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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Rhines v State Public Rmployees' Retirement Board (09/21/2001) sp-5472

Rhines v State Public Rmployees' Retirement Board (09/21/2001) sp-5472

     Notice:  This opinion is subject to 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, phone
(907) 264-0608, fax (907) 264-0878.



             THE SUPREME COURT OF THE STATE OF ALASKA
                                 


KRISTI RHINES,                )
                              )    Supreme Court No. S-9475
             Appellant,       )
                              )    Superior Court No.
     v.                       )    3AN-98-10510 CI
                              )
STATE OF ALASKA, PUBLIC       )
EMPLOYEES' RETIREMENT BOARD,  )    O P I N I O N
                              )
             Appellee.        )    [No. 5472 - September 21, 2001]
______________________________)



          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
                      Dan A. Hensley, Judge.


          Appearances: William J. Soule, Law Office of
William J. Soule, Anchorage, for Appellant.  Kathleen Strasbaugh,
Assistant Attorney General, Juneau, and Bruce M. Botelho, Attorney
General, Juneau, for Appellee.


          Before:   Fabe, Chief Justice, Matthews,
          Eastaugh, Bryner, and Carpeneti, Justices.  


          CARPENETI, Justice.


I.   INTRODUCTION
          Kristi Rhines appeals the denial of her claim for
occupational disability benefits under the Public Employees'
Retirement System.  Rhines worked as an administrative assistant
for the University of Alaska Fairbanks and claims that she
developed tendinitis and other injuries as a result of her
extensive use of a computer keyboard and mouse.  The superior court
upheld the Public Employees' Retirement Board's decision to deny
benefits based on the board's findings (1) that the university had
not terminated Rhines as a result of her injuries, and (2) that
even if she had been terminated, those injuries did not amount to
a permanent disability as required by the statute.  Because the
decision of the administrative board was both within the law and
supported by substantial evidence, we affirm the superior court. 
II.  FACTS AND PROCEEDINGS
          A.   Facts 
          Kristi Rhines began working for the University of Alaska
Fairbanks (UAF) on October 22, 1990.  Rhines worked as an
Administrative Assistant III with the school's Cooperative
Extension Service. 
          On February 8, 1993, Rhines filed a report of
occupational injury in which she complained of numbness and pain in
her hands and wrists caused by computer use.  Rhines contends that
the injuries became so extreme that she was no longer able to work
by the middle of March.  Rhines did not return to work after March
16, 1993.  Neither party argues in this appeal that Rhines's
injuries were not suffered as a result of her work at UAF.
          Rhines sought medical treatment for her injuries.  Dr.
Cammack and Dr. Pierson each concluded that Rhines would not be
able to work because of her injuries for short periods beginning in
March 1993.  The doctors wrote several notes excusing Rhines from
work for one to three weeks at a time.  
          In May 1993 Rhines received a letter from Charles
Hartman, her supervisor, informing her that the department was
undergoing a reorganization that would result in the elimination of
her position.  Specifically, the department was upgrading two
administrative assistants to the position of "fiscal officer." The
state claims that this reorganization was motivated by Hartman's
retirement and the desire to divide his previous responsibilities
between two fiscal officers.  Rhines was invited to apply for the
fiscal officer position that would result from the elimination of
her position.  The new position involved more responsibility and
higher pay.  Rhines applied for the fiscal officer position in June
of 1993, but was not selected for the job.  Rhines was informed
that due to the elimination of her current position she would be
laid off on July 30, 1993. 
          Following her termination, Rhines continued to seek
medical help.  She repeatedly saw Dr. Lindig, an orthopedist, for
treatment.  From December 17, 1993, through June 26, 1995, Dr.
Lindig's reports consistently stated that Rhines was not able to
return to work.  Dr. Lindig first noted that Rhines's injury was
permanent on June 26, 1995, but thereafter indicated that her
injury status was "undetermined"until April 17, 1996, when he
again indicated that her injury was "permanent."   
          In August 1995 Rhines went back to work as an accountant
for the Tanana Chiefs.  Notwithstanding maternity leave from the
middle of September to November of 1995 and absence because of
injury from December 1995 to May 1996, Rhines worked for the Tanana
Chiefs at least until the time of the board's first hearing in
October of 1996.  Rhines did claim that an aggravation of her
injuries prevented her from performing her duties in this new
position after she was asked to fill in for an absent employee
