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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Wollaston v. Schroeder Cutting, Inc. (03/01/2002) sp-5542

Wollaston v. Schroeder Cutting, Inc. (03/01/2002) sp-5542

     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,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA


CHRIS WOLLASTON,              )
                              )    Supreme Court No. S-9520
             Appellant,            )
                              )    Superior Court No.
     v.                       )    1JU-98-2339 CI
                              )
SCHROEDER CUTTING, INC., )    O P I N I O N
and WAUSAU INSURANCE CO.,     )
                              )
              Appellees.             )    [No. 5542  -  March  1,
2002]
________________________________)

          Appeal  from the Superior Court of the  State
          of  Alaska, First Judicial District,  Juneau,
          Patricia Collins, Judge.

          Appearances:    Michael  J.   Jensen,   Debra
          Fitzgerald, Law Offices of Michael J. Jensen,
          Anchorage,   for   Appellant.    Robert    J.
          McLaughlin,   Mann,   Johnson,   Wooster    &
          McLaughlin,  P.S.,  Tacoma,  Washington,  for
          Appellees.

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

          MATTHEWS, Justice.
          EASTAUGH,   Justice,  with  whom   CARPENETI,
          Justice, joins, dissenting.


          Chris  Wollaston was injured on June 27, 1996, when  he

stepped in a hole, landed on the ball of his right foot, and bent

his  toes sharply upward, feeling a tear in the back of his heel.

At  the  time  of  the  injury he was working  as  a  logger  for

Schroeder  Cutting,  Inc.,  at  a logging  camp  at  Hobart  Bay.

Wollaston could not work the next day and left camp the day after

that.   He  was treated for the injury on June 30, 1996,  by  Dr.

Riederer,   a  family  practitioner  in  Juneau.   Dr.   Riederer

diagnosed  Wollaston as having a ligamentous injury   a  mild  to

modest  ankle sprain  with no evidence of fracture.  Dr. Riederer

noted  that Wollaston might need [an] estimated 7-10 days off  if

modified work [was] not available.

          Wollaston moved to Texas where he was seen on August 1,

1996,  and  January  21, 1997, by Dr. Whittemore,  an  orthopedic

specialist.   Dr. Whittemore diagnosed a sprain or stretching  of

the  ligaments at the back of the ankle.  After the January  1997

visit,  Dr.  Whittemore noted some improvement  but  not  to  the

extent  that  Wollaston could return to work as  a  logger.   Dr.

Whittemore   opined  that  Wollaston  had  a  permanent   partial

impairment of four percent.

          Wollaston  had  previously injured his right  ankle  on

December 13, 1995, in a basketball game.  He jumped and came down

on  another players foot, dislocating his ankle.  The dislocation

was reduced at a hospital emergency room and the ankle was placed

in a cast-splint device.  About two months later, on February 21,

1996,  Wollaston  returned  to work as  a  logger  for  Schroeder

Cutting in Hobart Bay.  There is conflicting testimony concerning

the  extent of Wollastons recovery from the December 1995 injury.

Wollaston  and five witnesses testified that he was  not  limping

and  had  no  evident problems after the first injury.   But  two

employees  of Schroeder Cutting and the companys owner  testified

that  Wollaston walked with a limp from the time he  returned  to

work until the time he left Hobart Bay in late June.

          Wollaston  sought lost time benefits from the  date  of

the  injury until September 9, 1996, when he went to  work  as  a

cabinet maker, and permanent partial disability benefits based on

continuing  problems with his ankle.  A hearing was  held  before

the Workers Compensation Board on September 15, 1998.

          Dr.  Whittemores deposition testimony was presented  at

this hearing.  Dr. Whittemore testified based on his treatment of

Wollaston  and  his review of the records of the earlier  injury,

that  the  June 1996 injury was a substantial factor in  bringing

about  Wollastons  residual ankle disability.  He  differentiated

the  June  work-related  injury from the  December  1995  injury,

noting that the ligaments that were stretched or torn in the work

injury  were  different  from those that  were  affected  by  the

basketball injury.

