*1 Jay Appellant, WHALEY,
ALASKA WORKERS’ COMPENSATION
BOARD, Sons, Inc., Peter Kiewit Co., Appellees.
Home Insurance
No. 5701.
Supreme Court Alaska. 30, 1982.
July *2 Whaley’s question The whether
al times. causally relat- syndrome thoracic the by to his feet was injury to the ed heard 10,1977. Relying 4 and February Board on caus- the Board found a reports, on medical March relationship and on al disability total Whaley temporary awarded benefits. 29, 1978,1the hearing August on
After a 29, September on rendered a decision Board 1978, request for which denied Board disability The permanent benefits. suffered from (1) still Whaley stated that: (2) as qualified he was disability; a minor mechanic; did (3) disability his an auto Jermain, Owens, Dunnagan D. & Bradley reentering from the auto prevent him Owens, Anchorage, appellant. for the Board deter- mechanic’strade. Because loss of future mined some there Moran, Gibbs, Hagans, Liam J. Brown & $7,950.00 per- as wages, Whaley awarded Anchorage, for appellees. benefits and partial disability manent BURKE, J., Before and RABINOW- $1,050.00 C. in fees. ITZ, CONNOR, MATTHEWS and COMP- 27, 1979,the Board held a hear- July On
TON, JJ. Whaley’s request for modifi- consider 29,1978 order. His September cation the
OPINION Board erred in application alleged that the the nature and extent of determining BURKE, Chief Justice. change that there had been a by appeal challenges disposition This 26, 1979, in his condition. On November the Alaska Workers’ Board request for mod- Board denied superior which been has affirmed ification, had no finding that there been We, turn, part court. in affirm in showing Whaley of mistake and that part. in reverse compnsable change suffered of condi- no inju- Jay Whaley on-the-job sustained an tion. 1, ry 1976, on when his were May feet run superior appealed over by trying a forklift. In to extricate the Board’s decision and affirmed himself from the he strained his equipment, Sons, granted Kiewit and The Peter developed neck and shoulders and a condi- partial Home attor- Company Insurance tion diagnosed as thoracic outlet syndrome, superior court’s neys’ fees. We affirm the a compression the blood vessels and decision and re- affirmance of area, resulting in the nerves shoulder attor- superior verse court’s pain in the At and numbness arms. neys’ fees. injury, time employed Sons, Inc., a heavy equip- Peter Kiewit first that the Board argues ment mechanic. Home Com- Insurance argu give failed to due consideration pany provided work- employer with its presented ment in the and the evidence ers’ compensation insurance. July hearing regarding modifica This matter from He the standard correctly has been contested tion. has outset and has been sever- for apply applications before the Board must hearing 1. The Board also held a June for decision was rendered on fees. The concerning payment September penalty on and does raise late Whaley’s compensation request appeal. award issues to this relevant must “due a “mere illusion.” modification. Cf. Interior Paint Co. v. And, Rodgers, 522 P.2d not our any argument consideration to and evidence it is task reweigh conflicting on review to evi- presented petition with modification.” judgment dence or our for that substitute Rodgers, Interior Paint Co. v. Burgess Board. Construction Co. v. Whaley, mis- Smallwood, (Alaska 1981); applies the standard. He that be- *3 Services, Miller v. ITT Arctic rely argu- cause the Board did not the (Alaska 1978). The due consideration presented, ments and evidence due consid- standard, then, require not Board does the eration not to was extended them. relinquish to to the authority weigh its evi- Whaley presented two kinds of evidence require dence before it. Nor does it the hearing: at the modification his own testi- weight Board to to new conclusive mony physicians. and letters from two As evidence.2 below, indicated of the Board’s exclusion further contends that the Thus, proper. own was Board’s as hear testimony, exclusion of the Board was to required not consider that say, argues constituted error. He that AS letters, evidence. As to the the not- 44.62.460(d) 45.120(c)3 provide and 8 AAC ed at hearing the that the letters would be compensation not hearings need Further, considered. in its decision of No- conducted to technical rules of according vember the Board noted that hearsay may evidence and that evidence the considered evidence. hearings. used in Board This is a correct Whaley’s argument is that because statement of the so far as