Opinion
Supreme Court No. S-12602.
December 3, 2008.
Appearances: Appeal from the Superior Court of the State of Alaska, Fourth Judicial District, Fairbanks, Winston S. Burbank, Judge pro tem., Superior Court No. 4FA-05-1979 CI..
Abdul Adepoju, pro se, Fairbanks. Paul M. Hoffman, Hoffman Silver Gilman Blasco, P.C., Juneau, for Appellee Fred Meyer Stores, Inc.
Before: Fabe, Chief Justice, Matthews, Eastaugh, Carpeneti, and Winfree, Justices.
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d). Accordingly, this memorandum decision may not be cited for any proposition of law or as an example of the proper resolution of any issue.
MEMORANDUM OPINION AND JUDGMENT
Entered pursuant to Appellate Rule 214.
I. INTRODUCTION
Abdul Adepoju worked at a Fairbanks Fred Meyer store, mostly in the delicatessen. In mid-June 2000 he began to experience weakness and difficulty walking. After going to the emergency room, he was diagnosed with cervical myelopathy and medevacked to Anchorage, where he had neck surgery the following day. Adepoju blamed his work-related use of a defective meat slicer for his neck problems and filed a claim with the Alaska Workers' Compensation Board. The board decided that the injury was not work related and denied benefits. Because substantial evidence in the record supports the board's decision, we affirm.
II. FACTS AND PROCEEDINGS
Abdul Adepoju worked mainly in food service in Fairbanks for about twelve years. He severely injured his neck in 1989 while working for VECO on oil-spill clean-up. He had cervical fusion surgery related to the VECO injury. He filed a Longshore and Harbor Workers' Compensation claim for that injury, which was eventually settled. He began to work at Fred Meyer in 1998.
As part of his work duties at Fred Meyer, Adepoju sliced meat and cheese for sandwiches and deli displays. He estimated that he sliced 180 to 200 pounds of meat and cheese a day. Beginning in October 1999, the meat slicer's automatic function was intermittently broken, and Adepoju had to use the manual function. The automatic function on the meat slicer permitted the operator to walk away and leave the machine running. In manual mode, the operator had to move the machine tray with the meat back and forth across the blade. The parties disputed how much force was required for manual operation of the slicer.
Fred Meyer managers estimated that he sliced twenty-five to fifty pounds a day.
Cheese was always sliced using a manual slicer.
Adepoju began to have some problems with shoulder pain in early 2000. He consulted a massage therapist and saw a chiropractor for neck pain, but the treatments did not resolve the problems. He also took over-the-counter pain medication and applied heat to treat the shoulder pain.
Adepoju worked his shift at Fred Meyer on June 19, 2000. Some time after his shift ended, he went to the Tanana Valley Clinic, where he was seen by Paul Finch, a physician's assistant. The chart notes from that visit showed that Adepoju was experiencing "greatly decreased strength in his upper and lower limbs" and was unable to walk. Adepoju reported progressive weakness over the previous three days. Mr. Finch referred Adepoju to the hospital for testing and a neurological consultation. At the hospital, Adepoju underwent an MRI and was diagnosed with acute cervical myelopathy. He was medevacked to Anchorage for admission to Providence Alaska Medical Center. Upon admission to Providence, Adepoju was diagnosed with central cord syndrome and scheduled for surgery the next day. Dr. Timothy Cohen was Adepoju's neurosurgeon. His rehabilitation doctor in Anchorage was Dr. Susan Klimow.
Cervical myelopathy describes "functional disturbances and/or pathological changes in the [cervical] spinal cord." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1090 (28th ed. 1994).
Central cord syndrome involves lesions on the spinal cord; the syndrome results in muscular weakness and sensory loss. Id. at 1626, 1647.
After his surgery, Adepoju stayed in the rehabilitation unit of the hospital for about six weeks. When he was discharged from the rehabilitation unit at Providence in August 2000, Adepoju was able to use a walker as well as a wheelchair. He attended physical therapy in Fairbanks at least through February 2001. Adepoju attributed his cervical condition to overuse of the malfunctioning meat slicer and filed a report of injury with the board. Fred Meyer initially accepted the claim and paid temporary total disability (TTD) and medical benefits.