          Dr.  Riederer also testified at the hearing.  He stated

that  when he observed Wollaston he did not anticipate that there

would  be  any permanent adverse residual effects from the  fall,

and  that his opinion was that the disability would last no  more

than ten days.

          The  board  decided that the June 27, 1996  injury  was

compensable  through July 7, 1996.  But the board also  concluded

[b]ased on Dr. Riederers testimony, that after July 7, 1996,  the

defendant  had  presented substantial evidence  to  overcome  the

presumption  of compensability.  The question presented  in  this

appeal is whether Dr. Riederers testimony constitutes substantial

evidence1  rebutting  the presumption of compensability  for  the

period  after  July  7,  1996.  We answer this  question  in  the

negative.

          Dr. Riederers testimony was predictive based on a fixed

past  perspective. He saw Wollaston only on June  30,  1996,  and

based  on this visit predicted that the consequences of the  June

27  injury  would clear up in seven to ten days.   Dr.  Riederers

testimony  never progressed from predicting Wollastons course  of

recovery from the perspective of the June 30 visit, to a  current

expression  of opinion as to Wollastons actual condition  or  its

causes.   But  he did make it clear that his June  30  prediction

could  be  wrong and if it was a specialist should be consulted.2

He  did  not  testify that Wollaston did not have longer  lasting

consequences caused by the work-related injury and thus  did  not

contradict Dr. Whittemores testimony that the work-related injury

has had a residual effect.

          Under  AS  23.30.120(a)  a  claim  is  presumed  to  be

          compensable.3  The burden is on the employer to prove noncompens

ability  through substantial evidence.4  We held in  Grainger  v.

Alaska  Workers Compensation Board that an employer can  overcome

the  presumption  of  compensability  by  presenting  substantial

evidence  that  either  (1) provides an  alternative  explanation

which,  if  accepted,  would exclude work-related  factors  as  a

substantial  cause of the disability; or (2) directly  eliminates

any  reasonable  possibility  that employment  was  a  factor  in

causing  the  disability.5  We added in Big K Grocery  v.  Gibson

that  an employer may rebut the presumption of compensability  by

presenting a qualified expert who testifies that, in his  or  her

opinion, the claimants work was probably not a substantial  cause

of the disability.6

          Dr.  Riederers testimony did not satisfy any  of  these

formulations.   He  did  not exclude the June  1996  work-related

injury as a cause of Wollastons continuing problems.  Likewise he

said  nothing that directly eliminated any reasonable possibility

that  the  work-related injury had consequences  beyond  July  7.

Finally,  Dr.  Riederer  did  not testify  that  in  his  opinion

Wollastons  disability  is  probably  not  attributable  in   any

substantial way to the work-related injury.7









          The  presumption  of compensability therefore  has  not

been  rebutted and thus the statutory presumption that Wollastons

claim  is  covered  controls.   It follows  that  insofar  as  it

terminated compensation as of July 7, 1996, the decision  of  the

board must be reversed.8

          REVERSED  and  REMANDED for remand  to  the  board  for

further proceedings in accordance with this opinion.

EASTAUGH,   Justice,   with  whom  CARPENETI,   Justice,   joins,

dissenting.

          I  respectfully dissent.  In my opinion, the board  did

not  err in relying on Dr. Riederers testimony in concluding that

the   employer   successfully   rebutted   the   presumption   of

compensability under AS 23.30.120(a).1

          1.   The courts dismissal of Dr. Riederers testimony as
               predictive   is   both  factually  incorrect   and
               doctrinally troublesome.
               
