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Louisiana Pacific Corp. v. Koons & Alaska Workers' Compensation Board (9/20/91), 816 P 2d 1379
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Notice: This is subject to formal correction before
publication in the Pacific Reporter. Readers are
requested to bring typographical or other formal errors
to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, in order that
corrections may be made prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
LOUISIANA PACIFIC CORPORATION, )
) Supreme Court No. S-4086
Appellant, )
) Trial Court No.
) 1JU-88-658 Civil
v. )
) O P I N I O N
HAROLD H. KOONS and the )
ALASKA WORKERS' COMPENSATION )
BOARD, )
)
Appellees. )
___________________________________)
Appeal from the Superior Court of the
State of Alaska, First Judicial District,
Juneau,
Duane Craske, Judge.
Appearances: Paul M. Hoffman,
Robertson, Monagle & Eastaugh, P.C., Juneau,
for Appellant. Patrick E. Murphy, Batchelor,
Murphy & Brinkman, Juneau, for Appellee
Koons.
Before: Rabinowitz, Chief Justice,
Burke, Matthews, Compton, and Moore,
Justices.
PER CURIAM.
Harold Koons worked for the Ketchikan Pulp Company
("KPC") from July 9, 1957 until he retired on May 29, 1987. He
worked in the pulp mill's bleach plant for more than 15 years
where he was exposed to sulfur dioxide (SO2) and chlorine gas.
Koons first sought treatment for respiratory problems
on February 26, 1980. Dr. Hilbert Henrickson's notes of that
examination indicate that Koons had symptoms of a chest cold for
about three weeks and that he had been exposed to sulfur dioxide
three weeks earlier. On February 28, Koons was admitted to the
emergency room where he once again saw Dr. Henrickson.
Henrickson recorded his impression that Koons was suffering from
the flu complicated by exposure to sulfur dioxide.1
Koons filed a Report of Occupational Illness or Injury
on January 28, 1987, claiming that his lungs had been affected by
sulfur dioxide exposure in the KPC bleach plant. The report
includes a statement by a KPC official that on January 28 "[t]he
vent fan in the acid plant kicked out causing SO2 gas in the
Bleach Plant area." KPC gave notice of its intent to controvert
payment of benefits contending that the injury was not work-
related.
Koons consulted Dr. George Stewart, a lung disease
specialist, in May of 1987. Stewart diagnosed Koons as suffering
from asthmatic bronchitis. He testified that it is often
impossible to state conclusively what causes asthmatic
bronchitis, but concluded that Koons' asthma was probably related
to his work for KPC. At KPC's request, Koons was also examined
by Dr. Michael Mullarkey. Mullarkey agreed with Stewart that the
causes of asthma are difficult to discern and that Koons was
suffering from asthmatic bronchitis and should not be exposed to
fumes.
The Alaska Workers' Compensation Board (the "board")
issued a decision denying Koons' claim on April 19, 1988. It
found that the presumption of compensability had been overcome,
and that Koons had failed to prove his case by a preponderance of
the evidence.2 Koons appealed to the superior court. On
November 17, 1988, the court partially granted Koons' motion for
remand to the board for reconsideration. On remand, the board
considered whether it erred by finding that Henrickson's flu
diagnosis was sufficient proof that the asthma was not work-
related. The board denied Koons' petition, and the superior
court case resumed.
The superior court found for Koons on the issue of work-
relatedness concluding that "the evidence . . . does not rise to
the level of substantial evidence needed to overcome the
presumption." The court also ruled that, on remand, the case
should be heard by board members other than those who first
considered it, to avoid any unfairness resulting from ex parte
contacts by members of the board with KPC officials. KPC
appeals.
A. The Presumption of Compensability
Alaska's workers' compensation statutes establish
that an employee's claim is presumed to be compensable. AS
23.30.120(a)(1). We have consistently held:
A claimant's disability is presumed to
be compensable when he or she demonstrates a
"preliminary link"between the disability and
his or her employment. . . . "[T]he claimant
need not present substantial evidence that
his or her employment was a substantial cause
of . . . disability"in order to establish
the required preliminary link. What a
claimant is required to produce is "some
evidence that the claim arose out of, or in
the course of, employment before the
presumption arises."
Cheeks v. Wismer & Becker, 742 P.2d 239, 243-44 (Alaska 1987)
(emphasis in original) (quoting Fox v. Alascom, Inc., 718 P.2d
977, 984 (Alaska 1986) and Burgess Constr. Co. v. Smallwood, 623
P.2d 312, 316 (Alaska 1981)). We have also stated that once this
"preliminary link"has been established, "it is the employer's
burden to overcome the presumption by coming forward with
substantial evidence that the injury was not work related."
Burgess Constr. Co. v. Smallwood, 698 P.2d 1206, 1211 (Alaska
1985) (citations omitted). When the presumption of
compensability has been successfully rebutted, it drops out and
the employee must prove all the elements of the case by a
preponderance of the evidence. Miller v. ITT Arctic Serv., 577
P.2d 1044, 1046 (Alaska 1978).
