STATE OF ALASKA, DEPARTMENT OF ADMINISTRATION, DIVISION OF RETIREMENT & BENEFITS, Appellant,
v.
SHIRLEY SHEA, Appellee.
Appeal
from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, No. 3AN-13-06927 CI, Philip R.
Volland, Judge.
Joan
M. Wilkerson, Assistant Attorney General, and Craig W.
Richards, Attorney General, Juneau, for Appellant.
Joseph
A. Kalamarides and Randall S. Cavanaugh, Kalamarides &
Lambert, Anchorage, for Appellee.
Before: Stowers, Chief Justice, Fabe, Winfree, Maassen, and
Bolger, Justices.
OPINION
WINFREE, Justice.
I.
INTRODUCTION
A state
employee applied for occupational disability benefits,
claiming that prolonged sitting at work aggravated a
preexisting medical condition. The Division of Retirement and
Benefits denied the claim. An administrative law judge
affirmed that decision, determining that employment was not a
substantial factor in causing the employee's disability.
On appeal the superior court reversed the administrative law
judge's decision. Because the administrative law
judge's decision was supported by substantial evidence,
we reverse the superior court's decision and thereby
affirm the administrative law judge's decision.
II.
FACTS AND PROCEEDINGS
A.
Underlying Facts And Prior Proceedings
This
case comes to us for a third time.[1] The underlying facts and
proceedings relevant to this appeal are fully set forth in
Shea II[2]
In
brief, Shirley Shea suffers from chronic pain and has been
unable to work since 2001.[3] Shea was granted non-occupational
disability benefits in March 2003, [4] but was denied occupational
disability benefits because the Division of Retirement and
Benefits' retained expert, Dr. William Cole, concluded
after reviewing Shea's medical record that "[t]here
is not evidence from the record that the pain was caused by
her occupation."[5] In response Shea underwent a series of
medical exams between August 2003 and August 2005 seeking to
determine the connection, if any, between prolonged sitting
at her employment and her chronic pain.[6] The Division
found the new information unconvincing:
In August 2005, at the Division[' s] request, Dr. William
Cole reviewed all the information in Shea's medical
record, including the opinions and medical reports Shea had
obtained since Dr. Cole's opinion in March 2003. After
considering this information, Dr. Cole maintained his opinion
that "there is not a substantial presentation of an
argument to support [Shea's] claim that her job
activities were [a] significant contributing factor to this
condition, no more than the rest of the activities of daily
living of her life were." As a result, the Division
affirmed its denial of Shea's claim for occupational
disability benefits.[7]
Shea
appealed this decision to the Office of Administrative
hearings, and a hearing was held in March 2006.[8] Both Dr. Michael
Smith, whom Shea had seen in 2004 for an opinion on
causation, [9] and Dr. Joella Beard, whom Shea had seen
in 2001 for a disability impairment rating, [10] testified at
the hearing.[11]
The
Administrative Law Judge (ALJ) found by a preponderance of
the evidence that Shea "suffered some form of injury to
her ilioinguinal nerve in the course of the 1984 procedure,
resulting in long-term unresolved ilioinguinal
neuralgia." But he defined her "disabling condition
[as] chronic pain syndrome, primarily resulting from the
nerve injury in 1984, and referred and secondary pain related
to that injury." He also found that the initial trauma
from 1984 left Shea "with a vulnerable nerve, which
intermittently flared up... as a result of the activities of
everyday life, leading eventually to secondary bursitis and
referred pain in a variety of areas." He noted that
Shea's bursitis, however, "is not disabling, and the
chronic pain she suffers has many sources other than her
working conditions Her claim for disability benefits rests on
whether, in light of the record as a whole, her employment
was a substantial factor in a complex chronic pain
syndrome."
The ALJ
found that Shea "did not prove by a preponderance of the
evidence that her employment was a substantial factor in her
disability" and affirmed the Division's denial of
Shea's occupational disability claim;[12] Shea appealed
to the superior court, and it affirmed the ALJ's
decision.[13] Shea appealed to this court, and we
reversed the superior court's decision upholding the
ALJ's decision and remanded for proceedings consistent
with our explanation of the appropriate causation
standard.[14]
B.
