Doyon Universal Services, Inc. v. Allen

The full case caption appears at the end of this opinion. O P I N I O N CARPENETI, Justice. I. INTRODUCTION Doyon Universal Services and Alaska National InsuranceCompany (collectively, “Doyon”) appeal the determination of theAlaska Workers’ Compensation Board that Lawrence Allen’s smallbowel obstruction was work-connected and that the Brussels sproutshe ingested at Doyon’s facility were a “substantial factor” incausing his disability. Because substantial evidence supports theBoard’s determination, we affirm. II. FACTS AND PROCEEDINGS A. Facts Lawrence Allen was employed as a cook by Doyon at aremote site on the Trans-Alaska Pipeline. While he was on duty,Allen lived in an on-site dormitory and took his meals at theemployee cafeteria. These employer-provided facilities are theonly available room and board for the employees who work at thesite. On August 21, 1997, Allen traveled from his home inAnchorage to the pump station to begin a two-week rotation. Hemoved his belongings into his assigned room and went to the companycafeteria for dinner. At approximately 6:00 p.m., Allen ate a mealof pork chops, mashed potatoes, gravy, and “three or four” Brusselssprouts. At 8:00 p.m. that night, Allen began his shift in thekitchen. Two hours later, he began to feel pain in his stomach. As the night progressed, his pains worsened and he began to feelnauseous. When his shift ended at 8:00 a.m. the next morning,Allen called the camp medic. When he saw the medic, Allen had aterrible stomachache, was vomiting, and had blood in his stool. From that time until the following day, Allen vomited frequentlyand had a form of diarrhea that was infused with blood. On August 23, 1997, Allen was taken via medivac flight toAnchorage, where he was admitted to the Alaska Native MedicalCenter. There, it was determined that Allen had a completeobstruction of the small bowel caused by two bezoars [FOOTNOTE 1] in hissmall intestine. Surgeon Frank Sacco surgically removed theobstruction in Allen’s intestine. Dr. Sacco’s post-operativereport revealed that the bezoars contained dense necrotic vegetablematter, including traces of undigested Brussels sprouts. Allen was released to work in November 1997. He has notexperienced continuing problems associated with the incident. B. Proceedings Allen filed a report of injury with Doyon on September 5,1997. Doyon responded by filing a Controversion Notice with theAlaska Department of Labor in which it refused to pay Allenbenefits on the grounds that his condition did not arise in thecourse and scope of his employment. On October 8, 1997, Allen filed an Application forAdjustment of Claim with the Department of Labor, seeking temporarytotal disability benefits, permanent partial impairment benefits,medical benefits, transportation costs, reemployment benefits,interest, attorneys’ fees, and legal costs. This claim was heardby the Alaska Workers’ Compensation Board in Anchorage on May 12,1998. Allen testified. The depositions of Allen’s then-treatingphysician, Stephen Livingston, M.D., and Doyon’s medical expert,Steven Kilkenny, M.D., were also submitted as evidence. Pursuantto a stipulation made by the parties at a March 1998 prehearingconference, the Board limited its inquiry to whether Allen’sintestinal obstruction constituted a compensable injury occurringwithin the course and scope of his employment. In a split decision filed on June 5, 1998, the Boardfound Allen’s claim compensable, which entitled him to workers’compensation benefits under AS 23.30. Doyon appealed the Board’s decision to the superiorcourt, which affirmed the Board’s decision. This appeal followed. III. DISCUSSION A. Standard of Review This court independently reviews the merits of an agencydetermination and does not defer to the decision of a superiorcourt acting as an intermediate court of appeal. [FOOTNOTE 2]We review the Board’s factual determinations under the”substantial evidence” test, [FOOTNOTE 3] which requires us to determine”whether there is substantial evidence, in light of the wholerecord, such that a reasonable mind might accept the board’sdecision.” [FOOTNOTE 4] When applying this test, we independentlyreview the evidence to determine whether the Board’s conclusion wasbased on substantial evidence. [FOOTNOTE 5] However, our determinationis limited only to whether such evidence exists; [FOOTNOTE 6] we neitherreweigh the evidence nor choose between competing factualinferences. [FOOTNOTE 7] We have held that “if the Board is faced withtwo or more conflicting medical opinions — each of whichconstitutes substantial evidence — and elects to rely upon oneopinion rather than the other, we will affirm the Board’sdecision.” [FOOTNOTE 