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Brown v. Alaska Workers' Compensation Board (2/7/97), 931 P 2d 421
Notice: This opinion is subject to formal correction before
publication in the Pacific Reporter. Readers are requested to bring
errors to the attention of the Clerk of the Appellate Courts, 303 K
Street, Anchorage, Alaska 99501, telephone (907) 264-0607, fax (907)
THE SUPREME COURT OF THE STATE OF ALASKA
LEE A. BROWN, )
) Supreme Court No. S-7315
) Superior Court No.
) 4FA-94-2203 CI
) O P I N I O N
STATE OF ALASKA, ALASKA )
WORKERS' COMPENSATION BOARD, ) [No. 4476 - February 7, 1997]
and the UNIVERSITY OF ALASKA )
Appeal from the Superior Court of the State of
Alaska, Fourth Judicial District, Fairbanks,
Mary E. Greene, Judge.
Appearances: Michael A. Stepovich, Stepovich
Law Office, Fairbanks, for Appellant. Ann S.
Brown and Brad E. Ambarian, Lane, Powell,
Spears, Lubersky, Fairbanks, for Appellee
University of Alaska Fairbanks.
Before: Compton, Chief Justice, Rabinowitz,
Matthews, Eastaugh, and Fabe, Justices.
Lee Brown appeals a superior court ruling upholding a
decision by the Alaska Workers' Compensation Board to terminate his
workers' compensation benefits. Brown claims that the Board erred
when it (1) rejected the opinion of the Board-appointed independent
medical examiner, (2) determined that Brown was medically stable,
and (3) concluded that Brown was not entitled to continuing medical
benefits. We affirm the superior court's decision.
II. FACTS AND PROCEEDINGS
On May 13, 1991, Lee Brown began working for the
University of Alaska (University) as a Boiler Firer I (or Fireman
I, according to Brown). Brown was responsible for operations in
the University's power plant. Before his employment began, he
suffered from spondylosis, a degenerative condition of the cervical
spine. On January 7, 1992, the University notified Brown that he
would be terminated effective January 17, 1992.
On January 12, 1992, Brown allegedly injured his neck
when what he describes as a thirty to forty-pound ash rake fell on
his neck and shoulders as he worked on his knees. No witnesses
observed the accident, and Brown did not immediately report it.
The next day, Brown went to the emergency room of Fairbanks
Memorial Hospital. He did not return to work after the alleged
The University disputes all of Brown's allegations. It
maintains that Brown could not have been on his knees doing the
work he claims he was doing, that the rake weighed much less than
Brown claims, and that "[t]he accident with the [ash rake] never
On January 15, 1992, Brown filed an injury report with
the Board. Shortly thereafter, the University began paying Brown
temporary total disability compensation. However, on March 11,
1992, the University had a telephone conversation with Brown that
prompted it to conclude that his injury was "a temporary
aggravation and ha[d] ceased." Therefore, on March 13 the
University controverted all benefits to Brown after March 11.
On April 29 Brown formally applied for temporary total
disability payments based upon the alleged January 12th injury. The
University responded to that application by asserting that Brown
had suffered a temporary aggravation of a preexisting condition but
had returned to his preinjury status because the aggravation had
At the Board's hearing relating to Brown's temporary
total disability claim, the parties offered testimony of several
physicians who had examined Brown or his records. The physicians'
opinions differed considerably about the nature and extent of
Brown's physical condition, whether his condition was linked to the
alleged January 12th injury, and whether he was capable of
returning to work in March 1992.
In light of these significant differences in the
physicians' opinions, the Board appointed an independent medical
examiner under AS 23.30.095(k). The version of that statute
effective in 1994 compelled the Board, in the event of a "medical
dispute,"to appoint an independent medical examiner. (EN1) The
independent medical examiner examined Brown in January 1994 and
concluded that Brown had suffered a significant injury on January
12, 1992 from a blow that aggravated his degenerative spinal
condition. He found that Brown neither recovered to his pre-
accident condition nor reached medical stability until May 1992. He
attributed Brown's symptoms occurring after that date to chronic
pain syndrome because, he opined, they were psychological rather
The Board determined that Brown suffered an injury at
work on January 12, 1992 that aggravated his preexisting condition.
However, the Board also found that the aggravation was temporary
and that any impairment after March 11, 1992 was solely the result
of his preexisting condition. Therefore, the Board denied Brown's
claims for any benefits after March 11, 1992.
