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Adamson v. Municipality of Anchorage

Supreme Court of Alaska

August 29, 2014

JOHN E. ADAMSON, Petitioner and Cross-Respondent,
v.
MUNICIPALITY OF ANCHORAGE and NOVAPRO RISK SOLUTIONS, Respondents and Cross-Petitioners, and STATE OF ALASKA, Intervenor

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[Copyrighted Material Omitted]

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Petition for Review from the Alaska Workers' Compensation Appeals Commission. Alaska Workers' Compensation Appeals Commission No. 11-017.

Eric Croft and Debra Fitzgerald, The Croft Law Office, Anchorage, for Petitioner/Cross-Respondent.

Trena L. Heikes, Anchorage, for Respondents/Cross-Petitioners.

Janell M. Hafner, Assistant Attorney General, and Michael C. Geraghty, Attorney General, Juneau, for Intervenor/Cross-Respondent.

Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and Bolger, Justices.

OPINION

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WINFREE, Justice.

I. INTRODUCTION

A firefighter developed prostate cancer when he was in his mid-fifties, after working for nearly 30 years in this occupation. He filed a workers' compensation claim under a

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new statute creating a presumption that certain diseases in firefighters, including prostate cancer, are work related when specific conditions are met. The employer contended that the firefighter could not attach the presumption of compensability because he had not strictly complied with statutory and regulatory medical examination requirements. The employer also wanted to present expert testimony that the cause of prostate cancer is unknown. The Alaska Workers' Compensation Board heard the claim and refused to consider parts of the expert's testimony. The Board decided that the firefighter was eligible for benefits because he had attached the presumption of compensability by substantially complying with the statutory requirements and the employer had not rebutted the presumption. On appeal, the Alaska Workers' Compensation Appeals Commission agreed that the firefighter had attached the presumption, but reversed the Board's decision disallowing the expert testimony; the Commission decided that the employer could rebut the presumption through its expert's testimony that the cause of prostate cancer is unknown, and remanded the case to the Board for further proceedings. We granted both parties' petitions for review. Because the employer also contended that the firefighter-presumption statute violated the Alaska Constitution's equal protection guarantee, the State of Alaska intervened. We affirm the Commission's decision that the firefighter attached the presumption by substantially complying with the applicable requirements. We reverse the Commission's decision that the Municipality could rebut the presumption through expert testimony that there is no known cause of prostate cancer.

II. FACTS AND PROCEEDINGS

John Adamson retired in 2011 after working as a firefighter for the Municipality of Anchorage for over 30 years. He was diagnosed with prostate cancer in August 2008, and he filed a report of occupational injury or illness with the Board in October. The Municipality filed a notice of controversion on the basis that it had received no evidence the cancer arose out of a work-related exposure; it also quoted a letter from Adamson's doctor that the doctor had no evidence the cancer was work related.

Adamson filed a written workers' compensation claim seeking temporary total disability (TTD) and medical expenses. Adamson's claim was based on AS 23.30.121, a new statute effective August 19, 2008.[1] The statute establishes a presumption that listed diseases, including prostate cancer,[2] are work related for certain firefighters[3] when they meet specific requirements.[4] The Municipality initially controverted the claim on the basis that Adamson's cancer was diagnosed before the statute's effective date and that he had failed to file a timely report of injury.

The Municipality asked Dr. Thomas Allems, a toxicology and occupational and environmental medicine specialist, to review Adamson's records and " determine if his job as a firefighter contributed to his prostate cancer." Dr. Allems's report summarized medical records he reviewed and then discussed medical literature related to prostate cancer. According to Dr. Allems, it was " indisputable" that firefighters " are exposed to carcinogens in smoke and post-fire gasses." He wrote, however, that " [t]he toxicological literature has failed to identify a known or probable prostate carcinogen." He also stated, " The firefighter data are consistently not compelling as to an increased risk of prostate cancer in this occupational

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group." Dr. Allems indicated that the International Agency for Research on Cancer (IARC) had not " reported an association between soots and prostate cancer," and he concluded that Adamson's exposure to soots " did not have any relationship to his prostate cancer." He agreed that Adamson had " no alternative basis for causation -- lifestyle, heredity, etc." and said the diagnosis was " all too common in the general population."

After Dr. Allems's report, the Municipality filed another notice of controversion. This time the Municipality said that the Department of Labor had not yet defined " qualifying medical examination" for purposes of attaching the presumption and the statute had not yet been " activate[d]" as a result.[5] The Municipality raised two other defenses related to the examination requirement, and it also relied on Dr. Allems's opinion that Adamson's prostate cancer was not connected to his work as a firefighter.

In early 2011 the Board's regulation defining a qualifying medical examination for purposes of the statute became effective. The regulation requires that the initial examination required by AS 23.30.121(b)(3)(A) " occur no later than 30 days" after employment as a firefighter and mandates specific testing, including " an initial screening for the cancers listed in AS 23.30.121(b)(1)(C)." [6] The screening tests are not specified, but must include " blood chemistries, complete blood counts, . . . and other diagnostic tests as indicated to screen for these cancers, each documented on a form prescribed by the department and completed by the examining physician." [7] The regulation requires that the annual examinations provided for in AS 23.30.121(b)(3)(B) include a medical history, a test for tobacco use, and heart and lung examinations, but there is no requirement that the annual exams include cancer screening.[8]

The Board held a hearing on Adamson's claim in June 2011. Adamson and Dr. Allems were the only witnesses. Adamson testified about his firefighting career, his medical examinations, and his cancer diagnosis; he also described fires he had fought to demonstrate his exposure to carcinogens. Dr. Allems's testimony was limited because the Board chair sustained multiple objections after ruling Dr. Allems was not permitted to testify that there is no causal relationship between firefighting and prostate cancer; as a consequence the Municipality made several offers of proof. According to Dr. Allems, there are no known carcinogens for prostate cancer; he therefore would have given the opinion that Adamson's cancer was not related to his work as a firefighter. Dr. Allems agreed that Adamson was exposed to carcinogens at work. Dr. Allems also testified, consistently with his report, that Adamson had no personal risk factors, in effect concluding that the cause of Adamson's cancer was unknown, which in his opinion was " the normal state of affairs."

The Board panel majority decided that Adamson's cancer was compensable and ordered the Municipality to pay past and future medical benefits, some past TTD, and costs and attorney's fees. One panel member dissented on the basis that the firefighter presumption did not apply, but that if it did, the Municipality had rebutted it and Adamson had not proved his case by a preponderance of the evidence.

On appeal the Commission panel also was divided in deciding the case. The majority agreed with the Board that Adamson had attached the presumption of compensability; one panel member dissented from that part of the decision. All panel members agreed that the Municipality could rebut the presumption of compensability in AS 23.30.121 through Dr. Allems's testimony that there is no known carcinogen for prostate cancer and that the Board erred in refusing to consider this evidence; the Commission remanded the case to the Board for evaluation of the evidence.

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We granted both parties' petitions for review. Because the Municipality also argued that the statute violated equal protection, the State intervened to defend the statute's constitutionality.

III. STANDARD OF REVIEW

In an appeal from the Alaska Workers' Compensation Appeals Commission, we review the Commission's decision rather than the Board's decision.[9] We apply our independent judgment to questions of law that do not involve agency expertise.[10] Interpretation of a statute is a question of law to which we apply our independent judgment; we interpret the statute according to reason, practicality, and common sense, considering the meaning of the statute's language, its legislative history, and its purpose.[11] We do not mechanically apply the plain meaning rule, using instead a sliding scale approach to statutory ...


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