; (2) Shea did not                                                                                                                                                                                           



report prolonged sitting at work as a pain trigger to any of her physicians prior to her                                                                                                                                                                                            



disability    claim's    denial;    (3)    ordinary    daily    activity    aggravated    Shea's    pain;  



(4)  Dr. Smith's testimony limited the aggravation of Shea's chronic pain symptoms from                                                                                                                                                                                        



prolonged sitting at 5% to 10%; and (5) expert testimony indicated psychological factors                                                                                                                                                                                 



may have contributed to Shea's chronic pain.                                                                                                             



                      A.	                    The   Factual   Findings   Underpinning   The   ALJ's   Proximate   Cause  

                                            Decision Are Supported By Substantial Evidence.                                                                                              



                                             Shea challenges the factual findings underpinning the ALJ's proximate                                                                                                                                          



cause decision as unsupported by substantial evidence. On appeal we do not reweigh the                                                                                                                                                                                               



evidence or choose between competing inferences, but we will look to the record's                                                                                                                                                                                  



                                                                                                                                                                                                                                                                       29  

entirety to ensure that substantial evidence supports the ALJ's factual findings.                                                                                                                                                                                             



                                                                                                                                                                                                                                                                

                                             1.	                  Dispute  between  Dr.  Beard's  testimony  and  Dr.  Smith's  

                                                                  testimony  



                                                                                                                                                                                                                                                                                      

                                            Dr. Beard explained that in her experience the nerve damage caused by  



                                                                                                                                                                                                                                                               

 Shea's  1984  procedure  would  likely  not  continue  for  as  long  as  Shea's  pain  had  



                                                                                                                                                                                                                                                                                       

continued.  Dr. Beard also noted that ilioinguinal neuralgia is a condition aggravated by  



                                                                                                                                                                                                                                                                       

heavy lifting, extreme positioning, and sometimes standing or walking for long periods  



                                                                                                                                                                                                                                                             

of time.  When questioned about prolonged sitting's effect on ilioinguinal neuralgia,  



                                                                                                                                                                                                                                                                              

Dr.  Beard  stated  that  it  would  not  "cause  a  permanent  worsening  or  flare  of  [the]  



                                                                                                                                                                                                                                                                     

condition" if the person had the ability to adjust her position.  This testimony directly  



                                                                                                                                                                                                                                                              

contradicted Dr. Smith's testimony that prolonged sitting would affect Shea's condition,  



                      28                    InDecember2000Sheawasdiagnosedwith ilioinguinalneuralgia,possibly                                                                                                                                                        



related to nerve damage she suffered in 1984.                                                                                                            Shea II                    , 267 P.3d at 626-27.                      



                      29                    Id.  at 634.  

                                                                 



                                                                                                                                           -9-	                                                                                                                                7166
  


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

which was based on the belief that her ilioinguinal neuralgia had not resolved                                                                                                                                                                                                                                                                                                                                                                            and  



remained the primary problem.                                                                                                                                           



                                                                        The   dissent   asserts   that   the   ALJ   erroneously   concluded   that   Shea's  



neuralgia had resolved.                                                                                                        But the ALJ made no such finding.                                                                                                                                                                 The ALJ found there was                                                                                                



dispute between the doctors concerning the underlying cause of Shea's disability and                                                                                                                                                                                                                                                                                                                                                                     



whether her ilioinguinal neuralgia had resolved, and that this dispute weakened Shea's                                                                                                                                                                                                                                                                                                                                                   



case.    Portions of Dr. Beard's testimony provide substantial evidence for the ALJ's                                                                                                                                                                                                                                                                                                                                                     



finding that the ilioinguinal neuralgia diagnosis was disputed:                                                                                                                                                                                                                                                                         "I do not believe she had                                                                                         



chronic pelvic pain," and "even back then, no, I would not have diagnosed her or given                                                                                                                                                                                                                                                                                                                                                         



her that label of 'chronic pelvic pain.' "                                                                                                                                                                     



                                                                        The   dissent   endorses   the   superior   court's  assertion   that   Dr.   Beard's  



testimony "does not necessarily show that Shea's injury had abated; it shows either that                                                                                                                                                                                                                                                                                                                                                                 



(1)  Shea's condition was atypical, or (2) something else was causing her pain.                                                                                                                                                                                                                                                                                                                                                  Neither  



is proof that her ilioinguinal neuralgia resolved."                                                                                                                                                                                                                 But that formulation shows that there                                                                                                                                         



were two competing factual inferences the ALJ could have drawn from Dr. Beard's                                                                                                                                                                                                                                                                                                                            



testimony, with evidence supporting either.                                                                                                                                                                                                      Although the ALJ did not state he was                                                                                                                                                                 



drawing the latter inference - again, this was the superior court's formulation - he did                                                                                                                                                                                                                                                                                                                                                                    



find that Dr. Beard's testimony raised a dispute concerning the etiology of Shea's current                                                                                                                                                                                                                                                                                                                                              



 symptoms  and   that   her   pain   could   be   caused   by   something   other   than   ilioinguinal  



                                                                                                                                                                                                                                                                                                                    30  

neuralgia substantially aggravated by work requirements.                                                                                                                                                                                                                                                                      



                                    30                                 Although the dissent argues that "nothing in the ALJ's discussion even                                                                                                                                                                                                                                                                                                     



hints at a finding" that the etiology of Shea's symptoms was disputed, the ALJ explicitly                                                                                                                                                                                                                                                                                                                                  

found that Dr. Beard's "testimony weakens the basis for [Dr. Smith's] opinion, which                                                                                                                                                                                                                                                                                                                                                        

was that Ms. Shea's underlying physical condition . . . had                                                                                                                                                                                                                                                          not  resolved," that there was                                                                                                     

"expert  medical   testimony   to   the   effect   that   her   underlying   physical   condition   had  

resolved," and that there was "expert medical testimony that psychological factors may                                                                                                                                                                                                                                                                                                                                                                

                                                                                                                                                                                                                                                                                                                                                                                                       (continued...)  



                                                                                                                                                                                                                            -10-                                                                                                                                                                                                                    7166
  


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

                                 The dissent waves away this evident dispute by asserting that "the factual                                                                                          



issue regarding the etiology of Shea's pain was either uncontested or had been resolved                                                                                                          



in Shea's favor," and maintaining that the possibility of any medical dispute "is flatly                                                                                                                 



contradicted by the ALJ's earlier finding . . . that Shea's 1984 procedure 'result[ed] in                                                                                                                        



long-term unresolved ilioinguinal neuralgia.' "  But on remand we authorized the ALJ                                                                                                                       

                                                                                                                                                31  and he was entitled to rely  

to "reevaluate the evidence . . . as he deem[ed] necessary,"                                                                                                                                                



more heavily this time around on Dr. Beard's testimony to discount the persuasiveness  

                                                                                                                                                                                 



of Dr. Smith's opinion concerning the role work requirements played in the progression  

                                                                                                                                                                                         



of Shea's disability.  

                                                   



                                 And the ALJ's findings prior to remand concerning the cause of Shea's  

                                                                                                                                                                                                     



disability are not as clear as the dissent now asserts. The preponderance of evidence may  

                                                                                                                                                                                                           



have indicated that Shea had long-term unresolved ilioinguinal neuralgia, but Shea's  

                                                                                                                                                                                                     



disabling condition was found to be "chronic pain syndrome, primarily resulting from  

                                                                                                                                                                                  



the nerve injury in 1984, and referred and secondary pain related to that injury."  The  

                                                                                                                                                                                                           



causes of that referred and secondary pain are and always have been in dispute: the ALJ  

                                                                                                                                                                                                           



found prior to remand that "the chronic pain she suffers has many sources other than her  

                                                                                                                                                                                                              



working conditions"; and in its brief on appeal the State argues that evidence of how  

                                                                                                                                                                                                           



other "ordinary daily life activities also aggravated Shea's pain is relevant and material  

                                                                                                                                                                                                  



evidence of alternative causation."  

                                                          



                                 The dissent correctly notes that the "material, contested question" in this  

                                                                                                                                                                                                            



case is "whether sitting at work was so important a cause in Shea's pain that reasonable  

                                                                                                                                                                                           



persons would regard it as a cause and attach responsibility to it."   That being the  

                                                                                                                                                                                                             



                 30              (...continued)  



                                                                                        

have contributed to her disability."  



                 31              Shea II, 267 P.3d at 636.  

                                                                                    



                                                                                                      -11-                                                                                               7166
  


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

inquiry, it is not clear how the possibility of an alternative cause of Shea's pain was "not                                                                                                             



legally relevant" after remand - when Shea bore the burden of demonstrating the                                                                                                                            



relationship between work requirements and her "complex chronic pain syndrome" -                                                                                                                             



particularly   when   Shea's   own   expert  witness   attributed   no   more   than   10%   of   her  



symptoms to those work requirements.                                                             



                                 Substantial evidence supported the ALJ's interpretation of Dr. Beard's                                                                                        



testimony. And as the superior court noted, "[i]n other areas of law, the Alaska Supreme                                                                                                      



Court has held that where there are two or more conflicting medical opinions - each of                                                                                                                         



which constitutes substantial evidence - the reviewing court will affirm the decision of                                                                                                                       

                                                  32         This  principle  supports  upholding  the  ALJ's  finding  that  

the   agency   below."                                                                                                                                                                                  



Dr. Beard's testimony weakened Dr. Smith's opinion that prolonged sitting at work was  

                                                                                                                                                                                                          



a substantial factor in Shea's disability.  

                                                                        



                                 2.	             Shea's prior failure to report to a physician that sitting at work  

                                                                                                                                                                                                      

                                                 increased her pain  

                                                                                      



                                 The ALJ determined that prior to Shea's disability claim denial she did not  

                                                                                                                                                                                                            



report prolonged sitting at work as a pain trigger to any physician.  Shea did not report  

                                                                                                                                                                                                     



until 1999 that sitting in general increased her pain.  And she did not report until 2003  

                                                                                                                                                                 



that  prolonged  sitting  at  work  increased  her  pain,  after  she  filed  her  occupational  

                                                                                                                                                                                   



disability claim.  Substantial evidence in the record supports the ALJ's finding.  