The board found that Koons presented sufficient
evidence to raise the presumption of compensability, relying
primarily on Dr. Mullarkey's testimony that he believes Koons'
"reactive airway disease [is] secondary to airborne chemical burn
. . . perpetuated by continued exposure to sulfur dioxide and
chlorine." The board concluded that KPC "presented evidence to
overcome the presumption. Employee's first treatment for
bronchial spasms was not until February 1980, some three weeks
after an exposure, and at a time when he had the flu." This is a
reference to Koons' February 28, 1980 visit to Dr. Henrickson for
treatment of a cough he had for three weeks. Although Henrickson
recorded his "impression" that the cough was probably flu-
related, the chart notes also indicate that Koons had been
exposed to sulfur dioxide three weeks earlier, and that he
suffered from "bronchitis, complicated by secondary to SO2
exposure."
There was no evidence that Koons' disability was not
caused in substantial part by his employment. It appears the
board required Koons to establish that his asthma was work-
related, rather than requiring KPC to overcome the presumption by
showing that the asthma was not caused by his employment. This
is contrary to established law and constitutes error.3
B. Ex Parte Communication
The day after Koons' hearing, one of the board members,
David Richards, initiated a conversation with two KPC witnesses,
one of whom was KPC's rehabilitation expert. Board members
Thomas Chandler and Rebecca Ostrom, and KPC's attorney Paul
Hoffman, were present during this conversation and may have heard
all or part of it. Richards questioned the KPC officials about
the feasibility of using a beeper system to warn KPC employees of
chemical leaks. The conversation appears to have been related to
the issue of whether Koons would be able to perform other jobs at
the mill.
Koons argued to the superior court that he was deprived
of his right to a fair hearing by the board because of Richards'
ex parte communication with KPC officials. The superior court
ruled that the alleged bias could not have affected the board's
decision regarding causation since the alleged improper
communication was related to an issue the board did not reach,
whether Koons was disabled. The superior court concluded,
however, that on remand the case should be heard by uninvolved
board members, since the board will then be required to decide
the extent of Koons' disability.
The superior court did not abuse its discretion in so
ordering. The ex parte communication was a violation of accepted
standards of conduct for an adjudicatory body. See, e.g., Camero
v. United States, 375 F.2d 777, 780-81 (Ct. Cl. 1967):
[O]ne of the fundamental premises
inherent in the concept of an adversary
hearing . . . is that neither adversary be
permitted to engage in an ex parte
communication concerning the merits of the
case with those responsible for the decision.
It is difficult to imagine a more serious
incursion on fairness than to permit the
representative of one of the parties to
privately communicate his recommendations to
the decision makers. . . . We are of the
opinion that due process forbids it.
(Citations omitted.)4
The Alaska Administrative Procedures Act, AS 44.62.630, states:
The functions of hearing officers and
those officers participating in decisions
shall be conducted in an impartial manner
with due regard for the rights of all parties
. . . . These officers . . . may not engage
in interviews with, or receive evidence or
argument from, a party, directly or
indirectly, except upon opportunity for all
other parties to be present.
The disqualification remedy devised by the superior court was an
acceptable response to the board's ex parte communication.
C. Attorney's Fees and Costs
The superior court correctly awarded Koons, as the
prevailing party, his attorney's fees and costs pursuant to AS
23.30.145 and Appellate Rule 508.
The decision of the superior court is AFFIRMED.
_______________________________
1 Koons sought further medical treatment for respiratory
problems in September 1981, when he was seen by Dr. Dorsett Smith
at the University of Washington Hospital, in January 1982, and
December 1984, when he was seen by Dr. Henrickson.
2 The board's chairperson, Rebecca Ostrom, filed a separate
opinion disagreeing with the majority's decision that Koons'
illness was not work-related. She, nonetheless, would have
denied benefits, finding that Koons had chosen to withdraw from
the labor market.
3 See Hoth v. Valley Constr., 671 P.2d 871, 874 (Alaska
1983) ("[t]he mere possibility of another injury is not
`substantial evidence' sufficient to overcome the presumption of
compensability"); Rogers Elec. Co. v. Kouba, 603 P.2d 909, 912
(Alaska 1979) ("the Board's decision [that the injury was not
work related] was not supported by the `substantial evidence'
necessary to rebut the statutory presumption of coverage", since
"there was no clear-cut testimony at all indicating lack of
causation."); Fireman's Fund American Ins. Cos. v. Gomes, 544
P.2d 1013, 1016 (Alaska 1976) ("In the absence of affirmative
evidence indicating the cause of Gomes' death, we cannot say that
the Board erred in holding that the presumption was not
overcome."); Thornton v. Alaska Workmen's Compensation Bd., 411
P.2d 209, 211 (Alaska 1966) (where "[n]either of the two medical
witnesses testified that Thornton's [employment] did not
contribute to his death. . . . [T]here is lacking the kind of
evidence which a reasonable mind might find adequate to support
the Board's determination that the [employment] was not a crucial
precipitating factor in Thornton's death.").
4 Camero ruled that plaintiff was entitled to back pay from
the date he was removed from his position with the Army because
the decision maker had sought the opinion of the plaintiff's
attorney who had "an adversary more than a neutral stake in the
final outcome of plaintiff's case." Id. at 780. A violation of
Army procedures was found even though the court did not doubt
that the decision maker "formed his own opinion"on the matter.
Id.
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