whose work involved use of a computer keyboard and mouse. 
          B.   Proceedings 
          Rhines applied for occupational disability benefits
through the Public Employees' Retirement System (PERS) in July 
1993.  In that application, Rhines claimed that she was unable to
use her hands and arms as a result of intensive use of a computer
and a calculator. 
          Dr. Franklin, medical consultant to the administrator of
PERS reviewed Rhines's application and supporting evidence.  In a
memorandum to the administrator dated December 16, 1993, Dr.
Franklin recommended against granting Rhines's application.  Dr.
Franklin reviewed the findings of six physicians who had seen
Rhines and concluded that physicians' reports "clearly do not
support a disabling condition." The PERS administrator denied
Rhines's application on December 28, 1993 finding "[n]o evidence of
a permanently disabling condition." Rhines filed a timely appeal
of the administrator's decision on February 3, 1994.  
          Rhines's claim for occupational disability was heard by
the Public Employees' Retirement Board in October of 1996.  At the
hearing, the board ruled that Rhines had not been terminated as a
result of her disability, and even if she had been, she was not
permanently disabled.  The board issued a written decision to the
same effect on November 12, 1996.  Rhines appealed the board's
decision to the superior court.
          While the appeal before the superior court was pending,
we decided Stalnaker v. M.L.D. [Fn. 1] in which we set out the
criteria for determining whether a PERS claimant was terminated
because of a claimed disability.  Accordingly, the superior court
remanded Rhines's case with instructions that the board apply the
M.L.D. standards in reaching its decision.     
          On remand, the board reconsidered the evidence as well as
Rhines's re-argument in light of the M.L.D. decision.  The board
concluded that M.L.D. was distinguishable and therefore did not
affect its decision in this case.  It incorporated its findings
from the previous hearing and denied occupational benefits once
again.  The board issued its second written decision on November 6,
1998. 
          Rhines appealed this second decision of the board to the
superior court.  This time the superior court affirmed the decision
of the board. 
          Rhines appeals. 
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 board's decision. [Fn. 2]  
          Factual findings made by the board are reviewed under the
"substantial evidence"standard. [Fn. 3]  Factual findings will be
upheld so long as there is enough relevant evidence to allow a
reasonable mind to adequately support such a conclusion. [Fn. 4] 
To the extent that the board's decision rests upon interpretation
of statutory language, such decisions involve questions of law to
which we  apply our independent judgment. [Fn. 5]  We will "adopt
the rule of law that is most persuasive in light of precedent,
reason, and policy."[Fn. 6] 
          The state argues that because the board has "developed
[a] body of case law"in adjudicating previous appeals, its
interpretive decisions merit the deference of a "reasonable basis"
standard of review.  However, such deference is owing only where
the agency's expertise is involved or where the agency has made a
fundamental policy decision. [Fn. 7]  Since the board has not shown
that such expertise or policy decision exists with regard to the
interpretive questions in this case, we decline to apply the
deferential "reasonable basis"standard here.
IV.  DISCUSSION
          Public officers and employees of the State of Alaska are
eligible for occupational disability benefits under the provisions
of AS 39.35.410(a).  That statute provides:  
          An employee is eligible for an occupational
disability benefit if employment is terminated because of a total
and apparently permanent occupational disability, as defined in AS
39.35.680, before the employee's normal retirement date.
In this case, the decision of the board to deny occupational
disability benefits to Rhines was based upon two findings: (1)
Rhines was not terminated because of her disability, and (2)
Rhines's injuries were not serious enough to qualify as a total and
permanent occupational disability. 
     A.   The Board Properly Rejected Rhines's Claim Because She 
Was Not Terminated Because of Her Disability.          
          The board found that Rhines's employment "terminated"
when her position was eliminated at the end of July 1993.  The
state argues that the termination would have occurred whether or
not she was disabled because it resulted from reorganizing the
department and eliminating Rhines's position. 
          Rhines argues that she is entitled to benefits because
her employment is properly understood as terminating in March 1993. 
Relying on M.L.D., she argues that the basis for awarding benefits
should be her condition rather than the status of her job.  Since
Rhines's condition would not permit her to return to work after
March 16, 1993, she concludes that March is the relevant date of
termination, and subsequent events not related to her disability
