*1 mitigating5 ly, suspend- we find that Burrell should factors. practice ed from the of law for one month mitigating listed in Of the factors Stan- for count one and two months for count 9.32, in- only one in the dard two, suspension the terms of the to be 9.32(b), case is absence of a dishonest stant consecutive. appears Burrell or selfish motive. It issue wrote both of the letters at attempt help his clients.
honest balance, a num- On the other side of in the in- aggravating factors exist ber First, Burrell’s first stant case. this is not disciplinary offense. Burrell v. Disci- See Ass’n, plinary Bd. the Alaska Bar (Alaska 1985). Second, Burrell P.2d 240 OILFIELD KODIAK wrongful acknowledge the na- refuses to HAULERS, Petitioner, Indeed, in ture of his conduct. his brief he Bar, apology requests published from the opinion castigating the Bar and “an ADAMS, Robert L. Protective National
having prosecuted this matter.” Such re- Company, Insurance and Alaska Work- acknowledge- quests hardly constitute an Board, Respondents. ers’ wrongful nature of ment of the his con- No. S-2432. duct. also noté that Burrell has had practice experience Supreme substantial Court of Alaska. practicing law. He has been law for seven- July years. teen factors, In addition to these we find Bur- attempt
rell’s the line” “walk between practice non-practice highly of law im-
proper. especially given This is so our attorney
statement in
that an
Robson
who
suspended
practice
particu-
must be
larly prudent
appearance
to avoid even the
practicing
Robson,
law.
Although knowingly Burrell did not or in-
tentionally prior discipline order violate law,
by practicing his conduct demon- troubling strates a lack of concern for fol- lowing spirit prior disciplinary of his
order. factors,
Considering these we find that a punishment reprimand is not severe
enough in Burrell this case. has made it
clear, moreover, punishment that such a According- would have little effect on him. (f) law; provides inexperience practice 5. ABAStandard 9.32 for consideration in the following mitigating (g) reputation; factors: character or (a) record; (h) prior disciplinary physical impair- absence of a or mental or motive; (b) ment; absence of a dishonest or selfish (c) personal problems; or emotional (i) delay disciplinary proceedings; (d) timely good faith effort to make restitu- rehabilitation; (j) interim misconduct; rectify consequences tion or to sanctions; (k) imposition penalties of other or (e) disciplinary full and free disclosure to remorse; (/) cooperative proceed- board or attitude toward (m) prior remoteness of offenses. ings; *2 Bryant McLaugh-
Julie E. and Robert J. lin, Faulkner, Banfield, Doogan and Holmes, Anchorage, petitioner. for Anchorage, for re- Melaney, Thomas L. spondent, Robert L. Adams. C.J., MATTHEWS, Before RABINOWITZ, BURKE, COMPTON MOORE, JJ. OPINION MOORE, Justice. compensation
This case worker’s First, presents an em- two issues: whether in an ployee’s injury sustained automobile returning home from medical accident employment-related injury treatment of compensable under the Workers’ Com- second, Act pensation presump- applying Board erred compensability. tion of
I. FACTS (Adams) employed Robert L. Adams was (Kodiak) Oilfield Haulers as a Slope. on the North short-haul truck driver injured shoulder February In he attempting he and back when fell while re- large into a basket. He load trash turned several months and to work after subsequently injured his back in December medi- returned to for He Anchorage, Dr. von cal treatment. diagnosed having Adams as Wichman
degenerative disc. L5-S1 Adams sent to September was independent Horning
Dr.
for an
Morris
on,
point
From
evaluation.
treating phy-
Adams’
became
de-
Homing
diagnosed
also
sician. Dr.
generative
L5-S1 level. He
disc
suggested
job change
and noted that
surgery.
for
Adams
a candidate
H47
25,1986.
paid through
return to work
benefits were
March
Adams was anxious to
he
interested
early 1984 because
Benefits
terminated on
date
were
be-
earning enough hours to vest
the Team-
Horning reported
cause Dr.
that Adams
he be-
Fund and because
sters Pension
could have returned to
had it not
work
long.
of work too
lieved he had been out
been
his automobile accident.
therefore, requested that Dr. Horn-
attorney
Applica-
submitted an
*3
Homing
ing give him a
release. Dr.
work
Adjustment
tion for
of Claim to the Alaska
Adams,
returned to
in
released
who
work
Compensation
seeking
Workers’
Board
re-
May 1984.
temporary
disability
instatement of
total
working
year
over the next
and a
While
8,
August
1986,
benefits. On
the Board
half,
Horning
Dr.
