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Williams v. Dep't. of Revenue (6/13/97), 938 P 2d 1065
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Notice: This opinion is subject to correction before publication in
the Pacific Reporter. Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska, 99501,
telephone (907) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
MARY ANN WILLIAMS, )
) Supreme Court No. S-6862
Appellant, )
) Superior Court No.
v. ) 3AN-92-4757 CI
)
STATE OF ALASKA, DEPARTMENT )
OF REVENUE, ) O P I N I O N
)
Appellee. ) [No. 4834 - June 13, 1997]
______________________________)
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Joan M. Woodward, Judge.
Appearances: William J. Soule, Law Office of
William J. Soule, for Appellant. Kristin S. Knudsen, Assistant
Attorney General, Anchorage, and Bruce M. Botelho, Attorney
General, Juneau, for Appellee State of Alaska.
Before: Compton, Chief Justice, Rabinowitz,
Matthews, Eastaugh, and Fabe, Justices.
EASTAUGH, Justice.
I. INTRODUCTION
Mary Ann Williams sought workers' compensation benefits
for physical and mental injuries she claimed she sustained as a
result of her employment with the State Child Support Enforcement
Division (CSED). The Board denied both claims, and the superior
court affirmed. We affirm the denial of Williams's mental injury
claim, because we conclude that substantial evidence supports the
Board's finding that she did not suffer an "injury"as that term is
restrictively defined by AS 23.30.395(17). [Fn. 1] We reverse the
denial of Williams's physical injury claim and remand for
calculation of benefits because we conclude that the State failed
to rebut the presumption of compensability.
II. FACTS AND PROCEEDINGS
A. Facts
Some of the relevant facts are set out in Williams v.
State, Dep't of Revenue (Williams I), 895 P.2d 99 (Alaska 1995):
[Mary Ann] Williams, who had held other
state jobs since 1974, began working for the State of Alaska, Child
Support Enforcement Division (CSED) in 1977. She was a clerk for
CSED until 1979, when she was promoted to Child Support Enforcement
Officer I. She became a supervisor with the title of Child Support
Enforcement Officer II in 1980. Her general duties included
preparing intrastate paternity orders and Uniform Reciprocal
Enforcement Support Act cases, supervising a team of four people,
reviewing case files, distributing the work load to typists, taking
telephone calls, preparing affidavits, calculating AFDC arrearages,
and meeting walk-in clients.
She became the only paternity
establishment officer when a paternity unit was added to CSED in
1987. Williams coordinated paternity establishment, set up blood
testing throughout the state, arranged travel and accommodations
for clients, and dealt with problem clients who were having blood
drawn.
In April 1990 Williams was told that her
team needed to file paternity complaints in all its cases by
October 1, 1990 to comply with the Family Support Act of 1988.
There were approximately 2,400 to 2,600 such cases. Williams
testified she found it difficult and stressful to file the required
complaints as requested and complete her other work. She also
testified that the absence of clerical support staff, the
inadequacy of the physical work environment, and the perceived lack
of management support created stress for Williams.
Beginning in 1974, Williams sought
treatment for gastrointestinal problems, chronic stress anxiety,
chronic fatigue, depression, and other problems. During the
following years, Williams saw a number of doctors and
psychologists.
Id. at 100.
In October 1974 internist Dr. Paul Steer, who treated her
for the next thirteen years, first noted Williams's bowel problems.
Over the next decade, Dr. Steer reported on many separate occasions
that Williams suffered from chronic stress anxiety. In April 1983
Williams began seeing Rusty Bellringer, a psychologist, for
counseling for job-related stress. In June 1984 Dr. Steer
diagnosed "chronic low grade depression"and "fatigue syndrome."
Williams had a good working relationship with her
supervisor, Jim Demming, but he retired in December 1986, and she
did not get along with his replacement, Brenda Drury. Williams
testified that she felt a great deal of stress from having to
explain procedures regarding paternity establishment to her new,
less experienced, supervisor. Williams testified that there was
mutual "intense dislike,"and that Drury treated her
unsympathetically in granting Williams's request for leave to see
her dying mother.