In early 2001 Fred Meyer arranged independent medical evaluations (IME) with two physicians, Drs. Patrick Radecki and Thomas Rosenbaum. The two IME physicians concluded that Adepoju's disability was not work related, and in June 2001 Fred Meyer controverted all benefits.
Adepoju filed a workers' compensation claim pro se on June 26, 2001, seeking TTD and medical benefits. Fred Meyer answered the claim and asserted a number of defenses.
Adepoju and Fred Meyer tried to settle the case in 2002. A written compromise and release (CR) was submitted to the board even though Adepoju had written "I do not agree with the contents of this page" on most of the pages. After a hearing on the CR, the board decided to exercise its discretion under AS 23.30.012 and require an impartial medical examination before deciding whether to approve the CR. The board ordered its designee to identify and select a neurosurgeon from its list of second independent medical evaluation (SIME) physicians; the board retained jurisdiction over the proposed CR.
AS 23.30.012(b) provides that when an agreement is likely to involve permanent disability the board "may require an impartial medical examination and a hearing" so that it can assess whether the agreement is in the employee's best interest.
Dr. Bruce McCormack performed the impartial medical examination in May 2003. He concluded that the injury and disability were the result of Adepoju's work at Fred Meyer and determined that Adepoju had a seventy-seven percent whole person impairment rating. An attorney entered an appearance on behalf of Adepoju on July 22, 2003. In August 2003 Fred Meyer petitioned the board to disqualify Dr. McCormack, claiming that he was not impartial. The board held a hearing on the petition to disqualify Dr. McCormack and on possible approval of the proposed CR in February 2004. At the hearing, Adepoju testified that he did not want the CR approved because he had been under financial pressure when he agreed to it. The board denied the petition to disqualify D r. McCormack, finding that the employer's criticisms of the report were better left to cross-examination and argument. It also decided not to approve the CR. It noted that the record in the case was not fully developed but that based on its review of the then-existing record, it could not find that the CR was in Adepoju's best interest.
Fred Meyer hired two private investigators to follow Adepoju in 2004 and 2005. The investigators observed Adepoju walking short distances without a cane and videotaped him. Fred Meyer sent copies of the videos to several doctors, including Dr. McCormack, and asked them to comment about whether the videos were consistent with their evaluations of Adepoju. In response, Dr. Victor Bartling (Adepoju's main treating physician in 2004) and Dr. James Foelsch (a neurologist who saw Adepoju in 2000 and 2001) said that the videos were consistent with their evaluations of Adepoju. After reviewing the videos, Dr. McCormack changed his whole person impairment rating from seventy-seven percent to forty-five percent, but he did not change his opinion about causation.
The board held a two-day hearing on Adepoju's claim in June 2005. The main question was causation: were Adepoju's work-related activities a substantial factor in bringing about his disability? Both parties presented an abundance of medical and lay testimony, live and by deposition, about causation and Adepoju's actual physical abilities and limitations.
Adepoju offered testimony from his treating physicians. Dr. Cohen testified that Adepoju's work at Fred Meyer was, to a reasonable degree of medical certainty, a substantial factor in causing his disability; according to Dr. Cohen, a minor injury or even normal activities could create the cord injury that led to surgery because of Adepoju's preexisting cervical problems. Dr. Cohen also testified that he had nothing other than Adepoju's description of his work on which to base his opinion about causation and that he knew "absolutely nothing" about the operation of a meat slicer. Dr. Foelsch testified, with a reasonable degree of medical certainty, that physical labor was a substantial factor in aggravating Adepoju's cervical condition, but he did not directly link the meat slicer to the disability. Dr. Foelsch had earlier written to the adjuster that "it [was] unlikely that [Adepoju's] work as a meat slicer, without specific reinjury, would have been any more aggravating than normal activities of daily living as a cause for his [disability]." Dr. Klimow did not offer an opinion about causation.
