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Coppe v. Bleicher

Supreme Court of Alaska

February 14, 2014

Marilyn A. COPPE, Appellant,
v.
Michael BLEICHER, M.D. and Laurie Bleicher, M.D., and Liberty Northwest Insurance Company, Appellees.

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[Copyrighted Material Omitted]

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Marilyn A. Coppe, pro se, Anchorage, Appellant.

Randall J. Weddle and Selena R. Hopkins-Kendall, Holmes Weddle & Barcott, P.C., Anchorage, for Appellees.

Before: FABE, Chief Justice, WINFREE, STOWERS, MAASSEN, and BOLGER, Justices.

OPINION

FABE, Chief Justice.

I. INTRODUCTION

Marilyn Coppe worked in the medical offices of Drs. Michael and Laurie Bleicher from 1994 to 2003. In early 2003, she began to experience respiratory and pain symptoms, which she attributed to her work environment. After her work with the Bleichers ended in October 2003, Coppe sued them in superior court for wrongful discharge. According to Coppe, she became aware during the course of the litigation tat she could file a claim with the Alaska Workers' Compensation Board for work-related medical problems. She filed a report of injury in August 2005, alleging that she had suffered an orthopedic strain from repetitive work. She also alleged that she suffered respiratory symptoms due to her work environment. After a hearing, the Board denied her claim, and the Alaska Workers' Compensation Appeals Commission affirmed the Board's decision. Coppe argues that the Board and Commission made factual and legal errors in deciding her case. We affirm the Commission's decision.

II. FACTS AND PROCEEDINGS

Marilyn Coppe worked for Drs. Michael and Laurie Bleicher for almost nine years, performing clerical and office work. During the time she worked for the Bleichers, she occasionally strained her back from lifting and experienced some shoulder and arm pain. According to Coppe, she did not have employment-related health insurance, and Dr. Laurie Bleicher treated her for some of her medical problems.

In April 2003 Coppe began to experience numerous symptoms, " including sore throat, dry mouth, headache, dizziness, and pain in the upper part of her chest." She thought that her symptoms were caused by her work environment because the symptoms improved when she was not at work. Coppe saw a nurse practitioner, who ordered testing to rule out other conditions; the nurse practitioner did not give Coppe a definitive diagnosis, noting a " [p]ossible allergic reaction" related to her workplace. Coppe visited the nurse practitioner again a few weeks later and asked for a note excusing her from work while environmental testing was performed. Coppe was concerned that the testing would cause her symptoms to increase, and the nurse practitioner provided the requested note.

Coppe also wrote to other occupants of the building to learn if anyone else was experiencing symptoms like hers. A few people responded, indicating that they had experienced some of the symptoms Coppe listed. Coppe asked her employers to investigate, and Dr. Michael Bleicher wrote the building manager to request that the duct system and fluorescent lights be cleaned.

The building owners hired an environmental consultant to conduct indoor air quality tests. The environmental consultant identified two possible areas of concern: " a possibility of decaying organic matter generating allergenic bioaerosols and the potential for inadequate outdoor air being added" to the indoor air. The consultant suggested modifying the outdoor-air intake to bring in more outside air and cleaning the leaves, brush, and other organic material from the area near the air intake. Monitors placed in two of the office suites, including the Bleichers' offices, found no evidence of harmful levels of carbon monoxide or carbon dioxide.

In July Coppe saw an allergist, who conducted tests and found that Coppe had no allergies. Coppe next contacted Alaska Occupational Safety and Health (AKOSH), asking it to inspect the office. She continued to experience symptoms, and on October 3, 2003, she saw Dr. Robin Galloway, who diagnosed her with allergic rhinitis and possible bronchospasm. The bronchospasm diagnosis was based on a report that Coppe sometimes

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wheezed at work. Dr. Galloway provided Coppe with medication, noted that Coppe's symptoms were " consistent with allergies that have developed as a consequence of an environmental exposure," and instructed her to come back in a month. Coppe then contacted the Bleichers about her work. According to the Bleichers' notes, they met with Coppe after her appointment with Galloway; Coppe asked them for leave, which they allowed. The notes reflect that Coppe was going to take two weeks of unpaid leave to look for other work and would " let [the Bleichers] know her thoughts" after the AKOSH response to her inspection request.