Adams saw
three times.
hearing
held a
on Adams’
The
claims.
reported significant
pain
Adams still
back
presented
par-
issues
to the Board
the
perform
job.
his
was able to
but
1)
ties were whether Adams’ work-related
1985,
slipped
Adams
from
December
injuries in
December
and December
truck,
top step of his
and fell some
the
25,
him
1985 rendered
disabled after March
feet, landing
a half
on his
three and
bot- 1986,
2)
disabled,
if
Adams were
was
pain
He suffered a stab of
in his
tom.
the
to either the De-
attributable
Homing
and returned to Dr.
for treat-
back
1982 or the
1984 inci1
cember
December
Anchorage.
Horning put
ment
in
Dr.
dent.1
reconditioning pro-
Adams on an exercise
hearing,
After the
the Board raised the
gram.
projected
if
He
that Adams recov-
Compensa-
issue of whether the Workers’
quickly, he would
able to return to
ered
be
provided coverage
injuries
tion Act
for the
in
work
six weeks or so.
February
in
Adams suffered
1986 auto-
29, 1986,
January
On
Adams drove from
mobile accident. Pursuant
to the board’s
Horning concerning
to see Dr.
Wasilla
order,
parties prepared
additional evi-
injuries
pain.
After the doctor’s
back
presented
dence and
written memoranda on
appointment,
stayed Anchorage
Adams
the automobile accident issue. The Board
program
with a friend
order to work
a
interlocutory
stating
issued an
order
assisting persons
dependen-
with chemical
Adams
not entitled to medical or dis-
was
3, 1986,
cy problems.
February
On
Adams
ability
as a result of the automo-
benefits
injured
way
was
on his
home to Wasilla
found that the
bile accident.
stopped
when he was
rear-ended while
days
Anchorage
remained in
five
Adams
an intersection.
appointment
after his doctor’s
served to
aggravated
slightly
The accident
Adams’
break whatever work-connection
produced
low back condition and
a soft
otherwise had.
injury
injury
tissue
to his neck. The neck
On November
the Board ruled
was
new
which had
been
by his
that Adams was not disabled
work-
injuries.
after
work-related
injuries as of the end of March 1986
related
from
Adams continued
receive treatment
tempo-
Homing
and therefore denied his claim for
injuries.
early
Dr.
for both
As of
April
rary
disability compensation.
Dr.
total
stated that
pain
pre-automo-
appealed
superi-
had returned to its
decision to the
back
board’s
level,
pain
court,
and that
neck
Judge
bile accident
superior
or court. The
Wil-
disability.
was a main factor
Adams’
presiding,
finding
liam H. Fuld
reversed
ambigu-
Horning’s testimony
II. PROCEEDINGS
Adams could return to
ous as whether
apply-
in not
work and that the Board erred
injuries,
After the 1982 and
ing
presumption
compensability
compensation
paid
Adams was
worker’s
injury,
court also
benefits. For the December 1985
Adams’
changes
Although
problems
1.
for the same
sible for Adams’
because of
Adams worked
injuries,
coverage.
er at the time of the two
it was neces-
Kodiak’s insurance
sary
respon-
to determine which incident was
Rivers,
judgment standard. M-K
tution of
erred in determin-
that the
concluded
question of
returning
Similarly,
delay in
599 P.2d at
ing
five-day
that a
trip to
treatment of
medical travel for
medical treatment
coverage for the
enough
preclude
is covered under
work-related
the case
Judge
scope
remanded
Fuld
Act and the
Compensation
accident.
Workers’
of whether
statutory
for consideration
coverage
question
the Board
should
compensability
presumption of
apply the
interpretation.
therefore
in re-
applied and whether
standard.
judgment
substitution of
in-
treatment
turning from his
2)
Purpose
of Treatment
Is Travel for
trip.
in the
risks involved
creased the
Injuries Covered
of Work-Related
set
the reasons
For
appealed.2
Act?
the Workers’
below, we reverse
forth
inju
The Board held that accidental
the board’s
affirm
superior court and
during
trip to or from a
ries sustained
*4
decision.
office for treatment of a work-re
doctor’s
compensable under
lated
III. DISCUSSION
(“the
Compensation Act
Alaska Workers’
Concluding
Err in
A. Did the
Act”).
cited Professor Larson’s
The Board
Accident
Adams’ Automobile
proposition
that “the better
treatise for
Compensable?
