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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Smith v. University of Alaska, Fairbanks (12/21/2007) sp-6212

Smith v. University of Alaska, Fairbanks (12/21/2007) sp-6212, 172 P3d 782

     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,


) Supreme Court No. S- 12418
Appellant, )
) Superior Court No. 4FA-05-01391 Civil
v. )
) O P I N I O N
FAIRBANKS, ) No. 6212 December 21, 2007
Appellee. )

          Appeal  from the Superior Court of the  State
          of    Alaska,   Fourth   Judicial   District,
          Fairbanks, Randy M. Olsen, Judge.

          Appearances: Allen F. Vacura, Fairbanks,  for
          Appellant.     Constance   Cates    Ringstad,
          McConahy, Zimmerman & Wallace, Fairbanks, for

          Before:    Fabe,  Chief  Justice,   Matthews,
          Eastaugh, and Carpeneti, Justices.   [Bryner,
          Justice, not participating.]

          MATTHEWS, Justice.

          Gary   Smith  worked  at  the  University  of   Alaska,
Fairbanks  (UAF)  power plant for almost twenty years  before  he
injured his back at work in July 1999.   He continued working for
a  little more than a week following the injury, hoping his  back
would improve.  When it did not, he took his previously scheduled
annual leave and filed a notice of injury with UAF.  About  three
and a half weeks after the injury, he experienced extreme pain in
his  lower  back  and right leg when he tried to climb  into  his
truck.   Three  days later the pain was so intense  that  he  was
admitted  to  the hospital and had surgery four days  afterwards.
UAF  controverted all benefits on the basis of lack of causation.
After  a series of board and superior court decisions, the  board
ultimately  decided  that Smith had not proven  his  claim  by  a
preponderance  of  the evidence.  Because  the  board  failed  to
explain  its  decision adequately, we vacate the boards  decision
and remand for further findings.
          Gary  Smith  began working at the UAF  power  plant  in
1980.   In 1993 and again in 1995 he had back surgery for medical
problems that were not related to his work.  Smith apparently had
a good recovery from the surgeries, as he was able to perform his
work without limitations for over three years.
          About  6:45  a.m.  on July 8, 1999, Smith  assumed  his
duties  as a shift engineer at the UAF power plant.  The engineer
who  was leaving notified Smith that during the previous shift  a
filter had frozen up.1  Smith sent his fireman, John Alderson, to
put  the filter back on line.  While Alderson was working on  the
problem,  Smith, who was in the control room, received  an  alarm
indicating  that  the  air pressure for the compressed  air  that
operated  the power plants controls was too low.  Smith tried  to
contact  Alderson  but was unable to do so.  When  he  could  not
reach  Alderson, he ran down to the basement to fix  the  problem
himself because he was afraid that if he did not act quickly,  he
would lose the plant.
          The  stairs that Smith ran down were narrow and  had  a
low  ceiling.   Smith had to make three turns when  he  descended
from  the control room to the basement, where the filter and some
valves  were located.  To get down the steps without hitting  his
head, he had to duck and twist his head and back.  When he jumped
onto  the  first landing, he felt something pop in his back,  but
continued down the steps and opened a valve to start air  flowing
through  the  filter.  He then went back upstairs to the  control
room,  where  the  alarm had cleared.  After he returned  to  the
control room, Smith noticed that his back hurt whenever he  moved
forward or backward.
          Smiths  acting supervisor, Charles Ward,  a  mechanical
engineer, arrived at work about 8:00 a.m.  He found Smith in  the
control room, irate and in pain.  Smith told Ward there had  been
an  emergency  and  that he had hurt his back  running  down  the
          Smith  continued  to work until July 17,  when  he  was
scheduled to take annual leave.2  Smith did not immediately  seek
medical attention for his back injury because he thought  he  had
pulled  a muscle.  He took an anti-inflammatory and wore  a  back
brace;  he  also curtailed his work activities.   He  phoned  his
family  physician, told him that he had pulled a  muscle  in  his
back,  and  obtained a prescription over the phone for  a  muscle
          Smith  had  planned  to spend his annual  leave  taking