                                                                                                                                                                               



                                 Shea asserts that the ALJ impermissibly disregarded testimony that prior  



to 1999 she had reported to her employer that sitting aggravated her pain.  The ALJ's  

                                                                                                                                                                                                    



fact finding on this issue relates only to when Shea first reported the link to a physician.  

                                                                                                                                                                                                                      



Though Shea is correct that the record contains evidence she reported pain from sitting  

                                                                                                                                                                                                    



to her employer, this evidence does not controvert the ALJ's physician-specific finding.  

                                                                                                                                                                                                



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



                                                                                                     -12-                                                                                                       7166  


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

                    3.	       Ordinary activities and Shea's pain  

                                                                                 



                    The record supports the finding that ordinary daily activities aggravated  

                                                                                                                   



Shea's pain.  Between 1989 and 2001 Shea told various physicians that her pain was  

                                                                                                                              



aggravated by a range of routine daily activities including working in her yard, any  

                                                                                                                              



physical activity, using stairs, sitting, standing, walking, bending forward or backward,  

                                                                                                                    



and lifting.         Shea's husband testified  that Shea ceased  doing  routine activities like  

                                                                                                                              



cooking, gardening, and walking her dog because those activities increased her pain.  

                                                                                                                                  



                    4.	       Dr. Smith's testimony on the upper bound of prolonged sitting  

                                                                                                                          

                              as a source of Shea's pain  

                                                                 



                    Dr. Smith stated that prolonged sitting increased Shea's pain by "maybe 5  

                                                                                                                                  



or 10 percent, at the most."  There is no dispute about this testimony.  

                                                                                          



                    5.	       Dr. Beard's testimony regarding psychological factors  

                                                                                                            



                    Dr.  Beard's  testimony  clearly  supports  the  ALJ's  observation  that  

                                                                                                                             



psychological factorsmay have contributed to Shea's disabling pain. Dr. Beard testified:  

                                                                                                                                     



"I don't believe she was disabled as much as she felt she was disabled.  Her perception  

                                                                                                                    



of her disability . . . exceeded . . . what would be . . . mostly medically reasonable"; in  

                                                                                                             



situations like Shea's the pain's original source can resolve and the pain "itself becomes  

                                                                                                                       



their driving force.  And it's a big emotional, psychological, psychosocial dilemma as  

                                                                                                                                 



to what is really driving this pain.  So in her case, I would say . . . it was her perception  

                                                                                                                    



that she was not able to return to work, not necessarily . . . that that was accurate."  

                                                                                                                                     



Dr. Beard noted that without further psychological evaluation she could not definitively  

                                                                                                                   



say whether Shea's pain had a psychological, rather than physical, cause, but that based  

                                                                                                                           



on the evidence at hand she saw no grounds to rule it out.  

                                                                                         



                    The ALJ did not find that psychological factors did cause Shea's disability.  

                                                                                                                                     



He  noted  only  that  they  may  have  done  so.                           Substantial  evidence  supports  this  

                                                                                                                             



observation.  



                                                              -13-	                                                        7166
  


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

               B.	            The ALJ's Ultimate Factual Determination That Prolonged Sitting At                                                                                           

                              Work   Was   Not   The   Proximate    Cause   Of   Shea's   Disability   Is  

                              Supported By Substantial Evidence.                             



                              The causation question disputed here is whether Shea's employment was                                                                                     



a proximate cause of her disability.                                            A proximate cause is a cause that is "so important                                



in bringing about the injury that reasonable [persons] would regard it as a cause and                                                                                                   



                                                           33  

attach responsibility to it."                                                                                                                                                         

                                                                 The appropriate inquiry is "whether the conduct has been  



                                                                                                                                                                                            34  

                                                                                                                                                                                                  

so significant and important a cause that the defendant should be legally responsible." 



                                                                                                                                                                                             

The ALJ determined that Shea's employment was not so significant and important a  



                                                                                                                

cause that the State should be legally responsible.  



                                                                                                                                                                                        

                              Becausereasonablemindscoulddisagreewhether Shea'semployment was  



                                                                                                                                                                                         

a substantial factor in causing her disability, we review the ALJ's determination for  



                                               35  

                                                                                                                                                                                          

substantial evidence.                                 We give deference to an ALJ's decision if it is supported by  



                                                                                                                                                                                             

evidence "substantial enough to support [the] conclusion in the contemplation of a  



                                        36  

                          

reasonable mind." 



                              Dr. Beard's testimony supports the ALJ's conclusion.  It casts doubt on  

                                                                                                                                                                                          



whether Sheasufferedfromilioinguinalneuralgiaduringher Stateemployment, breaking  

                                                                                                                                                                             



               33	            Shea II        , 267 P.3d at 634 (alteration in original) (quoting                                                         Vincent by Staton        



v.  Fairbanks Mem'l Hosp.                                  , 862 P.2d 847, 851-52 (Alaska 1993)).                                 



               34	           Id. (quoting Vincent, 862 P.2d at 851).  

                                                                                                        



               35             Winschel  v.  Brown,  171  P.3d  142,  148  (Alaska  2007)  (explaining  

                                                                                                                                                    

"determinations of proximate cause usually involve questions of fact" and become "a  

                                                                                                                                                                                           

matter of law only where reasonable minds cannot differ").  

                                                                                                                                     



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

                                                                                                                                                                                       

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

                                                                                                                                                                                   

89 (Alaska 1984))  (explaining when quantum of evidence is substantial enough  to  

                                                                                                                                                                                           

support administrative decision).  

                                                                           



                                                                                           -14-	                                                                                     7166
  


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

the causal chain between Shea's prolonged sitting and the aggravation of a preexisting                                                                                                        



condition. The                        dissent suggests that Dr. Beard'stestimony                                                                  should bediscounted                                  because  



Dr. Beard applied an incorrect legal standard when offering her opinion on whether                                                                                                                    

                                                                                         37     But as the ALJ noted, Dr. Beard's mistake about  

Shea's disability was work related.                                                                                                                                                                          



the appropriate legal standard was relevant only to her "opinion as to causation."  The  

                                                                              



dissent  offers  no  reason  Dr.  Beard's  diagnosis  of  Shea's  condition  and  potential  

                                                                                                                                                            



aggravating factors should likewise be discounted or why it should not cast doubt on the  

                                                                                                                                                                                                                    



premise of Dr. Smith's opinion, which was that "ilioinguinal neuralgia is the primary  

                                                                                                                                                                                                       



problem."  

                            



                                  Dr. Beard's testimony substantially undercuts Dr. Smith's, and, even if it  

                                                                                                                                                                                                                        



did not, Dr. Smith's opinion that Shea's employment contributed to the increase in her  

                                                                                                                                                                                                                   



pain  by  no  more  than  10%  would  not  necessarily  make  it  a  substantial  factor  "if  

                                                                                                                                                                                                                    



reasonable persons would [not] regard the injury as a cause of the disability and [not]  

                                                                                                                                                                                                               

                                                                   38     Dr. Smith testified it was more likely than not that Shea's  

attach responsibility to it."                                                                                                                                                                              

                                                            



work  environment  aggravated  her  condition  by  5%  to  10%.                                                                                                            Dr.  Smith  himself  

                                                                                                                                                                                                       



characterized  this  percentage  as  "small."                                                                      Even  if  the  ALJ  relied  exclusively  on  

                                                                                                                                                                                                                   



Dr. Smith's testimony, he could reasonably conclude that a 5%to 10%increase in Shea's  

                                                                                                                                                                                                           



symptoms resulting from work was not "so significant and important a cause as to attach  

                                                                                                                                                                                                             



legal responsibility to her employer for her disability." Our Shea II decision leaves room  

                                                                                                                                                                                                              



                 37               Dr. Beard defined "aggravation" as a "permanent worsening or flare [up]                                                                                                        



of the[] condition," and testified on that basis that Shea's work requirements had not                                                                                                                             

aggravated her disability.                                           But an occupational disability can be found where work                                                                                   

requirements aggravated the symptoms of a disease, even if there is no change to the                                                                                                                                

underlying condition.                                     Hester v. State, Pub. Emps.' Ret. Bd.                                                              , 817 P.2d 472, 476 n.7                               

(Alaska 1991).   



                 38               Shea II, 267 P.3d at 636 (citing Doyon, 999 P.2d at 770).  

                                                                                                                                                                      



                                                                                                         -15-                                                                                                  7166
  


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

                                                 39  

for such a finding.                                    And although the dissent certainly is correct that                                                                                    Shea II              "permits  



the opposite conclusion as well," the ALJ is the fact finder here, not this court.                                                                                                                                      



                                    That Dr. Smith's testimony in itself could have been sufficient to support                                                                                                        



the ALJ's proximate cause finding is also relevant to the dissent's arguments about the                                                                                                                                           



ALJ's   allegedly   "contradictory   findings."     The   dissent   argues   that   the   ALJ   made  



"contradictory findings" because Dr. Smith's testimony was sufficient to establish but-                                                                                                                                        



for cause yet insufficient to establish proximate cause. We conclude instead that the ALJ                                                                                                                                      



correctly required a higher showing to establish that prolonged sitting was a "substantial                                                                                                               



factor" in Shea's disability rather than simply "one among a multitude of aggravating                                                                                                                     

                                                                                                                                                                             40      "Substantial factor"  

factors, no one of which stood out as of particular significance."                                                                                                                                                     



necessarily requires a higher showing than but-for cause in this context: "but-for cause"  

                                                                                                                                                                                                                        



requires that Shea's work was a factor in causing her disability; "legal cause" demands  

                                                                                                                                                                                                                  



in addition that the factor be substantial.   The ALJ could have relied exclusively on  

                                                                                                                                                                                                                                   



Dr. Smith's testimony throughout and found without contradiction that it sufficed to  

                                                                                                                                                                                                                                    

establish but-for cause but not proximate cause.41  

                                                                                                                 



                  39                See id.   



                  40                The dissent states that "the ALJ conceded [there] was adequate proof of  

                                                                                                                                                                                                                                    

causation by Shea."  The only element of causation the ALJ "conceded" was "but-for"  

                                                                                                                                                                                                                 

cause.  But the ALJ has now twice determined that same evidence, in light of its own  

                                                                                                                                                                                                                              

weaknesses  and  the  doubt  cast  on  it  by  the  State's  evidence  and  expert  medical  

                                                                                                                                                                                                                   

testimony, was insufficiently compelling to establish proximate cause.  