Williams's gastrointestinal symptoms waxed and waned
over the years, but came back in full force in 1987-88. In the
spring of 1987 she developed an ulcer. Dr. Steer saw Williams in
June 1987 and diagnosed chronic but worsened depression; chronic
stress anxiety, exacerbated recently by both work and family
stresses; hiatal hernia; early duodenal ulcer; chest wall muscular
pains; and irritable colon. By letter of July 30, Dr. Steer
recommended that Williams take a six- to eight-week medical leave.
CSED granted Williams sick leave from September 8 until November 1,
1987. In the spring of 1988, however, her gastrointestinal
problems recurred.
Williams saw Dr. Steer again in April 1988. He noted
that she suffered from, among other things, depression with fatigue
syndrome, chronic constipation, and chronic rectal discomfort and
fissures.
In September 1988 Drury was replaced by Janell Briggs.
Although Williams stated that Briggs was "probably the fairest
person that [she] worked with as far as management was concerned,"
she felt that there was a lack of access to Briggs, made worse by
a perceived favoritism towards other officers.
In October 1988 Dr. Steer reported treating Williams for
a "low grade flare of irritable colon associated with chronic
depression."
Williams was seen by Dr. Richard Buchanan, a
gastroenterologist in Dr. Steer's office, from February 1989 until
October 1990. In November 1989 Dr. Buchanan diagnosed "fatigue
syndrome,"and in June 1990 diagnosed, among other things, possible
reflux esophagitis and gastritis, depression and anxiety, anal
incontinence, and rectal urgency. Dr. Buchanan referred her to a
Seattle-based proctologist for the incontinence, a problem that had
become more pronounced since 1989.
In addition to work-related stress, Williams faced
ongoing problems in her personal life. In Williams I, we noted
that
In late 1986 her son was arrested for
transporting cocaine. In the first half of 1987, her brother-in-
law and mother died. Her son and daughter-in-law divorced in late
1986 and engaged in a painful child custody battle. Her daughter-
in-law was awarded shared custody of Williams' granddaughter, and
moved out of the state in 1988. Williams also experienced stress
in her relationship with her husband.
895 P.2d at 100.
In late March 1990 Williams committed to leave CSED. She
retired under the State's Retirement Incentive Program (RIP)
effective October 1990, last working at CSED on July 2, 1990. Id.
at 101.
B. Proceedings
Williams I summarized the facts surrounding her workers'
compensation claim.
Three days [after her retirement] she filed a
report of occupational injury or illness with the Board, claiming
that numerous stress-related physical and mental injuries arose
from her employment.
The State controverted Williams' claim,
asserting she had not suffered a compensable injury or illness
arising out of and in the course of her employment. Williams
applied for adjustment of claim, claiming temporary total
disability benefits from July 2, 1990, when she retired, permanent
partial disability benefits, medical costs, transportation costs,
vocational rehabilitation benefits, interest, attorney's fees and
litigation costs.
Id. at 101. Following hearing, the Board issued its first decision
and dismissed all of Williams's claims. It found that she failed
to meet the statutory requirements of AS 23.30.395(17) for mental
injury caused by mental stress. She appealed to the superior
court. It affirmed the Board's denial of benefits for her mental
injury claim, and rejected her argument that the 1988 amendments to
the Act regarding mental illness [Fn. 2] -- AS 23.30.120(c) and AS
23.30.395(17) -- were unconstitutional. The superior court
remanded the physical injury claim so the Board could reconsider
its decision or provide factual findings supporting its decision.
Williams appealed to this court. The superior court's remand of
the physical injury claim to the Board meant that there was no
final, appealable judgment, but we treated her appeal as a petition
for review and considered only the constitutional questions. Id.
at 100 & n.1. Affirming the superior court's decision, we held
that AS 23.30.120(c) and AS 23.30.395(17) are constitutional. Id.
at 107.
On remand, the Board again denied Williams's physical
injury claim. Williams again appealed and the superior court again
affirmed. Williams now appeals the superior court's decisions
affirming the Board's decisions denying her mental injury claim and
physical injury claim.
