State, Dept. of Administration, Division of Retirement & Benefits v. Shea , 394 P.3d 524 ( 2017 )

Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
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THE SUPREME COURT OF THE STATE OF ALASKA
STATE OF ALASKA, DEPARTMENT )
OF ADMINISTRATION, DIVISION OF ) Supreme Court No. S-15787
RETIREMENT & BENEFITS, )
) Superior Court No. 3AN-13-06927 CI
Appellant, )
) OPINION
v. )
) No. 7166 – April 21, 2017
SHIRLEY SHEA, )
)
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Philip R. Volland, Judge.
Appearances: 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.
WINFREE, Justice.
FABE, Justice, dissenting.
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,
1
See Shea v. State, Dep’t of Admin., Div. of Ret. & Benefits (Shea II), 267
P.3d 624 (Alaska 2011); Shea v. State, Dep’t of Admin., Div. of Ret. & Benefits, 204 P.3d
1023 (Alaska 2009).
2
267 P.3d at 626-30.
3
Id. at 627.
4
Id. at 628.
5
Id. at 627-28 (alteration in original).
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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
6
Id. at 628.
7
Id. at 628-29 (last two alterations in original).
8
Id. at 629.
9
Id. at 628.
10
Id. at 627.
11
Id. at 629.
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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
12
Id.
13
Id. at 630.
14
Id. at 636 (stating that a factor can contribute to a person’s disability in
equal proportion to other activities and still be a substantial factor if “reasonable persons
would regard the injury as a cause of the disability and attach responsibility to it”
(quoting Doyon Universal Servs. v. Allen, 999 P.2d 764, 770 (Alaska 2000))).
15
Id.; see also Smith v. Univ. of Alaska, Fairbanks, 172 P.3d 782, 792 (Alaska
(continued...)
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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
15
(...continued)
2007) (noting reviewing court can permit agency to “reweigh the evidence on remand”).
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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
16
Shea II, 267 P.3d at 630.
17
Id. (quoting Lopez v. Adm’r, Pub. Emps.’ Ret. Sys., 20 P.3d 568, 570
(Alaska 2001)).
18
Raad v. Alaska State Comm’n for Human Rights, 86 P.3d 899, 903 (Alaska
2004) (citing Alaska State Comm’n for Human Rights v. Yellow Cab, 611 P.2d 487, 490
(continued...)
-6- 7166
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
proving22 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
18
(...continued)
(Alaska 1980)).
19
Shea II, 267 P.3d at 630 (quoting Lopez, 20 P.3d at 570).
20
Id.
21
Id. (footnote omitted) (first citing Lopez, 20 P.3d at 571; then citing
Municipality of Anchorage, Police & Fire Ret. Bd. v. Coffey, 893 P.2d 722, 726 (Alaska
1995)).
22
See id. at 631 (stating that employee bears burden of proof).
23
AS 39.35.410(a).
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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
24
AS 39.35.680(27).
25
Shea II, 267 P.3d at 631 (quoting State, Pub. Emps. Ret. Bd. v. Cacioppo,
813 P.2d 679, 682-83 (Alaska 1991)).
26
See id. (“[A]n accident which produces injury by precipitating the
development of a latent condition or by aggravating a preexisting condition is a cause of
that injury.” (quoting Hester v. State, Pub. Emps.’ Ret. Bd., 817 P.2d 472, 475 (Alaska
1991))).
27
Id. at 631-34.
-8- 7166
Shea’s ilioinguinal neuralgia28 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,
28
In December 2000 Shea was diagnosed with ilioinguinal neuralgia, possibly
related to nerve damage she suffered in 1984. Shea II, 267 P.3d at 626-27.
29
Id. at 634.
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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
30
Although the dissent argues that “nothing in the ALJ’s discussion even
hints at a finding” that the etiology of Shea’s symptoms was disputed, the ALJ explicitly
found that Dr. Beard’s “testimony weakens the basis for [Dr. Smith’s] opinion, which
was that Ms. Shea’s underlying physical condition . . . had not resolved,” that there was
“expert medical testimony to the effect that her underlying physical condition had
resolved,” and that there was “expert medical testimony that psychological factors may
(continued...)
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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
30
(...continued)
have contributed to her disability.”
31
Shea II, 267 P.3d at 636.
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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.
32
See Doyon Universal Servs. v. Allen, 999 P.2d 764, 767-68 (Alaska 2000).
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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.
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B. The ALJ’s Ultimate Factual Determination That Prolonged Sitting At
Work Was Not The Proximate Cause Of Shea’s Disability Is
Supported By Substantial Evidence.
The causation question disputed here is whether Shea’s employment was
a proximate cause of her disability. A proximate cause is a cause that is “so important
in bringing about the injury that reasonable [persons] would regard it as a cause and
attach responsibility to it.”33 The appropriate inquiry is “whether the conduct has been
so significant and important a cause that the defendant should be legally responsible.”34
The ALJ determined that Shea’s employment was not so significant and important a
cause that the State should be legally responsible.
Because reasonable minds could disagree whether Shea’s employment was
a substantial factor in causing her disability, we review the ALJ’s determination for
substantial evidence.35 We give deference to an ALJ’s decision if it is supported by
evidence “substantial enough to support [the] conclusion in the contemplation of a
reasonable mind.”36
Dr. Beard’s testimony supports the ALJ’s conclusion. It casts doubt on
whether Shea suffered fromilioinguinal neuralgia during her State employment, breaking
33
Shea II, 267 P.3d at 634 (alteration in original) (quoting Vincent by Staton
v. Fairbanks Mem’l Hosp., 862 P.2d 847, 851-52 (Alaska 1993)).
34
Id. (quoting Vincent, 862 P.2d at 851).
35
Winschel v. Brown, 171 P.3d 142, 148 (Alaska 2007) (explaining
“determinations of proximate cause usually involve questions of fact” and become “a
matter of law only where reasonable minds cannot differ”).