                                                                                                                                                                                                



                  41                The dissent contends that Dr. Smith's testimony would not support such a  

                                                                                                                                                                                                                                        

finding because "the ALJ did not find Dr. Smith's opinion persuasive on the point the  

                                                                                                                                                                                                                                  

court suggests."   But in the decision prior to remand the ALJ accorded Dr. Beard's  

                                                                                                                                                                                                                     

testimony less weight, yet noted that  "Dr.  Smith's opinion, while persuasive as an  

                                                                                                                                                                                                                                   

expression of medical opinion, offers only limited support for the claim that Ms. Shea's  

                                                                                                                                                                                                                        

working conditions were a substantial factor in her disability."  After remand, although  

                                                                                                                                                                                                                  

                                                                                                                                                                                                      (continued...)  



                                                                                                                -16-                                                                                                         7166
  


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

                                               Shea's failure until 2003 to report to a physician that prolonged sitting at                                                                                                                                                   



work caused her disabling pain further supports the conclusion that a reasonable person                                                                                                                                                                                              



would not attach legal responsibility to her employer. Her failure to report to a physician                                                                                                                                                                             



that work aggravated her pain indicates that her employment was not, in her mind, so                                                                                                                                                                                                                 



significant a cause of her increased pain that she thought it particularly relevant to                                                                                                                                                                                                              



medical diagnosis and treatment.                                               



                                               The dissent asserts that the ALJ's finding here provides no persuasive                                                                                                                                                  



evidence concerning the legal causes of Shea's disability because "Shea's reports to her                                                                                                                                                                                                          



supervisor indicate 'that she knew [sitting] was a factor in what caused her pain,' " and                                                                                                                                                                                                    



because "Shea had no need to report her work conditions to her doctor" as her supervisor                                                                                                                                                                                 



was working with her to mitigate her pain.                                                                                                          This argument misapprehends the finding's                                                                                



relevance. It is undisputed that Shea's pain                                                                                                         manifested  at work. But the relevant inquiry                                                                                  



is not whether sitting for prolonged periods aggravated the contemporaneous expression                                                                                                                                                                                  



of symptoms.                                       Rather the relevant inquiry is whether prolonged sitting in some way                                                                                                                                                                      



precipitated   or   worsened   the   symptoms   or   the   underlying   disease   process   on  a  

"presumably permanent[]" basis.                                                                                    42  



                       41                      (...continued)  



                                                                                                                                                                                                                                                                                     

the ALJ concluded that Dr. Smith's opinion supported Shea's theory as a general matter,  

                                                                                                                                                                                                                                                                        

the ALJ explicitly listed as evidence against Shea the precise extent - 5% to 10% -  

                                                                                                                                                                                                                                                                                                    

Dr. Smith attributed Shea's symptoms to prolonged sitting.  Given that on appeal we do  

                                                                                                                                                                                                                                                               

notreweigh evidenceor choosebetween competinginferences, it would beinappropriate  

                                                                                                                                                                                                                                                                                       

to reverse the ALJ's decision when Shea's own evidence reasonably could be found  

                                                                                                                                                                                                                                                                                    

insufficient to prove her case.  See Shea II, 267 P.3d at 634; see also Raad v. Alaska  

                                                                                                                                                                                                                                                                                                 

State Comm'n for Human Rights, 86 P.3d 899, 903 (Alaska 2004) ("In applying the  

                                                                                                                                                                                                                                                                                     

substantial evidence test we view the evidence in favor of the findings." (citing Alaska  

                                                                                                                                                                                                                                                                         

State Comm'n for Human Rights v. Yellow Cab, 611 P.2d 487, 490 (Alaska 1990))).  



                       42                     See AS 39.35.680(27) (defining "occupational disability" as "a physical or  

                                                                                                                                                                                                                                                                                                      

mental  condition  that  .  .  . presumably  permanently "  prevents  the  employee  from  

                                                                                                                                                                                                                                                                                          

                                                                                                                                                                                                                                                               (continued...)  



                                                                                                                                                -17-                                                                                                                                        7166
  


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

                          The dissent acknowledges this distinction when it discusses how Dr. Smith                                                     



 "testified   that   prolonged   sitting   at   work   aggravated  Shea's   pain   in   two   ways:     by  



 increasing   it   during   work,  after   which   the   pain   would   return   to   baseline,   and   by  



 increasing her baseline level of pain."                                    We are concerned only with the latter.                                       Shea  



 discussing prolonged sitting at work with her supervisors is evidence of the former, but                                                                    

 it does not address the relevant inquiry.                                43  



             42           (...continued)  



                                                                                                                                                            

 performing the employee's usual or comparable duties (emphasis added)); Hester, 817  

                                                                                                                                                     

 P.2d at 476 n.7 (holding there is no distinction in the occupational disability context  

                                                                                                                                                            

 between  the  "worsening  of  the  underlying  disease  process  and  worsening  of  the  

                                                                                                                                                               

 symptoms"); see also Shea II, 267 P.3d at 631 ("[A]n accident which produces injury by  

                                                                                                                                             

precipitating the development  of a latent condition or  by aggravating a preexisting  

                                                                                                                                                        

 condition is a cause of that injury." (emphasis added) (quoting Hester, 817 P.2d at 475)).  



                                                                                                                                                             

                          The dissent argues thatweare quoting AS 39.35.680(27) out of context and  

                                                                                                                                            

 that it is only the "employee's inability to perform her work" that "must be permanently  

                                                                                                                                              

 precluded."  The statute is clear, however, that our inquiry focuses on the "proximate  

                                                                                                                                                             

 cause of the condition" (or disabling symptoms), not on the proximate cause of the  

                                                                                                                                                                     

 inability to work, if in this context those two causes can be meaningfully distinguished.  

                                                                                                                                                    

 AS 39.35.680(27) (emphasis added).  And AS 39.35.410 further supports our reading,  

                                                                                                                                                               

 providing  that  an  "employee  is  eligible  for  an  occupational  disability  benefit  if  

                                                                                                                                          

 employment is terminated because of a total and apparently permanent occupational  

                                             

 disability."  (Emphasis added.)  



             43           The  dissent  argues  that  Shea  could  qualify  for  occupational  disability  

                                                                                                                                                 

 benefits "not only by showing that sitting at work permanently caused an increase in her  

                                                                                                                                                             

 baseline pain but also by showing that sitting at work increased her pain to such an extent  

                                                                                                                                                        

 that she could not perform her work and that this circumstance was permanent," and  

                                                                                                                                                            

 asserts that "[r]equiring a permanent worsening of baseline pain is no different from  

                                                                                                                                                          

 requiring a permanent worsening of an employee's condition."  But this formulation  

                                                                                                                                             

 eliminates the causal component of our inquiry and ignores the requirement that "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."  

                                                                                                                                                                     

 AS 39.35.680(27) (emphasis added).  

                                                         

                                                                                                                                         (continued...)  



                                                                              -18-                                                                       7166
  


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

                                                       And although for medical diagnosis and treatment purposes, as the dissent                                                                                                                                                                                                        



 states, "prolonged                                                        sittingat work is not reasonablydistinguishablefromprolonged sitting                                                                                                                                                                                            



in general," in the ALJ's opinion sitting also is not distinguishable in significance from                                                                                                                                                                                                                                                      



other activities Shea reported to physicians, including "standing, walking, exercise,                                                                                                                                                                                                                                         



bending forward or backwards, cold, and stairs."  Shea failed to identify to physicians                                             



that work requirements were a likely contributing factor to her disability but addressed                                                                                                                                                                                                                                   



work requirements with her supervisors; these actions support the ALJ's finding prior                                                                                                                                                                                              



to remand that "prolonged sitting was one among a multitude of aggravating factors, no                                                                                                                                                                                                                                                                    



one of which stood out as of particular significance."                                                                                                                                                                              And this lack of distinction is                                                                                          



relevant to determining whether work requirements should be considered the legal cause                                                                                                                                                                                                                                                        



of Shea's disability.                    



                                                       Thedissent                                     correctly notes that theALJ's                                                                                           observationsaboutpsychological                                                



factors were "tepid" and based on mere speculation because Shea did                                                                                                                                                                                                                                               not undergo   



 sufficient psychological evaluation.                                                                                                                    But Dr. Beard's very firm opinion that "I do not                                                                                                                                              



believe [Shea] had chronic pelvic pain" was not mere speculation; Dr. Beard based her                                                                                                                                                                                                                                                                  



opinion onpersonalexaminationandexperiencetreatingpatients with similar conditions.                                                                                                                                                                                                                                                                                    



Dr. Beard's opinion undercut the persuasiveness of Shea's arguments.                                                                                                                                                                                                                                      And because   



                            43                         (...continued)  



                                                                                                                                                                                                                                                                                                                                                    

                                                       In  Hester  we  rejected  a  distinction  between  the  "worsening  of  the  

                                                                                                                                                                                                                                                        

underlying disease process and worsening of the symptoms of a disease."  817 P.2d at  

                                                                                                                                                                                                                                                                                                                                                      

476 n.7.   But we did not alter the statute's requirement that the "worsening of the  

                                                                                                                                                                                                                                                                                                                                                   

 symptoms" be proximately caused by work requirements.  Id.  Requiring work to be a  

                                                                                                                                                                                                                                                                                                                                                       

proximate cause is not a "reformulation of a distinction we rejected" in Hester, as the  

                                                                                                                                                                                                                                                                                                                                                

dissent asserts.   We instead maintain the distinction between occupational and non- 

                                                                                                                                                                                                                                                                                                                                                       

occupational disabilities:  the former requires that work be the proximate cause of the  

                                                                                                                                                                                                                                                                                                               

disability, while the latter does not.  Compare AS 39.35.680(27) (defining occupational  

                                                                                                                                                                                                                                                                                                                                           

disability),  with  AS  39.35.680(24)  (defining  non-occupational  disability).                                                                                                                                                                                                                                                               Non- 

                                                                                                                                                                                                                                                                                                                                                       

occupational disability benefits are available to those, like Shea, for whom work is not  

                                                                                                                                                                                                                                                                      

a proximate cause of the disability.  See AS 39.35.680(24); AS 39.35.400.  



