Vetter v. Alaska Workmen's Compensation Board

CONNOR, Justice,

with whom FITZGERALD, Justice, joins, dissenting.

My disagreement with the majority opinion stems not from any difference about the applicable principles but from a difference in interpreting the record.

The Board’s finding of fact #3, upon which the denial of compensation is predicated, is as follows:

“That the applicant did not suffer disability from work as a result of injury on April 24, 1970. She was able to continue working for the remaining five to six hours of her shift and did not find need to see the doctor until the afternoon of a day when she was hurt at 2 a. m. The Board believes that applicant does not want to work and that her husband, who did not want her to work before the injury, probably keeps her from working now. We believe the fact that she gives a previous earning history of minimal employment during the three years previous to injury is indicative of this.”

The Board found that Mrs. Vetter suffered no disability from work as a result *269of her injury. This can mean one of two things, or both, in the context of this case: she has no ongoing symptoms which are serious enough to prevent her from working, or, regardless of her condition, she does not care to work any longer. The sentence noting that Mrs. Vetter did not immediately seek out a doctor indicates the first, i. e., one can infer that the Board doubted the seriousness of her injury. A delay in seeking medical attention would not in itself be sufficient ground to deny compensation. However, there was other evidence which implied that Mrs. Vetter was capable of returning to work but had not sought to do so. At the hearing, she was asked whether she felt capable of returning to work:

“Q. How has it affected your daily living? I mean, do you feel you are capable of going back to work right today ?
A. No.
Q. Why not?
A. In the first place, I just don’t feel as though I’m capable, and could even be qualified to work in the public.
Q. Why do you say that ?
A. Because it could happen again.
Q. When you say ‘it could happen again’, what could happen again ?
A. I don’t want any more arguments or to fight with nobody.”

Mrs. Vetter also testified concerning a job solicitation, apparently instigated by Sue Wagner. She told the offeror that she was not looking for a waitress job, and when describing the interview with him, did not indicate that she did not want the job because of ill health.

A steady bingo player reported that she had seen Mrs. Vetter playing bingo, and said that she had seen Grace play about that same amount of cards that she did (12-15) without any apparent confusion and had seen her win. Sue Wagner reported that Mrs. Vetter came in several times following the incident asking to be put back to work. In her deposition, Mrs. Vetter said that she had traveled to Australia in September of 1970 (her injury took place in April of 1970) for three months because her mother was seriously ill.

The doctors’ reports would tend to indicate the ongoing nature of her symptoms. Dr. Ribar did not think she was malingering and did not think her capable of returning to work. Dr. Hanns said that physical examination revealed no distress, but the symptoms she complained of were characteristic of the type of injury she had suffered. The initial kidney problem was reported to have cleared up.

There was other evidence which indicated that Grace was not able to return to work. She- described frequent, severe headaches, and said that her condition had limited her activities; she was not able to play bingo nearly as often as she had before, and generally was not as “social” as she used to be. She also said she could watch only 3 or 4 bingo cards. Her companion bingo player could not report as to how often she had seen Grace playing bingo in the months preceding the hearing. Grace said in her deposition that Sue Wagner had asked her to return to work, not that she had asked Sue:

“A. Oh yes, on several occasions I would ask — well, when she’d ask me when I was coming back, and I said, T hope I can come back pretty soon.’ ”

She also said that she felt that she was not physically able to work.

There were indications that Grace was not a serious member of the labor market. Her doctor, Dr. Ribar, 'was aware of her work to only a vague extent. Sue Wagner described Grace as only a temporary hire. Grace, in her deposition, revealed no real clear-cut plans as to employment.

*270“Q. Well, how long were you planning to work for Sue? If you had any plans.
A. Well, now that answer I couldn’t give you any answer to that, because I don’t know.
Q. Well, you didn’t have any—
A. You don’t know what happens.
Q. Well, what I’m thinking about, it wasn’t anything like working for her for three months and then quitting and going some place or doing something else, you didn’t have that plan in mind ?
A. Oh, no, I did not have, no, no way.”

There were several references to the Vet-ters’ tax bracket and her husband’s desires concerning her work.

“A. . . . and one time my husband was with me, and he said ‘I don’t particularly care for Grace to work.’ The fact remains, and it is a fact, that any income that I might receive would put him in a higher bracket. I can see his point now, but at the time he didn’t particularly care for me to work.”

And later at the hearing:

“Q. Did your husband want you to work?
A. He didn’t care really, except that he, you know, didn’t care whether I worked or not, but he did make a statement that he wasn’t particular, you know, if I had worked or not.
Q. Didn’t you say earlier this morning that he didn’t want you to work because it threw him in a higher income tax bracket?
A. He didn’t want me to, well, I would, he didn’t want me to work on account of this, you mean?
Q. On account of . . .
A. Oh,, he had that in mind, yes. Yes.”

And in the deposition:

“A. Well, in the first place my husband didn’t particularly care for me to go to work, and I felt as though I was capable and able, you know, to work, and he felt as though that with my income that I would have received would put us in a higher bracket, and Sue was aware of this.”

If the Board was tending to doubt the seriousness of Mrs. Vetter’s injuries, the refusal of the waitress job offer following the incident with Hill would tend to support the inference that she was not seriously interested in obtaining a job. This, of course, is buttressed by her sporadic working history and her indefinite attitude towards work.

On the other hand, at the hearing, Grace testified that she didn’t regard working at the Polaris as temporary, and that she had always thought that she would eventually return to work at the Polaris. Sue Wagner also reported that she was not ready to fire Grace following the incident, but instead indicated that she just wanted things to calm down a bit before taking her back.

Much of Grace Vetter’s testimony was contradicted by that of other persons, indicating that perhaps she was not as seriously injured as she maintained, and that she was not altogether serious about any work plans. Another matter which is essentially unrelated to the compensation issues but which does relate to her credibility concerns whether she knew Jay Hill before the incident in the cafe. She steadfastly maintained that she did not. However, a sister to Sue Wagner and Jay Hill both maintained that Grace knew her assailant previous to the brawl, as did Sue Wagner. And the Board also had the benefit of the claimant’s demeanor during the hearing which lasted for several hours.

Admittedly the record in this case is not altogether enlightening. But I think there *271was enough for the Board to infer that Mrs. Vetter did not desire to resume work. I would, therefore, uphold the Board’s denial of the claim.