*1 appropriate measure that the we conclude STEPHENS, is that Appellant, in the instant case damages applicable Edgar (Second) § of the Restatement
found Torts, namely, value of the items SERVICES adopt the ITT/FELEC thus decline the owner.16 We Cos., Appellees. Cigna damages for loss minority which allows view on property to be based personal of items of No. S-6642. This hold- value. and emotional sentimental prior case law with our Alaska. Supreme is in accordance Court of (Second) Torts, the Restatement 3,May 1996. damages will not be based that such ensures difficult to mea- which are on considerations
sure. be foregoing, this case should on the
Based for a new superior court to the
remanded damages lost for the on the issue of
trial videotapes.
photographs and Attorney’s Fees
D. challenge the attor- appears to
Landers opening
ney’s in this case fee award However, goes on to Landers then
brief. argue award
state that he does incorrectly calculated. attorney’s fees Supreme
Rather, “if the Court he states that evidentiary decision the trial court’s
reverses matter, attorney’s fees the award of abeyance pending retrial on held in
should be vacating damage issue.” Because we are jury’s damages for loss award videotapes, attorney’s
photographs and dependent as it is is set aside
fee award judgment. CONCLUSION
V. REMAND for a new REVERSE and
We damages in accordance with this
trial on
opinion.
MOORE, C.J., participating. intentional, conduct is When the defendant's ages of mental distress known as form humiliation, is, willful, malicious, however, degradation feeling anguish mental feeling people inferiority that other will or a proper damage. is a element regard or dislike. This state Minzer, Nates, him with aversion Marilyn D. Jerome H. Clark may ... the deliberate tres- mind result Axelrod, Damages & Diana in Tort Kimball T. dispossession pass to land or destruction (1993). § Actions 37.30 chattels. added.) authority (Emphasis states: One argument court on Feb- before the Recovery distress in reaction to for mental 12, 1993, damage ruary Landers tendered the person- damage negligent or destruction of theory to the owner.” we refer to as "value ordinarily property not available.... al
622 *3 Croft, Chaney Office, Chaney Law Croft Anchorage, Appellant. for Tesche, Russell, Wagg, E. Allan Tesche & Anchorage, Appellees. RABINOWITZ, MATTHEWS, Before EASTAUGH, COMPTON and JJ. OPINION EASTAUGH, Justice.
I. INTRODUCTION Edgar Stephens’s must We decide whether (ITT), employer, Services over- ITT/Felec statutory presumption compens- came the ability by producing substantial evidence that Stephens a heart attack suffered while work- work-related. The Alaska Work- (Board) Compensation ers’ Board found that overcame the bility. The Stephens Board also found that prepon- was unable to his claim a Stephens appeals. derance of the evidence. We affirm the Board’s conclusion that ITT overcame the question We remand for on the Stephens proved the elements of his claim of the evidence. affirm We the Board’s decision not to order independent medical examination. II. AND FACTS PROCEEDINGS employed by ITT as an elec- rigger. years trical He worked for three (DEW) Early Warning remote Distant Line operated by govern- sites ITT for the federal 1, 1990, May ment. On he arrived for work Oliktock, POW-2, at the site. He worked at radome, containing a metal structure ra- antennae, apparatus, dar control facili- rested, down, improve- arriving, staged lay tools and noticed some After ties.1 necessary warning light ment. materials install worked the radome. top of evening Stephens to Ku- That was driven May 4 without incident.
