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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Excursion Inlet Packing Co. v. Ugale (06/11/2004) sp-5814

Excursion Inlet Packing Co. v. Ugale (06/11/2004) sp-5814

     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

EXCURSION INLET PACKING CO.,  )
and ALASKA NATIONAL      )    Supreme Court No. S-10790
INSURANCE COMPANY,       )
                              )
               Appellants,         )
                              )    Superior Court No.
     v.                       )    3AN-01-12796 CI
                              )
ANTONIO L. UGALE (deceased),  )    O P I N I O N
                              )
               Appellee.      )    [No. 5814 - June 11, 2004]
                              )


          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Fred Torrisi, Judge.

          Appearances:  Constance E. Livsey, Colleen A.
          Libbey,  Holmes Weddle & Barcott,  Anchorage,
          for  Appellants.  Michael J.  Patterson,  Law
          Office  of  Michael J. Patterson,  Anchorage,
          for Appellee.

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

          PER CURIAM

          The  decision  of  the  superior  court  reversing  the

decision  of  the Alaska Workers Compensation Board is  AFFIRMED,

for  the  reasons  expressed in the superior courts  opinion  set

forth in the appendix.1

        IN THE SUPERIOR COURT FOR THE STATE OF ALASKA

              THIRD JUDICIAL DISTRICT AT ANCHORAGE

ANTONIO L. UGALE (deceased),  )
                              )
          Appellant,               )
                              )
     v.                       )
                              )
EXCURSION INLET PACKING  )
CO. and ALASKA NATIONAL       )
INSURANCE CO.,                )
                              )
          Appellees.               )
________________________________)  Case No. 3AN-01-12796 CI

                       Decision on Appeal

     Excursion Inlet is a narrow bay off Icy Strait, located some

thirty-five miles west of Juneau1 and twenty-five miles north  of

Hoonah.   Antonio Ugale began working there for his third  summer

on  June  24,  1999,  but  quit about  three  weeks  later.2   No

available  flights out were scheduled that day, and by  the  time

one  arrived, he was missing.  His body was found later that day,

July  15,  in  the  boat  harbor.3  While  the  medical  examiner

determined that he drowned, the manner of death is unknown.4  His

family argues that Excursion Inlet is a remote location, that  he

was  waiting on an employer-provided flight out, that  his  death

arose  out  of  his employment and therefore should  be  presumed

compensable.5   The employer responds that he had  already  quit,

was  not on its premises when he disappeared, and that the remote

site  doctrine has been abrogated by statute.6  The Board  agreed

with the employer, with one member dissenting.7

Facts and circumstances.8

     As  with  too  many Alaska tragedies, exactly what  happened

will likely never be known.  Mr. Ugale was Filipino, as were most

of  his  co-workers,  and at the time of  his  death,  they  were

working  sixteen-hour  days.9   He  was  married  and  had  three

children, two of whom are still under age eighteen.10  While  his

wife  said  they were happy and he didnt suffer from  any  mental

     problems,11 there is some conflicting information as to what was

going  on  in  the  days and hours before he died.   His  brother

Alfredo  testified (in a Tagalog dialect, through an interpreter)

that  Antonio  was  being threatened by a co-worker  named  Edwin

Pacada,  that  he was afraid to sleep in the bunkhouse  his  last

night there; he allegedly told Esteban Echavarre that someone had

threatened his brothers life.12  Mr. Echavarre recalled that when

they spoke two days before he died, he seemed nervous and scared,

and   mentioned   a  problem  with  co-workers.13    Mr.   Ugales

supervisor,  Melanio Ancheta, said that he heard that  Mr.  Ugale

was  afraid, although in general he did not seem to know  why  he

quit his job in mid-season.14  The separation notice prepared  by

the  company listed the reason for leaving as  Family problem and

I  cant  sleep  well  during at [sic]  night  and  feel  a  [sic]