Adepoju sometimes did stocking as well, and he lifted trays of meat weighing fifteen to twenty pounds.
Dr. McCormack, the independent medical examiner, also thought there was a connection between Adepoju's work and his disability. Dr. McCormack interpreted Adepoju's MRI as showing an acute injury that had to have resulted from some trauma, and according to Dr. McCormack, the only possible trauma Adepoju identified was the use of the broken meat slicer.
The IME physicians indicated that the neck injury was unrelated to Adepoju's work. Dr. Radecki testified that Adepoju's work did not cause his disability. Dr. Rosenbaum thought that Adepoju's preexisting degenerative neck problems were the cause of his disability and that his work was not a factor. Of the medical experts who testified, only Dr. Radecki looked at the physical ergonomics of meat slicers.
At the hearing, Adepoju's attorney objected to the admission of some of the surveillance videos. The board took the question of the admissibility of the videos under advisement.
In its final decision, the board decided that Adepoju was not credible and his claim was not compensable. The board admitted the surveillance videos, finding that they "provide[d] a probative reflection on the employee's credibility." The board found that "no medical opinions or evidence . . . independently support the employee's claim that his condition . . . is substantially related to his work for the employer." It further found "any supportive medical opinions were based solely on observations of and statements made by the employee." It relied on the opinions of the two IME physicians and decided that Adepoju's disability was the result of a preexisting condition and was not work related.
Adepoju, representing himself, appealed to the superior court in July 2005. After some procedural wrangling that briefly transferred the case to the Alaska Workers' Compensation Appeals Commission, the superior court heard the appeal and affirmed the board, holding that substantial evidence in the record supported the board's conclusion that Adepoju's injury was not work related. Adepoju appeals.
III. STANDARD OF REVIEW
In a workers' compensation appeal from the superior court, we directly review the board's decision. The board's factual findings are reviewed to see if they are supported by substantial evidence. "Substantial evidence is `such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" The board has exclusive authority to determine witness credibility. The board's exercise of its discretion is reviewed for abuse; an abuse of discretion occurs if this court is left with a "definite and firm conviction" that the decision reviewed was a mistake.
Dougan v. Aurora Elec. Inc., 50 P.3d 789, 793 (Alaska 2002).
DeYonge v. NANA/Marriott, 1 P.3d 90, 94 (Alaska 2000).
Id. (quoting Grove v. Alaska Constr. Erectors, 948 P.2d 454, 456 (Alaska 1997)).
Bradbury v. Chugach Elec. Ass'n, 71 P.3d 901, 905 (Alaska 2003).
Thoeni v. Consumer Elec. Servs., 151 P.3d 1249, 1253 (Alaska 2007) (quoting Municipality of Anchorage v. Devon, 124 P.3d 424, 429 (Alaska 2005)).
IV. DISCUSSION
The Alaska Workers' Compensation Act creates a presumption that an employee's claims are compensable. Applying this presumption involves a three-step analysis. First, the employee must establish a link between his injury and his employment. In this case the board found that Adepoju had established a link between his work and his disability through his own testimony, the testimony of his wife and coworkers, and medical opinions, including the opinion of Dr. McCormack. Fred Meyer does not dispute this finding.
Bradbury, 71 P.3d at 905.
Id. (quoting Temple v. Denali Princess Lodge, 21 P.3d 813, 816 (Alaska 2001)).
Id.
Once the presumption attaches, the employer may rebut the presumption by presenting substantial evidence that (1) provides an alternative explanation which would exclude work-related factors as a substantial cause of the disability, or (2) directly eliminates any reasonable possibility that employment was a factor in causing the disability. An employer has always been able to rebut the presumption by presenting a qualified expert who testifies that in his opinion, the claimant's work was probably not a substantial cause of the disability. The board found that Fred Meyer had rebutted the presumption through the testimony of Drs. Rosenbaum and Radecki. Adepoju does not contest that Fred Meyer rebutted the presumption.
Id. at 906.