                                                                                                                                                                          -19-                                                                                                                                                                   7166
  


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

Shea bore the burden of proof, the State's "theory of the case" did not have to include   



an alternative diagnosis as the dissent seems to suggest.   Rather, existing plausible  

                                                                                                                                                                                                      



alternative bases for Shea's pain support the ALJ's determination that she failed to show  

                                                                                                                                                                                                                 



work requirements were the proximate cause of her disability.                                                                                                    



                                  Other daily activities increased Shea'spain                                                                  and other factors, someperhaps                              



psychological,  may  have played  a role in her  symptoms. This  evidence supports a  

                                                                                                                                                                                                                           



reasonable conclusion that Shea's employment was not so significant or important a  

                                                                                                                                                                                                                           



cause as to justify holding the State legally responsible.                                                                                      Because, in the contemplation             



of a reasonable mind, the evidence relied on is substantial enough to support the ALJ's                                                                                                                        



conclusion, we affirm the ALJ's decision.  

                                                                                                              



V.               CONCLUSION  



                                  We REVERSE the superior court's decision reversing the ALJ's decision,  

                                                                                                                                                                                                        



thereby AFFIRMING the ALJ's decision sustaining the administrator's denial of Shea's  

                                                                                                                                                                                                              



occupational disability benefits.  

                                                            



                                                                                                          -20-                                                                                                    7166
  


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

                                         

Fabe, Justice, dissenting.  



                                                                                                                                

                     I disagree with the court's determination that substantial evidence in the  



                                                                                                                       

record supports the denial of Shirley Shea's occupational disability claim.   Superior  



                                    

Court Judge Philip R. Volland correctly concluded that key facts in the administrative  



                                                                                                                

decision are either irrelevant to the ultimate question of proximate cause or simply not  



                                                                                                                        

supported by evidence in the record. I would therefore affirm Judge Volland's decision  



                                                           

reversing the administrative denial of benefits.  



                                                                                                                               

                     The only question decided adversely to Shea by the administrative law  



                                                                                                                                 

judge was proximate cause, and the ALJ limited his adverse finding to one part of  



                                                                                                                              

proximate cause, which he called the " 'Attach Responsibility' requirement."  The ALJ  



                                                                                                                                

agreed with Shea that she had carried her burden of proving that, but for her work at the  



                                                                                                                                

 State, she "would not have experienced disabling chronic pain in 2001," the year she  



                                                                                                                                  

became  unable  to  work.                 But  the  ALJ  rejected  Shea's  claim  that  her  work  was  a  



                                                                                                                               

proximate cause based on the ALJ's view that the group of people who would not  



                                                                                                                              

"consider prolonged sitting at work so significant and important a cause as to attach legal  



                                                                                                                              

responsibility for" the disability was "larger" than the group who would.   The ALJ  



                                                                                                                            

evidently counted himself among the former group and discussed the evidence he relied  



                                                                                                                              

on  to  reject  Shea's  claim.               But  not  all  of  the  evidence  relied  on  by  the  ALJ  was  



                                                                                                                                

substantial:  Some was speculative or nonexistent.  And much evidence relied on by the  



                                                                                                                           

court in today's opinion either does not reflect the correct legal standard or is not related  



                                                                                                                                  

to the issues disputed in the case.  This evidence cannot serve as substantial evidence to  



                                                         

support the finding about proximate cause.  



                      

          Legal framework  



                                                                                                                               

                     The court sets out the statutory definition of "occupational disability" and  



                                                                                                                      

cites our case law holding that an employee can qualify for occupational disability  



                                                                                                                                

benefits when an occupational hazard causes an increase in symptoms, even if it does not  



                                                               -21-                                                         7166
  


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

cause a worsening of the underlying condition itself. Under the statute and our case law                                                                                                       



                                                                                                                                                                   1  

on aggravation, Shea had to show that it was more likely true than not                                                                                                                  

                                                                                                                                                                      that "a hazard  



                                                                                                                                                                                                    

undergone,  while  in  the  performance  and  within  the  scope  of  [her]  duties"  was  a  



                                                                                                                                                                                            

proximate cause of a physical condition that "presumably permanently prevents [her]  

                                                                                                                           2       The  statute  uses  the  phrase  

                                                                                                                                                                                      

from  satisfactorily  performing  [her]  usual  duties." 



"presumably permanently" only to modify the duration of an employee's inability to  

                                                                                                                                                                                                  

perform her job functions, not to measure the impact on a condition or symptom.3                                                                                                              The  

                                                                                                                                                                                              



State does not contest that Shea is permanently precluded from performing the usual  

                                                                                                                                                                                           



duties of her job.  

                                         



                               The "hazard" for Shea was sitting, which she alleged aggravated her pain  

                                                                                                                                                                                             



from the ilioinguinal neuralgia diagnosed by her doctors.   In the first administrative  

                                                                                                                                                                      



decision, the ALJ wrote that "both parties agree that the primary cause of [Shea's]  

                                                                                                                                                                                   



disability is a neurological injury incurred in 1984 that became disabling during the time  

                                                                                                                                                                                             



Ms. Shea was working for the State of Alaska." The ALJ also wrote in that decision that  

                                                                                                                                                                                               



"the preponderance of the evidence is that [Shea] suffered some form of injury to her  

                                                                                                                                                                                                



ilioinguinal nerve in the course of the 1984 procedure, resulting in long-term unresolved  

                                                                                                                                                                              



ilioinguinal neuralgia."  That finding was not appealed, and in the State's brief in the  

                                                                                                                                                                                                



current appeal, it asserts that "[i]n Dr. Beard's expert medical opinion, Shea's pain was  

                                                                                                                                                                                              



not work-related, but was caused by her 1984 . . . procedure."  The ALJ referred to the  

                                                                                                                                                                                                



neurological injury only as ilioinguinal neuralgia, and the ALJ also noted that the State  

                                                                                                                                                                                            



                1              See In re J.A.                , 962 P.2d 173, 177 (Alaska 1998) (equating preponderance                                               



of the evidence with "more likely than not");                                                        id.  at 181 (Matthews, J., dissenting) (stating                                  

that "customary civil preponderance-of-the-evidence standard . . . requires the trier of                                                                                                          

fact to find that something is more likely than not true").                                                         



               2               AS 39.35.680(27).  

                                        



               3              Id.  



                                                                                               -22-                                                                                        7166
  


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

"did not attempt to prove that Ms. Shea's pain was a psychological response to the                                                                                                                                      



original non-work-related ilioinguinal neuralgia and as such was not proximately caused                                                                                                                        



by her employment."                                      The ALJ's words do not suggest that the parties "raised a dispute                                                                                   



about the etiology of Shea's current symptoms."                                                                                  To the contrary, the ALJ's decision                                       



demonstrates that the question of the etiology of Shea's symptoms was not an issue on                                                                                                                                     



remand.    



                                   Neither party disputed that Shea was disabled from working.                                                                                                    As the ALJ         



said in the first decision, the only dispute was "whether the prolonged periods of sitting                                                                                                                      

                                                                                                                    4      To show that prolonged sitting was a  

were a substantial factor in her disability."                                                                                                                                                                                



proximate cause of her disability, Shea only needed to show that prolonged sitting was  

                                                                                                                                                                                                                       



a proximate cause of her increased pain.  

                                                                                            



                                   We have previously observed that "increased pain or other symptoms can  

                                                                                                                                                                                                                        



be as disabling as deterioration of the underlying disease itself," and we have rejected a  

                                                                                                                                                                                                                              



distinction  between  worsening  of  an  underlying  condition  and  worsening  of  the  

                                                                                                                                                                                                                       

                            5       Elaborating  on  the  question  of  increased  symptoms  in  the  context  of  

symptoms.                                                                                                                                                                                                                 



workers'  compensation,  we  recognized  that  "when  a  job  worsens  an  employee's  

                                                                                                                                                                                                 



symptoms such that she can no longer perform her job functions, that constitutes an  

                                                                                                                                                                                                                          



                                                                                                                                                                                                                              6  

 'aggravation' - even when the job does not actually worsen the underlying condition." 

                                                                                                                                                                                                                                   



                                                                                                                                                                                                                

The question is not, as the court puts it in its opinion today, "whether prolonged sitting  



                 4                 Although   our   decision   in   Shea   II   permitted   the   ALJ   to   reevaluate   the  



evidence  as  he  deemed  necessary,  in  the  Decision  on  Remand  the  ALJ  explicitly  stated  

that  he  made  no  new  findings  of  fact  "except  insofar  as  whether  prolonged  sitting  at  work  

was  a  substantial  factor  in  Ms.  Shea's  disability  is  an  issue  of  fact."   



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

                                                                                                                                                                                                      



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

                                                                                                                                                                                                  

Hester).  



