*1 judge clearly the trial erroneous in increase on the
finding that $300 just that,
monthly rent was rent. Once this upheld, of the
finding is the amount lease establishing in
becomes irrelevant mar-
ket value the collateral. if
It also be noted indeed should $60,000 paying in
Maldonado excess collateral, a very poor
for the Ellis chose “hiding”
way getting money his payments.
“covert' profit” the lease guarantee will get
There is no that he ever if on money
his Maldonado defaults
lease. If lease is terminated for non- rent,
payment Ellis loses “covert
profit.” conclusion, $50,000 the approximately two
differential between the subleases applied
should not be to reduce Hoch’s lia-
bility security agreement. under the
sublease was terminated there is no logic or
reason in law for Ellis to be re-
quired pay surplus over to rent Hoch.
The sublease was not collateral (nor
promissory laundry note was the equip- sublease),
ment collateral for the and the
trial court erroneous14 in clearly
finding that the increased lease rental was profit.”
not a “covert of the trial court decision should be
affirmed. BLACK, Appellant, C.
Diane INC., SERVICES,
UNIVERSAL Pacific Assurance
Alaska
Company, Appellees.
No. 4786.
Supreme Court of Alaska. Rehearing on Denial
As Modified 17, 1981.
July
Franklin D. Fleeks and Frederic E. Brown, Fairbanks, appellant. supra. See note *2 1074 Merdes, Schaible, and treated her with syndrome,”3 fascial Geraghty, C.
Michael Inc., Fairbanks, injections a local anaesthetic.4 Accord- DeLisio, for of Staley & Blаck, however, her condition has ing to lees. outpa- since she discontinued deteriorated J., CONNOR, RABINOWITZ, Before C. her father’s house tient treatment and left JJ., MATTHEWS, and DI- and BURKE Alaska.5 in Seattle to return to MOND, Justice. Senior this Throughout period Universal Ser- car- compensation vice’s workers’ insurance OPINION rier, company Assurance the Alaska Pacific (“ALPAC”), medical paid Black’s bills and RABINOWITZ, Chief Justice. In total benefits. temporary compensation a workers’ case. This is 1977, arranged to have her ALPAC сlaimant, Black, con- Diane was denied The by two Francisco doctors. examined San Alaska tinuing compensation by the Work- them, psychiatrist-neurologist Wil- One of (“Board”).1 That Compensation ers’ Board Pennell, fully that Black had lard concluded affirmed the court. denial was injury from her back and recovered We reverse. simply “manipu- psychological reasons was other, Black, or- treating her. lating” while em- those On thopedic surgeon a Elton found Services as bullcook ployed by Universal fully but that her inju- a Black had not recovered pipeline on the Alaska suffered back permanent. stationary heavy to bed. She condition ry trying while move Fairbanks, Young probably He that “she is reason- where concluded was flown to ably considered to show Although rest. to be Ha saw her and advised heavy lifting.” Dr. produced only precluding Welke this rest Black stated pipe- explain whether or the she nevertheless went unable to improvement,” “mild line condition. Basеd trip with some accident caused her long-planned on a to Greece reports, the in- on ALPAC terminated trip aggravated This back these friends. temporary disability benefits in her confinement to a Black’s total jury and resulted in June 1977. Black nеvertheless continued Upon Black’s return to Fair- wheelchair.2 banks, frequent to doctor on refused to see see a Fairbanks Dr. Ha claiming doc- basis. malingering. she was But other began types several tors did see her 24, application an On June Black filed therapy, successful. none A adjustment of her claim with Board. 1976, Black, August only 1 at which “just hearing was held on desper- the fall testified, ation,” while ALPAC relied on its medical treat- Black went to Seattle for reports. Three months later оrthopedics unit of the Univer- medical ment. The concluding her application, and Board denied sity Washington surgery, declined .. . stated in Dr. Pennell’s Pain Clinic. That “as referred Black secondary gain or probable it some help clinic able tо her. Butler motivating per- need for attention is her to diagnosed problem “myo- her clinic 1980, Myofascial 60, trigger. Berges, Pain Alas- from the See § 1. to ch. SLA Pursuant Syndromes, Compensation Postgraduate 161 Board has be- Medicine ka Workmen’s Compensation (1973). come the Alaska Workers’ Board. University at medical records that Dr. Ha assured her that 2. Black testified hospital Hospital staff was indicate that planned leisurely trip prob- would cause no psychological prob- also concerned about her lems. lems, primarily depression. spent She some hospital’s psychiatric unit. time in may injury to 3. This occur after acute condition muscles, joints. areas in mus- bones or Certain why Black re- tissue record does not indicatе cles or in muscular become connective areas,” “trigger stimulated Fairbanks. which when turned to body produce parts far removed petuate symptoms and that ployee’s she will problems current are related to an continue to seek treatment and take medi- on-the-job injury or arise from an indepen- provided.” cation as dent cause. Alaska Pacific Assurance Co. appealed the Board’s superi- decision to the Turner, (Alaska 611 P.2d 1980); interim, or court. In the sought she recon- Rogers Kouba, Electric Co. v. *3 sideration of her claim the Board. A (Alaska 1979). 