36
Municipality of Anchorage, Police & Fire Ret. Bd. v. Coffey, 893 P.2d 722,
726 (Alaska 1995) (quoting Land & Marine Rental Co. v. Rawls, 686 P.2d 1187, 1188­
89 (Alaska 1984)) (explaining when quantum of evidence is substantial enough to
support administrative decision).
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the causal chain between Shea’s prolonged sitting and the aggravation of a preexisting
condition. The dissent suggests that Dr. Beard’s testimony should be discounted because
Dr. Beard applied an incorrect legal standard when offering her opinion on whether
Shea’s disability was work related.37 But as the ALJ noted, Dr. Beard’s mistake about
the appropriate legal standard was relevant only to her “opinion as to causation.” The
dissent offers no reason Dr. Beard’s diagnosis of Shea’s condition and potential
aggravating factors should likewise be discounted or why it should not cast doubt on the
premise of Dr. Smith’s opinion, which was that “ilioinguinal neuralgia is the primary
problem.”
Dr. Beard’s testimony substantially undercuts Dr. Smith’s, and, even if it
did not, Dr. Smith’s opinion that Shea’s employment contributed to the increase in her
pain by no more than 10% would not necessarily make it a substantial factor “if
reasonable persons would [not] regard the injury as a cause of the disability and [not]
attach responsibility to it.”38 Dr. Smith testified it was more likely than not that Shea’s
work environment aggravated her condition by 5% to 10%. Dr. Smith himself
characterized this percentage as “small.” Even if the ALJ relied exclusively on
Dr. Smith’s testimony, he could reasonably conclude that a 5% to 10% increase in Shea’s
symptoms resulting from work was not “so significant and important a cause as to attach
legal responsibility to her employer for her disability.” Our Shea II decision leaves room
37
Dr. Beard defined “aggravation” as a “permanent worsening or flare [up]
of the[] condition,” and testified on that basis that Shea’s work requirements had not
aggravated her disability. But an occupational disability can be found where work
requirements aggravated the symptoms of a disease, even if there is no change to the
underlying condition. Hester v. State, Pub. Emps.’ Ret. Bd., 817 P.2d 472, 476 n.7
(Alaska 1991).
38
Shea II, 267 P.3d at 636 (citing Doyon, 999 P.2d at 770).
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for such a finding.39 And although the dissent certainly is correct that Shea II “permits
the opposite conclusion as well,” the ALJ is the fact finder here, not this court.
That Dr. Smith’s testimony in itself could have been sufficient to support
the ALJ’s proximate cause finding is also relevant to the dissent’s arguments about the
ALJ’s allegedly “contradictory findings.” The dissent argues that the ALJ made
“contradictory findings” because Dr. Smith’s testimony was sufficient to establish but-
for cause yet insufficient to establish proximate cause. We conclude instead that the ALJ
correctly required a higher showing to establish that prolonged sitting was a “substantial
factor” in Shea’s disability rather than simply “one among a multitude of aggravating
factors, no one of which stood out as of particular significance.”40 “Substantial factor”
necessarily requires a higher showing than but-for cause in this context: “but-for cause”
requires that Shea’s work was a factor in causing her disability; “legal cause” demands
in addition that the factor be substantial. The ALJ could have relied exclusively on
Dr. Smith’s testimony throughout and found without contradiction that it sufficed to
establish but-for cause but not proximate cause.41
39
See id.
40
The dissent states that “the ALJ conceded [there] was adequate proof of
causation by Shea.” The only element of causation the ALJ “conceded” was “but-for”
cause. But the ALJ has now twice determined that same evidence, in light of its own
weaknesses and the doubt cast on it by the State’s evidence and expert medical
testimony, was insufficiently compelling to establish proximate cause.
41
The dissent contends that Dr. Smith’s testimony would not support such a
finding because “the ALJ did not find Dr. Smith’s opinion persuasive on the point the
court suggests.” But in the decision prior to remand the ALJ accorded Dr. Beard’s
testimony less weight, yet noted that “Dr. Smith’s opinion, while persuasive as an
expression of medical opinion, offers only limited support for the claim that Ms. Shea’s
working conditions were a substantial factor in her disability.” After remand, although
(continued...)
-16- 7166
Shea’s failure until 2003 to report to a physician that prolonged sitting at
work caused her disabling pain further supports the conclusion that a reasonable person
would not attach legal responsibility to her employer. Her failure to report to a physician
that work aggravated her pain indicates that her employment was not, in her mind, so
significant a cause of her increased pain that she thought it particularly relevant to
medical diagnosis and treatment.
The dissent asserts that the ALJ’s finding here provides no persuasive
evidence concerning the legal causes of Shea’s disability because “Shea’s reports to her
supervisor indicate ‘that she knew [sitting] was a factor in what caused her pain,’ ” and
because “Shea had no need to report her work conditions to her doctor” as her supervisor
was working with her to mitigate her pain. This argument misapprehends the finding’s
relevance. It is undisputed that Shea’s pain manifested at work. But the relevant inquiry
is not whether sitting for prolonged periods aggravated the contemporaneous expression
of symptoms. Rather the relevant inquiry is whether prolonged sitting in some way
precipitated or worsened the symptoms or the underlying disease process on a
“presumably permanent[]” basis.42
41
(...continued)
the ALJ concluded that Dr. Smith’s opinion supported Shea’s theory as a general matter,
the ALJ explicitly listed as evidence against Shea the precise extent — 5% to 10% —
Dr. Smith attributed Shea’s symptoms to prolonged sitting. Given that on appeal we do
not reweigh evidence or choose between competing inferences, it would be inappropriate
to reverse the ALJ’s decision when Shea’s own evidence reasonably could be found
insufficient to prove her case. See Shea II, 267 P.3d at 634; see also Raad v. Alaska
State Comm’n for Human Rights, 86 P.3d 899, 903 (Alaska 2004) (“In applying the
substantial evidence test we view the evidence in favor of the findings.” (citing Alaska
State Comm’n for Human Rights v. Yellow Cab, 611 P.2d 487, 490 (Alaska 1990))).