                                                                                                           -23-                                                                                                    7166
  


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

in some              way precipitated or worsened the symptoms or the underlying disease process                                                                                                 



on a 'presumably permanent[]' basis."                                                          Instead the question is whether the hazard Shea                                                         



underwent at work worsened her symptoms to such an extent that she was permanently                                                                                                  

                                                                                                          7     She could demonstrate this not only by  

precluded from performing her job duties.                                                                                                                                                      



showing that sitting at work permanently caused an increase in her baseline pain, but also  

                                                                                                                                                                                                         



by showing that sitting at work increased her pain to such an extent that she could not  

                                                                                                                                                                       



perform  her  work  and  that  this  circumstance  was  permanent  -  that  it  would  not  

                                                                                                                                                                                                          

improve.8                  Shea presented evidence supporting both propositions.  

                                                                                                                                                                   



                Administrative decision on appeal in this case  

                                                                                                                            



                                 The ALJ decided on remand that Shea had proved but-for causation but had  

                                                                                                                                                                                                          



not shown that sitting at work was so significant a factor in her disability that reasonable  

                                                                                                                                                                                         



persons would consider  it a cause and  attach  responsibility  to  it.                                                                                                   In  reaching that  

                                                                                                                                                                                                         



decision, the ALJ acknowledged that Shea had presented substantial evidence that her  

                                                                                                                                                                                                           



work was a substantial factor in causing her disability, and he specifically identified the  

                                                                                                                                                                                                            



following evidence to support this statement:                                                                           Dr. Smith's opinion "that prolonged  

                                                                                                                                                                                         



sitting  aggravated  a  physical  condition  and  her  pain  symptoms,"  coupled  with  the  

                                                                                                                                                                                                          



increase in Shea's pain symptoms while she worked for the State and the evidence that  

                                                                                                                                                                                                          



Shea "sat for prolonged periods of time while working and found it painful."  

                                                                                                                                                                                              



                                 The ALJ then listed the six pieces of "substantial evidence" that countered  

                                                                                                                                                                                           



Shea's proof; that list is set out in the court's opinion. The ALJ discussed separately the  

                                                                                                                                                                                                            



evidence that persuaded him Shea had not shown that work was so significant a cause  



                7               AS 39.35.680(27).   



                8                TheALJrecognized theconnection betweenjobrequirementsanddisabling                                                                                            



symptoms when he observed that "[a]bsent some reason to believe that a change to a                                                                                                                              

comparable position or job will alleviate or eliminate the disabling symptoms, employers  

                                                                                                                                                                                          

and employees have no incentive to investigate available alternatives."                                                                                                       



                                                                                                    -24-                                                                                              7166
  


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

in her disability that he would attach legal responsibility to it.                                                                                                                The ALJ's discussion   



focused on the manner in which Dr. Beard's opinion differed from Dr. Smith's and the                                                                                                                                                      



timing of Shea's reports regarding her pain, although he mentioned other factors as well.                                                                                                                                                            



                                     The ALJ examined testimony of the two doctors whose opinions he had                                                                                                                                



given   the   most   weight,   Dr.   Smith   and  Dr.   Beard.     The   ALJ   acknowledged   that  



Dr. Beard's opinion about aggravation was based on an incorrect legal standard and "did                                                                                                                                               

                                                                                                                                                                                                                  9      The ALJ  

not directly rebut Dr. Smith's opinion as to aggravation of chronic pain."                                                                                                                                                            



stated that Dr.  Beard's "testimony,  in substance,  was to  the effect that Ms.  Shea's  

                                                                                                                                                                                                                              



ilioinguinal neuralgia had resolved."  The ALJ reasoned that this aspect of Dr. Beard's  

                                                                                                                                                                                                                            



opinion "weaken[ed] the basis for  [Dr.  Smith's] opinion, which was that . . . [the]  

                                                                                                                                                                                                                             



 []ilioinguinal neuralgia[] had not resolved." (Emphasis in original.)  Notably, the ALJ  

                                                                                                                                                                                                                                      



did  not  infer from Dr. Beard's testimony that something other than the ilioinguinal  

                                                                                                                                                                                                                 



neuralgia was the underlying cause of Shea's chronic pain.  Citing Smith v. University  

                                                                                                                                                                                            

                                                               10   the  ALJ  commented  that Dr.  Beard's  testimony  "has some  

of Alaska,  Fairbanks,                                                                                                                                                                                                            

                               



persuasive weight even in the absence of a definitive statement applying the correct legal  

                                                                                                                                                                                                                                     



standard."  But nothing in the ALJ's discussion even hints at a finding "that Dr. Beard's  

                                                                                                                                                                                                                            



testimony raised a dispute concerning the etiology of Shea's current symptoms."  Yet,  

                                                                                                                                                                                                 



the  court  insists  that  the  ALJ  found  "that  Dr.  Beard's  testimony  raised  a  dispute  

                                                                                                                                                                                                                            



concerning the etiology of Shea's current symptoms" and "found there was dispute  

                                                                                                                                                                                                                             



between the doctors concerning the underlying cause of Shea's disability," but the  

                                                                                                                                                                                                                                        



                   9                 The court attempts to minimize Dr. Beard's use of the incorrect standard                                                                        



by saying it "was relevant only to her 'opinion as to causation.' " But causation was the                                                                                                                                                 

sole   issue   on   remand   and   is   the   issue   on   appeal.     The   ALJ   explicitly  said  that  

"Dr. Beard's opinion  as to causation  was somewhat less persuasive than Dr. Smith's"                                                                

(emphasis added) because she used the incorrect legal standard.                                                                                                                     



                   10                 172 P.3d 782, 791 (Alaska 2007).  

                                                                                                                  



                                                                                                                   -25-                                                                                                             7166
  


----------------------- Page 26-----------------------

administrative decisions simply do not support this assertion. In discussing the " 'Attach                                                                                                         



Responsibility' requirement," the ALJ wrote:                                                     



                                                  In   this   case,   Dr.   Smith   was   of   the   opinion   that  

                                 prolonged   sitting   at  work   aggravated   Ms.   Shea's   chronic  

                                 pain.     Dr.   Beard's   opinion   was   couched  in   terms   of   the  

                                 underlying physical condition, and thus did not directly rebut                                                                           

                                 Dr. Smith's opinion.                                    Nonetheless, Dr. Beard's testimony                                  

                                 provides support for the view that prolonged sitting at work                                                                            

                                 was not a substantial factor in Ms. Shea's disability, because                                                                    

                                 her testimony, in substance, was to the effect that Ms. Shea's                                                                       

                                 ilioinguinal neuralgia had resolved.                                                       Thus, while Dr. Beard                      

                                 did not directly rebut Dr. Smith's opinion as to aggravation   

                                 of   chronic   pain,   her   testimony   weakens   the   basis   for  his  

                                 opinion,   which   was   that   Ms.   Shea's   underlying  physical  

                                 condition (ilioinguinal neuralgia) had  not  resolved.  In light  

                                 of        Dr.          Beard's                  testimony,                     Dr.          Smith's                 opinion                 that  

                                 Ms. Shea's chronic pain was work-related is only marginally                                                                

                                 persuasive.[11]  



The ALJ did not attempt to reconcile his interpretation of Dr. Beard's testimony with his  

                                                                                                                                                                                                                



statement in the initial decision that "the preponderance of the evidence is that [Shea]  

                                                                                                                                                                                                       



suffered  some  form  of  injury  to  her  ilioinguinal  nerve  in  the  course  of  the  1984  

                                                                                                                                                                                                         



procedure, resulting in long-term unresolved ilioinguinal neuralgia."  

                                                                                                                                                                             



                                 The ALJ also discussed at length his reasoning related to Shea's reports  

                                                                                                                                                                                                      



about the impact of sitting at work.   A crucial aspect of the ALJ's analysis was his  

                                                                                                                                                                                                               



concern that Shea had not reported to her physicians that prolonged sitting at work was  

                                                                                                                                                                                                              



causing her pain to increase.  According to the ALJ, "[a] claimant's reported perception  

                                                                                                                                                                                             



of pain  and  the activities that generate it,  made for  the  purpose of assisting  in  the  

                                                                                                                                                                                                               



diagnosis and treatment of that pain, is important evidence of the cause of that pain."  

                                                                                                                                                                                                                          



The ALJ then wrotethat "reasonablepersonswill consider whether the claimant reported  

                                                                                                                                                                                                   



                 11              Emphasis  in  original;  footnotes  omitted.  



                                                                                                       -26-                                                                                                         7166  


----------------------- Page 27-----------------------

a work injury as a source of pain during the period of employment, and, if not,                                                                                                                                                          whether  



there is a reasonable explanation for the failure to do so                                                                                                             ." (Emphasis added.)                                           The ALJ   



then found the following (as later revised):                                                          



                                        In this case, Ms. Shea did not identify sitting as a causal                                                                                                   

                                        factor until 1999, and she did not identify sitting at work as   

                                        a causal factor until two years after she retired, in 2003. . . .                                                                                                                   

                                        [T]he alleged relationship between her working conditions                                                                                         

                                        and the disability is one that Ms. Shea might reasonably be                                                                                                                

                                        expected                         to          have                identified                         through                       direct                 personal  

                                        experience, and to tell her treating physician:                                                                                       "It hurts when              

                                       I   sit   for   a   prolonged  period   of   time ."      Under    these  

                                        circumstances, that Ms. Shea did not report to a physician                                                                                        

                                        prolonged sitting at work as contributing to her chronic pain                                                                                                        

                                        while she was still employed suggests that prolonged sitting                                                                                                    

                                        at work was not so significant and important a cause as to                                                                                                                  

                                        attach legal responsibility to her employer.                                                                                   [12]  



                                        The ALJ cited the fact that Shea had "not report[ed] to a physician working  

                                                                                                                                                                                                                                         



conditions as contributing to her pain until after she had stopped working" and "evidence  

                                                                                                                                                                                                                                     



that the ilioinguinal neuralgia had resolved and that psychological factors may have  

                                                                                                                                                                                                                                                   



contributed to her disability" as supporting his conclusion that Shea had not shown that  

                                                                                                                                                                                                                                                      



reasonable persons would attach legal responsibility to her employer for her disability.  