III. DISCUSSION
A. Standard of Review
This court gives no deference to the decision of a
superior court acting as an intermediate court of appeal. Handley
v. State, Dep't of Revenue, 838 P.2d 1231, 1233 (Alaska 1992).
Rather, we independently review the merits of an administrative
decision. Id. In Handley, we summarized the standard of review
of administrative decisions as follows:
We have recognized four principal standards of
review of administrative decisions. The "substantial evidence"
test is used for questions of fact. The "reasonable basis"test is
used for questions of law involving agency expertise. The
"substitution of judgment"test is used for questions of law where
no expertise is involved. The "reasonable and not arbitrary"test
is used for review of administrative regulations.
Id. (citing Jager v. State, 537 P.2d 1100, 1107 n.23 (Alaska
1975)).
"Substantial evidence is 'such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.'"
Id. (quoting Keiner v. City of Anchorage, 378 P.2d 406, 411 (Alaska
1963)). "The question of whether the quantum of evidence is
substantial is a legal question." Fireman's Fund Am. Ins. Co v.
Gomes, 544 P.2d 1013, 1015 n.6 (Alaska 1976). Despite the
existence of conflicting evidence, we will uphold the Board's
decision if it is supported by substantial evidence. Summerville
v. Denali Ctr., 811 P.2d 1047, 1051 (Alaska 1991). It is not our
role to reweigh the evidence, Miller v. ITT Arctic Services, 577
P.2d 1044, 1049 (Alaska 1978), and the Board has the sole power to
determine the credibility of witnesses. AS 23.30.122; Resler v.
Universal Servs., Inc., 778 P.2d 1146, 1149 (Alaska 1989).
We review questions of law de novo. Langdon v. Champion,
752 P.2d 999, 1001 (Alaska 1988).
B. Williams's Claims Are Not Time-Barred.
The Board held in its first decision that Williams's
claims were barred because she failed to give timely notice of her
injury as required under AS 23.30.100(a). [Fn. 3] On appeal, the
superior court reversed that ruling and held that Williams's claims
were not time-barred. [Fn. 4] CSED argues that the court erred and
that we can affirm the denial of Williams's claims on this
alternative ground.
Alaska Statute 23.30.100 requires an employee to give
notice to the Board and the employer within thirty days after the
date of the injury. [Fn. 5] Unless a statutory exception applies,
failure to give notice within thirty days bars a claim under the
Alaska Workers' Compensation Act. In its first decision, the Board
concluded that Williams "through reasonable care and diligence"
should have known on July 30, 1987, "that work-related stress was
causing her physical and emotional problems and [should have] filed
a notice of injury." By letter of that date Dr. Steer supported
Williams's request for sick leave.
It is my medical opinion at this time that
until we can relieve her stressful situation, her symptoms will
continue and despite intensive therapy may worsen. By history,
most of her stress is work related.
Because she did not give actual notice of her physical and mental
injury until July 5, 1990, the Board concluded that she had failed
to meet the requirements of AS 23.30.100. The Board found that the
employer was prejudiced by Williams's failure to give timely
notice, and thus concluded that her delay in giving actual notice
was not excused under subsection 100(d)(1). [Fn. 6]
We disagree. The subsection 100(d)(1) exception applies
if (1) the employer had knowledge of the injury, and (2) the
employer has not been prejudiced by the employee's failure to give
notice. Williams satisfied both requirements.
CSED had adequate knowledge of Williams's work-related
stress soon after Williams gained such knowledge herself. Dr.
Steer's July 30, 1987, letter mentioned that he was treating
Williams for a "stress related medical illness"that was
predominantly caused by her stressful work situation. Williams
attached Dr. Steer's letter when she requested medical leave in
August 1987. Dr. Steer's letter provided the employer knowledge of
the injury.
When the recommended medical leave was not granted, Dr.
Steer wrote to the Supervisory Sick Leave Committee of the Alaska
Public Employees Association, reiterating that Williams obtain a
"respite from the work stress situation at the earliest possible
time." He also stated that he believed "that the stresses
associated with her job have been a major, if not THE major,
contributing factor"that precipitated her peptic ulcer disease,
for which he was treating her. After the Committee denied
Williams's application for use of the sick leave bank, Williams
wrote a memo to Drury explaining her medical problems and
requesting a part-time work schedule.