until physician’s took his paruk where assistant breakfast, arose, May 4 ate On EKG, pressure, performed an and told blood news, and cigarette, watched the smoked might have attack. him that he had a heart approxi- work at 8:00 a.m.2 At reported to Stephens flew Fairbanks and saw vari- interior mately a.m. he into the 9:00 climbed ety that he physicians; confirmed radome, some performed where he had suffered heart attack. and a co- sedentary work near switch he Stephens underwent stress tests exercise days previously. had installed two worker Anchorage, in Fairbanks. William *4 minutes, Ste- approximately fifteen After cardiologist, gave angio- him an a additional phens determined he needed performed then a cardiac cathet- gram and room, ground so parts from the floor radar indicated erization. catheterization fifty- approximately forty to he descended arteries, blockage coronary at least two using spiral stair- the ladders and three feet “damage portion the bottom of the heart parts to the He returned with the case. attack,” previous and consistent with heart interior, in roundtrip completing the dome’s atherosclerosis. five He worked approximately minutes. months, recuperated Stephens for several to three until he found another two minutes August 28 to work with ITT on and returned parts, needed different which were that he treating physician, 29. His Fairbanks again He made the de- also located below. Thieman, family re- practitioner Donald ground level. scent to Stephens previous employment to his leased descent, during point after this At some Stephens worked without restriction. sweat,” breaking in a Stephens “started out ITT until laid off on capacity with he was difficulty coughing, began having and started 21. September breathing. Stephens uncertain whether descending subsequently a workers’ began Stephens filed symptoms his while he was claim, staircase, its insur- compensation if did not which ITT and ladders or the “ITT”) er, (collectively Companies, completed he the de- CIGNA begin until after had controverted, pending that he was medical documentation scent. He testified that he felt employ- arose from the in his throat. that his condition out of “strangling” mucous unsuccessfully Stephens Application filed an for Ad- to clear his ment. tried Claim, at- justment asking that his heart by performing Heimlich maneuver throat injury, clearing accepted as a regurgitated, He then tack be work-related on himself. requesting an benefits. The passage, allowing him to breathe award of his air room, lay a Decision again. went to his he Board heard and issued He where 20, 1991, feet, awarding down, Ste- himself and Order on June elevated and calmed that ITT breathing Although phens compensation ground he deep exercises. with better, statutory presumption felt to feel a little he still had not overcome started sought ITT reconsidera- shaky getting up to talk and weak. After room, tion, applied an arguing that the Board had supervisor, to his with returned ground forty fifty ly, going level diameter from the radome floor to 1. The dome itself is feet in structure, rectangular fifty- forty-two known as a requires and rests on a descent of between high. "plenum,” approximately eight feet feet. three room, plenum, large stands which resembles a ground. fifty site above the To reach a work feet who, his heart is a smoker before radome, one a nine- to ten-foot inside the climbs attack, three-quarters pack to one of a smoked ground within the floor radar room ladder history cigarettes day. pack He had thirty- spiral twenty-five to staircase ascends high pressure for at least which he took blood height plenum. feet in the floor of the five medication his heart two forms of before twenty walks about feet inside One then for at least six and for which he been treated eight-foot plenum climbs lad- and then another years. According- der to reach the floor the radome. 024 Co., determining Alyeska Pipeline
incorrect standard of law in
that Kessick v.
Serv.
755,
(Alaska 1980).
presumption. By
ITT had not overcome the
P.2d
1991,
August
decision of
the Board found
employer
always
An
has
been able
presumption
ITT
had not overcome the
presumption
to rebut
compensability
because it had not eliminated all reasonable
by presenting expert opinion evidence that
possibilities
that work-related
conditions
probably
“the claimant’s work was
not a sub
development
were a substantial factor
disability.” Big
stantial cause of the
K Gro
of his heart attack.
Gibson,
(Alaska
cery v.
836 P.2d
appealed
to the
court.
1992).
presumption
only
Since the
shifts
October 1992 that court remanded the case
production
burden of
employer
to the
apply
to the Board with instructions to
proof,
not the burden of
we examine the
legal
Big Grocery
standard articulated in
K
tending
evidence
to rebut
Gibson,
(Alaska 1992).
employer’s
presump
burden to overcome the
by coming
tion
forward with substantial evi
Presumption
Compens-
A. Rebuttal of
injury
dence
was not work-related.
ability
Servs.,
(citing
Id.
Miller v. ITT Arctic
577
Stephens argues
the Board
(Alaska 1978)).
P.2d
Substantial
failing
erred in
findings regarding
to make
evidence is “such relevant evidence as a rea
conditions,
working
testimony
lay
might
mind
accept
adequate
sonable
as
witnesses,
opinion
and Dr. Thieman’s
in its
support a
(quoting Grainger
conclusion.” Id.
determination that ITT had overcome the
Bd.,
Compensation
Alaska Workers’
presumption
(Alaska 1991)).
P.2d
977 n. 1
In deter
mining
employer produced
decision,
whether the
reaching
sub
In
its
the Board relied
evidence,
stantial
“[i]t is not the function of on
testimony
physicians:
of three
Ste-
reweigh
this court to
only
phens’s
the evidence but
treating otolaryngologist, Richard
determine
Raugust, M.D.,4
whether
such
Stephens’s
evidence exists.”
treating cardiolo-
dissenting
3. The
Board
Stephens's
problems,
member stated that ITT 4. Because of
chronic sinus
presented
had not
Raugust
the substantial evidence
neces-
was asked to see
sary
hospital
to overcome the
at the time he was admitted for his
bility.