          Dr.  Riederer  testified that he did  not  observe  the

normal indicia of a serious ankle injury upon examining Wollaston

seventy-two hours after the work-related accident.  He repeatedly

testified  that  Wollastons  ankle was  weight-bearing,  and  not

discolored  or  swollen.   He further testified  that  while  his

physical  examination revealed some tenderness on the  inside  of

the  ankle,  it  produced no objective indicia of  the  posterior

ligament or tendon trauma that Wollaston claimed was the  primary

source  of  his  permanent partial impairment.   Based  on  these

clinical  observations, Dr. Riederer diagnosed Wollaston  with  a

ligamentous  injury on the inside of the ankle/foot structure   a

mild  to  modest  ankle sprain.  There is nothing  predictive  or

speculative about this diagnosis.

          Further, there is nothing inherently insufficient about

Dr. Riederers estimation of Wollastons likely recovery time.  Dr.

Riederer thought Wollaston would fully recover within one to  two

weeks.   This estimation was based on Dr. Riederers sound medical

examination in combination with years of experience dealing  with

many  types  of ankle injuries of different levels  of  severity.

His  opinion should not be dismissed simply because Wollaston did

not return for a check-up.

          The  court, however, dismisses Dr. Riederers  prognosis

as  predictive  based on a fixed past perspective,2  because  Dr.

Riederers  contemporaneous  recovery  estimation  and  subsequent

testimony  were based upon a single examination performed  before

Wollaston  had  fully recovered from his injury.   Many  recovery

          prognoses made by original treating physicians would be subject

to the same criticism.3  I think it is undesirable to reject such

evidence.   Employees may not return for follow-up  treatment  or

examination  to  the physicians who first treated  them,  or  may

still  be in the early stages of recovery when they do  so.   But

the  original  physicians observations, diagnoses, and  prognoses

are  closest  in  time  to  the injury and  least  likely  to  be

influenced by litigation strategy.  By signaling that  the  board

should  disregard  these physicians analyses,  the  court  unduly

limits  useful  and  relevant expert evidence  of  the  employees

condition.   This  restriction may increase litigation  costs  by

forcing  parties to hire additional experts rather than  rely  on

the  opinions  of  the  original treating physicians.   And  this

limitation  may  disadvantage both employees  and  employers:  an

opinion  favorable to the employees claim would  be  entitled  to

little weight when the board determines whether the employee  has

proved his claim by a preponderance of the evidence.

          2.   Dr. Riederers testimony is sufficient to rebut the
               presumption of compensability.
               
          Dr.   Riederers  testimony  fits  seamlessly  with  the

surrounding  evidence.   Wollastons  non-work-related  basketball

injury   which occurred just seven months before his work-related

injury   was tremendously destructive.  The X-ray report  of  the

basketball injury indicated a complete dislocation at  the  ankle

joint  w[ith]  the  foot  at right angles  to  the  tibia.4   The

treating physician, Dr. Catalanello, characterized the basketball

injury as being as serious an injury as one could sustain without

tearing  the  ankle  open.   Dr.  Riederer  testified  that   the

basketball  injury  was  horrendous.  Dr. Catalanellos  emergency

room  report  notes  that  he warned patient  that  there  is  no

guarantee  that  he  will not experience a permanent  dysfunction

secondary to this lesion. The owner of Schroeder Cutting and  two

of his employees testified that Wollaston had still not recovered

from  the  basketball injury when he returned to  work  over  two

months later.

          Further,  Wollastons  behavior after  his  work-related

accident  tends  to  confirm Dr. Riederers diagnosis  of  a  mild

sprain.   Wollaston did not seek further medical treatment  until

about  a month after visiting Dr. Riederer.  It is not surprising

Wollaston  did  not return to Dr. Riederer because Wollaston  had

moved to Texas.  But if his work-related injury had in fact  been

serious,  one  would expect him to have seen some  physician  for

treatment sooner than he did.

