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Osborne v. Construction v. Jordan and Alaska Insurance (9/15/95), 904 P 2d 386
Notice: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers
are requested to bring errors to the attention of the
Clerk of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, telephone (907) 264-0607, fax (907) 276-
THE SUPREME COURT OF THE STATE OF ALASKA
OSBORNE CONSTRUCTION COMPANY )
and ALASKA INSURANCE/ ) Supreme Court No. S-6105
AIAC, CO., )
) Superior Court No.
Appellants, ) 4FA-92-648 Civil
) O P I N I O N
) [No. 4259 - September 15,
KENNETH JORDAN, ) 1995]
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District,
Dale O. Curda, Judge.
Appearances: Tasha M. Porcello, Pletcher,
Weinig, Moser & Merriner, Anchorage, for
Appellants. Valerie M. Therrien, P.C.,
Fairbanks, for Appellee.
Before: Moore, Chief Justice, Rabinowitz,
Matthews, Compton and Eastaugh, Justices.
MOORE, Chief Justice.
EASTAUGH, Justice, with whom COMPTON,
Justice, joins, dissenting.
Kenneth Jordan filed a workers' compensation claim
against his former employer, Osborne Construction Company
(Osborne). The Alaska Workers' Compensation Board (the Board)
denied Jordan's claim, finding that Osborne had presented
substantial affirmative evidence to rebut the statutory
presumption of compensability and that the preponderance of
evidence indicated that Osborne's injury was not work-related.
The superior court reversed the Board's decision and Osborne
appealed.1 We affirm the superior court's decision.
II. FACTS AND PROCEEDINGS
Jordan was employed as a backhoe operator for Osborne
during the summer of 1989 at a project at Fort Wainwright.
Jordan alleges that he injured his lower back on, or around,
August 15, 1989, by lifting a compactor out of a ditch while at
work for Osborne. He did not report the injury to anyone and
continued to work. Jordan at one time claimed that he attempted
to report the injury but was instructed not to report injuries by
his immediate supervisor, Wayne Jordan (appellee's father), and
by the project supervisor, James Worley. Following their denial,
Jordan retracted his statement, claiming he should have said
Osborne did not want too many injuries reported.
Worley learned of Jordan's injuries when
he went to the job site to find a back hoe
and operator for a small digging job: [W]hen
I got there, I motioned him off the machine
and when he got off the machine he was
walking bent over side ways and I asked him
what had happened to him -- what happened to
you and he said -- he told me that [he] had
hurt his back. And I asked him how he did it
and then he said that he was -- was moving --
helping a laborer move a compactor out of a
. . . .
He got off the machine, he was stooped over
and he was limping and was real stiff. And
having had back surgery, he didn't have to
tell me what his problem might -- for
. . . .
I can look at a man -- a way a man's walking
and I can -- if you've ever had it, you know
Jordan also told his father, Wayne, what had occurred
at the job site. His father told the Board, "I thought he just
pulled a muscle in his back." This belief was corroborated when
his son continued to work and "after about two weeks, he stopped
limping." Jordan continued working at the Fort Wainwright job
and did not seek medical attention. He was laid off in October
1989. Up to the end of the job, he felt he could continue to
work as an operator:
I thought I could still continue
working. Once my leg quit hurting, I felt
better and I thought that I would get better.
My assumption was that I was going to get
better and I had improved -- in fact I had
improved without having the leg pain.
B. The Medical Diagnosis and Treatment
Jordan first consulted a physician concerning lower
back pain in March 1990. That physician, Dr. Young Ha, an
orthopedic surgeon in Fairbanks, made the following chart notes:
This young fellow who developed rather
sudden onset of pain in his left side of the
buttock which goes down the back of the thigh
all the way down to the calf. The pain is
rather persistent and quite disturbing in
terms of his ability to do things. . . .
This pain started about eight days ago after
playing basketball and moving furniture about
an hour although he does not recall any
specific incident in which he had any pain
although he did feel some discomfort in his
Late October [sic]2 1989 he had back
pain after pulling a plate compactor up from
a slope at his work for Osborne Construction
Company. However, he did not have any leg
pain and he did not lose any time from his
(Emphasis added.) Dr. Ha concluded that Jordan was suffering
from a herniated disc, most likely at L4-L5. He recommended
conservative treatment and instructed Jordan to return if he did
not improve. Jordan did not return for a follow-up visit.