                                                                                                                                                                                                                                                                     



Because the ALJ focused on these two reasons to reject Shea's claim, and because the  

                                                                                                                                                                                                                                                        



ALJ acknowledged that reasonable people could also conclude that Shea's work was a  

                                                                                                                                                                                                                                                              



legal cause of her disability, the factual underpinnings of his main reasons must be  

                                                                                                                                                                                                                                                          



examined in detail.  

                                                           



                    Reporting work-related sitting to a physician  

                                                                                                                                  



                                        With regard to Shea's report of sitting as a cause of her pain, the record  

                                                                                                                                                                                                                                              



shows that Shea did just what the ALJ said she was "reasonably expected to do."  She  

                                                                                                                                                                                                  



                    12  

                                                                       

                                        Emphasis added.  



                                                                                                                           -27-                                                                                                                                7166  


----------------------- Page 28-----------------------

reported to her treating physicians, beginning in 1999, that sitting was causing her                                                                                                         



                                  13  

increased pain.                                                                                                                                                                               

                                       The ALJ notably failed to discuss "the reasonable explanation" for her  



                                                                                                                                                                                

failuretoreportemployment-specificprolonged sitting to her doctors: Shehad discussed  



                                                                                                                                                                                    

the problem with her supervisor at work, and the employer was taking steps to address  



                                                                                                                                                                             

the problem.  From the point of view of medical diagnosis and treatment, prolonged  



                                                                                                                                                                                       

sitting at work is not reasonably distinguishable from prolonged sitting in general except  



                                                                                                                                                                                           

that the worker may have less control over varying her activity or work conditions, such  



                                                                                                                                                                            

as the type of chair she uses.  If an employer is attempting to address those conditions,  



                                                                                                                                                                                                

as Shea's supervisor was, a physician does not really need to know for purposes of  



                                                                                                                                                                                                       

diagnosis and treatment whether the prolonged sittingis happening at work or elsewhere.  



                                                                                                                                                                                        

Because Shea's supervisor was working with her to address her increased pain at work,  



                                                                                                                                                                                              

Shea had no need to report her work conditions to her doctor, particularly in light of her  



                                                                                                                                                                                         

earlier report to her physicians that sitting increased her pain.  As the superior court  



                                                                                                                                                                                       

observed, Shea's reports to her supervisor indicate "that she knew [sitting] was a factor  



                                                                                                                                                                                                

in what caused her pain."  Thus, I agree with the superior court that Shea's failure to  



                                                                                                                                                                                            

report to a physician that prolonged sitting at work was causing increased pain was "not  



                                                                                                                                                                             

particularly convincing evidence"that could serve to undermine theevidencesupporting  



             14  

Shea.              



               13             Initially, the ALJ found that Shea "did not identify sitting at work as a                                                                                           



causal factor"  at all  until 2003, concluding that her failure to "report prolonged sitting                                                                                           

at work as contributing to her chronic pain while she was still employed suggests that                                                                                                      

prolonged sitting at work was not so significant and important a cause as to attach legal                                                                                                 

responsibility to her employer."                                          He amended the decision to reflect that Shea failed to                                                                 

report work-relatedness to a physician but did not otherwise amend the discussion.                                                                                                            



               14             While  I  agree  with  the  superior  court  that  the  ALJ's  decision  can  be  

                                                                                                                                                                                               

reversed outright, the ALJ's failure to discuss Shea's explanation merits at a minimum  

                                                                                                                                                                              

a remand so the ALJ can discuss Shea's perfectly reasonable explanation of why she did  

                                                                                                                                                                                              

                                                                                                                                                                      (continued...)  



                                                                                              -28-                                                                                       7166
  


----------------------- Page 29-----------------------

             Dr. Beard's testimony     



                         The   ALJ   cited   Dr.   Beard's   testimony   "to   the   effect   that  Ms.  Shea's  



 ilioinguinal neuralgia had resolved" to support his ultimate conclusion and to counter                                                              



                                                                                                                                                               15  

Dr. Smith's opinion that prolonged sitting at work probably did increase Shea's pain.                                                                                



                                                                                                                                                           

 The superior court carefully examined the portion of Dr. Beard's testimony that the ALJ  



                                                                                                                                                                 

relied on and concluded, correctly in my view, that this testimony did not support a  



                                                                                                                                                          

 finding that the ilioinguinal neuralgia had resolved.  Dr. Beard testified that Shea "had  



                                                                                                                                                              

just recently been  evaluated . . . and diagnosed with that condition" at the time of  



                                                                                                                                                     

Dr. Beard's examination. Dr. Beard then testified that Shea's disability is "really chronic  



                                                                                                                                                      

pain," where a patient stops seeking treatment for the underlying condition and instead  



                                                                                                                                                            

 seeks  treatment  for  the  pain.                           This  testimony  does  not  support  a  finding  that  the  



                                                                                                                                                             

 ilioinguinal neuralgia had resolved.  And, as the ALJ pointed out, the State "did not  



                                                                                                                                                          

 attempt to prove that Ms. Shea's pain was a psychological response to the original non- 



                                                                                                                                                            

work-related  ilioinguinal neuralgia and as such was not proximately caused by her  



                              

 employment."  



             14          (...continued)  



                                                                                                                                                       

not identify to her physicians that sitting at work, rather than simply sitting, was a causal  

                                                                                                                                               

 factor in her increased pain.  Shea argued at the administrative level that her complaints  

                                                                                                                                                            

to her supervisor showed that Shea understood the link between her work and her  

                               

 increased pain.  



             15          Dr. Smith testified that prolonged sitting at work aggravated Shea's pain  

                                                                                                                                                           

 in two ways: by increasing it during work, after which the pain would return to baseline,  

                                                                                                                                                   

 and by increasing her baseline level of pain.  When the ALJ asked a clarifying question,  

                                                                                                                                                  

Dr. Smith affirmed that "there might be potentially temporarily more . . . of an increase  

                                                                                                                                                    

 from [Shea's] baseline, but over time 5 or 10 percent."  Dr. Smith also testified that he  

                                                                                                                                                               

 did not think there would be "a cure" for Shea's condition and that "this is something  

                                                                                                                                               

 she's likely to have to live with."  

                                                                



                                                                              -29-                                                                       7166
  


----------------------- Page 30-----------------------

                                                                                                                                

                    The superior court considered other parts of Dr. Beard's testimony, to the  



                                                                                                                               

effect that the duration of Shea's symptoms "would not be typical" if the neuralgia was  



                                                                                                                       

caused  by  the  earlier  surgery  because  ilioinguinal  neuralgia  cases  usually  "resolve  



                                                                                                                              

relatively quickly."  But, as the superior court correctly determined, this testimony does  



                                                                                                                          

not show that Shea's neuralgia had resolved:  Rather, "it shows either that (1) Shea's  



                                                                                                                              

condition was atypical, or (2) something else was causing her pain."  Because the ALJ  



                                                                                                                         

incorrectly inferred that Shea's neuralgia had resolved in order to discredit Dr. Smith's  



                                                                                                                           

opinion about causation, the superior court correctly discounted this part of the ALJ's  



                

decision.  



                                                                                                                              

                    The court takes the position that the ALJ made the latter inference and "did  



                                                                                                                          

find that Dr. Beard's testimony raised a dispute concerning the etiology of Shea's current  



                                                                                                                  

symptoms  and  that  her  pain  could  be  caused  by  something  other  than  ilioinguinal  



                                                                                                                           

neuralgia substantially aggravated by work requirements."  But nothing in the ALJ's  



                                                                                                       

opinion supports the court's assertion that "the etiology of Shea's current symptoms"  



                                                                                                                            

was in question; this assertion is flatly contradicted by the ALJ's earlier finding, based  



                                   

on the preponderance of the evidence, that Shea's 1984 procedure "result[ed] in long- 



                                                                                                                               

term unresolved ilioinguinal neuralgia."  The relevant material and contested issue was  



                                                                                                                                  

not the etiology of Shea's symptoms; if that issue was contested, the ALJ resolved it in  



                                                                                                                      

the first decision.  The contested question was narrower: By the time the ALJ discussed  



                                                                                                                           

this portion of Dr. Beard's testimony, the only unresolved question was whether sitting  



                                                                                                                

at work was so important a cause in Shea's pain that reasonable persons would regard  



                                                                                                                           

it as a cause and attach responsibility to it.  The ALJ had already determined that sitting  



                                                                                                                           

was a but-for cause - that "but for periods of prolonged sitting at work, Ms. Shea would  



                                                    

not have been disabled in 2001."  



                                                                                                                              

                    Rather than focusing on this narrow question, the court claims that the ALJ  



                                                                                                                          

"did find that Dr. Beard's testimony raised a dispute about the etiology of Shea's current  



                                                               -30-                                                         7166
  


----------------------- Page 31-----------------------

                                                                                                                      

symptoms." But as set out above, the ALJ described Dr. Beard's testimony as testimony  



                                                                                                                                 

that the "ilioinguinal neuralgia had  resolved."                            The court points to  no  evidence or  



                                                                                                                    

testimony to show that the inference the ALJ actually made is supported by substantial  



                                                                                                                                  

evidence, and as a result, this "evidence" cannot be a basis for the court or the ALJ to  



                                                                                                                       

discount  Dr.  Smith's  opinion.                   And  the  ALJ  said  Dr.  Beard's  testimony  undercut  



                                 

Dr. Smith's because "her testimony weakens the basis for his opinion, which was that  



                                                                                                                     

Ms. Shea's underlying physical condition (ilioinguinal neuralgia) had not resolved,"  



                                                                                                                                

(emphasis in original) not because the testimony pointed to an alternative cause for the  



          

pain.  