911 hearing 3, 1978, was April held on at which Here the Board seems to have relied Black asserted that the Board had made a primarily report on the Pennell, of Dr. the mistake of fact in ruling its first and that San Francisco psychiatrist-neurologist.8 she had new information from Dr. Butler of The Board’s conclusions very are brief: University Hospital the concerning the 24, myofascial syndrome. believe, On the We as stated in Dr. Pennell’s request Board denied Black’s to have the probable that it is that some sec- reconsideration, case reheard. On ondary gain the or need for attention is moti- Board concluded that Black’s vating her perpetuate to her symptoms not related to the February inju- 1976 back and that she will continue to seek treat- rather, ry, Pennell, but as stated Dr. ment and take medication as as it the gain result of “some secondary provided. or need for attention motivating her to [which was] In summary, we believe that whatever perpetuate symptoms.” disability she may present have at the time is unrelated 14, 22, 1979, February On June superior the court en- 1976, incident. We further believe she “denying” tered an order appeal.6 Blаck’s adequately has been compensated superior for the court stated that it was “not minor back strain she incurred in the compelled [by the Board to substi- record] employment course of her for the defend- judgment tute on the facts say [its] ant. that the Board erred in its evaluation of the evidence and its conclusions.” Black has challenges propriety the the appealed from superior court’s affirm- Board’s reliance on report that and claims ance of the Board’s decision. that knowledge Dr. Pennell’s of the case is slight so report as to make his virtually reviewing uphold For a court to reviewing worthless. After we Board, decision of the it must find that the accept are unable to report Pennell’s supported decision is by “substantial evi support “substantial evidence” in of the dence,” e., i. “such relevant evidence as a Board’s then-present conclusion might reasonable accept mind adequate 14, to February wаs unrelated support to a conclusion.” Miller v. ITT 1976, incident. Services, 1044,1049 Arctic (Alaska 1978). The same standard is used in deter Because Dr. Pennell had no opportunity mining whether the employer has rebutted to examine any depth,9 Black in and be- the statutory presumption coverage.7 Id. cause his conclusions contrary are to those at 1046. This presumption compensabili numerous who treated ty applies in determining whether an em- we have concluded that a “reasonable Although appeal filed, timely (1) a notice of provisions the claim comes within the chapter; Black’s brief in court was not of this ... filed year until almost a after the opinions 8. We have examined the two of the rehearing. Board denied Thе record contains Board, accept argument and cannot ALPAC’s explanation delay. no for this substantially that the Board relied on evidence report. other than the Pennell provides part: 7. AS 23.30.120 proceeding In a for the enforcement of a only 9. Black testified that interview lasted compensation chapter
claim for under this twenty minutes. report that both the interview and the examina- It is Pennell’s evident from presumed, in the absence of substantial contrary, evidеnce to the tion were rather brief. support adequate sions as the Board’s his accept diagnosis.10 mind” would not Thus, compensation. denial of Pennell’s re- reweigh judiciary may While Board, port provide Miller ITT does not substantial basis for evidence before the Services, (Alaska P.2d Arctic the Board’s denial of Black’s claim. The reviewing its 1978), it abdicate reports neither of other doctors to in the referred and affirm a Board decision function inconclusive, dissent are all either as to the only slight supporting evi- extremely has cause or as to the extent of Black’s disabili- dence. ty. brief, opinion we are of the that the record does not disclose substantial evidence treating physician at Butler, Blaсk’s appellant’s disability is unrelated to a let- Washington, wrote University of incident. expressing AC