He next sought relief from two chiropractic clinics.
In April 1990, while on vacation in Oklahoma, Jordan consulted
Dr. G. F. Palmer. Jordan's wife filled out the New Patient
Preliminary Information Questionnaire and described his problem
as pain through lower back to calf. The date of the accident was
stated as "beginning of March," and the cause was listed as
"carrying furniture." References on the form to "on the job"
injury and "workers' compensation" insurance were left blank.
Jordan signed the form. After returning to Fairbanks, Jordan
sought treatment from Dr. Frank Spaulding, DC, and began a series
of treatments. The intake forms from Dr. Spaulding's office also
indicated that Jordan's condition arose after "moving furniture,"
and he again answered questions concerning on the job injury and
workers' compensation in the negative. The efforts at seeking
relief through chiropractic manipulation were unsuccessful.
Jordan next sought an evaluation in May 1990 from Dr.
Edwin Lindig, an orthopedic surgeon at the Fairbanks Clinic.
Once again, Jordan stated on the patient intake form that his
condition arose after "moving in February." Later in May,
Jordan consulted Dr. George Vrablik, another orthopedic surgeon
at the Fairbanks Clinic. Jordan told Dr. Vrablik that he had
first hurt his back "at work," then later "while moving." Dr.
Vrablik ordered a CT scan, which revealed, for the first time,
that Jordan had herniated discs at three levels of his lumbar
spine, L3-L4, L4-L5, and L5-S1. Dr. Vrablik recommended that
Jordan fill out "workman's comp paperwork." This led to the
filing of the formal Report of Injury on June 5, 1990.
In June Jordan received a second opinion from Dr.
George Brown, another orthopedic surgeon in Fairbanks. Dr. Brown
confirmed Dr. Vrablik's diagnosis. With Dr. Vrablik out of town
on vacation, Dr. Brown performed a three-level decompression
laminectomy. Jordan recovered quickly from the surgery. In less
than two months, he accepted a temporary job with the Fairbanks
North Star Borough School District as a substitute custodian.
Subsequent to the surgery, the parties entered into a
stipulation that Jordan's permanent impairment rating, based on
the American Medical Association Guidelines to Permanent
Impairment, should be 21.5% of the whole man.3 Prior to the
stipulation, Osborne asked Dr. Robert Fu, an Anchorage orthopedic
surgeon, to rate Jordan's impairment. Osborne also asked Dr. Fu
to state an opinion as to the work-relatedness of Jordan's
disability. In a letter to Osborne's counsel, Dr. Fu stated
that, based on the history given him by Jordan and the records
which Osborne provided, the start of his back trouble was on
August 15, 1989, while working for Osborne, and the injury was
aggravated by his subsequent moving of furniture.
C. The Workers' Compensation Claim
Osborne initially accepted Jordan's claim for workers'
compensation benefits and paid temporary total disability (TTD)
and medical costs from June 7, 1990 to October 9, 1990, at which
time Jordan was released for light duty work as medically stable
under AS 23.30.265(21). In January 1991, Jordan filed an
Application for Adjustment of Claim requesting a hearing before
the Board. Osborne filed an answer controverting the benefits
requested by Jordan on the grounds that his back condition was
A hearing before the Board was held on December 17,
1991, but was not concluded. When the Board reconvened on
February 4, 1992, one of the three members of the panel
considering Jordan's claim was not present. The remaining two
members proceeded to hear the case under AS 23.30.005(f), which
permits two of the three panel members to constitute a quorum.
In a February 1992 Decision and Order, the two members
of the panel hearing the claim announced that they could not
agree on whether Jordan's claim was compensable. They decided to
submit the recorded testimony from the February 4, 1992, hearing
to the third member to review and cast the deciding vote.4
In a second Decision and Order issued March 31, 1992,
the absent member of the panel, having reviewed the record,
decided the claim was not compensable. The majority concluded
that Jordan was not a credible witness and that, as a result, the
medical reports supporting his claim also were not credible since
they were based on what Jordan had reported to the physicians.