it For goes. law no evidence other than the was letters to then conclude that the Board presented the hearing, the fact that the may hearsay not exclude evidence on did not reverse its decision of the simplistic indicates too view given authority. no consideration Board’s was to the evi dence. reasoning ignores This the Board’s (1) The excluded concerned: power to consider the against new evidence of the and Whaley’s perception causation the backdrop presented of evidence at prior suffered, of pulmonary effect embolus he hearings. Interior Paint Co. v. Rodgers, Green; (2) as stated to him Dr. It the relationship be- perception the causal Board’s task to weigh the evi conflicting tween the embolus and the thor- pulmonary dence of prior medical new reports the syndrome acic outlet and the on his effect evidence submitted by Whaley. To force disability, as to him by stated Drs. Green the Board to merely reverse its decision and Feller. The Board refused admit because additional presented evidence was solely on Whaley’s testimony and relied the would reduce its discretionary authority to letters from the doctors. specification second of error is that if ted it is the sort of on which evidence contrary the Board’s decision responsible persons the law as are in accustomed appellees prima affairs, did not rebut the facie case he regardless the conduct of serious presented And, hearing. at the as the statutory letters the existence of a common law or only submitted, issue, were the evidence the improper the rule makes admission of reasons, must be resolved in his favor. objection evidence in the over a civil action. appellees, Hearsay supplement upon previ- The relied evidence be used to ously explain This evidence. returns us direct evidence but is suffi- authority weigh conflicting Board’s cient itself to unless it previ- evidence of the objection letters and evidence in would be admissible over a civil ously Again, submitted. it is not privilege our task The action. rules of are effective reweigh the evidence on review and we find no they recognized same in extent that error. unduly repeti- civil action. Irrelevant and tious evidence shall be excluded. 44.62.460(d) provides 3. AS that: 45.120(c) parallels the Id. The text of 8 AAC hearing need not be conducted accord- statutory provision fash- almost verbatim relating to technical rules to evidence and ion. witnesses. Relevant shall evidence be admit- reasons, for a in- trustworthy number of did indicate a causal rela-
The letters fabrication, between tionship pulmonary embolus intentional misunder- cluding syndrome. the thoracic Nor did impact the doctors’ state- standing of the syn- indicate the thoracic outlet they ments, the doctors’ statements or because any way threatening, drome was in life ill-considered, were casual and themselves by Whaley testimony. in his excluded direct because it did not corroborate Feller, however, disagree did as to letters, in the the Board’s exclu- extent of the due thoracic out- was not error. hearsay testimony sion syndrome.4 let Whaley next that the liber- appeal reasons on not a finding that he was credible of evidence in hear- alization rules fact, finding of inadequate was an ings requires before the Board the Board to basis explain upon as the Board did not provisions accept hearsay all evidence. purpose found. One primary which it so *4 above, however, not a cited do contain such appellate is to findings of fact an requirement. The states all statute that intelligent which upon provide evidence, hearsay, relevant even if “shall” Hewing Workmen's review. v. Alaska See hearings provided admitted in it is 896, Board, P.2d 898 Compensation 512 “responsible persons are accus- (Alaska 1973). regard Credibility decisions on rely tomed to in the conduct of serious however, are ing testimony, unique witness 44.62.460(d). This language affairs.” AS Board and it is ly province within the of the gives the board discretion to exclude hear- 3 reweigh on review to them. our task say appears evidence where it untrust- Larson, Law Compensation Workmen’s worthy. Reynolds Metals Co. v. Industrial 80.20, (1976). There is less § Commission, 97, 414, 98 Ariz. 402 P.2d 417- need, then, findings of fact for extensive (1965); Bergan 18 Valley Milling v. Gallatin credibility. Our task regarding Co., 27, 320, (1980); 138 Mont. P.2d 321 353 is to reviewing when a decision as Larson, see 3 Workmen’s upon it was based substan certain whether (1976). Law 79.22-.23 Boards in other §§ evidence, tial evidence which a reasonable