According
infarction.
to Dr. Rau-
them,
fler, agreed
represented
M.D.,
ITT’s cardiol-
gist, William
exertion,
Stephens’s
emo-
Toiler,
also
levels
The Board
Geoffrey
M.D.
ogist,
stress, diet, and cold were not substan-
testimony regarding
tional
Stephens’s
considered
bringing
his heart at-
tial factors
about
surrounding the
job and the conditions
may have
They agreed
coughing
tack.5
did not mention
job.
The Board’s
attack, although
triggered the heart
neither
about
Stephens’s co-workers
testimony of
cause of the
physician professed to know the
physi-
None of
working conditions.
ear, nose,
throat
cough.
Raugust, an
directly heard
cians who evaluated
Stephens’s
specialist, stated that the cause of
co-workers’ comments.
laryngospasm was not the cold
coughing and
argues that the Board
dust,
Slope,
or the
dry
the North
air of
by declining to issue detailed
erred
exertion,
phlegm
was the
level of
but
lay
regarding
fact
smoking
chronic
produced by Stephens’s
determining
ITT re
whether
witnesses.
that because of
disease. He testified
sinus
compensability,
butted the
disease,
smoking and sinus
however,
weigh
evidence
the Board does
“any-
occurred
coughing episode would have
against that offered
employer
offered
where in the world.”
examines the
employee, but rather
Thus,
reaching
conclusions that
their
standing
employer
offered
evidence
attack was not work-relat-
Stephens’s heart
Although
Wolfer,
P.2d at 869.
alone.
ed,
their
physicians took into account
tending
only
at evidence
Board need
look
Their
understanding of his work conditions.
compensability,
presumption of
to rebut the
factually per-
understanding
on a
was based
comprehensive and
must be
that evidence
interpretation
the work condi-
missible
reliable.
tions.
reliable,
phy-
comprehensive and
To be
agreed that if
Mayer and Toiler
Drs.
sicians’
*6
differed from
Stephens’s work conditions
of his heart
a substantial cause
work was
(for example, if
those that
considered
necessarily
consider
attack
had to
physical
higher level of
exertion
day
attack.
there were a
of his
work conditions on
involved)
might in
have
conditions
fact
temperature,
included the
These conditions
causing
his heart
significant
factor
atmosphere,
been
of dust in the
the amount
of
supra
attack.
note 5. The existence
required, the level
See
physical exertion
level of
material, genuine
dispute
fact
stress,
potentially
Stephens’s diet.
of emotional
conditions,
Stephens’s actual work
directly
about
though
physicians did not
Even
however,
erred
not mean the Board
testimony,
attor-
does
lay
hear the
witnesses’
presumption of
ruling that ITT overcame the
various
neys
physicians
asked
physicians
their
compensability. The
based
hypo-
of these
hypothetical situations. Some
facts, which, although
lay
opinions on a
of
state
incorporated the content of
theticals
permissibly resolved
disputed, could be
testimony.
also inter-
The doctors
witnesses’
con
physicians’
extent,
employer.
and at least
favor
Stephens to some
viewed
per
favoring
employer,
them,
Toiler,
clusions
of
reviewed
one
underlying
assumptions
those
fact
formulating
opinion. missible
deposition before
alone,
conclusions,
suffi-
standing
constitute
Mayer
To-
cardiologists,
two
Drs.
substantially
neither doctor
injuries
to his heart
history
gust, Stephens
of nasal
athletics,
longstand-
present.
cough,
been
and a
that these factors had
a chronic
considered
However,
x-
ing history
documented
agreed
of chronic sinusitis
the Board
doctors
both
rays.
activity
level of
consider "the
should
morning,
engaged
how
[Stephens]
in that
an un-
agreed that if there was
5. Both doctors
activity
engaged
frequently
in that
he had
exertion,
emotional stress
usual level of
resulting
two,
year
activity
past
the time
in the
similar
negative
pressure
from either time
under,
tempera-
which he was
constraint on
comments,
change in
or an extreme
racial
temperature,
ture,
determining
emotional stress” in
[and] the
could have contribut-
these factors
Stephens's heart attack was work-relat-
whether
concluding
Stephens's heart attack.