8] B. Substantial Evidence Supports the Board’s Finding that Allen Proved, by a Preponderance of the Evidence, that His Injury Is Compensable. [FOOTNOTE 9] Employees are entitled to receive workers’ compensationwhenever they suffer injury arising out of and in the course oftheir employment. [FOOTNOTE 10] Injuries that have both work-relatedand non-work-related causes are deemed compensable if theemployer’s actions were a “substantial factor” in causing theinjury. [FOOTNOTE 11] 1. Substantial evidence supports the Board’s findingthat Allen was injured within the course and scope of hisemployment. Under the Alaska Workers’ Compensation Act, [FOOTNOTE 12] anemployer is required to pay compensation to an employee who suffersan injury “arising out of and in the course of employment,”regardless of fault. [FOOTNOTE 13] An injury has arisen “out of and inthe course of employment” if it occurred during (1)”employer-required or supplied travel to and from a remote jobsite”; (2) “activities performed at the direction or under thecontrol of the employer”; or (3) “employer-sanctioned activities atemployer-provided facilities.” [FOOTNOTE 14] In the instant case, the Board found that Allen’s injuryoccurred in an “employer sanctioned activity” in an “employerprovided facility,” and therefore concluded that his injury waswithin the course and scope of his employment. While it isundisputed that Allen ate the Brussels sprouts in an employer-provided facility, Doyon contests the Board’s conclusion thatAllen’s act of eating was an “employer-sanctioned activity.” Because of the unique situation that remote worksitespresent, [FOOTNOTE 15] we have adopted a particularly expansive view of”work-connectedness,” [FOOTNOTE 16] which we have articulated in thenow-familiar “remote site” doctrine. The crux of this doctrine isthat everyday activities that are normally considered non-work-related are deemed a part of a remote site employee’s job forworkers’ compensation purposes because the requirement of living atthe remote site limits the employee’s activity choices. [FOOTNOTE 17] As we have stated: because a worker at a remote site is required,as a condition of employment, to eat, sleep and socialize on thework premises, activities normally divorced from his work becomepart of the working conditions to which the worker is subjected. [FOOTNOTE 18] We have used this doctrine to extend workers’compensation coverage to injuries sustained by remote siteemployees while engaged in recreational pursuits, [FOOTNOTE 19] andwhile running personal errands that were “reasonably contemplatedand foreseeable by the employment situation.” [FOOTNOTE 20]Here, Allen’s act of eating the Brussels sprouts was adirect consequence of the limitations of working at a remote site. It is undisputed that the only food available on the premises wasat the employer-provided cafeteria. Allen therefore had nopersonal choices as to where he should eat; he also had no accessto a restaurant, grocery store, or kitchen facilities for hispersonal use. Unlike eating at home, Allen had little or nochoice as to what he could eat, how it would be prepared, who wouldprepare it, or the quality of the ingredients. The limits placedon Allen’s choices are further evident in the fact that he does notcook or eat Brussels sprouts at home; rather, the only vegetabledish he prepares is Costco’s “California Blend,” which containscorn, string beans, lima beans, broccoli and cauliflower. BecauseAllen’s act of eating the Brussels sprouts was “an activity choicemade as a result of limited activities offered at a remote site,” [FOOTNOTE 21] it is precisely the type of activity the “remote site”doctrine was meant to cover. [FOOTNOTE 22] For these reasons, Allen’s act of eating in the cafeteriawas incident to his employment under the “remote site” doctrine. Because the facts surrounding Allen’s eating options areundisputed, substantial evidence supports the Board’s finding thatAllen has proven this aspect of his case by a preponderance of theevidence. 