nervous.15   The personnel manager, Mr. Henricus, confirmed  this

impression in his testimony.16

     Like  the  foreman, Mr. Henricus didnt seem to know  exactly

what  to  make of Mr. Ugales demeanor.  He recalled that he  kept

repeating  himself and shaking hands, and I kind of felt  he  was

not  in, you know, his best senses really.17  The company  nurse,

who saw Mr. Ugale a week before he died, also couldnt really tell

us  what was wrong with him, advising him at the time to  try  to

get  some sleep,18 but she also reported that Alfredo Ugale  came

to  her  concerned about his brother, saying he was sick  in  the

head.19   The  Troopers report,20 however, based  on  interviews,

referred  to  Mr.  Ugale  as depressed and  despondent,  and  the

overall  impression  suggested paranoia; the family  argues  that

this was based entirely on lay reports from company employees.21

     In any event, Alfredo Ugale decided to accompany his brother

on  the  trip home,22 and Mr. Henricus made the necessary  travel

arrangements.23  He couldnt get them on a flight to  Juneau  that

evening,  and so arranged an early morning departure on July  15,

connecting   to  flights  to  California.24   They   signed   the

separation documents, and received their pay, $300 of  which  was

     in cash.25  It was company policy to feed and house anyone still

at  its  facility,  given  the  location.26   That  evening  both

brothers  went  to a place known as Filipino Plaza,  a  gathering

place  on  the  beach  commonly used by Excursion  Inlet  Packing

Company  (XIP) employees.27  After about fifteen minutes, Alfredo

left.28

     From  this  point  forward,  the facts  become  increasingly

murky.   Redacted police reports29 were stipulated into evidence,

30  and Trooper Welch wrote that Alfredo saw his brother leave,31

even  though  Alfredo insists that he himself  had  already  gone

home.32   He further testified that he got out of bed  to  search

after  some  people  unknown to him told  him  that  Antonio  was

missing.33   David  McLean,  XIPs  assistant  superintendent  and

office  manager, testified that Melanio Ancheta told him that  he

[Ancheta]  and Alfredo Ugale were present at Filipino  Plaza  and

ran  after the decedent as he left the gathering,34 but this  was

flatly  contradicted by the testimony of both  other  men.35   To

some  extent  this  might have been attributable  to  translating

difficulties.36  The Trooper also testified before the  Board  as

to  the lay of the land, the way the tide and current flowed, and

other  factors  that  might have played  a  part  in  Mr.  Ugales

death.37

     The  next report we have of Mr. Ugale was when his body  was

found  in the boat harbor.38  His wedding ring and the $300  were

not  found.39   His  body  was scraped  and  bruised  in  several

places,40 and the cause of death was asphyxiation due to drowning

in  salt  water.41   For  a  variety of  reasons,  Trooper  Welch

concluded  that Mr. Ugale tried to cross the river and was  swept

downstream,  and  later  flowed back up  with  the  tide.42   The

medical examiner, apparently relying on information obtained from

the   Troopers,43  reported  previous  psychiatric  disorder,   a

previous threat of suicide and behavior consistent with this;  he

commented that it looks more like a suicide than anything else.44

A psychologist called by the family who had reviewed a portion of

     the record testified to the contrary  that an ability to work

eighteen  hours  a day, no previous attempts, attendance  at  the

gathering the night of July 14, a previously active life  did not

lead  him  to  the conclusion that Mr. Ugale had  taken  his  own

life.45  The employer challenges this testimony as based on  very

limited and incomplete portions of the record.46

The Decision by the Board.

     The  Boards  discussion of the facts is more  detailed  than

those set out here, and relies heavily on Trooper Welchs synopsis

and  interviews.47  But in the end, it did not feel the  need  to

answer  the  unanswerable questions posed by  Mr.  Ugales  death.

Instead  it found that (1) the employee had clearly resigned  his

job  at the time of his death, but (2) was allowed to stay at the

site  until  transportation was available, which may  extend  the

employee/employer relationship.48  It further found that (3)  the

death  did not occur at the XIP plant or property owned by  it,49

nor  was  Mr.  Ugale  engaged in travel from the  site  or  other

activities  under  XIPs direction, control or sponsorship.50   It

also  found  that (4) Mr. Ugale was last seen running  away  from

Filipino  Plaza,  and  it  found that  all  of  this  constituted

substantial  evidence to rebut the presumption of  compensability

and  shift  the  burden to the family to prove  its  claim  by  a

preponderance of the evidence.51

     Further  examining the evidence, the Board  found  that  Mr.