ed to
ed.
employment
Stephens's
did not contribute
presumption
Stephens arguably
cient evidence to rebut
of
right
ap-
waived his
compensability.
always
peal any
possible
“It has
been
issue other than
ITT rebut-
presumption
compensability
presumption
compensability.6
to rebut the
ted the
Nonetheless,
by presenting
qualified expert
spe-
we conclude that
who testifies
under the
that,
case, Stephens
cific circumstances
this
opinion,
in his or her
the claimant’s
clearly
remaining
not so
these
issues
probably
work was
not a substantial
waive
cause of
that we should not consider them.7
disability.” Big Grocery,
K
sumption compensability based Based on our conclusion that the defen- substantial medical evidence which eliminat- dants have submitted substantial evidence possibilities ed all reasonable that the heart presumption, to overcome the we find the attack was work-related. prove pre- must claim a
ponderance. Upon reviewing the entire B. Remaining Preservation Issues record, including the medical evidence out- above, prove lined find he we is unable to argues ITT only question claim. Accordingly, by great we find appealed September court in weight of evidence that his claim for work- 1991 was the employer issue of whether the compensation ers’ benefits must be denied. rebutted the ITT reasons that because did not argues that the Board erred in cross-appeal raise issues on supe using analysis the same to decide both that court, right rior he waived his to raise those overcame the issues here. bility and that was unable to August In its clearly decision and order on appeal- As was on notice that ITT was ing only finding reconsideration the Board stated: regarding pre- the Board's sumption compensability, Stephens should *7 20, weAs indicated in our June 1991 decision cross-appealed preserve have right to his own to order, treating examining phy- and all the challenge any aspect unfavorable of what was sicians doubted the work-relatedness of the otherwise a favorable decision. See Andersen v. employee’s myocardial infarction. Neverthe- Edwards, 282, (Alaska 1981) (refus- 625 P.2d 285 unequivocally less because no doctor stated argument to consider appellee because did the that work was not a "substantial factor” in cross-appeal properly not file raise the infarction, causing myocardial the based issue). Supreme on analysis our review of the Court's II, Grainger petitioners in we conclude the August 7. The Board's 1991 decision should be presumption have not rebutted the of com- separate post- viewed as from its March 1993 pensability. any appellate In the event that remand decision which considered the effect of overcome, presumption court the how- Big Grocery opinion. finds our 1992 K The Board’s ever, testimony based on the medical in this March 1993 decision concluded that ITT success- case, prove we would the did not fully presumption compensability find rebutted the of compensability by the preponder- his claim a prove of and that was unable to his claim added.) (Emphasis ance the evidence. by preponderance Assuming of of the evidence. September appeal In 1991 filed its notice of appellate process began the anew when the appealed: which stated that it decision, Board issued its March 1993 Ste- only portion from that of the Board's decisions phens’s superior points appeal pre- court on appellants in the Board found that did Moreover, which remaining served his issues. because presumption not rebut the of technically the case ended when the Board found Appellants appeal finding do not from the presumption that ITT had not overcome the of 28, August the Board’s 1991 decision that had compensability, unnecessary it was for the compensability the of been August rebut- Board's 1991 decision to find conditional- ted, employee Edgar Stephens prove ly did prove not that by failed to his claim a by preponderance his claim a preponderance the evidence. of the evidence.