42
See AS 39.35.680(27) (defining “occupational disability” as “a physical or
mental condition that . . . presumably permanently” prevents the employee from
(continued...)
-17- 7166
The dissent acknowledges this distinction when it discusses how Dr. Smith
“testified that prolonged sitting at work aggravated Shea’s pain in two ways: by
increasing it during work, after which the pain would return to baseline, and by
increasing her baseline level of pain.” We are concerned only with the latter. Shea
discussing prolonged sitting at work with her supervisors is evidence of the former, but
it does not address the relevant inquiry.43
42
(...continued)
performing the employee’s usual or comparable duties (emphasis added)); Hester, 817
P.2d at 476 n.7 (holding there is no distinction in the occupational disability context
between the “worsening of the underlying disease process and worsening of the
symptoms”); see also Shea II, 267 P.3d at 631 (“[A]n accident which produces injury by
precipitating the development of a latent condition or by aggravating a preexisting
condition is a cause of that injury.” (emphasis added) (quoting Hester, 817 P.2d at 475)).
The dissent argues that we are quoting AS 39.35.680(27) out of context and
that it is only the “employee’s inability to perform her work” that “must be permanently
precluded.” The statute is clear, however, that our inquiry focuses on the “proximate
cause of the condition” (or disabling symptoms), not on the proximate cause of the
inability to work, if in this context those two causes can be meaningfully distinguished.
AS 39.35.680(27) (emphasis added). And AS 39.35.410 further supports our reading,
providing that an “employee is eligible for an occupational disability benefit if
employment is terminated because of a total and apparently permanent occupational
disability.” (Emphasis added.)
43
The dissent argues that Shea could qualify for occupational disability
benefits “not only by showing that sitting at work permanently caused an increase in her
baseline pain but also by showing that sitting at work increased her pain to such an extent
that she could not perform her work and that this circumstance was permanent,” and
asserts that “[r]equiring a permanent worsening of baseline pain is no different from
requiring a permanent worsening of an employee’s condition.” But this formulation
eliminates the causal component of our inquiry and ignores the requirement that “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.”
AS 39.35.680(27) (emphasis added).
(continued...)
-18- 7166
And although for medical diagnosis and treatment purposes, as the dissent
states, “prolonged sitting at work is not reasonably distinguishable from prolonged sitting
in general,” in the ALJ’s opinion sitting also is not distinguishable in significance from
other activities Shea reported to physicians, including “standing, walking, exercise,
bending forward or backwards, cold, and stairs.” Shea failed to identify to physicians
that work requirements were a likely contributing factor to her disability but addressed
work requirements with her supervisors; these actions support the ALJ’s finding prior
to remand that “prolonged sitting was one among a multitude of aggravating factors, no
one of which stood out as of particular significance.” And this lack of distinction is
relevant to determining whether work requirements should be considered the legal cause
of Shea’s disability.
The dissent correctly notes that the ALJ’s observations about psychological
factors were “tepid” and based on mere speculation because Shea did not undergo
sufficient psychological evaluation. But Dr. Beard’s very firm opinion that “I do not
believe [Shea] had chronic pelvic pain” was not mere speculation; Dr. Beard based her
opinion on personal examination and experience treating patients with similar conditions.
Dr. Beard’s opinion undercut the persuasiveness of Shea’s arguments. And because
43
(...continued)
In Hester we rejected a distinction between the “worsening of the
underlying disease process and worsening of the symptoms of a disease.” 817 P.2d at
476 n.7. But we did not alter the statute’s requirement that the “worsening of the
symptoms” be proximately caused by work requirements. Id. Requiring work to be a
proximate cause is not a “reformulation of a distinction we rejected” in Hester, as the
dissent asserts. We instead maintain the distinction between occupational and non­
occupational disabilities: the former requires that work be the proximate cause of the
disability, while the latter does not. Compare AS 39.35.680(27) (defining occupational
disability), with AS 39.35.680(24) (defining non-occupational disability). Non­
occupational disability benefits are available to those, like Shea, for whom work is not
a proximate cause of the disability. See AS 39.35.680(24); AS 39.35.400.
-19- 7166
Shea bore the burden of proof, the State’s “theory of the case” did not have to include
an alternative diagnosis as the dissent seems to suggest. Rather, existing plausible
alternative bases for Shea’s pain support the ALJ’s determination that she failed to show
work requirements were the proximate cause of her disability.
Other daily activities increased Shea’s pain and other factors, some perhaps
psychological, may have played a role in her symptoms. This evidence supports a
reasonable conclusion that Shea’s employment was not so significant or important a
cause as to justify holding the State legally responsible. Because, in the contemplation
of a reasonable mind, the evidence relied on is substantial enough to support the ALJ’s
conclusion, we affirm the ALJ’s decision.
V. CONCLUSION
We REVERSE the superior court’s decision reversing the ALJ’s decision,
thereby AFFIRMING the ALJ’s decision sustaining the administrator’s denial of Shea’s
occupational disability benefits.
-20- 7166
Fabe, Justice, dissenting.
I disagree with the court’s determination that substantial evidence in the
record supports the denial of Shirley Shea’s occupational disability claim. Superior
Court Judge Philip R. Volland correctly concluded that key facts in the administrative
decision are either irrelevant to the ultimate question of proximate cause or simply not
supported by evidence in the record. I would therefore affirm Judge Volland’s decision
reversing the administrative denial of benefits.
The only question decided adversely to Shea by the administrative law
judge was proximate cause, and the ALJ limited his adverse finding to one part of
proximate cause, which he called the “ ‘Attach Responsibility’ requirement.” The ALJ
agreed with Shea that she had carried her burden of proving that, but for her work at the
State, she “would not have experienced disabling chronic pain in 2001,” the year she
became unable to work. But the ALJ rejected Shea’s claim that her work was a
proximate cause based on the ALJ’s view that the group of people who would not
“consider prolonged sitting at work so significant and important a cause as to attach legal
responsibility for” the disability was “larger” than the group who would. The ALJ
evidently counted himself among the former group and discussed the evidence he relied
on to reject Shea’s claim. But not all of the evidence relied on by the ALJ was
substantial: Some was speculative or nonexistent. And much evidence relied on by the
court in today’s opinion either does not reflect the correct legal standard or is not related
to the issues disputed in the case. This evidence cannot serve as substantial evidence to
support the finding about proximate cause.