should not defeat her claim. 
          The statute specifies that benefits are only available
"if employment is terminated because of a . . . disability."[Fn.
8]  We addressed that specific requirement in M.L.D.  There, a
police officer was terminated from employment after he failed to
return from an authorized medical leave of absence.  M.L.D. claimed
that he failed to return due to the severe depression that had led
him to take the leave of absence in the first place. [Fn. 9]   
          We found that M.L.D.'s disability did cause termination
of his employment because it was his disability which prevented him
from returning.  His failure to return to work was the event that
triggered his termination.  We noted that it was improper for the
board to focus on whether the employer knew of or was motivated by
the disability, because even according to the employer's
explanation of the termination, it was still caused by the
disability. [Fn. 10]  A finding of causation did not require that
the employer be motivated by the disability when deciding to
terminate, as might be required in an employment discrimination
case. [Fn. 11]
          Rather than simply considering the employer's motivation,
the question of causation under the PERS statute requires "a
broader inquiry into the cause of the termination."[Fn. 12]  We
applied the tort law concept of "legal causation"to the question
at hand, noting:  
          [L]egal cause encompasses both an actual
causation or "but for"prong and a proximate causation or "legal
policy"prong.  Under the "but for"prong, the defendant's conduct
is a cause of the event if the event would not have occurred but
for that conduct.  Under the legal policy prong, the inquiry
focuses on whether the conduct has been so significant and
important a cause that the defendant should be legally
responsible.[ [Fn. 13]]
Therefore, with regard to a PERS claim, the first question is
whether the disability is a "but for"cause of termination.  If
that question is answered in the affirmative, then the court
considers the significance and importance of the disability's
causal role.  Before reaching that question of causation in this
case, however, the court must resolve a dispute between the parties
as to when Rhines was "terminated."
               1.   Rhines was terminated when her position was
eliminated in July 1993.
          The board treats the reorganization in July 1993 as the
point of termination, while Rhines argues that the termination
actually occurred on or about March 16, 1993.  The statute does not
define "terminated." Rhines relies on a definition of "terminated"
from Black's Law Dictionary noted by this court in M.L.D. -- "an
ending, usually before the end of the anticipated term of the . . .
contract."[Fn. 14] Yet, Black's also contains a definition for
"termination of employment,"which it defines as "a complete
severance of relationship of employer and employee."[Fn. 15]
          We conclude that the definition of "termination of
employment,"requiring a "complete severance"between employer and
employee, is the standard to be applied in employment cases.  This
conclusion is consistent with our decision in M.L.D., because in
that case there was a complete severance of the employment
relationship when the city sent a letter to M.L.D. informing him
that he was terminated three months prior to the expiration of his
contract.
          Black's definition of "terminated"used in M.L.D. begins
with the qualifying statement, "[w]ith respect to a lease or
contract."[Fn. 16]  Such a definition was relevant in M.L.D. to
point out that despite the contractual end date, the employment
relationship did not continue after the city terminated his
employment.  However, that definition is not as useful as the
definition of "termination of employment"because it is
inapplicable to situations, like the one here, where there is no
employment contract for a specified period of time.  The definition
of "termination of employment"is equally applicable to employment
situations whether or not they are governed by contract.
          Rhines's employment is properly understood as terminating
when she was laid off at the end of July 1993.  Rhines's injuries
in March 1993 did not cut off ties with her employer.  Subsequent
to her injury she requested a leave of absence, called the office
on several occasions to talk to the office manager, and applied and
interviewed for the fiscal officer job in order to "hold the
position open"for her.  The events after Rhines's injury do not
show a "complete severance"or an "end"of the relationship between
Rhines and UAF.
          Rhines goes on to argue that even though she might have
been actually terminated for reasons other than her disability, the
statute is intended to provide benefits for those who suffer the
sort of disability that leads to termination of employment.  She
suggests that the actual reason for termination is irrelevant
because her disability was the sort that would lead to termination
eventually and was thus deserving of disability benefits. 
          In part, Rhines relies upon two cases, Estate of Ensley