supplies  to  a  hunting camp so that he and a  friend  could  go
hunting  later in the year.  He had to cancel these plans because
of  his back pain; instead, he stayed home.  Smith was unable  to
          do his yard work or cut firewood.  His neighbors, the Highams,
took  care of his dog.  Smith signed an injury report related  to
the back injury on July 23, 1999, which Ward signed on behalf  of
UAF on July 29.
          Smith  agreed  to help Vern Higham take  a  boat  to  a
nearby lake on August 2 to test it out.  Smith spent about forty-
five minutes maneuvering his truck to line the hitch up with  the
ball  on the boat trailer.  He then put the trailer on the hitch;
he  experienced no increase in pain when moving the boat trailer.
After  driving about five miles to the lake, Smith  waited  while
Higham  tested the boat.  After Higham left, Smith tried  to  get
into  his truck but began to experience excruciating pain in  his
back and leg.  Smith waited to see if the pain would subside, but
when  he  tried  to get back into the truck, the pain  flared  up
again.   Smith  flagged down a passer-by and asked  him  to  call
Higham.  Higham picked Smith up and took him to the office of Dr.
George  Vrablik, the orthopedic surgeon who had performed  Smiths
previous back surgeries.
          Dr.  Vrablik  recommended conservative treatment,  gave
Smith  some  pain medication, and sent him home with instructions
to  call  the next day.  Dr. Vrabliks chart notes indicated  that
Smiths  back was doing better the next day, although Smith  still
had  pain across the back.  Dr. Vrablik prescribed a steroid  and
again instructed Smith to call him to report his progress.
          On  August 5 Smith experienced a sharp increase in  his
pain  level.  He was unable to stand; he had to dress lying  down
and crawl out his door and into a friends truck for a trip to the
emergency  room.   Smith was admitted to the hospital  that  day,
where he was placed in traction.  On August 8 Smith had a CT scan
and an MRI, which showed scarring from his previous surgeries, as
well as a disk herniation.  The next day Dr. Vrablik operated  on
Smiths  back;  he  described  the surgery  as  one  of  the  most
difficult procedures he had ever done.  Dr. Vrablik removed  less
disk  material than he expected but was limited by concerns  that
he  would  damage  Smiths nerves.  Although the surgery  improved
Smiths  symptoms, it was not a complete success.  Smith continued
to  have  some pain.  Dr. Vrablik later concluded that Smith  was
unable  to  return to his work as a shift supervisor at  the  UAF
power  plant  and rated Smith as having a fifteen  percent  whole
person impairment.
          UAF  controverted  all  benefits  in  Smiths  case   on
September 21, 1999.  Smith filed a workers compensation claim  on
November  2,  1999, seeking  temporary total disability  benefits
from  July  17  and  continuing, as  well  as  permanent  partial
impairment benefits, medical and transportation costs, penalties,
and attorneys fees.  UAF filed its answer on November 29.
          The  main  point of contention in the board proceedings
was  the  degree to which the July 8, 1999 injury to Smiths  back
caused  the  need for surgery the following month.   Two  medical
doctors  evaluated  Smith: Dr. Vrablik and the employers  expert,
Dr.  John Ballard.  Both doctors agreed that it was difficult  to
determine causation.  Dr. Vrablik was unable to ascertain whether
the back injury at the power plant caused the disk herniation  or
whether  Smith herniated his disk in August when he  was  getting
into  his truck.  His opinion in Smiths case was guarded  because
he  did not examine Smith until August, after both incidents  had
happened.  Dr. Vrabliks chart notes stated that both events  were
significant  in  causing the symptoms.   At  his  deposition  Dr.
Vrablik elaborated that he had to rely on the history Smith  gave
him  in  determining what might have precipitated  the  symptoms.
Because  Smith considered the incident at the power plant  to  be
significant,  Dr.  Vrablik also considered it  significant.   Dr.
Vrablik  also  testified  that  based  on  Smiths  history,  both
incidents were substantial factors.
          Even though Dr. Vrablik was unwilling to say that Smith
herniated  his  disk in July, he refused to ignore  Smiths  prior
history  when  he discussed causation.  Dr. Vrablik  pointed  out
that  a  disk  herniation can be caused by trivial  things,  like
picking  up  a  bar of soap or sneezing, in the  sense  that  the
