Stephens v. ITT/Felec Services

MATTHEWS, Justice,

dissenting in part.

I dissent from that part of the majority opinion which remands this case to the Board for additional findings on the question of whether Stephens proved the elements of his claim by a preponderance of the evidence. In my opinion the Board’s decision contains adequate findings and no remand is necessary.

Findings are adequate when, at a minimum, they show that the Board considered each issue of significance, demonstrate the basis for the Board’s decision, and are sufficiently detailed so that they afford an opportunity for meaningful judicial review. See White v. Alaska Commercial Fisheries Entry Comm’n, 678 P.2d 1319, 1322 (Alaska 1984); Uchitel Co. v. The Telephone Co., 646 P.2d 229, 236 n. 16 (Alaska 1982); Hewing v. Alaska Workmen’s Compensation Bd., 512 P.2d 896, 898 (Alaska 1973). The findings made by the Board in this case satisfy these three purposes.

The main issue of significance here is whether Stephens’s heart attack was work related. The Board considered this issue and found that Stephens had not proven his claim by a preponderance of the evidence. The Board demonstrated the basis for its decision, stating that its decision was founded on a review of the entire record “including the medical evidence outlined” in the Board’s written opinion. Sufficient detail was supplied as the Board summarized the testimony of Dr. Raugust, Stephens’s treating otolaryn-gologist, Dr. Mayer, Stephens’s treating cardiologist, and Dr. Toiler, ITT’s cardiologist, and concluded, “uniformly, Drs. Raugust, Mayer, and Toiler agreed that the employee’s work probably was not the cause of the employee’s disability, but that it was caused by a non-work related condition.” An appellate court can readily review the testimony of these witnesses to determine whether it meets the substantial evidence standard by which Board findings are tested.

Today’s opinion states that the working conditions at the time of the heart attack were also a contested issue. As I read the record, what the physical conditions were, and what Stephens had done before the onset of the attack, were uncontested, although there is room for cavil as to matters of degree. In any case, the Board’s composite decision discusses working conditions at length, showing that they were considered. Further, the circumstances which the Board accepted as true are apparent from the Board’s decision. Finally, the detail of the Board’s decision goes well beyond that employed by most judicial and agency fact finders and is more than sufficient to facilitate judicial review. To illustrate these points I quote in the margin at length from the Board’s decision, emphasizing its discussion of work conditions.1

As a subsidiary holding the majority requires the Board to make findings indicating what, if any, weight it gave to the opinion of *631Dr. Repsher, noting that Dr. Repsher’s testimony “potentially supported Stephens’s claim that the work conditions caused his heart attack.” In my view it is asking too much to require that findings specifically refer to the testimony of every witness who gives potentially significant testimony on critical issues. This goes beyond the level of detail necessary to satisfy the three purposes of findings. Further, Dr. Repsher’s testimony is collateral rather than central to the critical issue of work relatedness. It seems that his main finding was that Stephens’s heart attack caused his coughing. This con-tradieted some of the testimony offered by the other physicians. However Dr. Repsher did not testify that the heart attack was work related.

*632For the above reasons I would affirm the decision of the superior court which affirmed the decision of the Board.

.