The third board member wrote a separate dissenting
opinion. He wrote:
I do not find it particularly surprising
that someone suffering sharp back discomfort
would initially ascribe the pain to the most
recent vigorous activity. Once it is
apparent that the injury is more profound
than originally assumed, the search for the
underlying cause of the condition would of
necessity become more intense. Regrettably,
the employee's lack of reliability in this
case makes the determination of the ca[u]se
of his injury more difficult for everyone
concerned: the physicians, the employer and
the insurer, and the board. In a nutshell, I
am persuaded by Dr. Brown's opinion that the
employee's claim simply fits the facts better
than alternate explanations. I would find
the employee's attempt to move a heavy
industrial dirt compactor the most likely
cause of his herniated disc. As a
consequence, I would find his claim
Jordan appealed the Board's decision to the superior
court. The superior court reversed the Board and remanded with
instructions to find Jordan's claim compensable. Osborne appeals
Under Alaska's workers' compensation statute, an
employee's claim is presumed to be compensable. AS
23.30.120(a)(1). The application of this statutory presumption
involves a three-step analysis. Louisiana Pacific Corp. v.
Koons, 816 P.2d 1379, 1381 (Alaska 1991) (per curiam). First,
the employee must establish a "preliminary link" between the
disability and his or her employment. Id. Once this preliminary
link has been established, "it is the employer's burden to
overcome the presumption by coming forward with substantial
evidence that the injury was not work related." Id. (quoting
Burgess Constr. Co. v. Smallwood, 623 P.2d 312, 316 (Alaska
1981)). While the employee still bears the burden of proof, the
burden of going forward with evidence shifts to the employer.
Municipality of Anchorage v. Carter, 818 P.2d 661, 665 (Alaska
1991). If the employer successfully rebuts the presumption of
compensability, the presumption drops out and the employee must
prove all of the elements of the case by a preponderance of the
evidence. Koons, 816 P.2d at 1381.
The Board found that Jordan successfully established a
preliminary evidentiary link raising the presumption of
compensability. This finding was based on the testimony of
Jordan's supervisors that he suffered a back injury on the job.
Osborne does not dispute this finding. The real controversy in
this appeal centers on whether Osborne adequately rebutted the
presumption of compensability.
An employer can rebut the presumption "either by
presenting affirmative evidence that the injury is not work-
connected or by eliminating all possibilities that the injury was
work-connected." Veco, Inc. v. Wolfer, 693 P.2d 865, 872 (Alaska
1985). Whether or not an employer has produced substantial
evidence to rebut the presumption of compensability is a question
of law to which this court applies its independent judgment. Id.
at 871 n.8. "Substantial evidence is 'such relevant evidence as
a reasonable mind might accept as adequate to support a
conclusion.'" Hoth v. Valley Constr. 671 P.2d 871, 875 (Alaska
1983) (quoting Miller v. ITT Arctic Serv., 577 P.2d 1044, 1049
In this case, Osborne sought to rebut the presumption
of compensability by presenting evidence that Jordan originally
attributed the onset of his 1980 disability to moving furniture
and playing basketball. A majority of the board agreed, finding
that "[t]he available medical records of the employee's visits to
the chiropractors and to Dr. Ha on March 19, 1990, all implicitly
indicate that this back condition arose by the employee either
playing basketball or moving furniture."
The superior court reversed the board, observing that
"the evidence presented by Osborne, namely that Jordan initially
cited to the furniture moving and basketball playing as the
potential culprits of his back and leg pain, does not exclude the
possibility that the injury he experienced after lifting the
compactor was somehow the culprit." We agree. Under Alaska
law, a disability arising after a non-work-related injury is
still compensable if an earlier work-related injury substantially
contributed to the employee's disability. See Walt's Sheet Metal
v. Debler, 826 P.2d 333, 335 (Alaska 1992). Thus the fact that
an employee has suffered a non-work-related injury does not,
standing alone, rebut the presumption of compensability. Alaska
Pacific Assur. Co. v. Turner, 611 P.2d 12, 14 (Alaska 1980)
(holding that where an employee suffers a work-related injury and
then suffers an aggravation unrelated to his employment, the
employer must show that the work-related injury was not a
"substantial factor contributing to the later injury" in order to
rebut the presumption of compensability).