2. Substantial evidence supports the Board’s findingthat the Brussels sprouts were a substantial factor in causingAllen’s injury. Doyon also argues that it should not be held liable forAllen’s disability because Allen presented no evidence that theBrussels sprouts that he ingested in Doyon’s cafeteria caused theinjury that led to his disability. Under our workers’ compensationsystem, however, the fact that the Brussels sprouts were not theinitial cause of Allen’s blockage is immaterial. Doyon’s argumentthat Allen should not receive compensation because the obstructionwas the result of a pre-existing condition is invalid as well. Wehave upheld workers’ compensation awards in numerous cases in whicha pre-existing problem was aggravated or accelerated by work-related activity. [FOOTNOTE 23] We have stated that workers’compensation liability is to be imposed “whenever employment isestablished as a causal factor in the disability.” [FOOTNOTE 24] A”causal factor” is a legal cause if “it is a substantial factor inbringing about the harm” at issue. [FOOTNOTE 25] The substantial factor test requires the party with theburden of proof to demonstrate that: (1) the disability would nothave happened “but for” an injury sustained in the course and scopeof employment; and (2) reasonable persons would regard the injuryas a cause of the disability and attach responsibility to it. [FOOTNOTE 26] Here, the Board based its conclusion that the Brusselssprouts were a substantial factor in aggravating Allen’s pre-existing condition on two main considerations: (1) Dr. Sacco’spost-operative report, which states that undigested Brusselssprouts were found in the bezoars; and (2) the testimony of eachparty’s medical expert, both of whom the Board felt expressed abelief that the Brussels sprouts were a precipitating factor inAllen’s need for surgery. The Board’s finding that the Brussels sprouts were asubstantial factor in aggravating Allen’s pre-existing condition isconsistent with the deposition testimony of both medical experts. Allen’s expert, Dr. Livingston, stated that the Brussels sprouts”may well have precipitated the small bowel obstruction” and thatit is “quite likely” that the Brussels sprouts were a precipitatingfactor. Doyon’s expert, Dr. Kilkenny, echoed a similar opinion bystating that the Brussels sprouts “may have been a contributingfactor” to Allen’s disability and suggesting that eating theBrussels sprouts caused Allen to have the surgery earlier than hewould have if he had not eaten them. Other evidence indicatingthat the Brussels sprouts played a critical role in Allen’sdisability is that Allen had no indication that he suffered fromslow digestion or digestion problems prior to the event and thatAllen had no more bezoars or digestion problems after his surgery. [FOOTNOTE 27] Although there is evidence that casts doubt on theBoard’s finding, our role in reviewing the Board’s decision issimply to determine whether it is supported by substantial evidencein light of the whole record. [FOOTNOTE 28] We do not reweigh theevidence or choose between competing inferences; rather, we merelydetermine whether a reasonable mind could accept a decision ofcompensability in light of the record as a whole. [FOOTNOTE 29]Evidence that casts doubt on the Board’s finding includesboth experts’ suspicions that “the bezoars developed over time” andthat “the employee may have suffered some intestinal malfunctionwhich slowed or impeded digestion.” However, the Board accordedgreater weight to the fact that both Allen’s and Doyon’s expertsregarded the Brussels sprouts as a factor in the blockage ofAllen’s intestine. Because the record indicates that Doyon’s andAllen’s experts agree that the Brussels sprouts probablyprecipitated and hastened Allen’s need for surgery, the Board wasnot unreasonable in concluding that Allen’s obstruction would nothave occurred “but for” the Brussels sprouts. Similarly, while the Board did consider Dr. Sacco’sstatement that Allen’s obstruction was caused from food materialunrelated to his employment, it gave greater weight to Dr. Sacco’spost-operative report, which was written immediately after thesurgery and stated that Brussels sprouts were found in the bezoars. The Board’s decision to accord greater weight to the post-operativereport does not appear unreasonable because the other statement wassigned in anticipation of litigation, at Doyon’s request. [FOOTNOTE 30] In addition, given Dr. Sacco’s likely unfamiliarity with thedefinition of work-connectedness in workers’ compensation law, itwas not unreasonable for the Board to consider Dr. Sacco’s post-operative report as having “greater probative value.” The second prong of the substantial factor inquiry iswhether reasonable persons would regard the injury as a cause andattach responsibility to it. [FOOTNOTE 31] As we have noted above, theexperts’ opinions that the Brussels sprouts played a role inAllen’s injury, as well as the fact that Brussels sprouts werefound in Allen’s bezoar, provide ample evidence for reasonableminds to conclude that the Brussels sprouts ingested at Doyon’sfacility were responsible for Allen’s blockage and need forsurgery. We therefore find that the second prong of thesubstantial factor inquiry is satisfied. IV. CONCLUSION Because substantial evidence supports the Board’sfindings that Allen’s injury arose in the course and scope of hisemployment and that his