Not
Was
injuries
appears to be that accidental
view
1)
of Review
Standard
trip
connected.”
during
a
are work
[such]
deci
argues
Larson,
Compen
that the board’s
Kodiak
1 A.
Law Workmen’s
of
trips made in
coverage
(1986).
for
13.13,
to limit
sion
at 3-406
sation §
of
treatment
work-related
order to receive
is con-
argues that such a result
Kodiak
expertise of
injuries is a matter within
compen-
trary
23.30.265which limits
to AS
result,
argues
As a
the Board.
“arising
those
out of and
sable
limit the cover
decision to
that the board’s
employment.” AS 23.30.-
in the course of
under
trip should be reviewed
age of the
265(2) states:
standard rather than
reasonable basis
of em-
“arising out of and
the course
judgment standard for
of
the substitution
or
ployment”
employer-required
includes
of
questions
law.
site;
to and from a remote
supplied travel
Contracting,
Phillips
Houston
v.
performed
the direction or
activities
1987),
(Alaska
Inc.,
P.2d
we
employer;
and
under the control
question
is a
that when an issue
stated
employ-
employer-sanctioned activities at
not in-
statutory interpretation and does
facilities;
er-provided
excludes activi-
but
special expertise, we are
the board’s
volve
personal
away from em-
ties of a
nature
independent judg-
our
free to substitute
ployer-provided facilities.
interpret the issue
accordance
ment and
assertion,
provi-
Contrary to Kodiak’s
this
purposes of the stat-
our view of the
with
coverage
not limit
of Adams’
sion does
Schleifman, 599
In M-K Rivers v.
ute.
First,
appoint-
the doctor’s
accident.
since
(Alaska 1979),
con-
the court was
P.2d 132
inju-
ment was the result
a work-related
question analytically similar
fronted with a
activity
considered “of a
ry, the
cannot be
case—whether
presented
the one
this
Act,
em-
personal nature.” Under
an
scope
an accident was within
ployee must
to reasonable medical
submit
doctrine.
ment under the remote site
receiving
com-
treatment as a condition
of statu-
question
as one
court viewed
Consequently,
medical
pensation.3
such
interpretation
applied
and
the substi-
tory
28, 1988, directing
we decided to
July
order dated October
an order on
2. We issued
why
appeal
parties
appeal
petition
should
to show cause
as a
for review and
the
not be dismissed on the
being appealed
treat this
grounds that the order
granted
petition.
purposes
for
was not final
Borough
City
appeal
Juneau
under
23.30.095(d).
3. AS
1979).
Thibodeau,
(Alaska
By an
H49 However, “activit[y] performed days. at the than treatment is an Board believes employer.” uniqueness recog- that Alaska’s must be direction nized a more liberal standard. The Second, employee’s usual fact that Board believes that a serviceable stan- is not covered to and from work travel particular dard must not be tied to a coming rule”4 does “going under hours, days, number of or even due to noncoverage for medical travel. not dictate distances, weather, differences matter, related to work- policy As a travel transportation. available The Board be- is more analo- connected medical treatment lieves, therefore, dual-purpose that a gous “special errand”5 which cover- trip treatment return must be ed under the Act. reasonably possi- undertaken “as soon as conclusion, hold- we affirm board’s ble” order be covered. for treatment of ing that medical travel reversed, court contending injuries is covered under the work-related misapplied that the board Anchorage Compensation Act. Alaska Workers’ Roof- ing considering 3) Apply a Did the Board Correct “Devia- increased the risk of an accident. We dis- Exception” Coverage under the tion and affirm the in Order to Act Travel Receive board. Treatment of In- Medical Work-related juries? In Anchorage Roofing, the court out set multi-part balancing test to determine The Board found that Adams’ personal whether a deviation from a cover- purpose” trip *5 to was “dual trip ed noncompensable. business renders it Co., Anchorage Roofing under Inc. v. Gon As the court noted: zales, (Alaska 1973). 507 P.2d 504 The variety there is the need ... to balance a trip personal Board found that the geographic factors of such as the and analysis Anchorage Roofing, under the of magnitude durational of the in deviation and therefore concluded that it would ordi trip, past relation to the overall authori- However, narily compensable. be the deviations, zation or toleration of similar five-day delay board concluded that the general the latitude afforded the represented non-compensable deviation carrying job, any ee in out his compensable trip. risks from an otherwise reaching by created the deviation which are caus- this conclusion the board rea ally soned: related to the accident. passage
that the allowable
of time be-
(footnote omitted).