Legal framework
The court sets out the statutory definition of “occupational disability” and
cites our case law holding that an employee can qualify for occupational disability
benefits when an occupational hazard causes an increase in symptoms, even if it does not
-21- 7166
cause a worsening of the underlying condition itself. Under the statute and our case law
on aggravation, Shea had to show that it was more likely true than not1 that “a hazard
undergone, while in the performance and within the scope of [her] duties” was a
proximate cause of a physical condition that “presumably permanently prevents [her]
from satisfactorily performing [her] usual duties.”2 The statute uses the phrase
“presumably permanently” only to modify the duration of an employee’s inability to
perform her job functions, not to measure the impact on a condition or symptom.3 The
State does not contest that Shea is permanently precluded from performing the usual
duties of her job.
The “hazard” for Shea was sitting, which she alleged aggravated her pain
from the ilioinguinal neuralgia diagnosed by her doctors. In the first administrative
decision, the ALJ wrote that “both parties agree that the primary cause of [Shea’s]
disability is a neurological injury incurred in 1984 that became disabling during the time
Ms. Shea was working for the State of Alaska.” The ALJ also wrote in that decision that
“the preponderance of the evidence is 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.” That finding was not appealed, and in the State’s brief in the
current appeal, it asserts that “[i]n Dr. Beard’s expert medical opinion, Shea’s pain was
not work-related, but was caused by her 1984 . . . procedure.” The ALJ referred to the
neurological injury only as ilioinguinal neuralgia, and the ALJ also noted that the State
1
See In re J.A., 962 P.2d 173, 177 (Alaska 1998) (equating preponderance
of the evidence with “more likely than not”); id. at 181 (Matthews, J., dissenting) (stating
that “customary civil preponderance-of-the-evidence standard . . . requires the trier of
fact to find that something is more likely than not true”).
2
AS 39.35.680(27).
3
Id.
-22- 7166
“did not attempt to prove that Ms. Shea’s pain was a psychological response to the
original non-work-related ilioinguinal neuralgia and as such was not proximately caused
by her employment.” The ALJ’s words do not suggest that the parties “raised a dispute
about the etiology of Shea’s current symptoms.” To the contrary, the ALJ’s decision
demonstrates that the question of the etiology of Shea’s symptoms was not an issue on
remand.
Neither party disputed that Shea was disabled from working. As the ALJ
said in the first decision, the only dispute was “whether the prolonged periods of sitting
were a substantial factor in her disability.”4 To show that prolonged sitting was a
proximate cause of her disability, Shea only needed to show that prolonged sitting was
a proximate cause of her increased pain.
We have previously observed that “increased pain or other symptoms can
be as disabling as deterioration of the underlying disease itself,” and we have rejected a
distinction between worsening of an underlying condition and worsening of the
symptoms.5 Elaborating on the question of increased symptoms in the context of
workers’ compensation, we recognized that “when a job worsens an employee’s
symptoms such that she can no longer perform her job functions, that constitutes an
‘aggravation’ — even when the job does not actually worsen the underlying condition.”6
The question is not, as the court puts it in its opinion today, “whether prolonged sitting
4
Although our decision in Shea II permitted the ALJ to reevaluate the
evidence as he deemed necessary, in the Decision on Remand the ALJ explicitly stated
that he made no new findings of fact “except insofar as whether prolonged sitting at work
was a substantial factor in Ms. Shea’s disability is an issue of fact.”
5
Hester v. Pub. Emps.’ Ret. Bd., 817 P.2d 472, 476 n.7 (Alaska 1991).
6
DeYonge v. NANA/Marriott, 1 P.3d 90, 96 (Alaska 2000) (discussing
Hester).
-23- 7166
in some way precipitated or worsened the symptoms or the underlying disease process
on a ‘presumably permanent[]’ basis.” Instead the question is whether the hazard Shea
underwent at work worsened her symptoms to such an extent that she was permanently
precluded from performing her job duties.7 She could demonstrate this not only by
showing that sitting at work permanently caused an increase in her baseline pain, but also
by showing that sitting at work increased her pain to such an extent that she could not
perform her work and that this circumstance was permanent — that it would not
improve.8 Shea presented evidence supporting both propositions.
Administrative decision on appeal in this case
The ALJ decided on remand that Shea had proved but-for causation but had
not shown that sitting at work was so significant a factor in her disability that reasonable
persons would consider it a cause and attach responsibility to it. In reaching that
decision, the ALJ acknowledged that Shea had presented substantial evidence that her
work was a substantial factor in causing her disability, and he specifically identified the
following evidence to support this statement: Dr. Smith’s opinion “that prolonged
sitting aggravated a physical condition and her pain symptoms,” coupled with the
increase in Shea’s pain symptoms while she worked for the State and the evidence that
Shea “sat for prolonged periods of time while working and found it painful.”
The ALJ then listed the six pieces of “substantial evidence” that countered
Shea’s proof; that list is set out in the court’s opinion. The ALJ discussed separately the
evidence that persuaded him Shea had not shown that work was so significant a cause
7
AS 39.35.680(27).
8
The ALJ recognized the connection between job requirements and disabling
symptoms when he observed that “[a]bsent some reason to believe that a change to a
comparable position or job will alleviate or eliminate the disabling symptoms, employers
and employees have no incentive to investigate available alternatives.”
-24- 7166
in her disability that he would attach legal responsibility to it. The ALJ’s discussion
focused on the manner in which Dr. Beard’s opinion differed from Dr. Smith’s and the
timing of Shea’s reports regarding her pain, although he mentioned other factors as well.