to ALP ter myofascial syn- from pains resulted *4 superior order of the affirming court imply did letter he Nowhere in the drome. reversed, decision of the Board is аnd faked, imaginary or pains were that the case is remanded to the court While it was not suggested. Pennell Dr. with instructions to remand to the Board. strongly implied stated, Butler explicitly The Board shall determine the duration of was the myofascial syndromе Black’s that Black’s temporary total disability and shall pipeline of her accident.11 product assess permanent her partial disability, if any, if her condition is report there are found to be stable. Butler’s addition to Welke, Lin- Dr. Dr. reports from physicians’ REVERSED. plethora of a Klemperer and Dr. dig, and in Reports” Supplemental “Physician’s brief signed by Dr. of them most J., MATTHEWS, dissents. With Clinic. of the Fairbanks Perry Mead none of these exception of one Justice, MATTHEWS, dissenting. work, her and released repоrts Compensation Board The Workmen’s was estimated loss work time further found that “whatever Black] reports [Ms. these none of Again, “months.”12 may present have at the time is unrelated” is fabricated. that Black’s indicates injuries February suffered in she is psychi- Pennell a recognize Dr. that We by Universal employed while Services. Butler, Lindig, that Drs. and atrist question court that for this is whether not, and hence Mead are Klemperer, and finding by evi- supported substantial prob- that Black’s conclusion Pennell’s denсe. and would af- I believe given more might be are mental lems firm. doctors’ conclusions than the other weight contrary. report directly supports Dr. Pennell’s diagnosis His was that Board’s conclusion. is neither doubtful report Pennell’s Dr. appellant’s сomplaints hys- result from “an However, ambiguous. because of the
nor personality terical disorder of stand- report in weaknesses Pennell’s described ing.” reports in the There are indications above, we that a reasonable mind conclude other who had treated physicians psychological accept conclu- would response.” recently frankly tion We also evi- observed 10. We are troubled slender many dentiary underlying have little basis the doctor’s that an initiаl time estimate validity light subsequent diag- or conclusions. in events Alyeska Pipeline noses. v. Service Kessick points Co., (Alaska 1980). first ALP out that when Butler AC he the duration of her saw Black disability estimated cannot, We how- as three months. report March Dr. Butler 12.In dаted ever, any significance to this attach estimate. stipulation for work with the released Black time made it he noted that At the Butler lifting, twisting, bending be or should no therapy “prolonged,” have to be would done. predict that it be “difficult to dura- would suffеring lant she was
caused 1976 accident. No NIELSEN, Appellant, Walter James testimony, reports, medical as distinct from presented. imply It is not correct to diagnosis entirely that Dr. Pennell’s Alaska, Appellee. STATE of different from the conclusions of all of the No. 4677. appellant, other treated who had problem for most of them noted Supreme Court of Alaska. strong had a component. emotional Appellant pre-accident history has a depression;
severe еpisodes several resulted Butler, hospitalization. physician
whose is most ap- favorable to the
pellant, expressed major the view that her
problem psychiatric Appel- was her state. treating physician, Young
lant’s first
Ha, appellant light released work as of
March 1976. After she returned from vacation Greece in of 1976 he
told her she malingering. Another
physician, Dr. stated that he could origin appellant’s pain attribute the back,
in the lower space or the disc narrow-
ing x-ray, observable on episode. He also observed that strange walking
lant’s manner of did not pain-caused
resemble a “antalgic limp.” other
Several noted instances appellant
where seemed to be exaggerating
symptoms. consulting A psychologist at University Washington Pain Clinic “depression may
indicated that have been her; pain”-
mislabeled as but this
“wouldn’t account for all of her behav- diagnosis
ior.” The physician, another Iverson, appellant who saw in October
of 1976 complicated was “low back strain
psychophysiological manifestations of de-
pression paranoia.” At the time of the hearing, August
first appellant’s
counsel stated that her treating current
physician, Mead, being was not called as
a witness I “because talked to him on the
phone and his is that he really
doesn’t wrong know what is with so all he can do is to treat her symptomatically, ” is, the symptoms. treat . ..
Based on this agree I do not supporting
the evidence the Board’s conclu-
sion is so tenuous and unpersuasive as to
require reversal.