v. Anglo Alaska Construction, Inc. [Fn. 17] and State Public
Employees Retirement Board v. Cacioppo, [Fn. 18] to support her
argument that events occurring subsequent to injury do not defeat
benefits coverage.
          In Ensley, the claimant's workers' compensation payments
for a work-related back injury were discontinued because he was
subsequently stricken with non-work-related cancer. [Fn. 19]  We
held that it was error not to consider whether the back injury
constituted a disability regardless of the cancer. [Fn. 20] 
Similarly, in Cacioppo, we held that a firefighter could recover
occupational disability benefits even though his injury was
arguably caused by both occupational and non-occupational injuries.
[Fn. 21]   
          However, those cases are not relevant here for two
reasons.  First, each of them considers what caused the injury
rather than what caused termination of employment.  Specifically,
they analyzed whether the claimed injuries were work-related or
occupational despite subsequent events or additional injuries.  The
question whether Rhines's injury is occupational is not relevant to
this appeal: There is no question that the injury is occupational. 
The issue is whether Rhines was terminated because of her injury. 
Second, the cases cited by Rhines discuss the proximate cause
question of whether the work-related injuries were significant
enough to merit some award of benefits.  We instructed that the
initial work-related injury should be considered when it is one of
several causes of the disability. [Fn. 22]  However, Rhines has not
shown that her disability was one of the several actual causes of
her termination.  Until she establishes actual causation, these
cases are not relevant. 
          Rhines contends that since her injuries amounted to an
occupational disability, she should collect whether or not those
injuries actually led to her termination.  Yet the same argument
could be raised by almost everyone who satisfies the injury
requirement of AS 39.35.680(26).  Anyone who has a condition that
"presumably permanently prevents an employee from satisfactorily
performing the employee's usual duties for an employer or the
duties of another comparable position"[Fn. 23] will almost
certainly be prevented from continuing work as a result.  Rhines's
argument would effectively read the "if employment is terminated
because of"language out of the statute and make the only
requirement the existence of a total and permanent disability. [Fn.
24]  Such a reading would run against the plain language of the
statute as well as previous decisions of this court applying the
requirement that termination occur "because of"the disability.
[Fn. 25]  In addition, this would violate the maxim that "all
sections of an act are to be construed together so that all have
meaning."[Fn. 26]
          We conclude that Rhines was terminated when her employer
made a clear statement that the employment relationship was
discontinued.  Therefore, the examination of "legal causation"must
focus on Rhines's termination as a result of the department's
reorganization in July 1993. 
               2.   Rhines's disability was not an actual cause of
her termination.
          The state contends that Rhines was terminated because of
an office reorganization that would have occurred irrespective of
Rhines's disability.  Rhines argues that this court should reject
the state's actual causation argument based on her reading of
M.L.D.  
          In Rhines's view, in M.L.D. we rejected an argument
similar to the one raised here by the state -- that "but for"
causation did not exist because the claimant would have been fired
anyway when his contract expired.  In M.L.D., however, termination 
occurred months before the contract actually expired.  The employer
chose to terminate while the contract was still in effect. [Fn. 27] 
Had the employer simply allowed the contract to expire as a way of
terminating M.L.D.'s employment, then that case would be closer to
Rhines's case.  But it did not.  Therefore, Rhines's reliance on
M.L.D. is misplaced.
          As noted previously, termination occurred in this case
when a department reorganization eliminated Rhines's position in
July 1993.  Since Rhines has not shown that the reorganization was
caused by her disability, [Fn. 28] she has not established actual
causation.      
               3.   Rhines's disability was not a proximate cause
of her termination.
          Our finding with regard to actual causation is
determinative of the issue of proximate causation.  Since we uphold
the board's finding that the reorganization was the cause of
Rhines's termination, then the disability was not a factor at all. 
Since proximate cause is relevant only when actual cause has been
shown, we need not consider the issue.
          Since Rhines's disability is neither an actual nor
proximate cause of her termination, we affirm the board's finding
that she is not eligible for occupational disability benefits. 
     B.   Substantial Evidence Supports the Board's Finding that
Rhines's Injuries Did Not Amount to an Occupational Disability.