          Taking Dr. Riederers testimony in combination with  the

evidence  of Wollastons devastating prior injury and his behavior

following  his  work-related injury, the board  could  reasonably

conclude  that  the  employer  had rebutted  the  presumption  of

compensability either by providing an alternative explanation for

Wollastons  disability   i.e.,  the  basketball  injury   or   by

directly eliminat[ing] any reasonable possibility that Wollastons

work-related  injury was a substantial cause of  his  disability5

beyond July 7, 1996.6

          The  court, however, faults Dr. Riederers testimony for

failing  to  explicitly  opine that the work  injury  was  not  a

substantial cause of Wollastons disability.7  I think  the  board

could   permissibly   disagree  with   the   accuracy   of   this

characterization of Dr. Riederers testimony.8  But in any  event,

there  can  be  no  serious  doubt  that  Dr.  Riederer  believed

Wollastons work-related injury was probably not the cause of  any

impairment beyond the estimated one-to-two-week recovery period.9

Requiring  medical experts to mold their opinions  to  fit  legal

formulae is unlikely to improve the accuracy of their testimony.

          Likewise,  it  is  of  little  significance  that   Dr.

Riederer   did  not  stridently  disagree  with  Dr.  Whittemores

diagnosis  of  a  posterior ligament injury  or  Dr.  Whittemores

assessment of permanent impairment when given the opportunity  to

do so by Schroeders attorney.  If anything, it may have bolstered

his credibility before the board.

          Because  the  court holds that Dr. Riederers  testimony

          was insufficient to rebut the presumption of compensability, it

does  not  address  whether substantial  evidence  supported  the

boards conclusion that Wollaston failed to prove his claim  by  a

preponderance of the evidence.10  I would hold that the  evidence

discussed  above  is  sufficient to support the  boards  ultimate

decision  as  well  as  its  decision that  the  presumption  was

rebutted.    I   would  therefore  affirm  the  superior   courts

affirmance of the boards decision.

_______________________________
     1    We will affirm the board if substantial evidence exists
to  support the Boards findings of fact.  Kolkman v. Greens Creek
Min.  Co.,  936  P.2d 150, 154 (Alaska 1997) (quoting  Yahara  v.
Construction  &  Rigging, Inc., 851 P.2d 69, 72  (Alaska  1993)).
Substantial evidence is that which a reasonable mind, viewing the
record as a whole, might accept as adequate to support the Boards
decision.  Id.