Despite her medical leave in late 1987, Williams's
physical and mental problems continued. In April 1990 Williams
told Deputy Director Linda Langston that she "was having a problem
dealing with stress again, and that [she] was having a lot of
physical problems." She informed Langston that she was planning
"to go on the early out RIP . . . at the end of October"and she
also requested a modified work schedule to help alleviate the
stress during her remaining months at CSED. Williams also
testified that a month or two before she left CSED (in July 1990)
she told her supervisor that she was "not feeling well, just being
tired and feeling under a lot of pressure."
The second element of the subsection 100(d)(1) exception
is lack of prejudice. The Board's finding that CSED was prejudiced
by Williams's failure to give timely notice is not supported by
substantial evidence. See Tinker v. Veco, Inc., 913 P.2d 488, 492-
93 (Alaska 1996). There is no indication any lack of formal notice
impeded CSED's ability to investigate the injury or minimize the
seriousness of the injury. Id. at 492. The record indicates that
CSED, having knowledge of the injury, made efforts to alleviate
Williams's stress, [Fn. 7] but that these measures were ineffective
or inadequate. [Fn. 8]
We therefore conclude that the superior court correctly
held that Williams's claims were not time-barred.
C. The Board Did Not Err in Denying Williams's Mental Injury
Claim.
The Board dismissed Williams's mental injury claim,
noting that the statutory presumption of compensability was
inapplicable to such a claim and finding that Williams failed to
meet the statutory requirements for a mental injury claim arising
from work-related stress.
The Act defines "injury"restrictively if mental injury
is caused by work-related mental stress. Alaska Statute
23.30.395(17) provides in pertinent part:
"injury"does not include mental injury caused
by mental stress unless it is established that (A) the work stress
was extraordinary and unusual in comparison to pressures and
tensions experienced by individuals in a comparable work
environment, and (B) the work stress was the predominant cause of
the mental injury; the amount of work stress shall be measured by
actual events; a mental injury is not considered to arise out of
and in the course of employment if it results from a disciplinary
action, work evaluation, job transfer, layoff, demotion,
termination, or similar action, taken in good faith by the
employer.
Further, the statutory presumption of compensability for a physical
injury claim does not apply to a claim of mental injury caused by
work-related stress. AS 23.30.120(c).
To prevail, Williams had to establish by a preponderance
of the evidence, without benefit of the presumption of
compensability, that: (1) "the work stress was extraordinary and
unusual in comparison to pressures and tensions experienced by
individuals in a comparable work environment"; and (2) the work
stress, as measured by actual events, "was the predominant cause of
the mental injury." AS 23.30.395(17) (emphasis added).
Although the Act does not define "individuals in a
comparable work environment,"we accept the Board's interpretation
of the phrase in this context to mean other supervisors/unit
leaders in Williams's office, given that Williams does not argue
that this meaning was incorrect. Ample evidence supports the
Board's finding that Williams was not under extraordinary or
unusual levels of stress compared with other unit leaders at CSED.
The Board based its finding on the testimony of CSED staff members
who had worked with Williams. Supervisor Briggs testified that
everyone's anxiety and tension increased after a 1986 audit led to
federal intervention and the presence of federal regulators in the
office. Everyone had to deal with the pressure of additional
federal requirements, new deadlines, and increasing caseloads.
Briggs testified that Williams was treated the same as other
employees, and that her complaints about a poor working environment
and lack of clerical support were common among supervisors at her
level.
Billie Stauch had worked in the division for fifteen
years and at a rank equivalent to Williams's since 1985. She
testified that she believed that other unit leaders were under
greater stress than Williams. Testimony demonstrated that
Williams's team assignment was considered the least stressful in
the division, and that Collections was considered the most
stressful unit. [Fn. 9]
From these facts, the Board decided that Williams failed
to establish that her work stress was extraordinary and unusual and
thus denied her mental injury claim. We conclude that substantial
evidence supports the Board's finding that Williams did not face
extraordinary or unusual stress. Because each element of the test
for mental injury arising from work-related stress is mandatory, we
need not consider the other elements of the test. We affirm the
superior court's decision affirming the Board's denial of
Williams's claim of mental injury caused by work-related stress.