Ugale  was  engaging in personal activities.   It  did  not  find

evidence   of  foul  play,  rejecting  Alfredo  Ugales  testimony

suggesting  the contrary, and concluded that whether accident  or

suicide,  it  was  not caused by the employer.  Accordingly,  the

Board concluded that Mr. Ugale did not die in the course or scope

of  his  employment,52  and  so  denied  the  familys  claim  for

benefits.53

     Board  member  Harriett Lawlor dissented, accepting  Alfredo

Ugales  testimony and reasoning that the decedents  wedding  band

must  have  been removed before he drowned.  She found  that  his

     actions in the days and hours before his death, and the fact that

his wallet, the $300, and his ring were never recovered, added up

to  the  conclusion that he was probably murdered.54  She applied

the  remote  site  doctrine, and concluded that waiting  for  his

flight  out was within the scope of his employment and  therefore

compensable.55

Standard of review.

     The parties addressed the applicable standards of review  in

their  briefs.56  Factual determinations of the Board are  to  be

sustained  if  supported by substantial evidence, which  is  such

evidence  as  a  reasonable person might accept  as  adequate  to

support  a conclusion.57  I am not to re-weigh the evidence,  nor

to  choose  between  competing inferences,  but  just  to  decide

whether  a reasonable mind could accept the findings in light  of

the  entire  record.58  If I cant conscientiously find  that  the

evidence is substantial, after reviewing the record, then  I  may

set aside the finding.59

        Where  the Board interprets its regulations or  otherwise

applies its expertise to an issue of law, the reasonable basis is

used;60 otherwise, I am to substitute my judgment for the  Boards

and  adopt  the rule of law that is most persuasive in  light  of

precedent, reason and policy.61

The presumption of compensability.

     While Ugale at one point says that the Board failed to apply

the  presumption of compensability,62 his actual argument is that

it  was  applied  incorrectly.63  Alaska Statute  23.30.120(a)(1)

establishes  a  presumption that a claim for  compensation  falls

within  the provisions of the Alaska Workers Compensation Act  in

the absence of substantial evidence to the contrary.

               Before  the  presumption attaches,  some
          preliminary link must be established  between
          a  claimants  disability and his  employment.
          Burgess  Construction Co. v.  Smallwood,  623
          P.2d 312, 316 (Alaska 1981).  The purpose  of
          the  preliminary link requirement is to  rule
          out  cases in which [the] claimant  can  show
          neither  that  the  injury  occurred  in  the
          course of employment nor that it arose out of
               [it].   Cheeks  v. Wismer &  Becker/G.S.
          Atkinson,  742  P.2d 239, 244  (Alaska  1987)
          (quoting  1A  Larson,  The  Law  of  Workmans
          Compensation 10.33, at 121 (1978)).
          
               .  . .

               In    making   its   preliminary    link
          determination,  the Board  need  not  concern
          itself with the witnesses credibility.[64]
          
     The  Board, citing Meek v. Unocal Corporation,65 seized upon

the  italicized word any by the Alaska Supreme Court,[*] and said

that  this  meant it had to apply the presumption in  this  case.

While  it  doesnt  appear to me that the court was  changing  its

position in Meek, it was making clear that the presumption is not

restricted to whether or not the claim is work-related.  In  this

case,  the Board stated that [b]ased upon the testimony and claim

he  died in the course and scope of his work, we must . . . apply

the  presumption.66  It further found that the  employer  allowed

Mr.  Ugale to stay overnight until transportation from  the  site

was  available, and so analyzed the claim as if he were still  an

employee.67   As discussed earlier, it then went on to  find  the

evidence sufficient to rebut the presumption and denied benefits.