The ALJ's Decision On Remand
The ALJ
issued his decision on remand in February 2013. No new
evidence was considered, but the ALJ did consider the
parties' briefs and our Shea II decision, which
authorized the ALJ to "reevaluate the evidence ... as he
deem[ed] necessary."[15] The sole issue again was
whether Shea's employment was a substantial factor in
causing her disabling pain.
The ALJ
examined evidence indicating that prolonged sitting at work
was a substantial factor in causing Shea's disabling
pain. Among this evidence was: "(1) Dr. Smith's
opinion [at the hearing] that prolonged sitting aggravated a
physical condition and her pain symptoms, ... (2) sitting was
painful to her, (3) her job duties involved long periods of
sitting, and (4) during the time she worked for the State of
Alaska, her pain symptoms increased."
The ALJ
also considered evidence indicating that Shea's
employment was not a substantial factor in her disability:
(1) Ms. Shea on multiple occasions prior to becoming disabled
reported that her pain was caused by a wide variety of
common, every-day activities, including walking, and physical
activity in general; (2) Ms. Shea did not identify sitting as
a causal factor until February, 1999, after her symptoms had
become highly problematic; (3) Ms. Shea in 1998, and again in
1999, reported no significant or particular aggravating or
alleviating factors; (4) Ms. Shea did not herself identify
working conditions as a causal factor until 2003, long after
she had ceased working; (5) Dr. Beard's expert medical
opinion that prolonged sitting did not permanently aggravate
the underlying physical condition; and (6) Dr. Beard's
observation that Ms. Shea's pain symptoms could have been
a result, in some degree, of psychological factors.
The ALJ
determined that Shea had proved prolonged periods of sitting
at work were a but-for cause of her disability. But the ALJ
concluded that reasonable persons would not attach
responsibility to the State for Shea's disability because
her employment conditions were not a sufficiently
"significant and important a cause" of her
disability; the ALJ therefore found Shea had not proved that
prolonged sitting at work was a substantial factor in causing
her disability. Shea then appealed the ALJ's decision to
the superior court.
C.
Appeal To The Superior Court
The
superior court issued its decision in December 2014,
reversing the ALJ's decision after determining that it
was not supported by substantial evidence. The superior court
determined that "the factual findings upon which the ALJ
based his conclusion that reasonable persons would not attach
responsibility to Shea's employer for her injury were not
adequate to support his conclusion." This determination
was driven in part by the notion that "[t]he ALJ cannot
find on one hand that Dr. Smith's testimony was
substantial evidence establishing actual cause but not
substantial evidence supporting the causal component of
proximate cause."
The
State appeals the superior court's decision.
III.
STANDARD OF REVIEW
When
the superior court acts as an intermediate court of appeal in
an administrative matter, we independently review the merits
of the agency's decision.[16]We review a board's factual
findings "to determine whether they are supported by
substantial evidence, " which is "such relevant
evidence as a reasonable mind might accept as adequate to
support the board's conclusion."[17] "[W]e
view the evidence in favor of the findings,
"[18] and we will not choose between competing
inferences or evaluate the strength of the
evidence.[19] We will look only to determine if
substantial evidence exists in the record, taking into
account evidence in the record detracting from the supporting
evidence's weight.[20] "The conclusion that a
work-related injury or hazard is not a substantial factor in
causing an employee's disability must be supported by
substantial evidence. It is a legal question whether the
quantum of evidence is substantial enough to support such a
conclusion in the contemplation of a reasonable
mind."[21]
IV.
DISCUSSION
To
qualify for occupational disability benefits, Shea had the
burden of proving[22] that her employment was "terminated
because of a total and apparently permanent occupational
disability."[23] An "occupational disability"
is
a physical or mental condition that, in the judgment of the
administrator, presumably permanently prevents an employee
from satisfactorily performing the employee's usual
duties for an employer or the duties of another comparable
position or job that an employer makes available and for
which the employee is qualified by training or education;
however, the proximate cause of the condition must be a
bodily injury sustained, or a hazard undergone, while in the
performance and within the scope of the employee's duties
and not the proximate result of the wilful negligence of the
employee.[24]
The
presumption of compensability from the workers'
compensation context does not apply in the occupational
disability benefits context, and the employee must prove by a
"preponderance of the evidence that the disability was
proximately caused by an injury which occurred in the course
of employment."[25] An employee's underlying injury does
not need to have been caused by the employment; instead, an
employee can qualify for occupational disability benefits by
showing that the employment aggravated a preexisting
condition by causing increased pain or other
symptoms.[26] This aggravation must be shown to be a
substantial factor in contributing to the employee's
disability.[27]
The ALJ
concluded that Shea had established sitting contributed to
her disabling pain, but that she did not prove her employment
was a substantial factor in causing her disability. This
conclusion rested on the ALJ's determination that
"some reasonable persons would consider prolonged
sitting at work so significant and important a cause as to
attach legal responsibility for it and others would not"
and that "the latter group is larger." Five reasons
supported this conclusion: (1) Dr. Beard's testimony that
Shea's ilioinguinal neuralgia[28] had resolved weakened Dr.