     2     The  following excerpts illustrate the nature  of  Dr.
Riederers testimony:

          A    I  didnt  think it was going to put  him
               out  of commission.  Like I said,  I  --
               from  that decision at that day  looking
               at  that  man,  and if Im  wrong  --  my
               guesses arent always wrong, but I  would
               think  that looking back at -- if I  had
               to  face  that injury today  in  you  or
               anyone, I think that it -- and with  the
               same  findings, that I would  be  of  my
               same opinion.  I dont know maybe whether
               if  he  hasnt been able to, but that  --
               given that same set of circumstances,  I
               think Id make the same call.
          Q    One   of   your  findings  was   --   or
               conclusions  is  in  response   to   the
               question,   will   injury   result    in
               permanent impairment.  Do you feel  that
               the   stepping  in  the  hole   incident
               resulted  in  a permanent impairment  of
               this mans right ankle?
          A    I  did not anticipate that, but had that
               man  been  in  town and  he  was  having
               trouble,   I  wouldnt  have  given   him
               another   month.   I  would  have   made
               arrangements for him to see one  of  the
               orthopedists in town at that point.
          Q    But based upon what you observed on June
               30,  you didnt feel that the injury  was
               going to result in permanent impairment?
          A    I   did  not  anticipate  any  permanent
               residual.
          Q    Well, he has been rated with a permanent
               impairment,  10  percent  of  the  lower
               extremity,  four percent  of  the  whole
               person, by Dr. Whittemore in Texas.   Do
               you  have  an  opinion on  whether  that
               impairment  relates to the  stepping  in
               the  hole  incident or  the  dislocation
               incident?
          A    I  --  I -- impairment ratings may  vary
               from  expert to expert.  Im  sure  youre
               aware of that, and I wouldnt comment  on
               that.  I think someone else may rate him
               entirely differently.
          . . . .
          Q    Do  you understand what it takes to give
               rise to a permanent impairment?
          A    No, Im not sure that I do.
          Q    Okay.   Then the -- what made  you  then
               write down that Mr. Wollaston would  not
               have  a  permanent impairment  from  the
               stepping  in the hole incident when  you
               checked no?
          A    Yeah, I dont -- when I saw him that  day
               I  didnt think -- I couldnt imagine  him
               having  -- I didnt anticipate.  I  think
               you have to go with the odds.
          Q    Okay.
          A    And  (indiscernible) may  be  wrong  too
               often, but I think . . . .
          Q    And then based on what you observed that
               day,  he  had  a mild to moderate  ankle
               sprain?
          A    I  dont think Id put him in the moderate
               category.
          Q    Just mild?
          A    Mild  to modest.  I dont think he had  a
               moderate injury.  I think Id say be sure
               you  get back in here or see -- I  think
               it  was -- commonly I make the call that
               whoever -- if I think he needs a follow-
               up  in 10 days for sure, Ill call one of
               the  orthopedic  offices (indiscernible)
               to  see if they cant get him right  away
               (indiscernible).
          . . . .
          Q    Okay.  It says here that -- off work for
               four to -- eight -- or eight to 14 days.
          A    It  came to, I think, seven.  Yeah.  And
               definitely between eight and  seven  and
               10 or . . . .
          Q    And  it says on something work.  I  cant
               read your writing.
          A    Let me try.  Lets see.  I put down here,
               eight  to 14 days for regular work,  its
               supposed to be.
          Q    Okay.  Regular work.
          A    And  modified  work if  available.   And
               they  didnt -- I maybe wrote  this  down
               before I made the check there.  May need
               seven to 10 days if modified work is not
               available.
          Q    To  find out how he was doing from  this
               ligamentous  injury,  would   you   have
               wanted to see him back?
          A    I  think that speaks for itself.  I  was
               not much impressed with it, and he can -
               - if hes bearing weight flat-footed, and
               is  not uncomfortable in a week -- seven
               to 10 days has no problems, I dont think
               its  worth 60 bucks for somebodys office
               call.
          Q    Okay.  And if he is having problems?
          A    Then he should be rechecked, and this is
               why I said down here, recheck in seven -
               - recheck PRN in seven to 10 days.
          Q    Okay.
          A    If  recheck  was needed in seven  to  10
               days.  If hes still having symptoms.   I
               certainly -- and people in that  setting
               I  virtually always tell them Im leaving
               the  door  open.  If youre not doing  as
               well  as I think youre going to do,  you
               come back in, or youll be seen.  I think
               unequivocally I tell patients that, that
               I  dont necessarily think I need to  see
               again,  but that theyre not cutting  off
               their eligibility for the care for  that
               injury.
               
     3    AS 23.30.120(a)(1) provides:

               (a)  In a proceeding for the enforcement
          of   a  claim  for  compensation  under  this
          chapter  it  is presumed, in the  absence  of
          substantial evidence to the contrary, that
          
               (1)   the   claim   comes   within   the
          provisions of this chapter[.]
          
     4     See  Tolbert  v.  Alascom, 973 P.2d 603,  611  (Alaska
1999).

     5    805 P.2d 976, 977 (Alaska 1991) (footnote omitted).

     6    836 P.2d 941, 942 (Alaska 1992).

     7     The  following are excerpts of Dr. Riederers testimony
which, according to the dissent, support the boards decision.