In Turner, an employee began to suffer from pain in his
right leg while working as a heavy machine operator. Although
his leg pain grew progressively worse, the employee did not
consult a doctor. Approximately two months after he stopped
working for his employer, in part because of his recurrent leg
pain, the employee experienced a sharp pain in his back when he
lifted the tongue of a boat trailer. Id. at 13. The employee
then consulted a doctor who ultimately concluded that the
employee had suffered a herniated disc as a result of his work as
a heavy machine operator. Id. at 13-14. In reversing the
board's finding that the employer had rebutted the presumption of
compensability, we observed:
Apparently the Board concluded that [the
employee] either suffered no injury while
working for [the employer] or that, if he
did, such injury was not a substantial factor
contributing to the later injury. In
essence, the Board chose to disbelieve [the
employee's] account of the onset of his
symptoms and rejected Dr. Newman's evaluation
of his injuries. The Board emphasized [the
employee's] failure to seek medical attention
until after the trailer lifting incident, and
his failure to mention any back or leg pain
while visiting a medical clinic for a skin
problem in January, 1976. Relying on Dr.
Newman's notes, which were later related by
him in his testimony, the Board further
emphasized what it perceived as conflicts in
the medical history [the employee]
purportedly gave to Dr. Newman. Based on
this evidence, the Board concluded that [the
employee's] disability resulted entirely from
the trailer lifting incident.
Seemingly ignored by the Board was the
testimony of [employee's] camp supervisor,
Robert Terry, which strongly supported [the
employee's] own testimony, and the opinion of
his doctor, that his symptoms appeared and
worsened while he was working for [the
employer]. We note also that the record
contains no medical opinion contrary to the
one expressed by Dr. Newman . . .
Id. at 14-15 (footnotes omitted). In the absence of conclusive
medical evidence, the Turner court concluded that the employer
had failed to present substantial evidence rebutting the
presumption of compensability. Id. at 15.
Although expert medical evidence is not always
necessary to rebut the statutory presumption, something more than
proof of a non-work-related injury is required. See, e.g.,
Wolfer, 693 P.2d at 871-74. In Wolfer, an employee became
disabled after he collapsed at work while tightening an overhead
bolt in 1980. The employer sought to rebut the presumption of
compensability by presenting circumstantial evidence suggesting
that the employee's 1980 disability had actually been caused by
an earlier 1979 injury. We summarized the employer's evidence as
(1) [The employee] suffered a disabling
back injury in December 1979. [The employee]
testified, both in his deposition and at his
hearing, that since 1979, his back bothered
him recurrently whenever he engaged in manual
(2) [The employee] testified that on two
prior occasions (in March and April of 1980)
he passed out while bending over. [The
employee] related these incidents to his
December 1979 injury.
(3) It is undisputed that when [the
employee's] back gave out in October 1980, he
was not engaged in strenuous activity and did
not slip or fall.
(4) [The employee] wrote in his October
1980 Report of Occupational Injury or Illness
that he had "pulled something in his back"
which "happens of [sic] and on every so often
under hard labor since 1979."
(5) [The employee] testified that when
he returned to Veco on October 23, 1980, he
worked primarily as a supervisor. [The
employee] continued working after October 26,
1980, until he was laid off on November 27,
1980 because of a reduction in the work
(6) [The employee's treating physician
after November 1980] testified that [the
employee] never mentioned the October 1980
incident when he described the medical
history of his injury in December 1980. [The
doctor] found [the employee's] complaints to
be consistent with his description of the
December 1979 injury. [A second doctor] also
referred only to the December 1979 injury in
Id. at 871-72. On appeal, we held that a reasonable mind might
rely on this evidence to conclude that the employee's 1980 injury
did not cause his subsequent disability. Id. at 870-72
(rejecting the employee's claim that the employer was required to
produce expert medical evidence to rebut the presumption of
compensability). "This evidence, if relied upon, tends to show
that the October 1980 incident, did not change the type of work
[the employee] could do, or aggravate his original injury." Id.
at 872. We thus concluded that the circumstantial evidence
presented by the employer, coupled with the employee's own
statements concerning his back condition, created a reasonable
inference that the 1980 injury was merely a "flare-up" of the
employee's earlier injury. Id.