D. The Board Erred in Denying Williams's Physical Injury
Claim.
1. The test for compensability
"Physical injury"under the Act includes the work-related
aggravation or acceleration of a pre-existing disease or condition.
Thornton v. Alaska Workmen's Compensation Bd., 411 P.2d 209, 210
(1966). Liability is imposed on the employer "wherever employment
is established as a causal factor in the disability." Burgess
Constr. Co. v. Smallwood, 623 P.2d 312, 317 (Alaska 1981), reh'g
granted, 698 P.2d 1206 (Alaska 1985) (citation omitted). A causal
factor is a legal cause if "'it is a substantial factor in bringing
about the harm' or disability at issue." Id. (citation omitted).
An aggravation or acceleration is a substantial factor in
the disability if it is shown that (1) "but for"the employment the
disability would not have occurred, and (2) reasonable persons
would regard the employment as a cause and attach responsibility to
it. Fairbanks N. Star Borough v. Rogers and Babler, 747 P.2d 528,
532 (Alaska 1987). "[T]o satisfy the 'but for' test, the claimant
need only prove . . . that the aggravation, acceleration or
combination was a substantial factor in the resulting disability."
Id. at 533 (emphasis added). To overcome the AS 23.30.120(a)
presumption of compensability, an employer must present substantial
evidence that either
(1) provides an alternative explanation which,
if accepted, would exclude work related factors as a substantial
cause of the disability; or (2) directly eliminates any reasonable
possibility that employment was a factor in causing the disability.
Gillispie v. B & B Foodland, 881 P.2d 1106, 1109 (Alaska 1994)
(citations omitted). See also Childs v. Copper Valley Elec. Ass'n,
860 P.2d 1184, 1189 (Alaska 1993); Big K Grocery v. Gibson, 836
P.2d 941, 942 (Alaska 1992). If an employer overcomes the
presumption of compensability, the employee has the burden of
proving all of the elements of her claim by a preponderance of the
evidence. Norcon, Inc. v. Alaska Workmen's Compensation Bd., 880
P.2d 1051, 1055 (Alaska 1994).
2. The Board's decisions
The Board noted in its first decision that substantial
evidence linked Williams's physical ailments to work-related
stress. It observed that "[t]here is an abundance of evidence that
leads to the conclusion"that work-related stress aggravated
Williams's pre-existing gastrointestinal condition. The superior
court, in its decision on appeal after remand, noted that "all of
[Williams's] treating health care providers opined that work stress
did constitute such a substantial factor."
We note here just a sample of this evidence: (1) Dr.
Steer's July 30, 1987, letter in which he stated that Williams's
stress-related medical illness would not abate without rest away
from the office; (2) a statement in Dr. Kappes's August 2, 1991,
report that "it appears work stressors have exacerbated health
issues which further impaired her ability to function accordingly
and appears responsible for her early retirement due to health
reasons"; (3) Dr. Buchanan's statement that
In further questioning about her job stresses
it seems clear that with increased job stresses, deadlines,
responsibilities, etc. symptoms predictably increase to the point
of incapacity. Because of the exacerbation of stress related
symptoms it appears to be no longer possible for her to work at her
current job, or in similar jobs, with a like amount of stress.
and (4) a letter from Mary Davis, M.S., a counselor who began
treating Williams in October 1988, stating that
She has had some difficulty functioning on her
job for the past several years, but problems have increased in
severity in recent months . . . . As her therapist, I see her
depression and anxiety symptoms increase in proportion to the
stress she reports with her job and with the accompanying physical
problems.
The Board found in its first decision that although
Williams had made out a prima facie case of aggravation of a pre-
existing physical condition sufficient to raise the statutory
presumption of compensability, the State had overcome the
presumption by producing substantial evidence that her disability
was not work-related. The Board then concluded that Williams had
not proven all elements of her case by a preponderance of the
evidence.