Smith's opinion that prolonged sitting at work was a
substantial factor of Shea's disability; (2) Shea did not
report prolonged sitting at work as a pain trigger to any of
her physicians prior to her disability claim's denial;
(3) ordinary daily activity aggravated Shea's pain; (4)
Dr. Smith's testimony limited the aggravation of
Shea's chronic pain symptoms from prolonged sitting at 5%
to 10%; and (5) expert testimony indicated psychological
factors may have contributed to Shea's chronic pain.
A.
The Factual Findings Underpinning The ALJ's
Proximate Cause Decision Are Supported By Substantial
Evidence.
Shea
challenges the factual findings underpinning the ALJ's
proximate cause decision as unsupported by substantial
evidence. On appeal we do not reweigh the evidence or choose
between competing inferences, but we will look to the
record's entirety to ensure that substantial evidence
supports the ALJ's factual findings.[29]
1.
Dispute between Dr. Beard's testimony and Dr. Smith's
testimony
Dr.
Beard explained that in her experience the nerve damage
caused by Shea's 1984 procedure would likely not continue
for as long as Shea's pain had continued. Dr. Beard also
noted that ilioinguinal neuralgia is a condition aggravated
by heavy lifting, extreme positioning, and sometimes standing
or walking for long periods of time. When questioned about
prolonged sitting's effect on ilioinguinal neuralgia, Dr.
Beard stated that it would not "cause a permanent
worsening or flare of [the] condition" if the person had
the ability to adjust her position. This testimony directly
contradicted Dr. Smith's testimony that prolonged sitting
would affect Shea's condition, which was based on the
belief that her ilioinguinal neuralgia had not resolved and
remained the primary problem.
The
dissent asserts that the ALJ erroneously concluded that
Shea's neuralgia had resolved. But the ALJ made no such
finding. The ALJ found there was dispute between the doctors
concerning the underlying cause of Shea's disability and
whether her ilioinguinal neuralgia had resolved, and that
this dispute weakened Shea's case. Portions of Dr.
Beard's testimony provide substantial evidence for the
ALJ's finding that the ilioinguinal neuralgia diagnosis
was disputed: "I do not believe she had chronic pelvic
pain, " and "even back then, no, I would not have
diagnosed her or given her that label of 'chronic pelvic
pain.' "
The
dissent endorses the superior court's assertion that Dr.
Beard's testimony "does not necessarily show that
Shea's injury had abated; it shows either that (1)
Shea's condition was atypical, or (2) something else was
causing her pain. Neither is proof that her ilioinguinal
neuralgia resolved." But that formulation shows that
there were two competing factual inferences the ALJ could
have drawn from Dr. Beard's testimony, with evidence
supporting either. Although the ALJ did not state he was
drawing the latter inference-again, this was the superior
court's formulation-he did find that Dr. Beard's
testimony raised a dispute concerning the etiology of
Shea's current symptoms and that her pain could
be caused by something other than ilioinguinal neuralgia
substantially aggravated by work requirements.[30]
The
dissent waves away this evident dispute by asserting that
"the factual issue regarding the etiology of Shea's
pain was either uncontested or had been resolved in
Shea's favor, " and maintaining that the possibility
of any medical dispute "is flatly contradicted by the
ALJ's earlier finding . .. that Shea's 1984 procedure
'result[ed] in long-term unresolved ilioinguinal
neuralgia.' " But on remand we authorized the ALJ to
"reevaluate the evidence ... as he deem[ed] necessary,
"[31] and he was entitled to rely more heavily
this time around on Dr. Beard's testimony to discount the
persuasiveness of Dr. Smith's opinion concerning the role
work requirements played in the progression of Shea's
disability.