Under Wolfer and Turner, Osborne has failed to present
sufficient affirmative evidence to rule out the work-relatedness
of Jordan's injury. The sole evidence presented by Osborne to
show that Jordan's disability was not related to his 1989 work
injury was that (1) Jordan experienced sudden leg and lower back
pain after playing basketball and moving furniture in February
1990, and (2) Jordan failed to mention his 1989 work injury on
his medical intake forms when he subsequently sought medical
attention for his back pain. This alone does not constitute
substantial evidence that Jordan's back problem was not work-
related; it is entirely reasonable for a layperson to associate
the onset of sudden pain with his most recent physical activity.
Furthermore, it is undisputed that Jordan told Dr. Ha about his
1989 injury when he first consulted him in March 1990. Cf.
Wolfer, 693 P.2d at 871 (where the employee did not mention his
second injury at all when he consulted a doctor about his back
condition); Turner, 611 P.2d at 15 & n.6 (where it was unclear
from the doctor's medical records when the employee first told
the doctor about the work-related injury). In fact, none of the
doctors who examined Jordan and who were told of his injury at
work were willing to rule it out as the initial source of his
back trouble.5 On this record, a reasonable mind could not
conclude, based solely on Jordan's initial failure to cite his
work injury on his medical intake forms, that his 1989 injury did
not contribute to his 1990 disability. Neither the medical
evidence nor the circumstances surrounding Jordan's two injuries
support such a finding.
On appeal, Osborne places great emphasis on Jordan's
lack of credibility. The first argument raised in Osborne's
brief is that "[l]ying under oath is contrary to public policy."
Osborne appears to argue that a claimant who has been proven not
credible should not be entitled to the presumption of
compensability. Osborne is essentially arguing for an
oversimplification of the three-step analysis that applies in
workers' compensation claims. As discussed above, the
presumption only attaches once the claimant has established a
"preliminary link" between the injury and the employment. If a
claimant's testimony proved totally unreliable, this link would
not be established. However, where there is corroborating
evidence, as in this case, the link is clearly established.
Osborne also cites Resler v. Universal Services, 778
P.2d 1146 (Alaska 1989), for the proposition that a claimant's
lack of credibility, coupled with other evidence, is sufficient
to overcome the presumption. As Osborne correctly observes,
"[t]he issue before this court is narrowed to how much additional
evidence, in combination with the lack of credibility, is
required to support the board's conclusion." An examination of
the facts of Resler is instructive. Resler claimed that she
injured her shoulder while working as a housekeeper. Id. at
1147. However, several doctors who performed diagnostic tests
failed to find an objective basis for Resler's pain. Id. at 1148
& n.1. The Board found that the medical reports and the
testimony of the doctors, along with the depositions of Resler's
co-workers, constituted substantial evidence to rebut the
presumption that Resler's injury was work-related. Id. at 1150.
This court affirmed the superior court's affirmance of the
Board's decision. Id.
Jordan's case is distinguishable from Resler. There is
no dispute that Jordan suffered an objectively measured injury.
Furthermore, Jordan's supervisors, rather than disputing his
claim of work-relatedness, provided corroborating evidence that
he was injured while working for Osborne. Thus, Osborne has
failed to produce "some evidence," in addition to the employee's
lack of credibility, to rebut the presumption of compensability
under the Resler test.
Since Osborne has failed to produce substantial
evidence to rule out work-relatedness, Osborne has failed to
rebut the presumption of compensability. Therefore, we AFFIRM
the decision of the superior court, which reversed the Board.6
EASTAUGH, Justice, with whom COMPTON, Justice, joins
The majority opinion concludes that Osborne
Construction Co. failed to present sufficient affirmative
evidence to rule out the work-relatedness of Jordan's injury and
therefore failed to overcome the presumption of compensability.