The superior court reversed the Board's denial of the
physical injury claim and remanded for findings of fact to support
the Board's holding that Williams had failed to prove her claim by
a preponderance of the evidence.
On remand, the Board held in its second decision that
"there is a lack of evidence showing Williams's gastrointestinal
condition became worse because of work-related stress." It found
that "while Williams might have focused [on] work stress as the
factor which caused her disability, the primary, underlying cause
of her physical condition was depression and anxiety." "[I]n light
of the whole record,"the Board found that work-related stress was
"not substantial enough to be 'a' factor in bringing about"
Williams's physical condition. Concluding that she had not proven
her physical injury claim by a preponderance of the evidence, it
again denied that claim.
3. Rebutting the presumption
Noting that the Board found in its first decision that
"[t]here is an abundance of evidence that leads to the conclusion"
that "work-related stress from working at CSED aggravated her
preexisting gastrointestinal condition,"Williams argues that the
statutory presumption attached, and that it was error to hold that
the State rebutted the presumption.
Because the Board found that the statutory presumption
applies to Williams's claim that her employment aggravated her pre-
existing condition, we consider whether the State offered
substantial evidence rebutting that presumption. See Gillispie,
881 P.2d at 1109. An employer may rebut the presumption either by
presenting affirmative evidence that the injury is not work-
connected or by eliminating all possibilities that the injury was
work-connected. Childs, 860 P.2d at 1189. The employer can
satisfy the former method by offering an expert opinion that the
claimant's work was probably not a substantial cause of the
disability. Id. (citing Big K Grocery, 836 P.2d at 942).
In this case, the State satisfied neither method. First,
it did not offer affirmative evidence either that the work was not
a substantial cause of Williams's present condition or that the
work did not aggravate her prior condition. Second, it did not
offer evidence eliminating all possibilities the injury was work-
connected.
In finding in its first decision that the State had
overcome the presumption, the Board relied exclusively on the
testimony of Dr. Buchanan. The Board noted that Dr. Buchanan: (1)
testified that Williams's chronic irritable bowel syndrome "was not
predominantly caused by her work"and that she had suffered from a
chronic bowel condition for the past fifteen years; (2) testified
that the illness wasn't "really a job-related illness; it's really
a genetic illness and an emotional illness"; (3) testified that
work-related stress "was a major factor in the employee's having to
quit her job in 1990," even though he also testified that "a major
factor is not a substantial factor"; but (4) was unwilling to
apportion a percentage of responsibility to the State for this
permanent partial impairment rating of Ms. Williams at twenty-five
percent of the whole person.
Based on this evidence, the Board concluded that CSED had
overcome the presumption of compensability, and that the burden
shifted to Williams to prove her claim by a preponderance of the
evidence. The Board concluded that Williams failed to meet her
burden of proof, and thus denied her claim.
On appeal the superior court agreed with the Board that
there was "substantial evidence"that Williams's condition was not
work-related. It noted that Dr. Buchanan and Mary Davis and other
medical personnel "testified that the nature of the pre-existing
condition and the other stressors in [Williams's] life were
significant factors in producing her physiological injury."The
superior court concluded that this showing was sufficient to shift
the burden back to Williams, i.e., evidence rebutted the
presumption of compensability.
Neither Dr. Buchanan's testimony nor the evidence of
"other stressors in Williams's life"noted by the superior court
satisfies the Childs test. 860 P.2d at 1189. Dr. Buchanan did not
express an affirmative opinion that Williams's current condition
was not work-related. Nor did he eliminate all possibilities that
her condition was work-connected. On the contrary, Dr. Buchanan's
testimony can only be understood as supporting Williams's position.
a. Dr. Buchanan's testimony
First, Dr. Buchanan expressed the opinion although work-
related stress was "a major factor"contributing to her condition,
a "major factor"was not "a substantial factor." His testimony
establishes, however, that he did in fact consider work-related
stress to be "a substantial factor"-- as that term is properly
used in workers' compensation cases -- in the aggravation of
Williams's physical ailments. He misconstrued the legal meaning of
the term "substantial factor,"and imported an exclusivity
requirement into the term where none exists in workers'
compensation law. [Fn. 10] He testified:
The problem is in the definition of the word
substantial. And I think that's the whole case, to my way of
thinking. Clearly [work-related stress] was a factor. I've
already said that in print.