627 sufficiently specific Board did not make by of the evidence. the his claim making the standards for The did not the findings. asserts that Board discuss He differ the because two determinations acknowledge these dispute or even work conditions presump- overcome the offered to evidence testimony Stephens’s co-workers re- the in isolation. should be viewed tion con- garding work conditions.8 Board’s elusory consequently per- not employer rebut statement does by the Evidence offered compensability is viewed adequate appellate finding the review of its mit weighed against not con- in isolation and is preponderance of the that evidence trary employee. evidence offered Stephens’s Hewing v. support not claim. See Norcon, Compensa- Inc. v. Alaska Workers’ Bd., Compensation 512 Alaska Workmen’s (Alaska Bd., 1994), 880 P.2d tion (Alaska 1973) (remanding be- P.2d testimony weighed explained that is not we “findings of fact filed the Board cause Thus, stage. physicians’ at the rebuttal disability its regard to determination do testimony weighed only after could be appel- permit intelligently us to review” the presumption had that the Board determined assertions). Therefore, lant’s we remand Id.; Wolfer, 693 see also been overcome. appropriate findings Board to make the (“[T]he compens- presumption [of P.2d at 869 weight regarding evidence. ability] only production burden of shifts persuasion.”). and not burden us, argument At oral Ste before “[u]pon stated that re Board argued that phens’s counsel also the Board’s record, including med viewing the entire opin weigh failed to March decision above, [that we find ical evidence outlined Repsher, Dr. consultant ion of Lawrence Ac Stephens] is unable to his claim. medi diseases of chest and critical care cordingly, great weight of evi we find Repsher’s potentially cine. compensa dence his claim workers’ supported claim that the work benefits be denied.” Given tion must his heart attack.9 conditions caused conditions, Stephens’s work dispute about footnote, materiality stated: potential dispute, In a the Board’s decision and the Although of it.” He cited three reasons for some of cause summarized (1) presented, any underlying opinion: find- evidence it does reflect chronic ings Stephens's smoking regarding cough cigarette actual work condi- docu- was related to issue, tions, Thieman; (2) Stephens on or even discuss the evidence smoked mented Perhaps implicitly 4; (3) the Board May mention issue. cigarette going work on before medical found the work conditions be as the cough part initial constellation experts men- assumed them to be. The failure to symptoms, of an all of which are characteristic any the issue us without confidence tion leaves Repsher con- acute infarction. Dr. finding. implicit such that Although Board made cluded true, dissenting opinion as the episode coughing 0900 hours appellate readily argues, re- that "an court can working May condi- 1990 was not the result [expert] these witnesses view employed for ITT Felec Services as tions while evi- determine whether it meets substantial *8 rigger, transient a but rather was the result of J., standard," (Matthews, Op. at 20 dis- dence large due to a inferior left ventricular failure senting), it is whether the Board made not clear therefore, myocardial wall infarction that acceptance to essential of fact cough myocardial the result of the testimony. consequently experts’ remand A myocardial cause of infarction and not the necessary. infarction. Repsher’s testimony potentially supports Dr. give Repsher opinion on asked to his 9. Dr. Stephens’s caused claim that his work conditions employ- Stephens’s whether conditions potentially ex- his heart attack and contradicts coughing episode that he contributed to the ment Stephens’s pert heart at- medical that morning May 4. He drew suffered by coughing may have caused tack been underly- Stephens’s distinction between chronic episode, and was not work-related. Conse- thus cough, coughing episode and the acute Repsher’s to quently, Dr. is relevant Stephens morning heart on the of the suffered relatedness, and should the critical issue of work my opinion, Repsher wrote that "it is attack. deciding by the have been Board overwhelming probability, considered an that the acute by proven claim cough whether had his of the was as a of his acute onset result underlying preponderance the evidence. myocardial and not infarction IME, employee’s argument note the We that our dered an Stephens’s because both physician, IME Raphshire, treating William cardiologist, [sic] and ITT’s M.D., coughing episode concluded the Toiler, cardiologist expert, Dr. concluded cause, by, but was caused the heart that the heart attack was not work-related. determining attack. In pre- whether the general Dr. Thieman is a practitioner, not overcome, however, sumption was we do cardiologist. a letter to at- weigh his evidence our consider- torney, Dr. Thieman stated: ation, opinions qualified but examine the history given by From Stephens, Mr. Wolfer, experts isolation. 