I respectfully dissent because Jordan's descriptions of how and
when his radiating leg pain began, found in Jordan's medical
records, constitute "affirmative evidence" under Veco, Inc. v.
Wolfer, 693 P.2d 865, 872 (Alaska 1985).
A majority of the Board concluded that "[t]he available
medical records of the employee's visits to the chiropractors and
to Dr. Ha on March 19, 1990 all implicitly indicate that this
back condition arose by the employee either playing basketball or
moving furniture." Thus, the Board found the medical records to
be substantial affirmative evidence that Jordan's condition was
not work-related. It therefore concluded that Osborne had
overcome the presumption of compensability. I agree with that
Jordan experienced back pain in August 1989 while
working for Osborne. He did not report the injury when it
occurred, seek immediate medical treatment, or lose any time from
In March 1990 Jordan visited Dr. Young Ha complaining
of a sudden onset of radiating pain in his left leg; that pain
had started about a week earlier, shortly after he played
basketball and moved furniture. He had recently moved from one
residence to another. Dr. Ha's notes of the visit state, "This
pain started about eight days ago after playing basketball and
moving furniture about an hour although he does not recall any
specific incident in which he had any pain although he did feel
some discomfort in his lower back." The notes further state,
"Late October [sic] 1989 he had back pain after pulling a plate
compactor up from a slope at his work for Osborne Construction
Company. However he did not have any leg pain and he did not
lose any time from his work." (Emphasis added.)
Jordan did not return to Dr. Ha, but in April 1990
visited Dr. G.F. Palmer, D.C., for "pains through lower back to
calf." Jordan's wife filled out the new patient preliminary
information questionnaire, which Jordan signed. Under "Patient
Employed By:" Jordan named Osborne. Under "Date of Accident/
Beginning of Illness," Jordan wrote, "Beginning of March." In
response to "How did it occur? ___ Auto Collision ___ On-the-
job ___ Other," Jordan wrote next to "Other," "Carrying
furniture." After "PLEASE INDICATE WHICH KIND OF INSURANCE YOU
HAVE: GROUP INSURANCE ___ BLUE CROSS/BLUE SHIELD ___ WORKER'S
COMPENSATION ____ AUTO INSURANCE ___ MEDICARE ___ PERSONAL INJURY
___ OTHER INSURANCE ___," Jordan checked "OTHER INSURANCE."
Later that month, Jordan visited the Spaulding
Chiropractic Clinic, whose new patient information form reveals
similar information. Jordan filled out the two-page information
form. Under "WHAT ARE YOUR MAIN PROBLEMS (AREAS OF PAIN)? - how
long?" Jordan wrote "lower back and left leg - 5 weeks." Under
"HAVE YOU HAD SIMILAR ACCIDENTS/INJURIES?" Jordan checked "NO."
Under "PLEASE DESCRIBE THE CIRCUMSTANCES," Jordan wrote "moving
furniture." Jordan stated that the "DATE OF THE ACCIDENT OR
BEGINNING OF ILLNESS" was "3-13-90." Under "IF ACCIDENT, HOW DID
IT OCCUR? ___ AUTO ___ ON THE JOB ___ OTHER," Jordan checked
"OTHER." Under what type of insurance was the case covered by,
Jordan selected "GROUP INSURANCE" and "PERSONAL INJURY," rather
than "WORKER'S COMPENSATION." He also reported that he was
employed by "Osborn [sic] Const."
In May Jordan saw another orthopedic surgeon, Dr. Edwin
Lindig, who noted in Jordan's medical history that his condition
arose after "moving in February."
The Jordans' oral and written accounts memorialized in
the records of Drs. Ha, Palmer, and Spaulding do not mention any
relationship between his August 1989 injury while employed by
Osborne and the radiating pain that led him to seek treatment in
1990. Instead, they affirmatively deny a work-relationship and
offer a non-employment explanation for how his radiating pain
originated. A reasonable person could fairly find from that
evidence that in 1990 Jordan suffered a new medical problem which
was different from or more severe than the problem he experienced
in 1989 as a result of his employment. Further, the current
manifestation of his medical problem -- herniations of three
lumbar discs -- was radiating pain, instead of the non-radiating
pain he told Dr. Ha in 1990 he had experienced on the job six
The medical history memorialized in these accounts is
relevant evidence adequate to support a reasonable conclusion
that the radiating pain Jordan experienced in March 1990
originated in recent, non-work-related activities. Substantial
evidence is "such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion." Gillispie v. B & B
Foodland, 881 P.2d 1106, 1109 (Alaska 1994) (emphasis added).