Id. (quoting Big K Grocery v. Gibson, 836 P.2d 941, 942 (Alaska 1992)).
If an employer rebuts the presumption of compensability, the burden shifts to the employee to prove his claim by a preponderance of the evidence. Here, the board found that Adepoju had not shown by a preponderance of the evidence that his neck injury and subsequent disability were work related. In reaching its conclusion, the board stated that "[b]ased on the employee's consistent and incredible embellishments concerning the nature of his condition, we find any medical opinions as to causation, relying on observations of and statements by the employee, must be discounted." It further found that any medical opinions supporting the work-relatedness of the disability were based "solely" on Adepoju's statements and the doctors' observations of him. It placed "greater weight" on the opinions of the employer's physicians because "no medical opinions or evidence . . . independently support[s] the employee's claim that his condition . . . is substantially related to his work for the employer."
Id.
Adepoju raises a number of arguments in this appeal. He contends that (1) the board and the adjuster failed to help him as required by law; (2) the hearing officer was biased; (3) the board decision is not based on substantial evidence; (4) the board did not give proper weight to the opinions of his treating physicians; (5) the board's credibility determinations are unreasonable and not supported by substantial evidence; and (6) the employer's doctors relied on Adepoju's statements as much as Adepoju's doctors did, so there was no reason to give more weight to the employer's doctors' opinions.
Fred Meyer argues that Adepoju waived most of his arguments, either because he did not preserve them or because they are inadequately briefed. On the merits, it asserts that substantial evidence in the record supports the board decision. It further argues that Adepoju received a fair hearing and that he was adequately informed of his rights.
A. Substantial Evidence Supports the Board Decision.
Most of Adepoju's arguments relate to whether the board decision is supported by substantial evidence and whether the board properly weighed the evidence. Fred Meyer maintains that substantial evidence in the record supports the board decision.
The board has the sole power to determine witness credibility, and its findings about weight are conclusive even if the evidence is conflicting. Here, the board determined that Adepoju was not entirely credible. Although Adepoju attacks the board's finding about his credibility, the board had authority to decide that he was not credible. Fred Meyer presented evidence that could have caused the board to doubt Adepoju's credibility, particularly because Adepoju's testimony about his ability to walk and his need for a wheelchair or cane was inconsistent and conflicted with other reports and testimony.
AS 23.30.122.
The board also was free to give more weight to the medical opinions of the employer's physicians. This court has rejected a rule that would require the board to give more weight to the opinions of a claimant's treating physicians. Adepoju attacks the board's rationale for disregarding the opinions of his own physicians by stating that the employer's doctors' opinions were also "based on observations and statements made by the employee." This may be the case for Dr. Rosenbaum, but it does not appear to be an accurate description of Dr. Radecki's testimony. Dr. Rosenbaum's opinion differed from Adepoju's doctors' opinions not because he disbelieved Adepoju but because he did not think there needed to be a specific triggering event to cause the myelopathy. The major difference between Dr. Rosenbaum's theory of causation and Dr. McCormack's had nothing to do with what Adepoju told them: it was related to a difference of opinion about whether there needed to be a specific trigger to bring about symptoms. But based on its determination that Adepoju was not credible, the board could have reasoned that he exaggerated the amount of force needed to use the meat slicer in manual mode. Because Dr. McCormack and, to a lesser extent, Dr. Cohen, thought that there needed to be some specific trauma to trigger the cord syndrome, and because the doctors thought Adepoju's explanation was plausible, the unreliability of Adepoju's account would undercut these doctors' opinions.
See AT T Alascom v. Orchitt, 161 P.3d 1232, 1242 (Alaska 2007) (quoting Yahara v. Constr. Rigging, Inc., 851 P.2d 69, 72 (Alaska 1993)).
See Safeway, Inc. v. Mackey, 965 P.2d 22, 29 (Alaska 1998).