          In addition to ruling that Rhines's termination was not
caused by her disability, the board also ruled that her injuries
were not sufficient to qualify as an occupational disability as
defined in AS 39.35.680(26).  That definition provides:
          "occupational disability"means a physical or
mental condition that, in the judgment of the administrator,
presumably permanently prevents an employee from satisfactorily
performing the  employee's usual duties for an employer or the
duties of another comparable position or job that an employer makes
available and for which the employee is qualified by training or
education; however, the proximate cause of the condition must be a
bodily injury sustained, or a hazard undergone, while in the
performance and within the scope of the employee's duties and not
the proximate result of the wilful negligence of the employee[.]

The employee has the burden of proving that the requirements of the
statute have been met. [Fn. 29]  The board found that Rhines did
not meet her burden of showing that she was presumably permanently
disabled from performing her work.
               1.   Rhines failed to prove that her injuries are
permanent.
               
          The evidence showed that Rhines suffered from tendinitis
but did not convincingly show that she suffered from carpal tunnel
syndrome or other serious nerve damage.  The board relied upon the
opinions of seven physicians.  All seven agreed that Rhines
suffered from tendinitis, otherwise known as bursitis. [Fn. 30] 
Five of the physicians concluded that Rhines did not suffer from
carpal tunnel syndrome or a condition involving severe nerve
entrapment, while the other two doctors did not exclude the
possibility of carpal tunnel syndrome.  Only one doctor, Dr.
Lindig, expressed an opinion that these injuries were permanent.
          The board concluded that tendinitis was not a presumably
permanent condition that would leave Rhines unable to work.  At the
board's first hearing, Dr. Cole, a reviewing physician, testified
that tendinitis is generally not a permanent condition.  The board
also pointed to Rhines's apparent ability to work subsequent to her
injuries.  This was evidenced by her application for the fiscal
officer position, her work for Tanana Chiefs, and a list of
necessary accommodations composed by Rhines and her doctors.
          Rhines's complaints about the board's decision are best
summarized in two general arguments.  First, Rhines argues that the
opinion of Dr. Cole, a reviewing physician who never examined
Rhines, should be disregarded.  In addition, Rhines feels that the
opinions of several of the other physicians should be discounted
because the physicians either were not experts or reached their
conclusions under false assumptions.  Second, Rhines argues that it
was improper for the board to treat her attempts to find new
employment as evidence of her ability to work.  Rhines argues that
such a rule would encourage laziness and dissuade disabled workers
from pursuing any job that they might be able to perform.
          Rhines relies upon this court's holding in Black v.
Universal Services, Inc. [Fn. 31] for the proposition that the
opinion of a reviewing doctor should be discounted.  In Black, we
found that an agency decision was not based on "substantial
evidence"where the agency relied upon the opinion of a single
doctor who only examined the patient for twenty minutes when that
opinion was contrary to the opinion of numerous doctors who had
seen the patient repeatedly. [Fn. 32]  
          However, our decisions following Black clarified its
holding.  We have held that the opinions of reviewing physicians
may constitute substantial evidence when they are consistent with
other evidence presented. [Fn. 33]  The current case can be
distinguished from Black on that basis.  Whereas the board in Black
improperly relied upon the opinion of a single non-treating
physician against contradictory evidence, in this case Dr. Cole
relied upon a diagnosis of tendinitis and rejection of carpal
tunnel syndrome reached by several other physicians.
          Rhines also complains that the opinions of other doctors
should be disregarded because they either were not specialists or
misunderstood the reasons for Rhines's termination.  However,
Rhines does not adequately support these arguments.  Although the
opinion of a specialist may deserve more weight, Rhines presents no
evidence why the opinion of other physicians should be discredited. 
Similarly, Rhines fails to explain how a misunderstanding with
regard to the reasons for termination would lead a physician to
misdiagnose Rhines's injuries.
          Rhines complains that most of the evaluations upon which
the board relies were conducted within the first year, whereas Dr.
Lindig continually monitored Rhines's progress for several years
and eventually came to the conclusion that her condition was
permanent.  However, we do not reweigh the evidence under the
"substantial evidence"standard; instead, we only determine if such
evidence exists. [Fn. 34]  
          Because (1) Rhines has the burden on this issue and (2)
the board's finding need only be supported by "substantial
evidence,"the board's decision is subject to a very minimal
standard of review.  There need only be substantial evidence to
allow a reasonable mind to conclude that Rhines has not met her
burden.  Given that Rhines's expert cannot objectively prove that
her condition is permanent and that Dr. Cole testified that
injuries of this sort generally are not permanent and relied upon
the concurring examinations of several other physicians, there is
sufficient evidence for the board to reasonably conclude that
Rhines has not met her burden.
               2.   Rhines failed to prove that her injuries are
sufficiently disabling.