Brown appealed the Board's decision to the superior court
and argued that the Board erred by (1) rejecting the opinion of the
independent medical examiner, (2) determining that Brown was
medically stable by March 11, 1992, and (3) concluding that Brown
was not entitled to continuing medical benefits. The superior
court found that the Board's decision was supported by substantial
evidence. That court noted that although the Board had rejected
the testimony of certain physicians, including the independent
medical examiner, it had agreed with the opinions of others.
Therefore, the superior court affirmed the Board's decision. Brown
appeals that decision.
III. STANDARD OF REVIEW
We give no deference to the decision of the superior
court because that court acted as an intermediate court of appeal.
Municipality of Anchorage, Police & Fire Retirement Bd. v. Coffey,
893 P.2d 722, 725-26 (Alaska 1995).
Brown's first claim requires us to examine whether the
Board correctly concluded that Alaska law does not require it to
adopt the opinion of the independent medical examiner. Because
that is a question of law involving no Board expertise, we apply
the "substitution of judgment"test. Id. at 726.
Brown also asks us to review the Board's finding that
Brown was medically stable and not entitled to continuing benefits
after March 11, 1992. We review the Board's interpretation of the
term "medical stability"in AS 23.30.265(21) under the "reasonable
basis"standard because it concerns a question of law involving
Board expertise. Id. However, we review the Board's factual
determination that Brown was medically stable and not entitled to
continuing medical benefits according to the "substantial evidence"
A. Alaska Law Does Not Compel the Board to Adopt the Opinion
of the Independent Medical Examiner.
Brown argues that Alaska law compels the Board to adopt
the opinion of the independent medical examiner. To support this
assertion, Brown cites Bode v. Alaska Memorial Servs., Inc., Alaska
Workers' Compensation Board Decision 93-0113, Case No. 9000016 (May
7, 1993). Brown maintains that the Board erred in failing to adopt
the independent medical examiner's finding "that Mr. Brown
continues to suffer symptoms due to chronic pain syndrome." We
As we noted previously, the Board appointed the
independent medical examiner pursuant to AS 23.30.095(k). The
version of that statute effective in 1994 mandated that "[i]n the
event of a medical dispute . . . [an] independent medical
evaluation shall be conducted by a physician or physicians selected
by the board"and that "the report of the independent medical
examiner shall be furnished to the board." Ch. 79, sec. 18, SLA
1988. However, no part of that statute required the Board to rely
upon the independent examiner's report when it resolved the medical
We conclude that Alaska law does not require the Board to
adopt the report of the independent medical examiner.
B. The Board Did Not Err in Finding that Brown Was Medically
Stable on March 11, 1992.
Brown also claims that the Board erred in finding that he
was medically stable. He apparently argues that the Board made
either an error of law when it interpreted the statutory definition
of "medical stability"or an error of fact in finding that Brown
met that definition. We disagree with both arguments.
1. The Board did not make an error of law when it
interpreted the statutory definition of medical
Alaska Statute 23.30.185 provides that "[t]emporary total
disability benefits may not be paid for any period of disability
occurring after the date of medical stability." Alaska Statute
23.30.265(21), in turn, defines "medical stability"as "the date
after which further objectively measurable improvement from the
effects of the compensable injury is not reasonably expected to
result from additional medical care or treatment."
Although the Board did not use the term "medical
stability,"it concluded that Brown was no longer eligible for
temporary total disability benefits after March 11, 1992 because
medical testimony demonstrated that, after that date, Brown "was
neither disabled by the neck injury of January 12, 1992 . . . nor
in need of medical treatment of that injury." It attributed any
symptoms experienced by Brown after March 11 to Brown's preexisting
Alaska Statutes 23.30.185 and .265(21) state that
temporary total disability benefits must end when the employee
reasonably cannot be expected to demonstrate an "objectively
measurable improvement from the effects of the compensable injury."
AS 23.30.185, .265(21) (emphasis added). Because the Board
determined that Brown was no longer suffering any effects
attributable to the January 12, 1992 accident, we conclude that the
Board's decision was consistent with the statutory definition of
2. The Board did not make an error of fact when it
determined that Brown was medically stable.
Whether the Board was correct to conclude that by March
11, 1992 Brown needed no further treatment as a result of the
January 12th injury is a question of fact. Where the Board chooses
one of two conflicting medical opinions before it, each of which
constitutes substantial evidence, a reviewing court should affirm
the Board's decision. Miller v. ITT Arctic Servs., 577 P.2d 1044,
1049 (Alaska 1978).