jurisdictions have excluded as untrust- thus support a might accept adequate mind worthy testimony a claimant a by regarding Services, v. Black Universal conclusion. with a physician concerning discussion 1073, (Alaska 1981); 627 P.2d 1075 cause and medical extent of a condition. Smallwood, Commission, Burgess v. 623 Construction Co. Kelsey v. Industrial 79 Ariz. 312, P.2d Given the 195, 315 (1955); 286 P.2d 198 Pacific Em- indicating reports several doctors that ployers Insurance v. Industrial Co. Accident Commission, symptoms, and Whaley exaggerated 47 his Cal.App.2d 118 (1941). films Whaley working 338 Because testimo- at normal tasks restriction,5 ny subject pain on this could be un- we apparent considered without vomiting provided: on 1978 and The Ml text of Dr. Feller’s letter November still 4. residual, improved pain. but chest Jay Whaley you Mr. me to a asked write parts of his and other Examination chest my note about his limitations work and it is possibility normal was within limits. that, feeling he does have thoracic since pulmonary embolus was considered. Mr. syndrome, doing he should not be x-rays Whaley forego decided serial heavy-duty or mechanic’s work at time. this along might finding have revealed a line. surgery If he does have problem in the future for his relay days message a few after his He did presumably could return coughed up that he had some blood visit tinged sputa heavy-duty work but that will remain to diag- which would seen. thereby explain- pulmonary nosis of embolus report accompanied No medical Dr. Feller’s let- pain. provid- Ml ter. The text Dr. Green’s letter Again, accompanied reports no other medical ed: the letter. my patient, Jay On November L. Whaley, 10-8-47, my date of birth visited Lyons reported applicant over-re- Dr. that the experienced pain office. He had particularly severe chest during the examination when acted 601(b). Board. Alaska clearly sup- R.App.P. is think the Board’s ported argues, application record. of the Appellate Rules is limited the statutory also that the Board’s procedures and considerations of policy as to the extent decision Compensation Act, Alaska’s Workers’ unsupported evidence. We by substantial particular provides 23.30.145which for AS disagree. The doctore examining several the award of fees to claimants. suf generally him concurred fered from al syndrome, thoracic outlet permit appellate To court to though whether they disagreed it constitut party-defend fees to prevailing preventing ed serious disability Whaley ants without of the underly consideration carrying from on a mechanic’s trade.6 It ing purpose of Alaska Workers’ Com was presented wasn’t until the Board with pensation Act, severely undermine Dr. Feller’s letter Whaley challenged the effectiveness of the statute. The stat finding regarding extent of designed ute is the most effi provide disability. cient, dignified, and certain means of deter rely mining sustaining Board chose not Fel- benefits workers letter; chose, instead, ler’s on the injuries, v. North work-connected Searfus previously reports. medical We Co., (Alaska 1970), ern Gas permitted reweigh the evidence Co., citing Construction Burgess Gordon inferences, competing or choose between 1967), (Alaska and is to be Smallwood, Burgess Construction Co. v. employee, liberally construed in favor *5 (Alaska 1981). Having 317 con- State, Hood v. Workmen’s that evidence cluded substantial existed to Board, 574 P.2d decision, support reject we particular, unique In is in its 23.30.145 AS Whaley’s argument. generosity to and their counsel. claimants World Airways, Haile v. Pan American specification Whaley’s final of error 1973). (Alaska 505 P.2d 841 superior is that the abused its discre court granting attorneys’ tion in fees to the ap- fees em- grant attorneys’ A routine of when pellees they ap were successful ployer-defendants would undermine the peal. agree. We purposes severely of and limit a the statute seek appellate claimant’s relief. Appellate grants ability to 508(e)7 Rule a review- Thus, as we did in Wise Mechanical Con- ing court the attorneys’ discretion award Bignell, tractors v. 1087 fees to a successful This rule is party. (Alaska applicable 1981), here to reconcile appeals superior court we choose authority from an our with the “broad agency rule-making administrative such reflex, biceps testing procedure completing he elicited the which should the which show him strenuous chores pain. produce range bodily using Dr. Raisis of and full of his motions Virginia reported