693 P.2d at symptoms myocardial infarction be- gan vigorous in the physical course of ex- Board, It is unclear whether the after de- job. ertion while he was on the In this termining pre- had overcome the sense there is a reasonable association be- sumption compensability, gave any then physical job tween the work of his and the Repsher’s opinion consideration to Dr. in de- precipitation acute of the in- ciding proven farction. by preponderance claim of the evidence. questions The other as to whether the may The Board Repsh- have considered Dr. physical psychological job stress of the context, er’s evidence in this but its decision disease, overall contributed to his heart say does not so. On remand the Board job and as to whether diet on the site was should indicate whether has considered Dr. related to his heart disease would much be Repsher’s opinion in deciding whether Ste- harder to demonstrate and I could not phens proved by his claim you any offer particular expertise in that of the evidence. area. suggest you I Independent D. would if pursue Medical Evaluation wish to the association physical between the acute 23.30.095(k) Alaska Statute states in rele- exertion and precipitation the acute part: vant attack, you heart appropri- obtain an In the event of a medical dispute regarding expert ate witness in the area of cardiolo- causation, determinations of medical stabil- gy, give who can opinion an as to the- ity, ability reemployment to enter a plan, percentage responsibility assign degree impairment, capacity, functional physical the acute causing exertion in efficacy the amount and of the continuance attack, opposed heart probability to the treatment, necessity of or that the heart attack would have occurred bility attending between anyway at somewhere near the same time physician employer’s independent patient’s life. evaluation, medical independent second Thus, although Dr. Thieman saw a “reason- medical evaluation shall be conducted able association” between physician physicians selected work and his qualified heart board from a list established and main- statement recognizing exper- his limited tained the board. tise in area of cardiology, suggested Stephens argues the Board “get appropriate cardiology in failing erred independent order an med expert witness who has a more extensive (IME) ical examination under AS knowledge subject” on the pursue 23.30.095(k)regarding the cause of his heart association between the exertion and argues attack. He opinions that because the *9 the heart attack. Because Dr. Thieman of Drs. regard Donald Thieman and Toiler expert not an in cardiology, qualified ing the cause of his heart attack were in opinion limitation, based on that and had conflict, the Board should have ordered an to expertise deferred witnesses with in cardi- IME. ology, and cardiologists opined because two argues that provides the record no heart attack was not work- upon related, basis which the Board could have or- the Board did not abuse its discre-
629 by of the preponderance claim a evidence. regarding IME requiring an by not tion demonstrated the basis its The Board Stephens’s heart attack. cause of for decision, stating that its decision was found- CONCLUSION IV. “including on a review of the entire record ed decision AFFIRM the Board’s We the medical evidence outlined” the Board’s ITT overcame sup- opinion. detail was written Sufficient to the Board make bility. REMAND to We plied as the Board summarized findings regarding whether Ste- appropriate treating otolaryn- Raugust, by preponderance a phens proved his claim Mayer, Stephens’s treating gologist, Dr. car- AFFIRM the Board’s We the evidence. Toiler, cardiologist, diologist, and Dr. ITT’s IME. not to order an concluded, “uniformly, Raugust, Drs. and agreed employ- and Toiler that the MOORE, C.J., participating. probably work was not cause ee’s employee’s disability, it caused but that was MATTHEWS, J., dissents. by appel- An a non-work related condition.” MATTHEWS, Justice, dissenting in part. readily late court can review the majority part of the I dissent from that it these witnesses to determine whether to the Board opinion remands this case which substantial evidence standard meets the question of findings on the findings for additional are tested. which Board proved the elements of whether Today’s opinion working states that of the evidence. claim the heart attack conditions at the time of my opinion In the Board’s decision contains As I also a issue. read the were contested findings no remand is neces- adequate and record, were, conditions what sary. before the onset and what had done when, uncontested, at mini- Findings adequate although are were mum, they that the Board considered to show is room cavil as matters there for significance, case, demonstrate degree. any composite each issue of the Board’s decision, and are suffi- working for the Board’s at basis decision discusses conditions they oppor- ciently showing detailed so that afford length, were considered. meaningful judicial See tunity Further, review. circumstances which the Board En- Commercial Fisheries accepted apparent White Alaska are from the as true (Alaska Comm’n, 1319, 1322 try Finally, 678 P.2d the detail of the Board’s decision. Co., 1984); Telephone beyond v. The 646 em- goes Uchitel Co. well Board’s decision (Alaska 1982); Hewing v. judicial agency n. 16 find- ployed by P.2d 236 most fact Bd., 512 Compensation Alaska Workmen’s sufficient facilitate ers and is more than 1973). (Alaska points The illustrate these I judicial P.2d 898 review. To satisfy length margin Board in this case these at from the quote made decision, emphasizing its discussion purposes. Board’s three of work conditions.1 is significance here The main issue of majority subsidiary holding re- Stephens’s heart attack was work As findings indicating Board make quires this issue related. The Board considered what, gave any, weight opinion if proven his had not and found ground dar at level and base room any plenum. site within the To reach work consists of The POW-2 work site level, ground of the radome from one radome, interior facility which is a radar known as 9-10 ladder within the must first climb a foot containing appara- metal tus, the radar structure spiral feet in antennae, room to a staircase 25-35 radar height dome and control facilities. The plenum. of the From that floor approximately is 40-50 feet in diameter itself horizontally point, feet one walks rectangular known on a structure rests plenum to 8- another approximately across floor "plenum," feet which is ladder, is then used to reach the plenum, foot which square high. which 8 feet Accordingly, room, large supported floor of the radome. 