The ALJ examined testimony of the two doctors whose opinions he had
given the most weight, Dr. Smith and Dr. Beard. The ALJ acknowledged that
Dr. Beard’s opinion about aggravation was based on an incorrect legal standard and “did
not directly rebut Dr. Smith’s opinion as to aggravation of chronic pain.”9 The ALJ
stated that Dr. Beard’s “testimony, in substance, was to the effect that Ms. Shea’s
ilioinguinal neuralgia had resolved.” The ALJ reasoned that this aspect of Dr. Beard’s
opinion “weaken[ed] the basis for [Dr. Smith’s] opinion, which was that . . . [the]
[]ilioinguinal neuralgia[] had not resolved.” (Emphasis in original.) Notably, the ALJ
did not infer from Dr. Beard’s testimony that something other than the ilioinguinal
neuralgia was the underlying cause of Shea’s chronic pain. Citing Smith v. University
of Alaska, Fairbanks,10 the ALJ commented that Dr. Beard’s testimony “has some
persuasive weight even in the absence of a definitive statement applying the correct legal
standard.” But nothing in the ALJ’s discussion even hints at a finding “that Dr. Beard’s
testimony raised a dispute concerning the etiology of Shea’s current symptoms.” Yet,
the court insists that the ALJ found “that Dr. Beard’s testimony raised a dispute
concerning the etiology of Shea’s current symptoms” and “found there was dispute
between the doctors concerning the underlying cause of Shea’s disability,” but the
9
The court attempts to minimize Dr. Beard’s use of the incorrect standard
by saying it “was relevant only to her ‘opinion as to causation.’ ” But causation was the
sole issue on remand and is the issue on appeal. The ALJ explicitly said that
“Dr. Beard’s opinion as to causation was somewhat less persuasive than Dr. Smith’s”
(emphasis added) because she used the incorrect legal standard.
10
172 P.3d 782, 791 (Alaska 2007).
-25- 7166
administrative decisions simply do not support this assertion. In discussing the “ ‘Attach
Responsibility’ requirement,” the ALJ wrote:
In this case, Dr. Smith was of the opinion that
prolonged sitting at work aggravated Ms. Shea’s chronic
pain. Dr. Beard’s opinion was couched in terms of the
underlying physical condition, and thus did not directly rebut
Dr. Smith’s opinion. Nonetheless, Dr. Beard’s testimony
provides support for the view that prolonged sitting at work
was not a substantial factor in Ms. Shea’s disability, because
her testimony, in substance, was to the effect that Ms. Shea’s
ilioinguinal neuralgia had resolved. Thus, while Dr. Beard
did not directly rebut Dr. Smith’s opinion as to aggravation
of chronic pain, her testimony weakens the basis for his
opinion, which was that Ms. Shea’s underlying physical
condition (ilioinguinal neuralgia) had not resolved. In light
of Dr. Beard’s testimony, Dr. Smith’s opinion that
Ms. Shea’s chronic pain was work-related is only marginally
persuasive.[11]
The ALJ did not attempt to reconcile his interpretation of Dr. Beard’s testimony with his
statement in the initial decision that “the preponderance of the evidence is 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.”
The ALJ also discussed at length his reasoning related to Shea’s reports
about the impact of sitting at work. A crucial aspect of the ALJ’s analysis was his
concern that Shea had not reported to her physicians that prolonged sitting at work was
causing her pain to increase. According to the ALJ, “[a] claimant’s reported perception
of pain and the activities that generate it, made for the purpose of assisting in the
diagnosis and treatment of that pain, is important evidence of the cause of that pain.”
The ALJ then wrote that “reasonable persons will consider whether the claimant reported
11
Emphasis in original; footnotes omitted.
-26- 7166
a work injury as a source of pain during the period of employment, and, if not, whether
there is a reasonable explanation for the failure to do so.” (Emphasis added.) The ALJ
then found the following (as later revised):
In this case, Ms. Shea did not identify sitting as a causal
factor until 1999, and she did not identify sitting at work as
a causal factor until two years after she retired, in 2003. . . .
[T]he alleged relationship between her working conditions
and the disability is one that Ms. Shea might reasonably be
expected to have identified through direct personal
experience, and to tell her treating physician: “It hurts when
I sit for a prolonged period of time.” Under these
circumstances, that Ms. Shea did not report to a physician
prolonged sitting at work as contributing to her chronic pain
while she was still employed suggests that prolonged sitting
at work was not so significant and important a cause as to
attach legal responsibility to her employer.[12]
The ALJ cited the fact that Shea had “not report[ed] to a physician working
conditions as contributing to her pain until after she had stopped working” and “evidence
that the ilioinguinal neuralgia had resolved and that psychological factors may have
contributed to her disability” as supporting his conclusion that Shea had not shown that
reasonable persons would attach legal responsibility to her employer for her disability.
Because the ALJ focused on these two reasons to reject Shea’s claim, and because the
ALJ acknowledged that reasonable people could also conclude that Shea’s work was a
legal cause of her disability, the factual underpinnings of his main reasons must be
examined in detail.
Reporting work-related sitting to a physician
With regard to Shea’s report of sitting as a cause of her pain, the record
shows that Shea did just what the ALJ said she was “reasonably expected to do.” She
12
Emphasis added.
-27- 7166
reported to her treating physicians, beginning in 1999, that sitting was causing her
increased pain.13 The ALJ notably failed to discuss “the reasonable explanation” for her
failure to report employment-specific prolonged sitting to her doctors: She had discussed
the problem with her supervisor at work, and the employer was taking steps to address
the problem. From the point of view of medical diagnosis and treatment, prolonged
sitting at work is not reasonably distinguishable from prolonged sitting in general except
that the worker may have less control over varying her activity or work conditions, such
as the type of chair she uses. If an employer is attempting to address those conditions,
as Shea’s supervisor was, a physician does not really need to know for purposes of
diagnosis and treatment whether the prolonged sitting is happening at work or elsewhere.