          Even if Rhines shows that her condition is permanent, she
has not shown that those injuries are disabling to the point that
they would prevent her from resuming her former position or a
comparable position.  Despite his opinion that her injuries were
permanent, Dr. Lindig appeared to endorse the idea that Rhines
could return to work so long as certain accommodations were made. 
Rhines did not provide evidence to show that any position to which
she could return with these accommodations would not be a
"comparable position"available with UAF.
          There was substantial evidence permitting the board to
find that Rhines had not met her burden of proving that she was
permanently injured and would not be able to return to work.
          Rhines does raise a valid concern with regard to the
board's treatment of her continuing efforts to find employment. 
Claimants in Rhines's situation should not be dissuaded from
returning to work if they are able.  The fact that Rhines applied
for the fiscal officer position after being invited to do so by her
supervisor shows very little about the nature of her injuries. 
Under the circumstances, she could not be expected to forego any
chance of returning to her job if she was at all uncertain about
whether her injuries would be permanent.  Similarly, the fact that
she has returned to work on its own is insufficient to establish
that she is not disabled.  The board did not make sufficient
findings with regard to Rhines's position at Tanana Chiefs to
establish that her work there was comparable to her previous
position.  In fact, Rhines testified that her work involved little
or no work with a computer, and her attempts to resume working with
a computer resulted in a re-aggravation of her injuries.
          However, any mistake made in evaluating these facts is
harmless error.  Rhines has the burden of establishing a primafacie case.  
She has failed to meet this burden, as her own expert
even endorsed the idea that she could return to comparable work. 
The fact that the board may have improperly relied upon her
continuing efforts to find employment to conclude that Rhines could
work does not help Rhines meet her burden to prove that she could
not return to comparable work.
V.   CONCLUSION
          The board properly found that Rhines was terminated when
the reorganization in July 1993 eliminated her position.  In
addition, substantial evidence supported the board's finding that
Rhines's injuries were not sufficient to qualify as an
"occupational disability"as defined in AS 39.35.680.  Therefore,
we AFFIRM the decision of the superior court to uphold the board's
decision that Rhines is not entitled to occupational disability
benefits under AS 39.35.410.


                            FOOTNOTES


Footnote 1:

     939 P.2d 407 (Alaska 1997).


Footnote 2:

     See DeYonge v. NANA/Marriott, 1 P.3d 90, 94 (Alaska 2000). 


Footnote 3:

     Id. 


Footnote 4:

     See id. 


Footnote 5:

     See Berger v. Wien Air Alaska, 995 P.2d 240, 242 (Alaska
2000).


Footnote 6:

     Id.