apparent pain Mason that the Clinic without or limitation. neurological results of the examination were completely Whaley’s with inconsistent com- example, report 6. For stated that Dr. James’ plaints and referred to as an “anxious Whaley’s injuries percent to a nine amounted young man have who seems to some functional permanent partial of the whole man. overlay.” ally person- Dr. stated that: “I Callahan Lyon’s report that there be no would patient over-reacting feel that this as far ability lift, Whaley’s restriction in complained that he symptomatology as his is concerned. He has extremity only of numbness when no real evidence musculo-skeletal dis- of slept, surgery or exercise could that ability at this Dittrich stated time.” Dr. symptoms. alleviate the symptoms suggestive “His are somewhat strain, although acute cervical the radiation to attorneys’ originally fees 7. The motion for was the extremities on the would be basis of nerve 29(d). Appellate under Rule Such made a motion former compression. root I find no evidence of could Appellate made under would now be neurological deficit to substantiate this.” The 508(e). language Rule of both rules is insurance carrier films substantially the same. 1,May taken on March Thus, be ludicrous. I believe shaped considerations public policy met compensa Whaley’s proffered in workmen’s and are embodied Id., State, citing admissibility;2 Johns v. legislation.” requirement tion threshold Highways, of that Dept. question of the trustworthiness (Alaska1967). Appellate We therefore construe goes only weight 508(e) require finding by Rule admissibility.3 its testimony, not to appellate granting attorneys’ court fees Notwithstanding disagreement with my employer-defendant that a claimant’s I that the majority point, agree on this frivolous, unreasonable, or appeal was court superior of the Board and the rulings brought in bad faith.8 As the record below claim should on the merits of Whaley’s appeal does not indicate that was in ex- because the Board’s error affirmed case, superior such a we hold that the was harmless. cluding Whaley’s testimony abused its discretion and reverse the trial the introduc- permits The statute which appellees. fees to grant court’s 44.62.460(d), hearsay testimony, tion of AS conclusion, In superior we affirm the “[hjearsay evidence provides further court’s affirmance of the Board’s decision explain direct supplement be used to regarding Whaley’s petition for modifica- itself to is not sufficient evidence but superior tion and reverse the court’s be admis- finding unless it would support fees. ” (em- objection in a civil action sible over part AFFIRMED in REVERSED supplied). Here there was no direct phasis part. connection establishing a causal medical between work-related WITZ, J., RABINO concurs. problems, and his later heart problems RABINOWITZ, Justice, concurring. about his doctors’ Whaley’s testimony thus not have been sufficient statements would agree I do not with the conclusion court’s problems heart that his Whaley’s hearsay testimony prop- Thus, on-the-job injury. were related to his erly excluded because it was “untrust- evidentiary ruling the Board’s erroneous worthy.” dispenses 44.62.460 with the AS harmless, Board’s decision and the proceed- rules of evidence in administrative *6 should be affirmed. (d) ings, pro- and subsection of that statute be inad- vides that evidence which would action, hearsay
missible in a civil such as
evidence, shall in an adminis- be admitted proceeding
trative if it is the kind of evi- responsible persons
dence “on which
accustomed to in the conduct of serious Certainly
affairs.”1 “responsible persons”
routinely justifiably rely physi- on their
cians’ statements in the conduct of their affairs;” argue contrary
“serious Bd., Comp. Alaska Workmen’s 2. See Cook v. currently employ 8. This standard is used in 706(k) appeals ment discrimination under 31-32 § Rights Chris Title VII of the Act of Civil tianburg Equal Employment Garment Co. may why Whaley’s Although reasons there Comm’n, Opportunity 412, 422, untrustworthy, 434 U.S. might have been (1978), fabrication, S.Ct. 54 L.Ed.2d or inaccurate such as intentional applied compensation has been recollection, to workers’ ex- would not be Liberty Mutual claims in at least one state. even on trustworthiness alone cluded Taylor, Ins. Co. v. See Alaska S.W.2d in a civil or criminal action. (Tenn.1979). rejects the notion that R.Evid. testify incompetent because 1.See also 45.120(c). of the case. has an interest in the outcome A.A.C.