50 feet resembles ground the radome to each work area on the ground stilt-like columns at above the floor level, plenum must descend between one the floor of the comer. Between feet. that he devoted the testified ground level is an enclosed the radar room assisting days the site two after his arrival at spiral the ra- staircase used to travel between *10 substantially marks did not contribute to the warning myocardial the installation of an obstruction or light infarction. radome, running top the of the and [T|o light possible to a wire from that switch 6n the inner eliminate the work-related factors 3, Thursday, May petitioners wall of the radome. On as the rely of the the cause heart 1990, through employee following: the threaded that wire on the brackets, he co- physical number of which and a 1. The required exertion at the time Mayer the inner wall of the ra- worker mounted on unusual. Dr. the not heart attack was of work, testified, cardiologist Geoffrey dome. was and ever, That work indoor involved Tofler how- the use of a 40-foot wooden extension ladder exertion could have been myocardial step-ladder, and of both which were moved factor in the infarction. employee of with the assistance the and a co- 2. The cold employee experi- the weather worker, Cowles, Nevertheless, during day. each Matt the On Dr. To- enced not was unusual. days preceding myocardial temperatures of the his fler three testified the cold could have infarction, completed Mayer employee the at the work increased risk of heart Dr. attack. p.m. nights preceding thought employee might On 5:00 each his the suffer from cold- infarction, myocardial employee the at retired induced recurrent asthma could which have slept normally. coughing episode his usual time and caused the the at time the of arose, Friday, May employee On the heart attack. breakfast, reported ate and to work at his 3. The emotional stressors were not unusual. however, usual 8:00 a.m. time. At approximately reflects, employee 9:00 The record the a.m., limitations, up subject pressure he climbed into the interior the to due to time of frus- radome, parts, breaking where he in worked an almost seden- tration and racial slurs vicinity tary in the of the switch he and personality super- clashes with co-workers and a fashion days thought Matt Cowles had installed two before. visor. Dr. Tofler these elements could minutes, employee’s myocardial be a factor in the approximately in- employee the After plastic he determined needed additional small farction. clips mounting surface for the wire he was in- 4. A combination of the did above factors switch, through stalling play "significant causing the he not so role” the in descended Nevertheless, myocardial approximately through infarction. To- 40 to the series Dr. feet of "catastrophic spiral get fler testified that each or a ladders and the staircase to those con- vergence” parts. retrieving of all the above parts, employee the could factors have After radome, complet- played a role in the heart attack. returned to interior ing roundtrip approximately in min- five According Raugust, utes. He worked for an additional two to to Dr. the cause of three cold, minutes and found that the clips coughing laryngospasm were and employee cold. The breaking dry Slope, because presence air the North air, exertion, plastic then decided to use metal rather than dust in the but the wad clips, and again through phlegm employee’s descended the ladders throat. Dr. Rau- gust spiral employee's and which testified that because of the staircase connect the interior disease, lower, smoking epi- ground coughing the radome to the and sinus level facility. "anywhere sode would have occurred point during descending At some to after world." level, ground room radar floor the em- ployee breaking out emphasis.] "started cold sweat" A. Cold Weather [Board’s coughing. employee The employee started was un- The testified that he worked as certain, however, symptoms began rigger regular his assigned if while aon basis and was to descending steps completed throughout once he work at DEW line stations his employee three-year the descent. The employment testified that he employer. with the could not breathe felt that he "started employee job also that his testified often strangling” antennas, from the mucous. up caused to him climb outdoor outdoors, he worked indoors and and was able The defendants submitted substantial amounts to acclimate both to work environments. himself of medical to show that the various employee spoke directly with Dr. Tofler engaged activities at work temperatures his work in cold and indi- substantially myocar- did not contribute exposed to Dr. that he had cated been Tofler example, dial infarction. For significantly experienced colder weather than Tofler M.D., cardiologist morning myocardial William on the testified infarction. mind, With these facts in climbing not think the act Dr. Tofler testified radome, degree speed required proba- that “to a reasonable or the of medical