Footnote 7:

     See Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co., 746
P.2d 896, 903 (Alaska 1987).


Footnote 8:

     AS 39.35.410(a) (emphasis added).


Footnote 9:

     See M.L.D., 939 P.2d 407, 410 (Alaska 1997).


Footnote 10:

     See id. at 411-12.


Footnote 11:

     See id. at 413. 


Footnote 12:

     Id. at 412.


Footnote 13:

     Id. (citations and internal quotation marks omitted).


Footnote 14:

     Id. at 413 n.9 (quoting Black's Law Dictionary 1471 (6th ed.
1990)). 


Footnote 15:

     Black's Law Dictionary 1471 (6th ed. 1990).


Footnote 16:

     Id.


Footnote 17:

     773 P.2d 955 (Alaska 1989).


Footnote 18:

     813 P.2d 679 (Alaska 1991).


Footnote 19:

     Ensley, 773 P.2d at 956.


Footnote 20:

     Id. at 958.  


Footnote 21:

     Cacioppo, 813 P.2d at 683.    


Footnote 22:

     Id. at 683.  


Footnote 23:

     AS 39.35.680(26). 


Footnote 24:

     Rhines contends that reading the statute otherwise would lead
to absurd results.  For instance, she argues that under such a
rationale an employee who undoubtedly suffers a permanent
disability on the job would be denied occupational disability
benefits if UAF burned to the ground the next day.  Under the plain
meaning of the statute, Rhines's conclusion is correct; employees
with claims for occupational disability may be denied benefits if
the employer terminates them for unrelated reasons like downsizing,
reorganization, or even natural disaster.  Rhines argues that
permitting such nonsensical results will motivate employers to
concoct unrelated reasons for termination to defeat the
occupational disability claims of deserving claimants.   

          But the language of the statute is fairly clear.  "Where
a statute's meaning appears clear and unambiguous, . . . the party
asserting a different meaning bears a correspondingly heavy burden
of demonstrating contrary legislative intent." University of
Alaska v. Tumeo, 933 P.2d 1147, 1152 (Alaska 1997).  But Rhines has
not argued that legislative history dictates a different outcome.


Footnote 25:

     See, e.g., M.L.D., 939 P.2d 407, 411-12 (Alaska 1997). 


Footnote 26:

     Hendren v. State, Dep't of Revenue, Child Support Enforcement
Div., 957 P.2d 1350, 1352 (Alaska 1998).


Footnote 27:

     M.L.D., 939 P.2d at 410.


Footnote 28:

     Although the facts of this case might lend themselves to the
argument, Rhines has not challenged her employer's decision to
reorganize as merely a pretext for the actual motivation to get rid
of her because of her disability.  During the first hearing before
the board, Rhines's attorney made clear that Rhines was not
accusing UAF of getting rid of her because she was disabled, and
Rhines has not raised that argument before this court. 


Footnote 29:

     See Stalnaker v. Williams, 960 P.2d 590, 594 (Alaska 1998);
Cacioppo, 813 P.2d 679, 682-83 (Alaska 1991).


Footnote 30:

     Although the two terms have technically differing meanings, as
bursitis refers to chronic inflamation of a bursa and tendinitis
refers to inflamation of a tendon and the lining of the tendon
sheath, the two terms "may be used interchangeably to describe the
same process, since bursae are often located near tendons." The
Merck Manual of Diagnosis and Therapy 1367 (Robert Berkow, M.D. et
al. eds., 16th ed. 1992).  The physicians in this  case used the
terms interchangeably.


Footnote 31:

     627 P.2d 1073 (Alaska 1981).


Footnote 32:

     See id. at 1075-76.


Footnote 33:

     See Safeway v. Mackey, 965 P.2d 22, 29 (Alaska 1998);
Gillispie v. B & B Foodland, 881 P.2d 1106, 1110 n.3 (Alaska 1994).


Footnote 34:

     See Municipality of Anchorage, Police and Fire Retirement Bd.
v. Coffey, 893 P.2d 722, 726 (Alaska 1995).