work-related injury was a substantialfactor in causing his disability, we AFFIRM the decision of theBoard. :::FOOTNOTES::: FN1 Stedman’s Medical Dictionary defines “bezoar” as “[a]concretion formed in the alimentary canal of animals, andoccasionally man; formerly considered to be a useful medicine withmagical properties and apparently still used for this purpose insome places; according to the substance forming the ball, may betermed trichobezoar (hairball), trichophytobezoar (hair andvegetable fiber mixed), or phytobezoar (foodball).” Stedman’sMedical Dictionary 183 (25th ed. 1990); see also Webster’s II NewCollege Dictionary 106 (1995) (defining “bezoar” as “[a] hardgastric or intestinal mass found chiefly in ruminants and onceregarded as a magical antidote to poison”). FN2 See Thompson v. United Parcel Serv., 975 P.2d 684, 687 (Alaska1999) (citation omitted). FN3 See id. (citation omitted). FN4 State, Pub. Employees Retirement Bd. v. Cacioppo, 813 P.2d679, 683 n.6 (Alaska 1991) (citing Delaney v. Alaska Airlines, 693P.2d 859, 863 (Alaska 1985), overruled on other grounds by Wade v.Anchorage Sch. Dist., 741 P.2d 634, 638-39 (Alaska 1987)). FN5 See Dwight v. Humana Hosp. Alaska, 876 P.2d 1114, 1118 n.6(Alaska 1994) (citation omitted). FN6 See Handley v. State, Dep’t of Revenue, 838 P.2d 1231, 1233(Alaska 1992) (citing Interior Paint Co. v. Rodgers, 522 P.2d 164,170 (Alaska 1974)). FN7 See Burgess Constr. Co. v. Smallwood, 623 P.2d 312, 317(Alaska 1981) (citations omitted). FN8 Yahara v. Construction & Rigging, Inc., 851 P.2d 69, 72(Alaska 1993) (citations omitted). FN9 Alaska Statute 23.30.120(a)(1) creates a presumption that aclaim for workers’ compensation is compensable. This presumptionextends to the question of whether a disability is work-related. See Gillispie v. B & B Foodland, 881 P.2d 1106, 1109 (Alaska 1994). Application of this presumption includes a three-step process. See id. at 1109-11. First, to raise the presumption of compensability,the employee must establish a “preliminary link” between his or herdisability and the employment. Id. at 1109. Second, the employer has the burden of overcoming thepresumption by presenting substantial evidence that the injury wasnot work-related. See id. An employer can satisfy this burden byproviding substantial evidence that either: “(1) provides analternative explanation which, if accepted, would exclude workrelated factors as a substantial cause of the disability; or (2)directly eliminates any reasonable possibility that employment wasa factor in causing the disability.” Grainger v. Alaska Workers’Compensation Bd., 805 P.2d 976, 977 (Alaska 1991). We have heldthat “it has always been possible to rebut the presumption ofcompensability by presenting a qualified expert who testifies that,in his or her opinion, the claimant’s work was probably not asubstantial cause of the disability.” Big K Grocery v. Gibson, 836P.2d 941, 942 (Alaska 1992). Third, once the employer produces substantial evidence torebut the presumption of compensability, the presumption drops outand the employee must prove the elements of his or her claim by apreponderance of the evidence. See Gillispie, 881 P.2d at 1111. In the instant case, the Board held Dr. Livingston’s testimonythat Allen’s consumption of Brussels sprouts at the employer’scafeteria was a “precipitating factor” in Allen’s “need forsurgery” was sufficient medical evidence to raise the presumptionof compensability. The Board next found that Doyon hadsuccessfully rebutted this presumption by presenting the statementof Dr. Sacco, the surgeon who had operated on Allen, that Allen’sbowel obstruction “was not related to his employment or his job.” Neither Doyon nor Allen has challenged these rulings in thisappeal; therefore, these issues are considered abandoned. SeeState v. O’Neill, 609 P.2d 520, 528 (Alaska 1980). We thereforebegin our analysis in the instant case with the third step. FN10 See AS 23.30.395(17); Fruit v. Schreiner, 502 P.2d 133, 141(Alaska 1972). FN11 See Tolbert v. Alascom, 973 P.2d 603, 611-12 (Alaska 1999)(citations omitted). FN12 AS 23.30.005-.400. FN13 See AS 23.30.045(a), (b), .395(2). FN14 AS 23.30.395(2). FN15 The parties do not dispute that the injury occurred at aremote worksite. FN16 See Anderson v. Employers Liab. Assurance Corp., 498 P.2d 288,290 (Alaska 1972) (footnotes omitted). FN17 See Norcon v. Alaska Workers’ Compensation Bd., 880 P.2d 1051,1053 n.1 (Alaska 1994) (citation omitted). In M-K Rivers v.Schleifman, we stated that because the “all-encompassing” nature ofthe remote sites makes it impossible for a “worker at a remotearea” to “leave his work and residential premises to pursue anentirely personal whim and thereby remove himself