          A    [T]his  usually screams at you in  terms
               of  a  Achilles  tendon  injury,  and  I
               examined  him  carefully  with  that  in
               mind,  specifically with him  either  --
               youre   stressing  the  Achilles  tendon
               either  by having him stand on the  ball
               of  his  foot  or  having  him  lie  and
               dorsiflex  the foot so if  that  is  not
               intact, or have him press the foot  down
               against resistance.  People that have  a
               rupture thats complete or partial,  cant
               do  that well.  I did not comment --  or
               the  notes that I made refer to -- I put
               painful   under  the  medial  malleolus,
               which   I  probably  should  have   said
               tender,  but  I certainly, by  examining
               the  ankle  for  stability,  usually  go
               around  the ankle more, that is,  around
               the  medial  portion here  was  where  I
               specified it as tender, but you will  go
               around    certainly    laterally.     He
               certainly  had no evidence  of  Achilles
               tendon injury, in my opinion, either  by
               stressing the -- the -- this tendon  the
               name  of which I mentioned or by feeling
               any  defects in the Achilles tendon that
               could be ruptured anywhere from the heel
               up  six  inches  above  the  injury  can
               occur.  . . .  I didnt -- certainly  was
               not an ecchymotic swollen joint.
          . . . .
          Q    So  you  didnt see -- you didnt  observe
               discoloration, an ecchymosis?
          A    I  --  I did not see that. . . .  I dont
               tell people to bear weight the next day,
               and like I said, I think you can go back
               to  work  if  you can bear weight  flat-
               footed.
          . . . .
          Q    If the stepping in the hole incident had
               damaged  the  ankle sufficiently,  would
               you  have  expected to see swelling  and
               some  discoloration by the time you  saw
               him?
          A    That  certainly is a common  finding  72
               hours  out  to  find something  of  that
               nature.
          . . . .
          A    The  history  made  me  concerned  about
               Achilles tendon.  The exam did not.
          . . . .
          A    [B]ut after examining him, it was not  a
               concern.
          Q    And  you tested that and you didnt  find
               any  obvious  problem with the  Achilles
               tendon?
          A    Thats correct. . . .
          . . . .
          A    Correct.  On the inside of his ankle.
          . . . .
          A    [W]here   he  was  tender  was  medially
               . . . .
          . . . .
          Q    It was a horrendous discoloration.
          A    [I]t  certainly  sounds  horrendous  any
               time you dislocate . . . .
          . . . .
          A    I  think he described the foot as  being
               almost  90  degrees  or  something  like
               that.
          . . . .
          A    Where  the  snap came from was troubling
               to me when he didnt have anything in his
               Achilles tendon . . . .
          . . . .
          A    Inside of his ankle.
          Q    The   inside  of  his  ankle,  not   the
               outside?  Okay.  And he complained about
               the  back of the ankle.  Thats where  he
               said he told you he had felt this tear?
          A    Yeah,  he said he felt the tear,  but  I
               wasnt  impressed by any findings on  the
               back of the ankle by going over it.
          . . . .
          A    Some  swelling  on  the  inside  of  the
               ankle.
          . . . .
          A    [B]ut  he didnt have marked swelling  or
               discoloration.
          . . . .
          Q    [T]he radiologists note -- they did note
               the swelling.
          A    On the inside.
          Q    [Y]ou put down ligamentous injury, right
               ankle.
          . . . .
          Q    What   were  you  referring  to?   Which
               ligament, if any, were you referring to?
          A    The inside ligaments . . . .
          Q    Could  it  have  involved  the  ligament
               running in back of the ankle, in back of
               the heel?
          A    I had no reason to think that. . . .  Im
               certain that I felt that Achilles tendon
               carefully up and down, and . .  .  where
               he  was tender medially, I made no  note
               of   him   being  significantly   tender
               posteriorly . . . .
          . . . .
          Q    Okay.  Would your examination fit within
               that?
          A    No,  I  had  no  reference  to  anything
               posterior.
          . . . .
          A    When  I  examined him, I  found  nothing
               objective there.
          . . . .
          A    And  he  wasnt particularly tender  over
               his  Achilles  tendon  at  all  when   I
               stressed him.
          . . . .
          A    [L]ike  I say commonly you see  with  an
               ankle  sprain, blood from their heel  to
               their toes at 72 hours or more.
          Q    Or more?
          A    Yeah.
          . . . .
          A    [B]ut  you would have expected something
               by  three  days  if he  had  significant
               injury.  You can expect something in two
               hours  if its really a bad ankle sprain,
               someone playing ball.  Or one hour.
          . . . .
          A    But three -- three days, that seems like
               plenty time for discoloration to occur.
          . . . .
          A    His  complaint was pain behind his heel.
               His tenderness was on here.
          . . . .
          A    He was on the inside of the ankle joint.
          . . . .
          A    If  he  could  bear  weight  flat-footed
               without taking pain pills . . .  I  dont
               tell  people  that who  have  a  swollen
               foot, so he . . . .
          . . . .
          A    [I]f   hes  bearing  weight  flat-footed
               . . . .
          . . . .
          A    [T]he only place where he was tender  on
               exam was on the inside of the ankle.
               