The cases
indefinitely
cited
Professor Larson
and cash it at
future
whatever
generally
Larson,
delays of hours rather
1
involve
time
his convenience.” A.
suits
422
Highways
P.2d 855
5. R.C.A. Serv.
1150
Superior
Rogers
make
Court that
did not
The Law Workmen’s
necessary showing.
4-362,
(1985).
the
19.29,
4-370
We believe
§
determining
correct in
that the Board was
Kouba,
(footnote omitted).
P.2d at
returning
five-day
that Adams’
disabling
Consequently, as to
presently
his re-
compensability
the
condition,
home ended
pre-
the court noted
the
that
sumption applied
require
so
trip.
turn
as to
the em-
ployer
present
substantial evidence that
Concluding
Err in
B.
the
Did
disability
back
not the
Disabil-
Adams’ Work-Related
that
injury.
similarly
result
the work
We
March 1986?
ity Ended in Late
here,
presumption
applies
conclude that
1)
by Failing Apply
requiring
Board Err
employer
Did the
to introduce sub-
Compensability?
Presumption of
stantial evidence that
the work-related
was not the source of Adams’
superior court held
statutory pre
to “discuss
failed
2)
Presumption
Apply
Was Failure to
employer
sumption
of the
burden
Harmless Error?
pri-
producing substantial evidence that
argues
any
Kodiak
failure to
job
or on
accidents were
the cause
[not]
apply
presumption
was harmless error
employee’s inability to return to
employer presented
since the
sufficient
court
re
work.”
therefore
pre
substantial evidence
overcome the
the issue of the medical causation
manded
sumption.
and therefore affirm
the employee’s
current
back to
the board’s decision.
the Board.
The presumption
compensability
argues
statutory pre-
places
on
producing
the burden of
evidence
sumption
only
applies
in AS 23.30.120
employer.
Once substantial evidence
work-relatedness.
contends that
introduced,
contrary
presumption is
to the
presumption
plain
its
terms extends
presumption drops
out
the burden
applied
beyond
and was
work-relatedness
proving all
falls on
elements
claim
Rogers
causation in
Electric Co.
Bailey
Corp.,
the claimant.
v. Litwin
*6
(Alaska
Kouba,
1979).
v.
We note first that this case falls within adequate support to Miller a conclusion.” scope statutory presumption Services, ITT 1046 v. Arctic 577 P.2d coverage, compensation A.S. workers’ (Alaska 1978). 23.30.120(1). ... It was therefore neces- sary Rogers reviewing to show substantial In the evidence relied on claim, continuing denying that back Adams’ we evidence Kouba's the Board problems presented did not result from the Pru- conclude that Kodiak sufficient Bay statutory presump- evidence to rebut the dhoe accidents. We with the
H51
concluding
patient’s judgment
that the neck
would defer
tion.
In
to
present disability,
his
this case
when it
appropriate
the source of
as to
is
to
were
Horning’s
quit
state-
relied on Dr.
such manual labor. The
noted
Board
re-
Adams’
condition had
ments that
recommended alternative
pre-aggravation
employment
its
it found
turned to
condition.
but
that such testimo-
discussing
ny
finding
presumption,
support
was insufficient to
Without
to meet
employee
totally
that Adams had failed
that the
In
Board found
disabled.
context,
persuasion.
burden of
While
this
do not
his ultimate
consider Dr. Horn-
we
error,
apply
presumption
ing’s testimony
to
ambiguous.
failure to
rely
it
error
we conclude
was harmless
Board chose to
on the doctor’s unam-
presented
biguous opinion
since Kodiak
sufficient evidence
that the back condition had
presumption.
returned
same
to rebut
to the
state in which Adams
Slope
returned to the North
in 1985.
next consider
’
argues
Adams
that the fact that his back
was no
board’s determination that Adams
pre-December
had returned
its
con-
1985
longer
supported by
disabled was
substan
dition
establish
does not
his lack of disabili-
reviewing
tial
when
record as
evidence
ty. He
on the fact
relies
that he continued
Airlines,
Delaney
693
a whole.