                                                                                                         

                    Furthermore, if Dr. Beard's testimony posited another medical condition  



                                                                                                                               

that might have been the underlying cause of Shea's pain and inability to work, that  



                                                                                                                         

testimony was not relevant.  According to the State "[i]n Dr. Beard's expert medical  



                                                                                                                                      

opinion, Shea's pain was not work-related, but was caused by her 1984 . . . procedure."  



                                                                                                                             

And in the context of his discussion of but-for causation, the ALJ wrote that the State  



                                                                                                                                  

"did not establish an alternative explanation, supported by an expert medical opinion, as  



                                                                                                                                

to  why  [Shea]  began  to  experience  disabling  pain  during  her  employment."                                             He  



                                                                                                                     

acknowledged "evidencethat psychological factors contributed toMs. Shea'sdisability"  



                                                                                                                                   

but also wrote that the State "did not attempt to prove that Ms. Shea's pain was a  



                                                                                                                                 

psychological response to the original non-work-related ilioinguinal neuralgia and as  



                                                                                                                            

such  was  not  proximately  caused  by  her  employment."                                  Because  the  factual  issue  



                                                                                                                                  

regarding the etiology of Shea's pain was either uncontested or had been resolved in  



                                                                                                                              

Shea's favor, if Dr. Beard's testimony supported an inference that something other than  



                                                                                                                          

ilioinguinal  neuralgia  was  causing  the  pain,  that  factual  inference  was  not  legally  



                                                               -31-                                                         7166
  


----------------------- Page 32-----------------------

                           16                                                                                                                                                                                     17  

relevant.                         Because substantial evidence must be relevant evidence,                                                                                                                               the inference the                          



court   today   attributes   to   the   ALJ   -   that   "Dr.   Beard's   testimony   raised   a   dispute  



concerning the etiology of Shea's current symptoms" - is not substantial evidence                                                                                                                                                               



because it did not make more or less likely the existence of a material fact. In discussing                                                                                                                                                 



legal cause, the ALJ made no inferences as to other possible causes of Shea's chronic                                                                                                                                                                



pain because the possibility of other possible causes was not contested.                                                                                                                                                       



                                          The other part of Dr. Beard's testimony that the ALJ relied on was her                                                                                                                                                  



opinion that psychological factors may have contributed to Shea's disability.                                                                                                                                                                While the   



superior court agreed that substantial evidence supported the ALJ's "tepid" finding that                                                                                                                                                                         



psychological factors "                                             may  have contributed to Shea's disability" (emphasis in original),                                                                                                         



the superior court                                    also highlighted Dr. Beard's testimony that therewas                                                                                                              no  psychological  



evaluation   of   Shea,   making   impossible   a   determination   of   the   degree   to   which  

                                                                                                                  18   I agree with the superior court's conclusion that  

psychological factors were involved.                                                                                                                                                                                                                             



this finding has no bearing on the ultimate question of causation because there was no  

                                                                                                                                                                  



evidence beyond the speculative possibility that psychological factors were at play. We  

                                                                                                                                                                                                                                                                 



                     16                  See Bylers Alaska Wilderness Adventures, Inc. v. City of Kodiak                                                                                                                                      , 197 P.3d       



 199, 207 (Alaska 2008) ("[E]vidence is relevant if it tends to make the existence of a                                                                                                                                                                                  

material fact more or less likely."                                                                       (citing Alaska R. Evid. 402)).                                             



                     17                  Smith v. Univ. of Alaska, Fairbanks, 172 P.3d 782, 788 (Alaska 2007)  

                                                                                                                                                                                                                                                         

("Substantial evidence is 'such relevant evidence as a reasonable mind might accept as  

                                                                                                                                                                                                                                                                      

adequate to support a conclusion.' " (quoting Circle De Lumber Co. v. Humphrey, 130  

                                                                                                                                                                                                                                                                 

P.3d 941, 946 (Alaska 2006))).  

                                                                        



                     18                   Indeed,  the  ALJ  wrote  that  the  State  "did  not  attempt  to  prove  that  

                                                                                                                                                                                                                                                               

Ms.  Shea's  pain  was  a  psychological  response  to  the  original  non-work-related  

                                                                                                                                                                                                                    

ilioinguinal neuralgiaand as such was not proximately caused by her employment." This  

                                                                                                                                                                                                                                                               

contradicts the ALJ's reliance on the psychological aspect of Shea's pain in rejecting her  

                                                                                                                                                                                                                                                                   

proximate cause argument.  

                                                                                      



                                                                                                                                -32-                                                                                                                         7166
  


----------------------- Page 33-----------------------

                                                                                                                                                                                               19  

have held in a variety of contexts that speculation is not substantial evidence.                                                                                                                    The State   



agreed,   and   continues   to  agree,   that   the   underlying   basis   of   Shea's   pain   was   a  



neurological injury in 1984, which the ALJ repeatedly characterized as ilioinguinal                                                                                                           



neuralgia.   The  only  contested issue was causation; if the State's theory of the case was                                                                                                                       



that something other than                                       painrelated totheilioinguinal                                              neuralgiawasShea's                                   underlying  



medical condition, that theory of the case was not apparent to the ALJ. And it cannot be                                                                                                                               



an alternative theory the court can use to affirm the ALJ's decision because it would                                                                                                                       

                                                                            20  While the court contends that "the State's 'theory of the  

require additional fact finding.                                                                                                                                                                                     



case' did not have to include an alternative diagnosis" in order for the ALJ to find that  

                                                                                                                                                                                                                   



 Shea had not met her burden of proof, the court cannot manufacture a dispute about the  

                                                                                                                                                                                                                     



evidence and make alternative findings that the fact-finder did not make in order to  

                                                                                                                                                                                                                       

                  21    Nothing in the ALJ's decisions supports the court's statements that a dispute  

affirm.                                                                                                                                                                                                  



                 19               See, e.g.             , State, Dep't of Commerce, Cmty. & Econ. Dev., Div. of Corps.,                                                                                   



Bus. & Prof'l Licensing v. Wold                                                  , 278 P.3d 266, 272, 274 (Alaska 2012) (observing that                                                                            

speculation   by   an   expert   was   not   substantial   evidence);   May   v.   State,   Commercial  

Fisheries Entry Comm'n                                         , 175 P.3d 1211, 1217 (Alaska 2007) ("CFEC's determination                                                                

that   May   did   not   prove   a   commercial   harvest   is   based   on   speculation  rather   than  

substantial evidence.");                                     Hoth v. Valley Constr.                                   , 671 P.2d 871, 874 (Alaska 1983) ("The                                                 

mere   possibility   of   another   injury   is  not  'substantial'   evidence   to   overcome   the  

presumption of compensability.").        



                 20               Cf. Irby v. Fairbanks Gold Mining, Inc., 203 P.3d 1138, 1142-43 (Alaska  

                                                                                                                                                                                                         

2009) (relying on alternative legal grounds for affirming Board decision because Board  

                                                                                                                                                                                                             

"made adequate factual findings" to support alternative legal basis, so that there were no  

                                                                                                                                                                                                                      

genuine factual disputes as to elements of alternative grounds); Bolieu v. Our Lady of  

                                                                                                                                                                                                                       

 Compassion Care Ctr., 983 P.2d 1270, 1275 (Alaska 1999) (stating that Board need only  

                                                                                                                                                                                                                  

make findings about issues that are both material and contested and if Board "fails to  

                                                                                                                                                                                                                       

make a necessary finding, [the court] cannot fill the gap" but must remand to Board  

                                                                                                                                                                                                             

(citing Stephens v. ITT/Felec Servs., 915 P.2d 620, 627 (Alaska 1996))).  

                                                                                                                                                                    



                 21               Seybert v. Alsworth, 367 P.3d 32, 36 (Alaska 2016) ("We will affirm on  

                                                                                                                                                                                                                      

                                                                                                                                                                                          (continued...)  



                                                                                                         -33-                                                                                                   7166
  


----------------------- Page 34-----------------------

regarding the existence of ilioinguinal neuralgia was the reason the ALJ found against                                                                                                                                                                                                                                     



 Shea on the question of legal cause.                                                                                                    



                                                              In sum, Dr. Beard's testimony did not contain the "evidence" the ALJ                                                                                                                                                                                                                                                           



considered so substantial as to undercut what the ALJ conceded was adequate proof of                                                                                                                                                                                                                                                                                                                    



causation by Shea.                                                                       And her speculation that psychological factors were a factor is not                                                                                                                                                                                                                                       



 substantial evidence.   



                               Other factors   



                                                              The other two factors identified by the ALJ as important to his decision                                                                                                                                                                                                                                     



about   legal   responsibility   were   (1)   Dr.   Smith's   testimony   that   "the   aggravation   of  



 [Shea's] chronic pain symptoms due to prolonged sitting was limited to 5-10%" and                                                                                                                                                                                                                                                                                                              



(2)   evidence that "ordinary daily activities also aggravated her chronic pain."                                                                                                                                                                                                                                                                                                            But  



evidence about the impact of ordinary daily activities is not persuasive evidence to                                                                                                                                                                                                                                                                                                                   



undermine Shea's claim, particularly in light of the ALJ's finding that her daily activities                                                                                                                                                                                                                                                                             



did not change during the time she became increasingly disabled and, eventually, unable                                                                                                                                                                                                                                                                                             



to   perform   her   work.     I   agree   with   the   superior   court  that  these   two   findings   are  



contradictory.   



                                                              The amount of aggravation attributed                                                                                                                                                    by   Dr.   Smith   to   an   "over   time"  



worsening of Shea's chronic pain was five to ten percent; he indicted that Shea could                                                                                                                                                                                                                                                                                                   



experience increased pain while sitting, after which her pain would return to baseline.                                                                                                                                                                                                                                                                                                                                



Quoting part of the statute out of context, the court contends that "the relevant inquiry                                                                                                                                                                                                                                              



is whether prolonged sitting in some way precipitated or worsened the symptoms or the                                                                                                                                                                                                                                                                                                               



underlying disease process on a 'presumably permanent[]' basis."                                                                                                                                                                                                                                                     But that is not what                                                  



                               21                              (...continued)  



                                                                                                                                                                                                                                                                                                                                                                                                   

independent grounds not relied on by the superior court only when those grounds are  

                                                                                                                                                                                                                                                                                                                                                                                           

established by the record as a matter of law." (citing Riley v. Simon, 790 P.2d 1339, 1343  

                                                                                                                                                                                                                                                                                                                             

n.7 (Alaska 1990); McGee v. State, 614 P.2d 800, 805 n.10 (Alaska 1980))).  