The employee’s POW-2 work site consists of a radar facility known as a radome, which is a metal structure containing the radar apparatus, antennae, and control facilities. The dome itself is approximately 40-50 feet in diameter and rests on a rectangular structure known as a "plenum," which is approximately 50 feet square and 8 feet high. The plenum, which resembles a large room, is supported 50 feet above the ground by stilt-like columns at each comer. Between the floor of the plenum and the radar room at ground level is an enclosed spiral staircase used to travel between the radar room at ground level and the base of the plenum. To reach any work site within the interior of the radome from ground level, one must first climb a 9-10 foot ladder within the radar room to a spiral staircase 25-35 feet in height to the floor of the plenum. From that point, one walks horizontally about 20 feet across the floor of the plenum to another 8-foot ladder, which is then used to reach the floor of the radome. Accordingly, from any work area on the floor of the radome to ground level, one must descend between 42 to 53 feet. The employee testified that he devoted the two days after his arrival at the site assisting in *630the installation of an obstruction or warning light on the top of the radome, and running a wire from that light to a switch 6n the inner wall of the radome. On Thursday, May 3, 1990, the employee threaded that wire through a number of brackets, which he and a coworker mounted on the inner wall of the ra-dome. That work was indoor work, involved the use of a 40-foot wooden extension ladder and step-ladder, both of which were moved with the assistance of the employee and a coworker, Matt Cowles, during the day. On each of the three days preceding his myocardial infarction, the employee completed work at 5:00 p.m. On each of the nights preceding his myocardial infarction, the employee retired at his usual time and slept normally.
On Friday, May 4, 1990, the employee arose, ate breakfast, and reported to work at his usual 8:00 a.m. time. At approximately 9:00 a.m., he climbed up into the interior of the radome, where he worked in an almost sedentary fashion in the vicinity of the switch he and Matt Cowles had installed two days before. After approximately 15 minutes, the employee determined he needed additional small plastic surface mounting clips for the wire he was installing through the switch, so he descended approximately 40 to 53 feet through the series of ladders and the spiral staircase to get those parts. After retrieving the parts, the employee returned to the interior of the radome, completing that roundtrip in approximately five minutes. He worked for an additional two to three minutes and found that the clips were breaking because of the cold. The employee then decided to use metal rather than plastic clips, and again descended through the ladders and spiral staircase which connect the interior of the radome to the lower, ground level of the facility.
At some point during or after descending to the radar room floor at ground level, the employee "started breaking out in a cold sweat" and started coughing. The employee was uncertain, however, if his symptoms began while descending the steps or once he had completed the descent. The employee testified that he could not breathe and felt that he "started strangling” from the mucous.
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The defendants submitted substantial amounts of medical testimony to show that the various activities engaged in by the employee at work did not substantially contribute to his myocardial infarction. For example, Dr. Tofler and cardiologist William Mayer, M.D., testified they did not think the employee’s act of climbing the radome, or the speed required to finish the task of replacing broken brackets, substantially contributed to the myocardial infarction. Similarly, they did not think the cold temperatures substantially contributed to the myocardial in-farctions. Additionally, Dr. Tofler thought the stress the employee experienced when working with co-workers and supervisors who dislike him or who made him the target of racial remarks did not substantially contribute to the myocardial infarction.
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[T|o eliminate the possible work-related factors as the cause of the heart attack, the petitioners rely on the following:
1. The physical exertion required at the time of the heart attack was not unusual. Dr. Mayer and cardiologist Geoffrey Tofler testified, however, that physical exertion could have been a factor in the myocardial infarction.
2. The cold weather the employee experienced was not unusual. Nevertheless, Dr. To-fler testified the cold temperatures could have increased the risk of heart attack. Dr. Mayer thought the employee might suffer from cold-induced recurrent asthma which could have caused the coughing episode at the time of the heart attack.
3. The emotional stressors were not unusual. The record reflects, however, the employee was subject to pressure due to time limitations, frustration from breaking parts, racial slurs and personality clashes with co-workers and a supervisor. Dr. Tofler thought these elements could be a factor in the employee’s myocardial infarction.
4. A combination of the above factors did not play a "significant role” in causing the myocardial infarction. Nevertheless, Dr. To-fler testified that each or a "catastrophic convergence” of all the above factors could have played a role in the heart attack.