the task finish brackets, bility, (includ- replacing substantially I do not broken con- believe the factors of tributed to cold) exposure myocardial occurring associated with Similar- infarction. ly, they employment substantially temperatures did not contributed think cold substantially myocardial myocardial onset of the contributed to in- infarction.” Dr. Mayer Additionally, likely thought also testified that it was farctions. stress the Tofler temperatures, experienced by employee experienced working cold when the em- ployee, supervisors trigger awas with co-workers for his who dislike infarc- tion. target him or who made him the racial re- *11 Further, Repsher’s Dr. testimo- Repsher’s findings. testi- of noting Dr. Repsher, Dr. that ny rather than central to the is collateral “potentially supported mony of relatedness. It seems his critical issue work work conditions caused claim that the finding that his main was my asking it is too that view heart attack.” coughing. his This con- re- attack caused specifically that heart require much testimony the who tradieted some of offered every witness fer to the of Repsher physicians. However Dr. on the other significant gives potentially beyond testify of not the heart attack was work the did that goes This level critical issues. necessary satisfy purposes the three related. detail that acute emotional Dr. Tofler testified myocardial trigger a B.Physical emphasis.] could the onset of Activity stress [Board’s Nevertheless, speaking with employee as a infarction. after testified that he worked employee, regular throughout the concluded that there rigger three- Dr. a basis his on Tofler any specific employment employer. em- was evidence statement or year the no with of morning employee’s job required episode the the him on heart
ployee stated that his to often of trigger up which the heart attack and “some them attack could climb outdoor antennas of employee feet, any high a the lack evidence as 300 lot them around 100 of of feet.” towers, stairs, alleged Climbing stepladders over own reaction such his ladders himself job rigger. part statements. regular a From was of of nothing Mayer directly 'employee, that he has ever speaking Dr. Dr. testified with the Tofler read, case, reviewed, been told about this employee’s work activities be- that the testified experience, cause May learned from his would him were a similar or more strenu- of fore employment day employee's his to believe that the was than were on the ous nature of bringing factor in about em- myocardial substantial infarction. ployee’s myocardial provided description infarction. Dr. Tofler tes- Mayer was Dr. also 4,May he stress and employee’s tified that considered emotional work activities play significant himself, it not role concluded reenacted the level Dr. triggering employee's myocardial May activity. Mayer infarc- employee’s Dr. tion; it was not a substantial factor. at no time did he feel that was testified that Convergence Catastrophic physical [Board’s D.A em- stress that a normal unusual level person coronary phasis.] person, with some even disease, employee’s Tofler concluded that not able to do. Dr. should be triggering employee’s substantial factor in Similarly, Dr. read the de- work was Tofler describes, detail, myocardial infarction after consideration position, his em- which you history physical which Mr. Croft asked ployment his duties as “various factors about, is, activity, years employer. time rigger Ad- the level for three with the (constraints), temperature, stress ditionally, emotional Dr. Tofler interviewed the Mayer “completely that there was condi- the other.” testified in order to understand” the Dr. nothing morning myocardial had been made aware of infarc- he tion on the him, through any- employee's through Mr. letter to that the Croft’s tion. Dr. concluded Tofler him, “was, most, him;” may thing have sent activity “it else Mr. Croft at moderate for through any may have significantly he had than occurred on conversations was less had else, anyone through many days.” with his previous work Tofler Mr. Croft his case, opinion hearing, testifying in this or from review of documents reiterated that source, that causes him to believe Mr. did was other that "the exertion that employee's employment or his activi- with amount of exertion consistent the usual were, 4th, May employment previous ties on done occasions ... involved in on myo- bringing his extraordinary factor exertion....” substantial Mayer de- cardial infarction. testified that a reasonable journal employee’s articles gree probability, As the author medical of medical 4, 1990, subject, with May Tofler was familiar were not activities on convergence.” myo- "catastrophic bringing concept of Nev- about his substantial factor in ertheless, he that to a reasonable to a concluded cardial infarction. Dr. Tofler testified that degree probability, the factors oc- degree probability, of medical of medical reasonable employee’s curring with the work employee’s physical associated with associated activities substantially onset employment did not contribute did not contribute substantial- Mayer myocardial tes- infarction. Dr. ly infarction. to the onset of employment emphasis.] tified [Board’s C.Emotional Stress *12 I affirm For the above reasons would court which affirmed
the decision of the Board. LOMOND, INC., Appellant,
BEN SCHWARTZ, Individually,
Louis
and Railwater Terminal Appellees.
Co.,
No. S-6303.
Supreme Court of Alaska.
May noted.) (Emphasis except added bringing not a substantial factor in about his
myocardial infarction.