In this case, two physicians testified that in February
1992 Brown needed no further treatment for the January 12th injury.
(EN3) The Board expressly relied upon those two physicians'
opinions when it found "that [Brown] was neither disabled by the
neck injury of January 12, 1992 after March 11, 1992 nor in need of
medical treatment of that injury after March 11, 1992 as claimed."
(EN4) Therefore, the Board's conclusion is supported by
C. The Board Did Not Err in Finding that Brown Is Not
Entitled to Continuing Medical Benefits.
Brown argues in the alternative that, even if he was
medically stable in 1992, he remains entitled to benefits. Brown
apparently asserts that because his work-related injury aggravated
a preexisting condition, he is entitled to compensation for medical
costs while that condition persists. We disagree.
We have required compensation when a work-related injury
"aggravated, accelerated, or combined with a prior condition in
such a way that it may be said to be a substantial factor in
bringing about the employee's current inability to work." Olsen
Logging Co. v. Lawson, 856 P.2d 1155, 1161 (Alaska 1993).
However, in this case there is substantial evidence to
support the Board's conclusion that the January 12th injury was not
a substantial factor contributing to Brown's disability after March
11, 1992. As indicated above, the record shows that two physicians
opined that Brown had recovered from the effects of the January
injury by March 11, 1992. The Board expressly relied upon that
testimony when it concluded "that continuing degenerative changes
attributable to the employee's preexisting spondylosis (rather than
the January 12, 1992 injury . . . or chronic pain syndrome as
opined by [the independent medical examiner]) caused any disability
or need for medical treatment after [March 11, 1992]." As noted
earlier, we will not disturb the Board's decision to choose to rely
on one medical opinion rather than another. Miller v. ITT Arctic
Servs., 577 P.2d 1044, 1049 (Alaska 1978). Thus, we conclude that
the Board did not err in denying Brown continuing medical benefits.
We conclude that Alaska law does not require the Board to
rely upon the opinion of a Board-appointed independent medical
examiner. We also conclude that the Board did not err when it
determined that, after March 11, 1992, Brown was medically stable
and no longer entitled to temporary total disability benefits.
Therefore, we AFFIRM the decision of the superior court.
1. The then-applicable version of AS 23.30.095(k) read:
In the event of a medical dispute regarding determinations of
causation, medical stability, ability to enter a reemployment plan,
degree of impairment, functional capacity, the amount and efficacy
of the continuance of or necessity of treatment, or compensability
between the employee's attending physician and the employer's
independent medical evaluation, a second independent medical
evaluation shall be conducted by a physician or physicians selected
by the board from a list established and maintained by the board.
The cost of the examination and medical report shall be paid by
the employer. The report of the independent medical examiner
shall be furnished to the board and to the parties within 14 days
after the examination is concluded. A person may not seek
damages from an independent medical examiner caused by the
rendering of an opinion or providing testimony under this
subsection, except in the event of fraud or gross incompetence.
Ch. 79, sec. 18, SLA 1988.
A 1995 amendment changed the language of AS 23.30.095(k). Now the Board may
require an independent medical examination at its discretion. AS 23.30.095(k).
2. Moreover, Bode does not hold that the Board must adopt the independent medical
examiner's opinion. In fact, in Bode the Board declined to adopt the independent medical
examiner's opinion completely: "We find that absent the inclinometer measurements, we cannot
give full weight to [the independent medical examiner's] impairment rating." Bode at 6. In
Bode the Board found that under Alaska law it may base its decision on select parts of each
medical report. The Board found "each of the three physician's impairment ratings deficient in
some respects,"and it concluded that there was no requirement in Alaska law "that we must
base a determination of permanent impairment solely on the rating of one physician. . . . In
some cases, such as this one, the final rating may require us to combine the analysis of more
than one of the rating physicians." Id. at 7 & n.2.
3. One physician concluded that the effects of Brown's January 12, 1992 injury did not
continue after February 1992 and that Brown could return to work at that time. The other
physician stated that any of Brown's symptoms that persisted beyond 10 to 14 days after the
injury were the results of Brown's preexisting degenerative spine condition.
4. The Board's decision focused on March 11, 1992 because the University argued that
Brown was not entitled to TTD benefits after that date. Because an employee is not entitled to
TTD benefits after the date of medical stability, AS 23.30.185, the Board did not need to
concern itself with the specific date of medical stability so long as it occurred on or before
March 11, 1992.