     The  employer continues to argue68 that the Board should not

have   applied  the  presumption  in  the  first  place,   citing

Sokolowski  v.  Best  Western  Golden  Lion  Hotel,  which  seems

especially  misplaced in light of the ultimate reversal  of  that

decision.69  The problem may be that the concept of a presumption

dropping  out upon the introduction of evidence to the contrary70

is   difficult  for  some  of  us  to  comprehend.   Perhaps  the

presumption  is only useful in a certain class of  cases.71   And

that  may  be  true  here   unless I were to  conclude  that  the

evidence  introduced by the employer to rebut the presumption  is

not substantial as a matter of law.  And this is exactly what the

family in its reply argues that I should conclude.

     They  argue this in two ways.  One of these72 looks directly

at  AS  23.30.120(a)(4) and asks whether the employer  introduced

substantial  evidence that Mr. Ugale intended to kill  or  injure

     himself.  The other73 looks at section .120(a)(1) and argues more

generally that there was not substantial evidence that the  death

did not come under the provisions of the Act.

     I  discussed  substantial evidence briefly  earlier  when  I

addressed  the  standard of review, and Mr. Ugales family  doesnt

argue  that  it means anything different here.  There  are  cases

that  complicate this issue somewhat, and some are  discussed  in

the  1985 law review article referenced above.74  But these cases

say  that whether the quantum of evidence admitted is substantial

is itself a legal question,75 and that the mere possibility of  a

nonqualifying alternative is not substantial evidence  sufficient

to overcome the presumption.76

     Miller v. ITT Arctic Services explained that the presumption

could be overcome either by affirmative evidence showing that the

death  was  not  work-connected or by eliminating all  reasonable

possibilities that it was.77  In Sokolowski the court  held  that

the  Board  erred  in  allowing  the  employer  to  overcome  the

presumption  by proof that the injury occurred off premises  when

the  special hazard exception applied; proceeding in this  manner

essentially took the presumption out of the picture in this  type

of  case.78   A  careful  reading of cases  such  as  Sokolowski,

Tolbert v. Alascom and DeYounge v. Nana/Marriott,79 teaches  that

while  the  Board  is indeed the fact-finder, a  reviewing  court

needs  to  carefully examine the evidence that  it  relied  upon,

making sure that it was not speculative, that it does not elevate

mere  possibilities  and that it actually  excludes  work-related

factors  as  a substantial cause.  It is with these  thoughts  in

mind that I return to the case at hand.

Was there substantial evidence to rebut the presumption?

     XIP  argues80  that the Board found81 that  Mr.  Ugale  died

while engaged in personal activities away from its property,  and

that  this finding is supported by substantial evidence.  But  of

course  the  Board also found that Mr. Ugale had to  wait  for  a

plane  out and that he still had a bunk at the XIP facility.   If

the  remote site doctrine is applicable, then this case  is  like

Sokolowski,  and reliance upon evidence that the injury  occurred

off premises would be error as a matter of law.  The evidence was

uncontested  that Mr. Ugale was scared to stay in the  bunkhouse,

that  he  wanted to leave, that he couldnt get a plane until  the

next   day,  that  he  left,  and  that  he  died.   Under  these

circumstances, the fact that he died after quitting his  job  and

the   fact  that  he  died  off  XIP  premises  are  both  simply

irrelevant.

     Only  in Alaska could it be argued82 that XIPs facility  was

not  a  remote  site.  In most states, Hoonah  twenty-five  miles

away   would be remote enough.  Outside of Wards Cove, which owns

XIP, there are a few people who own land there,83 a dozen of whom

might  stay  through the winter, a mail plane  on  Wednesdays,  a

store  open  on  Thursdays,84  a  runway  that  doubles  as  Main

Street,85  no  hotel, no restaurant, no government, virtually  no

public  facilities.  There certainly is no question that under  a

line  of  decisions in this area,86 this tiny community would  be

one in which the remote site doctrine applied:

          Although  it is often possible for a resident
          employee  in a civilized community  to  leave
          his  work and residential premises to  pursue
          an  entirely personal whim and thereby remove
          himself  from  work-connected  coverage,  the
          worker  at  a remote area may not  so  easily
          leave his job site behind.[87]
          