. . . .
Whether that was a substantial one, by the
definition that you said, I -- I don't know. Because it implies
exclusively -- I mean, the implication is exclusively this job did
it and not other jobs.
. . . .
I think the job that she was in was a factor,
an important factor. But the real problem for the board is to
decide if any job was a factor and therefore would that reduce the
importance of the job she was in or was it -- did it meet the
criteria for substantial, which would be exclusive of other jobs.
He also stated:
[T]here seemed to be a relationship between
the job stresses -- a fairly clear consistent temporal relationship
between job stresses and symptoms. And when the job stresses went
away, the symptoms improved but were still present.
Absent the semantical confusion, Dr. Buchanan's testimony
unequivocally supports Williams's claim. [Fn. 11] It cannot be
interpreted as substantial evidence rebutting the presumption of
compensability.
That Dr. Buchanan also testified that he believed that
Williams's chronic irritable bowel syndrome "was not predominantly
caused by her work"is of little significance given the fact that
we understand his testimony to convey the opinion that her CSED job
was a substantial factor in bringing about her condition.
Although Dr. Buchanan presented an alternative
explanation -- that genetics and emotional factors played a
significant role in her illness -- he did not eliminate all
possibilities that the injury was work-connected. Veco, Inc. v.
Wolfer, 693 P.2d 865, 872 (Alaska 1985). This court has held that
"medical testimony cannot constitute substantial evidence if it
simply points to other possible causes of an employee's injury or
disability, without ruling out work-related causes." Childs, 860
P.2d at 1189.
Taken as a whole, Dr. Buchanan's testimony can only be
understood as positing that, although Williams's job at CSED was
not a predominant cause of her disability and non-work-related
factors contributed to her disability, her CSED job was a
substantial factor in bringing about her condition. Dr. Buchanan's
testimony thus fails to satisfy either method of rebutting the
presumption of compensability under Childs.
b. Other evidence
In agreeing with the Board that CSED had overcome the
presumption of compensability, the superior court noted that
Both Dr. Buchanan and Mary Davis, as well as
other medical personnel, testified that the nature of the pre-
existing condition and other stressors in appellant's life were
significant factors in producing her physiological injury.
We have noted that it is not a sufficient "alternative explanation"
for the employer merely to point to other factors that likely
aggravated a pre-existing condition. Childs, 860 P.2d at 1189.
Other evidence noted by the Board in its decision on
remand likewise fails to satisfy the Childs test. In deciding
whether Williams had proven her physical injury claim by a
preponderance of the evidence, the Board noted testimony and
reports from Williams's treating psychologists about the
substantial personal stressors in her life. Further, the Board
noted that Williams was the source of much of the information on
which witnesses relied in forming opinions supporting Williams's
claim; however, the Board made no finding that Williams was not a
credible or reliable reporter.
In sum, CSED did not present substantial evidence that
sufficiently excludes, either affirmatively or negatively, work-
related factors as a substantial cause of Williams's disability.
It did not offer evidence that other factors were the exclusive
cause of her aggravated condition, nor has it offered evidence that
her work at CSED was not another causal factor.
Because the Board erred in finding that the State
rebutted the presumption, it then erred in considering whether
Williams proved her physical injury claim by a preponderance of the
evidence.
IV. CONCLUSION
We AFFIRM the superior court's decision that Williams's
claims are not time-barred under AS 23.30.100(a). We also AFFIRM
the superior court's decision affirming the Board's denial of
Williams's mental injury claim. We REVERSE the superior court's
decision affirming the denial of Williams's physical injury claim
because we conclude that the State did not overcome the presumption
of compensability. We REMAND with instructions to remand to the
Board to determine the benefits due on Williams's claim her
employment aggravated her pre-existing gastrointestinal condition.