                                                                                                                                                                                                -34-                                                                                                                                                                                        7166
  


----------------------- Page 35-----------------------

 the statute says:                         AS 39.35.680(27) refers to "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."                                                                                             An employee's inability to                                          



perform her work is what must be permanently precluded.                                                                                                         Requiring a permanent             



 worsening of baseline pain is no different from requiring a permanent worsening of an                                                                                                                                  



 employee's   condition.     The   court's   misstatement   of   the   statute   is   essentially   a  

                                                                                                               22  And Dr. Smith's testimony showed that  

 reformulation of a distinction we rejected.                                                                                                                                                                        



 sitting at work both increased Shea's pain while she was working and furthered her  

                                                                                                                                                                                                                      



permanent disabling pain by increasing her baseline level of pain over time.  Dr. Smith  

                                                                                                                                                                                                               



 also testified that there was no cure for  Shea's pain.   In spite of efforts by Shea's  

                                                                                                                                                                                                            



 employer to ameliorate the working conditions that increased her pain, by the time  

                                                                                                                                                                                                                  



 Shea's employment with the State ended, her baseline pain had increased to the point  

                                                                                                                                                                                                                 



 where that pain made completing her work impossible.  

                                                                                                                                                



                                   The  court  also  argues  that  Dr.  Smith's  opinion,  standing  alone,  was  

                                                                                                                                                                                                                   



 sufficient  to  defeat  Shea's  claim  because  he  testified  that  prolonged  sitting  would  

                                                                                                                                                                                                             



permanently increase Shea's pain by five to ten percent, and Shea II "leaves room for  

                                                                                                                                                                                                                       

 such a finding."  Shea II permits the opposite conclusion as well,23  and the ALJ did not  

                                                                                                                                                                                                                      



 rely exclusively on Dr. Smith's opinion to find against Shea, instead listing it as one of  

                                                                                                                                                                                                                         



 many pieces of evidence he weighed.  Indeed, the reason the ALJ gave for considering  

                                                                                                                                                                                                



 factors such as Shea's reports to her physicians was "the close balance in the expert  

                                                                                                                                                                                                              



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



                  23               SheaII            , 267P.3d 624,                       636 (Alaska2011) (observingthat under Alaskalaw,                                                                          



 "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' " (quoting Doyon  

                                                                                                                                                                                                             

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



                                                                                                          -35-                                                                                                    7166
  


----------------------- Page 36-----------------------

medical testimony." In other words, the ALJ did not find Dr. Smith's opinion persuasive                                                                                                                                                                                                                                                                                                                                 



 on the point as the court suggests.                                                                                                                                                     



                                                                        A detailed examination of the reasons given by the ALJ for rejecting Shea's                                                                                                                                                                                                                                                                                           



 claim   demonstrates  that   substantial   evidence   in   the   record   does   not   support   his  



 conclusions.  



                                    Causation overall   



                                                                        In his summary about the overall question of causation, the ALJ wrote that                                                                                                                                                                                                                                                                                                           



Dr. Smith's opinion alone was insufficient to "establish that prolonged sitting was a                                                                                                                                                                                                                                                                                                                                                                                     



 substantial factor in [Shea's]disability." But                                                                                                                                                                                             the ALJ concluded that Dr. Smith's opinion  



in combination with two other factors                                                                                                                                                                        was  "substantial evidence that prolonged sitting                                                                                               



 at work was a substantial factor in her disability."                                                                                                                                                                                                                     The ALJ also listed evidence that, in                                                                                                                                                       



his view, undercut Shea's case, including evidence that Shea did not "identify sitting as                                                                                                                                                                                                                                                                                                                                                                             



 a    causal    factor    until    February,    1999,    after    her    symptoms    had    become    highly  



problematic."   But this evidence is consistent with Dr. Smith's opinion that "over time"                                                                                                                                                                                                                                                                                                                                                          



prolonged sitting would cause Shea's baseline pain to increase by five to ten percent.                                                                                                                                                                                                                                                                                                                                                                                                 



 Shea's job with the State, which required prolonged sitting, began in 1993, and it was                                                                                                                                                                                                      



 following the six years from 1993 to 1999 that Shea identified prolonged sitting as                                                                                                                                                                                                                                                                                                                                                                                



 causing increased pain.                                                                                                        



                                                                        The ALJ listed "Dr. Beard's expert medical opinion that prolonged sitting                                                                                                                                                                                                                                                                                              



 did   not   permanently   aggravate   the   underlying   physical   condition"   as   "substantial  



 evidence that prolonged sitting                                                                                                                                               at work                                         was not                                               a   substantial factor                                                                                     in   Ms.   Shea's  



 disability," even though the ALJ later acknowledged that this opinion appeared not to                                                                                                                                                                                                                                                                                                                                                                                



 apply the correct legal standard. Relying on our opinion in                                                                                                                                                                                                                                                         Smith v. University of Alaska,                                                                                      



                                                                                                                                                                                                                              -36-                                                                                                                                                                                                                      7166
  


----------------------- Page 37-----------------------

                       24  

Fairbanks,   theALJ wrotethat                                    Dr. Beard's"testimonyhas some persuasiveweight                                                            even  



in the absence of a definitive statement applying the correct legal standard."                                                                                  But  Smith  



has no relationship to Dr. Beard's opinion about aggravation. There is no indication that                                                                                     



the doctor's testimony in                           Smith  used an incorrect legal standard; rather, the testimony did                                                         

                                                                                                                                                        25   In contrast,  

not, in the Board's view, use an adequately specific probability formula.                                                                                           



Dr. Beard gave a definite statement using an incorrect legal definition of aggravation,  

                                                                                                                                                          



testifying that she meant "to cause a permanent worsening or flare of [the] condition,"  



which she identified as ilioinguinal neuralgia.  Smith does not license reliance on an  

                                                                                                                                                                                



expert opinion that has the wrong legal standard as its basis.  And if the ALJ intended to  

                                                                                                                                                                                  



refer to the quotation in Smith from Larson's treatise - to the effect that a fact finder  

                                                                                                                                                              



should consider "the real substance of what the witness intended to convey" rather than  

                                                                                                                                                                             

                                                                                             26  - that quote does not endorse use of an  

engage in "a game of 'say the magic word' "                                                                                                                                      

                                                                                            



incorrect  legal  standard.                                 Moreover,  when  the  ALJ  discussed  the  substance  of  

                                                                                                                                                                                



Dr. Beard's opinion, he focused on the inference that Shea's ilioinguinal neuralgia had  

                                                                                                                                                                              



resolved.  As set out earlier, that inference is not supported by the record.  

                                                                                                                                                             



                            In his final analysis, Judge Volland correctly concluded that the ALJ made  

                                                                                                                                                                           



contradictory findings in accepting Dr. Smith's opinion to find "but for" cause but  

                                                                                                                                                                              



discrediting the same opinion when analyzing proximate cause.  The ALJ found that,  

                                                                                                                                                                            



after Shea began to work for the State, her "level of pain was substantially greater, even  

                                                                                                                                                                            



though her everyday activities did not change (except in response to pain)."  This fact,  

                                                                                                                                                                            



in conjunction with Dr. Smith's expert opinion that it was at least 51% likely that  

                                                                                                                                                                             



              24             172  P.3d  782,  791  (Alaska  2007).  



              25            Id.  



              26            Id.  (quoting  8  ARTHUR  LARSON  &  LEX  K.  LARSON,  LARSON 'S  WORKERS'  



COMPENSATION  LAW      130.06[2][e]  (2006)).  



                                                                                      -37-                                                                                 7166
  


----------------------- Page 38-----------------------

prolonged sitting aggravated Shea's injury, led the ALJ to find that Shea had established                                                                                                                                                                                                                                                                                                                                                                                



that, "but for" her State employment, her condition would not have worsened.                                                                                                                                                                                                                                                                                                                                                                                                                   As the   



 superior court wrote, "If Shea's daily activities remained unchanged and sitting was a                                                                                                                                                                                                                                                                                                                                                                                                                                             



 51% cause, it cannot be said that the daily activities defeat proximate cause."                                                                                                                                                                                                                                                                                                                                                                                                  The ALJ   



 credited Dr. Smith's testimony to find "but for" cause, and I agree with the superior court                                                                                                                                                                                                                                                                                                                                                                                                                 



that "[t]he ALJ cannot find on one hand that Dr. Smith's testimony was substantial                                                                                                                                                                                                                                                                                                                                                                                       



 evidence establishing actual cause but not substantial evidence supporting the causal                                                                                                                                                                                                                                                                                                                                                                                                              



 component of proximate cause."                                                                                                                                                                         



                                                                                 The   evidence   relied   on   by   the   ALJ   to   deny   Shea's  claim   was   either  



 incomplete or irrelevant to the question of proximate cause.                                                                                                                                                                                                                                                                                                                        And the court's current                                                                                   



theory of the case is significantly different from the decision on review or the State's                                                                                                                                                                                                                                                                                                                                                                                                         



 litigation position and does not apply the legal standard we have previously adopted for                                                                                                                                                                                                                                                                                                                                                                                                                                 



 aggravation claims.                                                                                                    I therefore respectfully dissent from the court's opinion and would                                                                                                                                                                                                                                                                                                          



 affirm Judge Volland's decision reversing the ALJ's decision.                                                                                                                                                                                                                                                                   



                                                                                                                                                                                                                                                           -38-                                                                                                                                                                                                                                                7166
  

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