     So  it  was with Mr. Ugale; he couldnt easily leave his  job

site behind him.88

     The  Board, however, noted the amendments to its  Act  after

these cases were decided, and cited its own precedent restricting

coverage to only those activities specified in AS 23.30.395(2).89

     What that statute does is affirm the court decisions on travel to

and  from  a  remote  site, while excluding  recreational  league

activities and activities of a personal nature away from the  job

site.90  Norcon, Inc. v. Alaska Workers Compensation Board is not

on  point because the decedent died while getting ready for  work

in  a  camp  five miles from Valdez; the court simply  said  that

there was nothing about this activity that was influenced by  the

alleged remoteness of the job site.91  Similarly, while the Board

discussed  the  1980 amendments in Andress,92  its  decision  was

based  on a wholly separate rationale, and in Snyder,93 the Board

relied  upon the first part of AS 23.30.395(2) to find the injury

to be compensable.

     The  same is true of the decision in Kelly v. Nelbro Packing

Company.94   Section .395(2) simply does not provide  the  answer

when the question is itself whether a certain activity, conducted

as a result of ones job at a remote job site, is personal or not.

Judge  Bolger found that a trip to the Pioneer Bar in  Sitka  was

reasonably foreseeable and incidental95 to ones employment  on  a

herring tender; you have to cross the docks late at night if  you

are to enjoy a meal in town.

      The question that remains in this case is whether there was

substantial evidence that Mr. Ugale was engaged in activities  of

a  personal nature at the time of his death.  Since we are at the

stage  where we are trying to decide if the presumption has  been

overcome,  the  Board was not supposed to get into credibility,96

nor  is  the  mere  possibility  of a  nonqualifying  alternative

sufficient.97  It is apparent that the suggestion that Mr.  Ugale

took his own life falls into this latter category, since there is

no  direct evidence of it and it is inconsistent with many of the

facts that have been established.

     More  difficult  is  the  question  of  whether  substantial

evidence  was  presented to show that the  death  was  not  work-

connected,  or eliminating all reasonable possibilities  that  it

was.98    The  Board  found  that  the  record  was   clear   and

     consistent99 that Mr. Ugale was last seen alive running away from

Filipino Plaza, but in fact no one testified to this and the  two

who  allegedly  reported it flatly denied being present.   If  he

were  in  fact  running away, why he might be doing  so  is  also

unclear.   Further, the Boards finding that he  was  attending  a

going-away  party100 may be true, but he didnt die at that  party

or  as  a  result of it.  And the finding that if he slipped  and

fell on the beach . . . he would have been engaged in an activity

of  personal  nature101 is simply conclusory; the nature  of  his

actions  is itself the question, and the employer had to  present

substantial  evidence  to overcome the presumption.   The  Boards

rejection  of  Alfredo Ugales testimony102 is  improper  at  this

stage as well.103  Finally, this is not a case of an assault with

purely  personal  motives,104 since the source of  the  fear  was

alleged  to  be a co-worker, and it was Mr. Ugales  inability  to

leave  that  provides  the primary link  to  his  employment.   I

therefore  conclude  that  the  employer  failed  to  rebut   the

presumption by substantial evidence, so that Mr. Ugales family is

entitled to compensation.

     We  know  that Mr. Ugale was frightened, that he  wanted  to

leave  Excursion Inlet and that due to its remoteness, he couldnt

get  a plane out until July 15th.  This latter circumstance makes

irrelevant  the fact that the death took place off  XIP  property

and  after  he had quit his job.  He was afraid to  stay  in  his

room,  there  was evidence that his fear was of a co-worker,  and

when  his  body was found, his wedding ring and cash  were  gone.

His  wife reported no family difficulty or mental health problem,

and  Dr.  Reffner testified that the history did not  indicate  a

likely  suicide.  While this is not an easy matter to analyze,  I

agree  with  Ms.  Lawlors dissent105 that, as  in  Firemans  Fund

American  Insurance  Cos.  v.  Gomes,106  there  is  insufficient

evidence  to  rebut  the  presumption  of  compensability.    The

decision of the Board is reversed and the matter remanded to  the

Board for determination of the amount of benefits due.  Appellant

     is awarded costs and attorney fees of $750.

     Dated: 9/5/02                 /s/ Fred Torrisi, Judge
_______________________________
     1     The superior court decision has been edited to conform
with our technical rules.