FOOTNOTES
Footnote 1:
AS 23.30.265(17) was renumbered as AS 23.30.395(17) in 1996.
The renumbering did not affect the definition of "injury"contained
in subsection (17). For consistency, we will cite to AS
23.30.395(17).
Footnote 2:
The legislature amended the Act in 1988 to restrict claims for
mental injury arising from work-related stress. Ch. 79  21 SLA
1988. It did so by adding AS 23.30.120(c), which withdrew the
statutory presumption of compensation for such claims. Subsection
120(c) is set out in Part III.C. The 1988 amendment also defined
"injury"restrictively in AS 23.30.395(17), set out in Part III.C.
Footnote 3:
Having found her claims time-barred, the Board nevertheless
proceeded to analyze the merits of her claims.
Footnote 4:
Although Williams argues that CSED waived this argument by
failing to cross-appeal, "[a]n appellee who does not wish a change
in the decree appealed from is not required to cross-appeal in
order to preserve his right to urge errors in a [lower] court's
ruling that would, if accepted by the appellate court, support
affirmance of the appealed decree." Fox v. Alascom, Inc., 783 P.2d
1154, 1157 (Alaska 1989) (citations omitted). We therefore
consider the timeliness issue.
Footnote 5:
AS 23.30.100 provides in pertinent part:
(a) Notice of an injury or death in respect
to which compensation is payable under this chapter shall be given
within 30 days after the date of such injury or death to the board
and to the employer.
. . . .
(d) Failure to give notice does not bar a
claim under this chapter
(1) if the employer, an agent of the
employer in charge of the business in the place where the injury
occurred, or the carrier had knowledge of the injury or death and
the board determines that the employer or carrier has not been
prejudiced by failure to give notice;
(2) if the board excuses the failure on
the ground that for some satisfactory reason notice could not be
given;
(3) unless objection to the failure is
raised before the board at the first hearing of a claim for
compensation in respect to the injury or death.
Footnote 6:
The Board also concluded that Williams's failure to give
actual notice was not excused under subsections 100(d)(2) or (3).
The Board noted that Williams did not address subsection 100(d)(2)
in her brief and it found no satisfactory reason why notice could
not be given. At the first Board hearing, the State objected
pursuant to subsection 100(d)(3) to Williams's failure to file a
notice.
Footnote 7:
In its first decision, the Board noted that Williams explained
in an August 6, 1987, letter to the Supervisory Sick Leave
Committee that "she and her supervisor were trying to reduce stress
on her. Part-time work had been approved, her communication
difficulties were partially resolved, and she was assured she could
go back to her same position on her return to work."
Footnote 8:
Williams's work area was located next to a refrigerator, a
shredder, a Xerox machine, and filing cabinets. She felt
claustrophobic in such a small, crowded area where people were
constantly passing by. She complained to Briggs a few months
before she left; the refrigerator was moved, but nothing else was
done to modify her physical environment.
Footnote 9:
Williams admits on appeal that she did not want to work in
Collections.
Footnote 10:
Dr. Buchanan acknowledged that he was out of the realm of his
expertise in the debate over the definition of "substantial": "I'm
a medical doctor. Why do I have to be a semantics expert?"
Footnote 11:
In its decision on appeal, the superior court reasoned that
Buchanan's unwillingness to call work-related
stress a "substantial factor"was clearly predicated on his
insistence on interpreting the term "substantial factor"to mean
that only the CSED job, as opposed to another job that Williams
might theoretically have had, would have occasioned this stress.
Buchanan acknowledged several times that Williams' work was a
"major"and an "important"factor in bringing about her stress and
the resultant physical problems she suffered.
. . . .
. . . Dr. Buchanan's testimony thus
supports Williams' position that the injury here -- not the
original illness but the aggravation thereof -- resulted in
substantial part from work-related stress.
In its decision on appeal after remand, the superior
court faulted the Board "for once again misconstruing Dr.
Buchanan's unwillingness to use the term 'substantial factor,' when
in context there can be no question that Dr. Buchanan found that
work stress was a substantial factor."
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