Because Shea’s supervisor was working with her to address her increased pain at work,
Shea had no need to report her work conditions to her doctor, particularly in light of her
earlier report to her physicians that sitting increased her pain. As the superior court
observed, Shea’s reports to her supervisor indicate “that she knew [sitting] was a factor
in what caused her pain.” Thus, I agree with the superior court that Shea’s failure to
report to a physician that prolonged sitting at work was causing increased pain was “not
particularly convincing evidence” that could serve to undermine the evidence supporting
Shea.14
13
Initially, the ALJ found that Shea “did not identify sitting at work as a
causal factor” at all until 2003, concluding that her failure to “report prolonged sitting
at work as contributing to her chronic pain while she was still employed suggests that
prolonged sitting at work was not so significant and important a cause as to attach legal
responsibility to her employer.” He amended the decision to reflect that Shea failed to
report work-relatedness to a physician but did not otherwise amend the discussion.
14
While I agree with the superior court that the ALJ’s decision can be
reversed outright, the ALJ’s failure to discuss Shea’s explanation merits at a minimum
a remand so the ALJ can discuss Shea’s perfectly reasonable explanation of why she did
(continued...)
-28- 7166
Dr. Beard’s testimony
The ALJ cited Dr. Beard’s testimony “to the effect that Ms. Shea’s
ilioinguinal neuralgia had resolved” to support his ultimate conclusion and to counter
Dr. Smith’s opinion that prolonged sitting at work probably did increase Shea’s pain.15
The superior court carefully examined the portion of Dr. Beard’s testimony that the ALJ
relied on and concluded, correctly in my view, that this testimony did not support a
finding that the ilioinguinal neuralgia had resolved. Dr. Beard testified that Shea “had
just recently been evaluated . . . and diagnosed with that condition” at the time of
Dr. Beard’s examination. Dr. Beard then testified that Shea’s disability is “really chronic
pain,” where a patient stops seeking treatment for the underlying condition and instead
seeks treatment for the pain. This testimony does not support a finding that the
ilioinguinal neuralgia had resolved. And, as the ALJ pointed out, the State “did not
attempt to prove that Ms. Shea’s pain was a psychological response to the original non­
work-related ilioinguinal neuralgia and as such was not proximately caused by her
employment.”
14
(...continued)
not identify to her physicians that sitting at work, rather than simply sitting, was a causal
factor in her increased pain. Shea argued at the administrative level that her complaints
to her supervisor showed that Shea understood the link between her work and her
increased pain.
15
Dr. Smith testified that prolonged sitting at work aggravated Shea’s pain
in two ways: by increasing it during work, after which the pain would return to baseline,
and by increasing her baseline level of pain. When the ALJ asked a clarifying question,
Dr. Smith affirmed that “there might be potentially temporarily more . . . of an increase
from [Shea’s] baseline, but over time 5 or 10 percent.” Dr. Smith also testified that he
did not think there would be “a cure” for Shea’s condition and that “this is something
she’s likely to have to live with.”
-29- 7166
The superior court considered other parts of Dr. Beard’s testimony, to the
effect that the duration of Shea’s symptoms “would not be typical” if the neuralgia was
caused by the earlier surgery because ilioinguinal neuralgia cases usually “resolve
relatively quickly.” But, as the superior court correctly determined, this testimony does
not show that Shea’s neuralgia had resolved: Rather, “it shows either that (1) Shea’s
condition was atypical, or (2) something else was causing her pain.” Because the ALJ
incorrectly inferred that Shea’s neuralgia had resolved in order to discredit Dr. Smith’s
opinion about causation, the superior court correctly discounted this part of the ALJ’s
decision.
The court takes the position that the ALJ made the latter inference and “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.” But nothing in the ALJ’s
opinion supports the court’s assertion that “the etiology of Shea’s current symptoms”
was in question; this assertion is flatly contradicted by the ALJ’s earlier finding, based
on the preponderance of the evidence, that Shea’s 1984 procedure “result[ed] in long­
term unresolved ilioinguinal neuralgia.” The relevant material and contested issue was
not the etiology of Shea’s symptoms; if that issue was contested, the ALJ resolved it in
the first decision. The contested question was narrower: By the time the ALJ discussed
this portion of Dr. Beard’s testimony, the only unresolved question was 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. The ALJ had already determined that sitting
was a but-for cause — that “but for periods of prolonged sitting at work, Ms. Shea would
not have been disabled in 2001.”
Rather than focusing on this narrow question, the court claims that the ALJ
“did find that Dr. Beard’s testimony raised a dispute about the etiology of Shea’s current
-30- 7166
symptoms.” But as set out above, the ALJ described Dr. Beard’s testimony as testimony
that the “ilioinguinal neuralgia had resolved.” The court points to no evidence or
testimony to show that the inference the ALJ actually made is supported by substantial
evidence, and as a result, this “evidence” cannot be a basis for the court or the ALJ to
discount Dr. Smith’s opinion. And the ALJ said Dr. Beard’s testimony undercut
Dr. Smith’s because “her testimony weakens the basis for his opinion, which was that
Ms. Shea’s underlying physical condition (ilioinguinal neuralgia) had not resolved,”
(emphasis in original) not because the testimony pointed to an alternative cause for the
pain.
Furthermore, if Dr. Beard’s testimony posited another medical condition
that might have been the underlying cause of Shea’s pain and inability to work, that
testimony was not relevant. According to the State “[i]n Dr. Beard’s expert medical
opinion, Shea’s pain was not work-related, but was caused by her 1984 . . . procedure.”
And in the context of his discussion of but-for causation, the ALJ wrote that the State
“did not establish an alternative explanation, supported by an expert medical opinion, as
to why [Shea] began to experience disabling pain during her employment.” He
acknowledged “evidence that psychological factors contributed to Ms. Shea’s disability”
but also wrote that the State “did not attempt to prove that Ms. Shea’s pain was a
psychological response to the original non-work-related ilioinguinal neuralgia and as
such was not proximately caused by her employment.” Because the factual issue
regarding the etiology of Shea’s pain was either uncontested or had been resolved in
Shea’s favor, if Dr. Beard’s testimony supported an inference that something other than
ilioinguinal neuralgia was causing the pain, that factual inference was not legally
-31- 7166
relevant.16 Because substantial evidence must be relevant evidence,17 the inference the
court today attributes to the ALJ — that “Dr. Beard’s testimony raised a dispute
concerning the etiology of Shea’s current symptoms” — is not substantial evidence
because it did not make more or less likely the existence of a material fact. In discussing
legal cause, the ALJ made no inferences as to other possible causes of Shea’s chronic
pain because the possibility of other possible causes was not contested.