Dr. Rosenbaum explained why Adepoju may have perceived that the meat slicer was causing his cervical problems even though it was not in fact causing them. The board could have credited this testimony and based its decision on Dr. Rosenbaum's explanation. Also, Dr. Radecki looked at the physical ergonomics of using a meat slicer, and no one else did. In Dr. Radecki's opinion, use of a meat slicer in manual mode would likely not have caused Adepoju's disability. Both IME physicians' opinions support the board's determination that the injury was not compensable.
There is substantial evidence in the record to support the board's decision. The board had two competing theories of causation and no overt injury. Drs. Radecki and Rosenbaum both indicated in their reports that Adepoju's disability was the result of preexisting degenerative changes and had no connection to his work for Fred Meyer. They both testified that his work at Fred Meyer was not a substantial factor in causing the disabling condition. Dr. Rosenbaum's opinion was not very different from Dr. Cohen's, except that Dr. Rosenbaum did not believe that the meat slicer was any more likely to cause the injury than other activities of daily living. Dr. Radecki explained why it was unlikely that the meat slicer caused the injury. Substantial evidence in the record supports the board's finding that Adepoju did not prove by a preponderance of the evidence that his work at Fred Meyer caused his neck injury and need for surgery in 2000.
Adepoju's injury theory was that it was a "cumulative" injury.
B. Adepoju Received a Fair Hearing.
In his brief Adepoju asserts that the hearing officer was biased against him and against workers in general. He claims that the hearing officer told him to shut up. Fred Meyer responds that because Adepoju did not try to disqualify the hearing officer or voice any concern about bias before the board, he waived the issue. It also argues that even if he did not waive the issue, there is no evidence of hearing officer bias.
In its argument, Fred Meyer relies on a statute requiring a party to request disqualification before the taking of evidence. It does not appear that Adepoju's attorney objected in any way to the composition of the board panel at the hearing. But there may be times that a hearing officer's bias does not become evident until a hearing is already underway, making it impossible to request disqualification before the taking of evidence.
AS 44.62.450(c).
We are, however, unpersuaded by Adepoju's argument that the hearing officer demonstrated bias. To show hearing officer bias, a party must show that the hearing officer had a predisposition to find against a party or that the hearing officer interfered with the orderly presentation of evidence. Adepoju presents no specific evidence to indicate that the hearing officer was predisposed to find against him or that the hearing officer interfered with the orderly presentation of evidence. Although Adepoju asserts that the hearing officer told him to shut up, our review of the appellate record did not reveal such a statement. The hearing officer interrupted Adepoju's attorney at one point to get him on track and admonished Adepoju. But these actions do not show a predisposition to find against Adepoju or interference with presentation of evidence. Other than this specific allegation, Adepoju's assertions of bias are generalized statements that the hearing officer is biased against workers. These generalized allegations are not sufficient to show bias. Administrative agency personnel are presumed to be impartial until a party shows actual bias. Adepoju offers no evidence that the hearing officer prejudged any facts in his case.
AT T Alascom, 161 P.3d at 1246 (citing Tachick Freight Lines, Inc. v. State, Dep't of Labor, 773 P.2d 451, 453 (Alaska 1989)).
Id. (citing Bruner v. Petersen, 944 P.2d 43, 49 (Alaska 1997)); see also id. (noting that party alleging bias failed to show prejudgment of facts).
The board's admission of the surveillance videos also is not evidence of bias. Although Adepoju argues that he did not have a chance to review the videos or defend himself against them, the record shows that his attorney received copies of the videos before the hearing. Even though Adepoju's attorney objected to the admission of some of the videos at the hearing, Adepoju has not shown that the board abused its discretion in admitting them.
See Municipality of Anchorage v. Devon, 124 P.3d 424, 429 (Alaska 2005) (board's decisions about admission of evidence reviewed for abuse of discretion). Adepoju's other arguments — that the board and the adjuster failed to provide him with information or instruction to pursue his claim — are waived because he did not raise them before the board. See Wagner v. Stuckagain Heights, 926 P.2d 456, 459 (Alaska 1996).
V. CONCLUSION
The board decision denying Adepoju's claim is AFFIRMED.