v. Alaska
injured
to work in
solely
condition
(Alaska 1985).
reviewing
P.2d
863
enough
earn
hours to vest in his retirement
determination,
our task “is not
board’s
program.
courts
Some
have found that
reweigh
presented
to the
evidence
employment
pain-
continued
the face of a
Board,
determine whether there
but
prevent
ful
not
does
award
light
evidence in
whole
substantial
temporary
total
How-
benefits.6
might accept
record that a reasonable mind
ever, the
Board concluded
its
adequate
support
as
conclu
Board’s
ability
past
precluded
to work
Borough
sion.” Fairbanks North Star
finding
reviewing
of total
A
Babler,
(Alaska
Rogers
747
&
P.2d
may
“displace
court
the Board’s choice
1987); Delaney, 693 P.2d
“The
at 863.
fairly conflicting
between two
views even
may
only
base its
on
decision not
though
justifiably
the court
have
testimony,
[could]
findings,
direct
oth
made
choice had
a different
the matter
evidence,
tangible
er
on the
but also
it de novo.”
Delaney,
been before
experience,
judgment,
Board’s
observa
finding
P.2d
at 863 n.
that Adams’
tions,
peculiar
case,
or
unique
facts of the
work-related,
longer
no
disability was
and inferences
drawn
all
relying
justified
Board was
on Dr. Hom-
Babler,
Rogers
above.”
&
747 P.2d at
ing’s opinion that the back condition had
533-34.
con-
returned to its
condition. We
argues
deposi-
Homing’s
that Dr.
*7
sup-
clude that the board’s determination is
testimony,
tion
as a
when considered
ported by
we
substantial evidence and
whole,
ambiguous
question
is
on
therefore affirm
board’s determination.
of his
source
Dr. Horn-
court is
ing recommended that Adams seek other
the decision of the
REVERSED and
Work-
types
employment
and
a disc-fu-
obtain
Compensation
denying tempo-
ers’
Board
However, assuming
operation.
sion
that
rary
compensation to
total
not
go
Adams did
want to
with
forward
is AFFIRMED.
surgery
thereafter
could
claimed he
work,
go
not
stated
WITZ, Justice, dissenting RABINO
surgery]
he should refuse to
“[i]f
[have
part.
might
say
then I
one
think
fall back and
well,
is
there
evidence of back disease so
holding
I
with
court’s
maybe
claim
his
that he can’t continue
treatment of
travel
work-relat-
surgery
job
without
to do
that kind
ed
covered under
the Alaska
could have merit.” He also
that he
disagree
stated
Workers’
Act.
I
(1963).
6. See American Sur. Co. v. Kizer, 212 Tenn.
trip must be undertaken ‘as Ap- ably possible’ in order be covered.” the Board concluded plying this standard pre- delay days trip of five the return trip finding return be- cludes a that the possible. The gan reasonably as as soon FIRE & STATE FARM CASUALTY forthrightly that the employee admitted COMPANY, Appellant, personal delay was attributable to v. weather, transpor- than business rather tation, limitation, David Doreen C. or other con- G. NICHOLSON and physical Nicholson, delay Board that a husband and straints. The finds returning wife, days in Appellees. five Wasilla Anchorage, under medical examination No. S-2303. circumstances, was too employee’s finds long. that due this Supreme Court of Alaska. delay trip, injuries arising the return July 1989. accident, resulting are from the auto compensable. Rehearing Aug. Denied it foregoing, From the is clear that the adopted requires a test which
employee undertake “as the return possible.” affirming reasonably soon as the Board’s determination that Adams’
five-day the com- ended pensability trip, of his return the court
implicitly rejects “as soon as Board’s
reasonably possible” place test. In its
majority multi-part balancing employs
test which this court first articulated Co., Gonzales, Anchorage Roofing Inc. (Alaska 1973). P.2d In that case we said:
[Tjhere a varie- is the need ... to balance ty geographic such as factors magnitude of deviation in
durational *8 trip, past relation authori- overall deviations, zation or of similar toleration general latitude afforded any carrying job, ee in risks out are caus- created the deviation which ally related to the accident. Id. at 507. Anchorage Roofing sig- differs test
nificantly reasonably from the “as soon as