Osborne's presentation of Jordan's medical accounts was therefore
sufficient to rebut the presumption of compensability. The Board
permissibly relied on substantial evidence which affirmatively
and permissibly supports a non-employment explanation. Thus, I
disagree with the majority's conclusion that under Wolfer,
Osborne failed to present sufficient affirmative evidence to
eliminate the work-relatedness of Jordan's injury. See Wolfer,
693 P.2d at 872 (concluding that the employer rebutted the
presumption of compensability by presenting circumstantial
evidence, coupled with the employee's statements regarding his
condition, to create a "reasonable inference" that the new injury
was "merely a flare-up" of the earlier injury).
Although the medical history was insufficient to
compel a conclusion that Jordan's radiating pain was not related
to his work, it was sufficient to overcome the presumption.
Additionally, assuming Alaska Pacific Assurance Co. v. Turner,
611 P.2d 12 (Alaska 1980), applies, this evidence is also
sufficient to permit a conclusion that the work-related injury
was not a "substantial factor" contributing to the condition
noted in March 1990. Id. at 14.
Having concluded that these medical records were
sufficient to rebut the presumption, I would proceed to review
the third stage of the Board's analysis, in which it weighed all
the evidence and concluded that Jordan had not proven his claim
by a preponderance of the evidence.7 Because substantial
evidence supports that conclusion of the Board, I would reverse
and remand with instructions to reinstate the Board's decision
and order rejecting Jordan's claim. See Resler v. Universal
Services, Inc., 778 P.2d 1146, 1150 (Alaska 1989) (upholding
Board's determination that employee failed to prove claim by a
preponderance of the evidence, considering that employee lacked
credibility coupled with witnesses' testimony).
1 Osborne's insurer, Alaska Insurance/AIAC Co., is co-
appellant in this case.
2 The correct month was August.
3 The Board rejected this stipulation in a Decision and
Order dated December 10, 1991, holding that the parties could not
by agreement impede the Board's prerogative to order, if it so
elected, its own independent medical evaluation under AS
4 We recently approved such a procedure in Schmidt v.
Beeson Plumbing & Heating, 869 P.2d 1170, 1177-79 (Alaska 1994).
5 Osborne emphasizes that the doctors' opinions regarding
causation are only as reliable as the information received from
Jordan. However, both Jordan's project supervisor and Jordan's
father observed Jordan in pain after he moved the compactor at
the Fort Wainwright project. Because the fact of Jordan's 1989
injury was corroborated by this testimony, Osborne must produce
substantial evidence ruling out that episode as the source of
Jordan's herniated discs. See Turner, 611 P.2d at 14-15.
6 Having concluded that Osborne failed to rebut the
presumption, we need not consider the next step in the workers'
compensation analysis -- the weighing of the evidence to
determine if the claimant has proved all elements by a
preponderance of the evidence.
7 The Board denied workers' compensation benefits to
Jordan, finding that the preponderance of the evidence indicates
that Jordan's condition "arose from incidents subsequent to his
employment, and not in the course and scope of his work." The
Board found Jordan's testimony not credible. It was "troubled by
the inconsistency of the employee's history over time, the
contradictions between his testimony and that of other witnesses,
and by his admitted misrepresentation related to unemployment
insurance." Therefore, the Board concluded that it could not
rely upon the later medical opinions which were based on Jordan's
"self-serving version of the events and symptoms." Instead, the
Board found Jordan's initial version of his history, as reflected
in the first medical reports, to be more credible.
"The [B]oard has the sole power to determine the
credibility of a witness. A finding by the [B]oard concerning
the weight to be accorded a witness's testimony, including
medical testimony and reports, is conclusive even if the evidence
is conflicting or susceptible to contrary conclusions." AS