The other part of Dr. Beard’s testimony that the ALJ relied on was her
opinion that psychological factors may have contributed to Shea’s disability. While the
superior court agreed that substantial evidence supported the ALJ’s “tepid” finding that
psychological factors “may have contributed to Shea’s disability” (emphasis in original),
the superior court also highlighted Dr. Beard’s testimony that there was no psychological
evaluation of Shea, making impossible a determination of the degree to which
psychological factors were involved.18 I agree with the superior court’s conclusion that
this finding has no bearing on the ultimate question of causation because there was no
evidence beyond the speculative possibility that psychological factors were at play. We
16
See Bylers Alaska Wilderness Adventures, Inc. v. City of Kodiak, 197 P.3d
199, 207 (Alaska 2008) (“[E]vidence is relevant if it tends to make the existence of a
material fact more or less likely.” (citing Alaska R. Evid. 402)).
17
Smith v. Univ. of Alaska, Fairbanks, 172 P.3d 782, 788 (Alaska 2007)
(“Substantial evidence is ‘such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.’ ” (quoting Circle De Lumber Co. v. Humphrey, 130
P.3d 941, 946 (Alaska 2006))).
18
Indeed, the ALJ wrote that the State “did not attempt to prove that
Ms. Shea’s pain was a psychological response to the original non-work-related
ilioinguinal neuralgia and as such was not proximately caused by her employment.” This
contradicts the ALJ’s reliance on the psychological aspect of Shea’s pain in rejecting her
proximate cause argument.
-32- 7166
have held in a variety of contexts that speculation is not substantial evidence.19 The State
agreed, and continues to agree, that the underlying basis of Shea’s pain was a
neurological injury in 1984, which the ALJ repeatedly characterized as ilioinguinal
neuralgia. The only contested issue was causation; if the State’s theory of the case was
that something other than pain related to the ilioinguinal neuralgia was Shea’s underlying
medical condition, that theory of the case was not apparent to the ALJ. And it cannot be
an alternative theory the court can use to affirm the ALJ’s decision because it would
require additional fact finding.20 While the court contends that “the State’s ‘theory of the
case’ did not have to include an alternative diagnosis” in order for the ALJ to find that
Shea had not met her burden of proof, the court cannot manufacture a dispute about the
evidence and make alternative findings that the fact-finder did not make in order to
affirm.21 Nothing in the ALJ’s decisions supports the court’s statements that a dispute
19
See, e.g., State, Dep’t of Commerce, Cmty. & Econ. Dev., Div. of Corps.,
Bus. & Prof’l Licensing v. Wold, 278 P.3d 266, 272, 274 (Alaska 2012) (observing that
speculation by an expert was not substantial evidence); May v. State, Commercial
Fisheries Entry Comm’n, 175 P.3d 1211, 1217 (Alaska 2007) (“CFEC’s determination
that May did not prove a commercial harvest is based on speculation rather than
substantial evidence.”); Hoth v. Valley Constr., 671 P.2d 871, 874 (Alaska 1983) (“The
mere possibility of another injury is not ‘substantial’ evidence to overcome the
presumption of compensability.”).
20
Cf. Irby v. Fairbanks Gold Mining, Inc., 203 P.3d 1138, 1142-43 (Alaska
2009) (relying on alternative legal grounds for affirming Board decision because Board
“made adequate factual findings” to support alternative legal basis, so that there were no
genuine factual disputes as to elements of alternative grounds); Bolieu v. Our Lady of
Compassion Care Ctr., 983 P.2d 1270, 1275 (Alaska 1999) (stating that Board need only
make findings about issues that are both material and contested and if Board “fails to
make a necessary finding, [the court] cannot fill the gap” but must remand to Board
(citing Stephens v. ITT/Felec Servs., 915 P.2d 620, 627 (Alaska 1996))).
21
Seybert v. Alsworth, 367 P.3d 32, 36 (Alaska 2016) (“We will affirm on
(continued...)
-33- 7166
regarding the existence of ilioinguinal neuralgia was the reason the ALJ found against
Shea on the question of legal cause.
In sum, Dr. Beard’s testimony did not contain the “evidence” the ALJ
considered so substantial as to undercut what the ALJ conceded was adequate proof of
causation by Shea. And her speculation that psychological factors were a factor is not
substantial evidence.
Other factors
The other two factors identified by the ALJ as important to his decision
about legal responsibility were (1) Dr. Smith’s testimony that “the aggravation of
[Shea’s] chronic pain symptoms due to prolonged sitting was limited to 5-10%” and
(2) evidence that “ordinary daily activities also aggravated her chronic pain.” But
evidence about the impact of ordinary daily activities is not persuasive evidence to
undermine Shea’s claim, particularly in light of the ALJ’s finding that her daily activities
did not change during the time she became increasingly disabled and, eventually, unable
to perform her work. I agree with the superior court that these two findings are
contradictory.
The amount of aggravation attributed by Dr. Smith to an “over time”
worsening of Shea’s chronic pain was five to ten percent; he indicted that Shea could
experience increased pain while sitting, after which her pain would return to baseline.
Quoting part of the statute out of context, the court contends that “the relevant inquiry
is whether prolonged sitting in some way precipitated or worsened the symptoms or the
underlying disease process on a ‘presumably permanent[]’ basis.” But that is not what
21
(...continued)
independent grounds not relied on by the superior court only when those grounds are
established by the record as a matter of law.” (citing Riley v. Simon, 790 P.2d 1339, 1343
n.7 (Alaska 1990); McGee v. State, 614 P.2d 800, 805 n.10 (Alaska 1980))).