AKOSH informed Coppe by letter on October 7, 2003 that it would not inspect the Bleichers' office because regulatory standards did not " address [her] complaint item at this time." Coppe again talked to the Bleichers; their notes reflect that they had a series of phone conversations with her on October 9 and 10, 2003 about her respiratory symptoms and her work. Coppe insisted that her symptoms had originated in the work environment, maintaining that they had " escalated" after a wind storm in March 2003. Coppe was convinced that whatever was causing her symptoms was in the ventilation system of the building and pointed out that other workers in the building had complained about being sick as well. Dr. Michael Bleicher responded that the building manager had reported that those workers' symptoms had improved. Coppe and Dr. Michael Bleicher spoke about ending Coppe's employment with the Bleichers; [1] they also discussed Coppe's pension and a letter of recommendation. Coppe was to pick up her belongings from the office the following Monday. Coppe received unemployment with no waiting period after the state unemployment division decided she had left work " due to health reasons."

Soon after Coppe stopped working for the Bleichers, she reported to her doctor that " her [respiratory] symptoms [had] completely resolved without the assistance of medications," but she then began experiencing symptoms of depression. Coppe also reported hand pain, which she thought was related to " repetitive use during her former employment." Her doctor told her to take ibuprofen for the hand pain and offered her medication for depression; Coppe expressed an interest in psychotherapy rather than medication. In December Coppe began taking an antidepressant, which she discontinued after she began to feel better. The record reflects that she was again taking an antidepressant in October 2005 but continued to experience symptoms of depression; her doctor referred her to psychotherapy at that time.

In 2005 Coppe sued the Bleichers for wrongful discharge.[2] Dr. Michael Bleicher moved for summary judgment based on AS 23.30.055, the exclusive liability provision of the workers' compensation act.[3] According to Coppe, someone told her during the course of the employment litigation that she could file a claim with the Board. She signed a report of injury on August 26, 2005. The Bleichers filed a notice of controversion on November 8 on the basis that the claim was " barred under AS 23.30.100." [4]

On November 16, 2005, Coppe filed a written workers' compensation claim for permanent partial impairment (PPI), medical and transportation costs, penalty, interest, and " unfair or frivolous controvert." She alleged that she suffered from depression, rhinitis, and bronchospasm and that she had experienced work-related injuries to her back, hands, and knees, as well as her right shoulder and wrist. The Bleichers filed another controversion notice on December 1, listing a number of reasons to deny the claim.

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Coppe engaged in counseling and saw a psychiatrist for medication from late 2005 to about July 2006. During this time she also consulted with Dr. Claribel Tan, who diagnosed Coppe with fibromyalgia. Dr. Tan gave the opinion that " there is no current evidence for any environmental causes for fibromyalgia" and recommended " psychiatric evaluation and consultation."

In March 2006 Coppe testified at a deposition related to her workers' compensation claim. During the deposition she testified that her allergy-like symptoms ended after she stopped working for the Bleichers. She testified about her back, shoulder, and wrist pain and her respiratory symptoms. She said she hoped to get some back pay and compensation for doctor visits related to her earlier injuries.

The Bleichers arranged an employer's independent medical evaluation (EIME) with Dr. Bryan Laycoe, an orthopedist; he examined Coppe on April 15, 2006, and reviewed her medical records. Dr. Laycoe diagnosed Coppe with major depression by history and multiple pain complaints. He did not think Coppe's " work activities were a substantial factor in her complaints of pain" and found " no diagnosis of a physical condition which [could] be related" to her work activities. He recommended treatment for depression, in part ...


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