1    Transcript of hearing [Tr.] at 71.

     2    Exc. 1.

     3    Exc. 144.

     4    Exc. 11-12.

     5    Appellants Brief, filed 5/15/02 [At. Br.]; Reply, filed
8/12/02 [R. Br.].

     6    Brief of Appellees, filed 7/15/02 [Ae. Br.].

     7     Final  Decision  and Order, AWCB Case  No.  199919457,
Decision No. 01-247, 12/7/01; Exc. 227-250.

     8    See also AWCB decision, Exc. 228-243.

     9    Deposition of Melanio Ancheta at 23.

     10   Testimony of Reyne Ugale, Exc. 40-41, 31.

11   Exc. 43-48, 228-29; Tr. 102.

     12   Exc. 4-6, 25, 27-28, 69, 77, 219, 223.

     13   Exc. 3, 8-10, 75-81.  See also Exc. 69, 231-33; Tr. 99.

     14   Exc. 71-72; Melanio Ancheta Depo., 10/15/01; Exc. 229.

     15   Exc. 138, 230.

     16   Tr. 153; Exc. 229.

     17   Tr. 154, 158-59; Exc. 229-30.

     18   Tr. 178.

     19   Tr. 179, 186.

     20   Exc. 143-77.

     21   R. Br. 9.  See Tr. 90.

     22   Ugale Depo. 22-23; Exc. 200.

     23   Tr. 157.

     24   Tr. 158, Exc. 142.

25   Exc. 2-3, 23-25, 139; Tr. 105, 156.

     26   Exc. 93.

     27   Exc. 18-22, 26, 84-92; Tr. 109, 133-34.

     28   Exc. 220-21.

     29    Trooper Welch testified as to the names blacked out in
the reports.  Tr. 77-79, 82.

     30   Tr. 14; Exc. 143-77.

     31   Exc. 150A; Tr. 74, 85-86.

     32   Exc. 220-22.

     33   Ugale Depo. 33-34.

     34   Tr. 126-27.

     35   Ancheta Depo. 21, 24; Exc. 220-22.

     36   Tr. 89, 106.

     37   Tr. 93-99, 110-12, 116-18.

     38   Exc. 17, 144.

     39   Exc. 17, 25, 29, 149.

     40   Exc. 144, 149-50, 164, 179, 182; Tr. 72.

     41   Exc. 11-12.

     42   Tr. 102, 113.

     43   See Exc. 69.

     44   Exc. 13.

45   Exc. 48-69.

     46   Ae. Br. 12.

     47   Exc. 239-43.

     48   Exc. 245.

     49   Id.

     50   Exc. 244.

     51   Exc. 245-46.

     52   AS 23.20.395(2).

     53   Exc. 246-47.

54   Exc. 248-49.

     55    Ms. Lawlor cites Firemans Fund American Insurance Cos.
v.  Gomes,  544  P.2d  1013 (Alaska 1976), and  Kelly  v.  Nelbro
Packing Co., 3AN-00-3682 CI (Alaska Super. 8/17/00), Exc. 187-95.

     56   At. Br. vi; Ae. Br. 15-16.

     57    Miller  v.  ITT  Arctic Servs., 577  P.2d  1044,  1046
(Alaska 1978).  See also Yahara v. Construction & Rigging,  Inc.,
851  P.2d  69, 72 (Alaska 1993), and Resler v. Universal  Servs.,
Inc., 778 P.2d 1146, 1149 (Alaska 1989).

     58    Doyon  Universal Servs. v. Allen, 999  P.2d  764,  771
(Alaska 2000).

     59    Fairbanks North Star Borough v. Rogers and Babler, 747
P.2d  528,  534 (Alaska 1987) (citing Delaney v. Alaska Airlines,
693 P.2d 859, 863-64 n.2 (Alaska 1985)).

     60   Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co., 746
P.2d 896, 903 (Alaska 1987).  See also Williams v. Abood Sweeping
Co., 53 P.3d 134, 139 (Alaska 2002).