from workconnected coverage,” remote worksites present a special situationin which many commonplace activities must be deemed incidents ofemployment, even though those same activities might not beconsidered work-related if conducted at a non-remote site. 599P.2d 132, 134 (Alaska 1979). FN18 Norcon, 880 P.2d at 1053 n.1 (citation omitted). FN19 See Anderson, 498 P.2d at 292-93 (holding that an injurysustained by an electrician employed at a remote site during arecreational pole-climbing contest was incident to employment andtherefore covered by workers’ compensation); see also NorthernCorp. v. Saari, [FOOTNOTE 32] 409 P.2d 845, 846-47 (Alaska 1966)(holding that a remote camp employee’s accidental death wasincident to his employment in a case in which the death occurredwhile the employee was returning to the camp after using employer-arranged recreational facilities at a nearby military base). FN20 M-K Rivers, 599 P.2d at 136 (holding that an employee’sinjuries that were sustained in a motorcycle accident while he wasdriving from his remote employment site to Glennallen to cash hispaycheck were compensable because it was foreseeable he mighttravel to Glennallen for the purpose of cashing the check, andbecause such an errand can be viewed as serving the mutual benefitof both the employer and the employee). FN21 Norcon, 880 P.2d at 1053 n.1. FN22 Doyon contends that the “remote site” doctrine is inapplicablehere in light of the first footnote in Norcon, in which we heldthat a fatal cardiac arrest suffered by a worker while showering ata remote site “does not fall within the parameters of the ‘remotesite’ theory” because ” [g]ettingready for work is not an activity choice made as a result oflimited activities offered at a remote site. It is an activitythat most employees engage in before they go to work, regardless oftheir location. [FOOTNOTE 33]” Id. The principle implicit in the result described in thisfootnote is reflected in our analysis in the instant case: For the”remote site” doctrine to attach, the employee’s activity choicesmust be limited by the remote site and that limitation must play acausal role in the employee’s injury. For example, if we wereconfronted with a case similar to Norcon in which an employee’sheart attack was caused by him or her being hit with a sudden burstof cold water while in the shower, we would conclude that theemployee’s limited choice of showers at the remote site contributedto his or her injury, and that the remote-site doctrine thereforeapplies. FN23See e.g., Tolbert v. Alascom, 973 P.2d 603, 608 n.15(Alaska 1999); Williams v. State, Dep’t of Revenue, 938 P.2d 1065,1072-73 (Alaska 1997); Tinker v. Veco, Inc., 913 P.2d 488, 493(Alaska 1996); Thornton v. Alaska Workmen’s Compensation Bd., 411P.2d 209, 210 (Alaska 1966); see also Burgess Constr. Co. v.Smallwood, 623 P.2d 312, 315 (Alaska 1981)(“Such aggravation oracceleration must be presumed in the absence of substantialevidence to the contrary.”) (footnote and citations omitted inoriginal). FN24 Ketchikan Gateway Borough v. Saling, 604 P.2d 590, 597-98(Alaska 1979) (emphasis in original). FN25 Id. at 598 (emphasis in original) (citations omitted). FN26 See Fairbanks N. Star Borough v. Rogers & Babler, 747 P.2d528, 532 (Alaska 1987) (extending the substantial factor testpreviously articulated in tort to a workers’ compensation context);see also State v. Abbott, 498 P.2d 712, 726-27 (Alaska 1972)(discussing the substantial factor test). FN27 A later procedure to check for other bezoars came backnegative and a CAT scan of the small bowel determined that Allen’ssmall bowel was in normal condition. FN28 See Gillispie v. B & B Foodland, 881 P.2d 1106, 1111 (Alaska1994) (citations omitted). FN29 See Black v. Universal Servs. Inc., 627 P.2d 1073, 1075(Alaska 1981) (citation omitted). FN30 The statement is written on Alaska National Insurance Companyletterhead and was drafted by an Alaska National Insurance Companyemployee. FN31 Rogers & Babler, 747 P.2d at 532. FN32 409 P.2d 845, 846 (Alaska 1966). FN33 Norcon, 880 P.2d at 1053 fn. 1.

---

Doyon Universal Services, Inc. v. Allen THE SUPREME COURT OF THE STATE OF ALASKA DOYON UNIVERSAL SERVICES and ALASKA NATIONAL INSURANCE COMPANY, Appellants, v. LAWRENCE ALLEN and the ALASKA WORKERS’ COMPENSATION BOARD,Appellees. [No. 5260 - April 14, 2000] Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Sigurd E. Murphy, Judge. Supreme Court No. S-8956 Superior Court No.3AN-98-6609 CI Appearances: Richard L. Wagg, Russell, Tesche,Wagg, Cooper & Gabbert, Anchorage, for Appellant. Joseph A. Kalamarides, Kalamarides & Associates, Anchorage, for Appellee. Before: Matthews, Chief Justice, Eastaugh, Fabe, Bryner, and Carpeneti, Justices.