And the
ALJ's findings prior to remand concerning the cause of
Shea's disability are not as clear as the dissent now
asserts. The preponderance of evidence may have indicated
that Shea had long-term unresolved ilioinguinal neuralgia,
but Shea's disabling condition was found to be
"chronic pain syndrome, primarily resulting from the
nerve injury in 1984, and referred and secondary pain related
to that injury." The causes of that referred and
secondary pain are and always have been in dispute: the ALJ
found prior to remand that "the chronic pain she suffers
has many sources other than her working conditions"; and
in its brief on appeal the State argues that evidence of how
other "ordinary daily life activities also aggravated
Shea's pain is relevant and material evidence of
alternative causation."
The
dissent correctly notes that the "material, contested
question" in this case is "whether sitting at work
was so important a cause in Shea's pain that reasonable
persons would regard it as a cause and attach responsibility
to it." That being the inquiry, it is not clear how the
possibility of an alternative cause of Shea's pain was
"not legally relevant" after remand - when Shea
bore the burden of demonstrating the relationship between
work requirements and her "complex chronic pain
syndrome" - particularly when Shea's own expert
witness attributed no more than 10% of her symptoms to those
work requirements.
Substantial
evidence supported the ALJ's interpretation of Dr.
Beard's testimony. And as the superior court noted,
"[i]n other areas of law, the Alaska Supreme Court has
held that where there are two or more conflicting medical
opinions - each of which constitutes substantial evidence-the
reviewing court will affirm the decision of the agency
below."[32] This principle supports upholding the
ALJ's finding that Dr. Beard's testimony weakened Dr.
Smith's opinion that prolonged sitting at work was a
substantial factor in Shea's disability.
2.
Shea's prior failure to report to a physician that
sitting at work increased her pain
The ALJ
determined that prior to Shea's disability claim denial
she did not report prolonged sitting at work as a pain
trigger to any physician. Shea did not report until 1999 that
sitting in general increased her pain. And she did not report
until 2003 that prolonged sitting at work increased her pain,
after she filed her occupational disability claim.
Substantial evidence in the record supports the ALJ's
finding.
Shea
asserts that the ALJ impermissibly disregarded testimony that
prior to 1999 she had reported to her employer that sitting
aggravated her pain. The ALJ's fact finding on this issue
relates only to when Shea first reported the link to a
physician. Though Shea is correct that the record contains
evidence she reported pain from sitting to her employer, this
evidence does not controvert the ALJ's physician-specific
finding.
3. Ordinary activities and
Shea's pain
The
record supports the finding that ordinary daily activities
aggravated Shea's pain. Between 1989 and 2001 Shea told
various physicians that her pain was aggravated by a range of
routine daily activities including working in her yard, any
physical activity, using stairs, sitting, standing, walking,
bending forward or backward, and lifting. Shea's husband
testified that Shea ceased doing routine activities like
cooking, gardening, and walking her dog because those
activities increased her pain.
4.
Dr. Smith's testimony on the upper bound of
prolonged sitting as a source of Shea's pain
Dr.
Smith stated that prolonged sitting increased Shea's pain
by "maybe 5 or 10 percent, at the most." There is
no dispute about this testimony.
5.
Dr. Beard's testimony regarding psychological
factors
Dr.
Beard's testimony clearly supports the ALJ's
observation that psychological factors may have contributed
to Shea's disabling pain. Dr. Beard testified: "I
don't believe she was disabled as much as she felt she
was disabled. Her perception of her disability . .. exceeded
.. . what would be .. . mostly medically reasonable"; in
situations like Shea's the pain's original source can
resolve and the pain "itself becomes their driving
force. And it's a big emotional, psychological,
psychosocial dilemma as to what is really driving this pain.
So in her case, I would say ... it was her perception that
she was not able to return to work, not necessarily . . .
that that was accurate." Dr. Beard noted that without
further psychological evaluation she could not definitively
say whether Shea's pain had a psychological, rather than
physical, cause, but that based on the evidence at hand she
saw no grounds to rule it out.
The ALJ
did not find that psychological factors did cause
Shea's disability. He noted only that they may
have done so. Substantial evidence supports this observation.
B. The ALJ's Ultimate Factual Determination That
Prolonged Sitting At Work Was Not The Proximate Cause Of
Shea's ...