     61    Guin  v.  Ha,  591 P.2d 1281, 1284 n.6 (Alaska  1979),
Yahara, 851 P.2d at 72.

     62   At. Br. vii, 13.

     63   R. Br. 12-15.

64   Resler, 778 P.2d at 1148-49.

     65   914 P.2d 1276, 1279 (Alaska 1996).

     *     [Id.  at  1279 (quoting Municipality of  Anchorage  v.
Carter, 818 P.2d 661, 665 (Alaska 1991)).]

     66   Exc. 246.

     67   Id.

     68   Ae. Br. 21.

     69    AWCB  Decision  No.  90-0684  (June  15,  1989),  revd
Sokolowski v. Best Western, 813 P.2d 286 (Alaska 1991), Exc. 102-
9.

     70    Anchorage Roofing Co. v. Gonzales, 507 P.2d  501,  504
(Alaska 1973).

     71    See  J.  Larson  and  J.  Lewis,  The  Alaska  Workers
Compensation   Law:  Fact-Finding,  Appellate  Review   and   the
Presumption of Compensibility, 2 Alaska L. Rev. 1, 9-11 (1985).

     72   R. Br. 16.

     73   R. Br. 11-15.

     74   Larson, supra, note 71.

     75    Miller  v.  ITT  Arctic Servs., 577  P.2d  1044,  1046
(Alaska 1978).

     76    Hoth v. Valley Constr. 671 P.2d 871, 874 (Alaska 1983)
(little more than speculation offered).

     77    577  P.2d  at  1046;  see  also  Steffey  v.  Mun.  of
Anchorage,  1  P.3d 685, 690 (Alaska 2000); Tolbert  v.  Alascom,
Inc., 973 P.2d 603, 611 (Alaska 1999).

     78   813 P.2d 286, 292 (Alaska 1991).

     79   1 P.3d 90 (Alaska 2000).

Ex   . 82.84Ae.

      B   . 34.85Tr.

     82   Ae. Br. 1-2, 17, 34.

     83   Exc. 82.

     84   Ae. Br. 34.

     85   Tr. 115.

     86    Anderson v. Employers Liability Assurance  Corp.,  498
P.2d  288 (Alaska 1972) (employers bar in Amchitka), State,  Dept
of  Highways  v. Johns, 422 P.2d 855 (Alaska 1967) (commuting  to
mile  57  Richardson Highway), Northern Corp. v. Saari, 409  P.2d
845  (Alaska 1966) (commuting to adjacent recreational activity);
M-K  Rivers  v. Schleifman, 599 P.2d 132 (Alaska 1979)  (30  mile
commute to Glennallen to cash paycheck); Exc. 243-44.

     87   Anderson, 498 P.2d at 290.

     88   See also Board decisions cited at R. Br 3-5.

     89    Exc. 244, citing Gerwer v. Alaska Marine Highway, AWCB
Decision No. 87-133 (June 12, 1987).

90    See  also  the legislative history cited at Ae.  Br.  32-33
and  ARCO  Alaska, Inc. v. Reynolds, No. 3AN-88-8396  CI  (Alaska
Super. June 26, 1990), Exc. 110-26.

     91   880 P.2d 1051, 1053 n.1 (Alaska 1994).

     92    Andress v. Eagle Nest Enters., AWCB Decision No. 91-26
(February 1, 1991), Exc. 127-135.

     93    Snyder v. Alaska United Drilling, Inc., AWCB  Decision
No. 89-103  (May 4, 1989), Exc. 98-101.

     94   3AN-00-3682 CI (Alaska Super. 8/17/00).

     95   Witmer v. Kellen, 884 P.2d 662, 665 (Alaska 1994).

     96   Norcon, 880 P.2d at 1054.

     97    Hoth  v.  Valley Constr., 671 P.2d  871,  874  (Alaska
1983).

     98   See note 77.

99   Exc. 245.

     100  Exc. 246.

     101  Id.

     102  Id.

     103  See Norcon, 880 P.2d at 1054.

     104   See  Temple  v.  Denali Princess Lodge,  21  P.3d  813
(Alaska 2001).

     105  Exc. 249.

     106  544 P.2d 1013 (Alaska 1976).