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According to Dr. Raugust, the cause of the coughing and laryngospasm was not the cold, dry air of the North Slope, the presence of any dust in the air, or physical exertion, but the wad of phlegm in the employee’s throat. Dr. Rau-gust testified that because of the employee's smoking and sinus disease, this coughing episode would have occurred "anywhere in the world."
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A. Cold Weather [Board’s emphasis.]
The employee testified that he worked as a rigger on a regular basis and was assigned to work at DEW line stations throughout his three-year employment with the employer. The employee also testified that his job often caused him to climb up outdoor antennas, that he worked indoors and outdoors, and was able to acclimate himself to both work environments. The employee spoke directly with Dr. Tofler about his work in cold temperatures and indicated to Dr. Tofler that he had been exposed to significantly colder weather than he experienced on the morning of his myocardial infarction.
With these facts in mind, Dr. Tofler testified that “to a reasonable degree of medical probability, I do not believe that the factors (including exposure to cold) occurring associated with his employment contributed substantially to the onset of the myocardial infarction.” Dr. Mayer also testified that it was not likely that cold temperatures, as experienced by the employee, was a trigger for his myocardial infarction.
*631B.Physical Activity [Board’s emphasis.]
The employee testified that he worked as a rigger on a regular basis throughout his three-year employment with the employer. The employee stated that his job required him to often climb up outdoor antennas “some of them as high as 300 feet, a lot of them around 100 feet.” Climbing towers, stairs, ladders and stepladders was a regular part of the job of rigger. From speaking directly with the 'employee, Dr. Tofler testified that the employee’s work activities before May 1990 were of a similar or more strenuous nature than they were on the day of his myocardial infarction.
Dr. Mayer was also provided a description of the employee’s work activities of May 4, 1990. Dr. Mayer, himself, reenacted the level of the employee’s May 4, 1990 activity. Dr. Mayer testified that at no time did he feel that was an unusual level of physical stress that a normal person, even a person with some coronary disease, should not be able to do.
Similarly, Dr. Tofler read the employee’s deposition, which describes, in detail, his employment history and his physical duties as a rigger for three years with the employer. Additionally, Dr. Tofler interviewed the employee in order to “completely understand” the condition on the morning of the myocardial infarction. Dr. Tofler concluded that the employee's activity “was, at most, moderate for him;” “it was significantly less than had occurred on many of his previous work days.” Dr. Tofler reiterated that opinion at hearing, testifying that "the exertion that Mr. Stephens did was consistent with the usual amount of exertion that he had done on previous occasions ... it was not extraordinary exertion....”
Dr. Mayer testified that to a reasonable degree of medical probability, the employee’s physical activities on May 4, 1990, were not a substantial factor in bringing about his myocardial infarction. Dr. Tofler testified that to a reasonable degree of medical probability, the employee’s physical activities associated with his employment did not contribute substantially to the onset of his myocardial infarction.
C.Emotional Stress [Board’s emphasis.]
Dr. Tofler testified that acute emotional stress could trigger the onset of a myocardial infarction. Nevertheless, after speaking with the employee, Dr. Tofler concluded that there was no evidence of any specific statement or episode on the morning of the employee’s heart attack which could trigger the heart attack and the lack of any evidence from the employee himself over his own reaction to such alleged statements.
Dr. Mayer testified that nothing he has ever read, reviewed, or been told about this case, or learned from his experience, would cause him to believe that the employee's employment was substantial factor in bringing about the employee’s myocardial infarction. Dr. Tofler testified that he considered emotional stress and concluded it did not play a significant role triggering the employee's myocardial infarction; it was not a substantial factor.
D.A Catastrophic Convergence [Board’s emphasis.]
Dr. Tofler concluded that the employee’s work was not a substantial factor in triggering the myocardial infarction after consideration of the “various factors which Mr. Croft asked you about, that is, the level of physical activity, time (constraints), temperature, emotional stress and the other.” Dr. Mayer testified that there was nothing that he had been made aware of through Mr. Croft’s letter to him, through anything else Mr. Croft may have sent him, through any conversations he may have had with Mr. Croft or anyone else, through his review of the documents in this case, or from any other source, that causes him to believe that the employee's employment or his activities involved in employment were, on May 4th, a substantial factor in bringing about his myocardial infarction.
As the author of medical journal articles on the subject, Tofler was familiar with the concept of "catastrophic convergence.” Nevertheless, he concluded that to a reasonable degree of medical probability, the factors occurring associated with the employee’s work did not contribute substantially to the onset of his myocardial infarction. Dr. Mayer testified that the employee’s employment was *632not a substantial factor in bringing about his myocardial infarction.

(Emphasis added except as noted.)