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the statute says: AS 39.35.680(27) refers to “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.” An employee’s inability to
perform her work is what must be permanently precluded. Requiring a permanent
worsening of baseline pain is no different from requiring a permanent worsening of an
employee’s condition. The court’s misstatement of the statute is essentially a
reformulation of a distinction we rejected.22 And Dr. Smith’s testimony showed that
sitting at work both increased Shea’s pain while she was working and furthered her
permanent disabling pain by increasing her baseline level of pain over time. Dr. Smith
also testified that there was no cure for Shea’s pain. In spite of efforts by Shea’s
employer to ameliorate the working conditions that increased her pain, by the time
Shea’s employment with the State ended, her baseline pain had increased to the point
where that pain made completing her work impossible.
The court also argues that Dr. Smith’s opinion, standing alone, was
sufficient to defeat Shea’s claim because he testified that prolonged sitting would
permanently increase Shea’s pain by five to ten percent, and Shea II “leaves room for
such a finding.” Shea II permits the opposite conclusion as well,23 and the ALJ did not
rely exclusively on Dr. Smith’s opinion to find against Shea, instead listing it as one of
many pieces of evidence he weighed. Indeed, the reason the ALJ gave for considering
factors such as Shea’s reports to her physicians was “the close balance in the expert
22
See Hester v. Pub. Emps.’ Ret. Bd., 817 P.2d 472, 476 n.7 (Alaska 1991).
23
Shea II, 267 P.3d 624, 636 (Alaska 2011) (observing that under Alaska law,
“even a five to ten percent contribution could suffice if ‘reasonable persons would regard
the injury as a cause of the disability and attach responsibility to it’ ” (quoting Doyon
Universal Servs. v. Allen, 999 P.2d 764, 770 (Alaska 2000))).
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medical testimony.” In other words, the ALJ did not find Dr. Smith’s opinion persuasive
on the point as the court suggests.
A detailed examination of the reasons given by the ALJ for rejecting Shea’s
claim demonstrates that substantial evidence in the record does not support his
conclusions.
Causation overall
In his summary about the overall question of causation, the ALJ wrote that
Dr. Smith’s opinion alone was insufficient to “establish that prolonged sitting was a
substantial factor in [Shea’s] disability.” But the ALJ concluded that Dr. Smith’s opinion
in combination with two other factors was “substantial evidence that prolonged sitting
at work was a substantial factor in her disability.” The ALJ also listed evidence that, in
his view, undercut Shea’s case, including evidence that Shea did not “identify sitting as
a causal factor until February, 1999, after her symptoms had become highly
problematic.” But this evidence is consistent with Dr. Smith’s opinion that “over time”
prolonged sitting would cause Shea’s baseline pain to increase by five to ten percent.
Shea’s job with the State, which required prolonged sitting, began in 1993, and it was
following the six years from 1993 to 1999 that Shea identified prolonged sitting as
causing increased pain.
The ALJ listed “Dr. Beard’s expert medical opinion that prolonged sitting
did not permanently aggravate the underlying physical condition” as “substantial
evidence that prolonged sitting at work was not a substantial factor in Ms. Shea’s
disability,” even though the ALJ later acknowledged that this opinion appeared not to
apply the correct legal standard. Relying on our opinion in Smith v. University of Alaska,
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Fairbanks,24 the ALJ wrote that Dr. Beard’s “testimony has some persuasive weight even
in the absence of a definitive statement applying the correct legal standard.” But Smith
has no relationship to Dr. Beard’s opinion about aggravation. There is no indication that
the doctor’s testimony in Smith used an incorrect legal standard; rather, the testimony did
not, in the Board’s view, use an adequately specific probability formula.25 In contrast,
Dr. Beard gave a definite statement using an incorrect legal definition of aggravation,
testifying that she meant “to cause a permanent worsening or flare of [the] condition,”
which she identified as ilioinguinal neuralgia. Smith does not license reliance on an
expert opinion that has the wrong legal standard as its basis. And if the ALJ intended to
refer to the quotation in Smith from Larson’s treatise — to the effect that a fact finder
should consider “the real substance of what the witness intended to convey” rather than
engage in “a game of ‘say the magic word’ ”26 — that quote does not endorse use of an
incorrect legal standard. Moreover, when the ALJ discussed the substance of
Dr. Beard’s opinion, he focused on the inference that Shea’s ilioinguinal neuralgia had
resolved. As set out earlier, that inference is not supported by the record.
In his final analysis, Judge Volland correctly concluded that the ALJ made
contradictory findings in accepting Dr. Smith’s opinion to find “but for” cause but
discrediting the same opinion when analyzing proximate cause. The ALJ found that,
after Shea began to work for the State, her “level of pain was substantially greater, even
though her everyday activities did not change (except in response to pain).” This fact,
in conjunction with Dr. Smith’s expert opinion that it was at least 51% likely that
24
172 P.3d 782, 791 (Alaska 2007).
25
Id.
26
Id. (quoting 8 ARTHUR LARSON & LEX K. LARSON, LARSON’S WORKERS’
COMPENSATION LAW § 130.06[2][e] (2006)).
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prolonged sitting aggravated Shea’s injury, led the ALJ to find that Shea had established
that, “but for” her State employment, her condition would not have worsened. As the
superior court wrote, “If Shea’s daily activities remained unchanged and sitting was a
51% cause, it cannot be said that the daily activities defeat proximate cause.” The ALJ
credited Dr. Smith’s testimony to find “but for” cause, and I agree with the superior court
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 evidence relied on by the ALJ to deny Shea’s claim was either
incomplete or irrelevant to the question of proximate cause. And the court’s current
theory of the case is significantly different from the decision on review or the State’s
litigation position and does not apply the legal standard we have previously adopted for
aggravation claims. I therefore respectfully dissent from the court’s opinion and would
affirm Judge Volland’s decision reversing the ALJ’s decision.
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