     8     The award of attorneys fees must be vacated as it  was
dependent  on  the  resolution reached by the  board  which  this
opinion  reverses.   The  other  claims  of  error  presented  by
Wollaston are mooted by our decision.

1     Tolbert  v.  Alascom,  Inc.,  973  P.2d  603,  611  (Alaska
1999)  (employer  must  provide  substantial  evidence  to  rebut
presumption  of compensability); Veco, Inc. v. Wolfer,  693  P.2d
865,  869  (Alaska  1985) (same).  Substantial evidence  is  such
relevant  evidence as a reasonable mind might accept as  adequate
to support [the boards] conclusion.  Miller v. ITT Arctic Servs.,
577 P.2d 1044, 1046 (Alaska 1978) (citations omitted).

          Because  the  presumption shifts  only  the  burden  of
production  and  not  the  burden of persuasion,  we  review  any
evidence  tending to rebut the presumption in isolation,  without
reweighing the rebuttal evidence against the evidence tending  to
establish causation.  Wolfer, 693 P.2d at 869.

     2    Slip Op. at 3.

     3     The  court  cannot  intend  to  apply  the  predictive
pejorative to all medical estimations of recovery periods.  After
all, permanent impairment determinations often involve a type  of
prediction   usually  a prediction of the  extent  to  which  the
patient will not fully recover.

     4     Dr.  Catalanello  attested  that  Wollastons  accident
flipped [his ankle] under completely 90 degrees.

5     Grainger  v.  Alaska Workers Comp. Bd., 805 P.2d  976,  977
(Alaska 1991).

     6     The board found that the presumption of compensability
had not been rebutted for the period prior to July 7, 1996.

     7    Slip Op. at 7-11.

     8     Dr. Riederer testified that based upon his examination
of  Wollaston,  he  did  not anticipate  any  permanent  residual
impairment.   Although  Dr.  Riederer stated  that  his  recovery
prognoses were not always correct, this was nothing more  than  a
refreshingly  candid  admission of  the  uncertainty  of  medical
practice.   Dr. Riederer unequivocally stated that he would  make
the same diagnosis again if faced with a similar injury.

     9     Dr.  Riederer  did testify that he  thought  the  work
injury  may  have aggravated the previous injury.  We  have  held
that  [i]n the case of a preexisting condition associated with  a
disability, a claim is compensable upon a showing that employment
(1)  aggravated,  accelerated, or  combined  with  a  preexisting
condition so as to be (2) a substantial factor in bringing  about
the disability. Estate of Ensley, 773 P.2d 955, 958 (Alaska 1989)
(citations omitted).  But this theoretical avenue of recovery  is
not  before  us,  because  Wollaston  claims  he  had  completely
recovered  from  his  basketball injury before  his  work  injury
occurred.

     10    When  we review the boards decision that the  employee
did or did not prove her claim, we apply the substantial evidence
test.   Wolfer, 693 P.2d at 870.  As with our review  of  whether
the   evidence   is  sufficient  to  rebut  the  presumption   of
compensability, we do not reweigh the evidence or choose  between
competing  inferences.   Beauchamp v. Employers  Liab.  Assurance
Corp., 477 P.2d 993, 997 (Alaska 1970).