trivial  incident  can be the straw that broke the  camels  back.
However,  a  whole  chain  of causation  may  contribute  to  the
herniation that is made symptomatic by the trivial event, and the
precipitating  event can be removed in time from the  event  that
requires  surgery.  Dr. Vrablik was not able to say that  it  was
probable  that Smiths injury in July weakened his  back  so  much
that  a  minor  movement  later would have  resulted  in  a  disk
herniation; he said that it was possible.  He testified  that  he
could not pinpoint the cause of the disk herniation and stated:
               Now, if you want me to say what was  the
          straw  that  broke the camels  back,  getting
          into the truck was when he noticed the severe
          leg  pain  and  when he had to have  somebody
          help  him.   I   you know, that  I  think  is
          reasonable  because thats when  his  symptoms
          became worse.
               But I dont know that you can neglect  to
          consider  what happened at work, his previous
          back surgeries.  All this contributes to it.
          Dr. Ballard was less hesitant about offering an opinion
about   causation.   He  believed  Smiths  problems  were  caused
primarily  by  the scar tissue from his previous surgeries.   Dr.
Ballard acknowledged that Smith injured his back running down the
stairs at the power plant, but he thought that this resulted only
in  a  strain  to  Smiths lower back.  Dr.  Ballard  offered  the
opinion  that  Smiths condition was probably not related  to  the
injury  at  the  power plant.  Dr. Ballard  stated  that  in  his
opinion something happened to Smith between August 3, when he saw
Dr.  Vrablik  to  follow up on his visit of the day  before,  and
August 5, when he was admitted to the hospital, to cause the scar
tissue  to become so symptomatic as to require surgery.   He  did
not  identify  a likely cause, stating, I do not  believe  it  is
necessary for scar tissue to become symptomatic from any specific
event  after a back has been operated on two times.  In his March
deposition  Dr.  Ballard  admitted that the  power  plant  injury
probably aggravated Smiths back and might be a small contributing
factor  to  the  need  for surgery.  He  denied  that  it  was  a
substantial factor however.  At his June deposition  he  was  not
able  to  say  whether any of Smiths symptoms on  August  2  were
related to the power plant injury.
          Dr. Vrablik disagreed with Dr. Ballard about the extent
to which the scarring from the previous surgery could have caused
Smiths  symptoms in July or August.  Dr. Vrablik stated that  any
epidural fibrosis3 occurs within three months to a year from  the
time of surgery; because Smiths symptoms happened more than three
years  after  the 1995 surgery, Dr. Vrablik did not consider  the
scar  tissue  the precipitating event in Smiths need for  further
surgery.  He conceded that the scar tissue was a factor in Smiths
disability, noting that when the nerve elements are held tight by
scar  and fibrosis, it doesnt take much to put extra pressure  on
          The  board held a hearing on Smiths claim on  July  20,
2000.  The panel was made up of two members.4  Smith testified on
his  own  behalf and called three lay witnesses:   Charles  Ward,
John  Alderson,  and  Vern Higham.  The lay  witnesses  testified
about  Smiths  pain  after  the injury  in  July  and  about  the
limitations on his activities between the time of the work injury
and   the  surgery.   Drs.  Vrablik  and  Ballard  testified   by
deposition.   The  two-member panel was  unable  to  agree  on  a
decision in Smiths case, so the board reopened the record to  add
a third member.5
          The  board  issued its first decision  on  October  12,
2000.   In  it,  the  board  found that Smith  had  attached  the
presumption  of compensability through Dr. Vrabliks and  his  own
testimony.   It  then  found  that  UAF  had  not  overcome   the
presumption  of compensability.  This finding was  based  on  the
boards  analysis of Dr. Ballards testimony.  The  board  examined
his  testimony in some detail and concluded that it was ambiguous
and contradictory; it found that UAF had not provided substantial
evidence  to rebut the presumption.  From this it concluded  that
Smiths  claim was compensable, reserving jurisdiction to  resolve
disputes  about specific benefits owed to him.  One panel  member
dissented.   He  would  have  found that  UAF  had  rebutted  the
presumption of compensability based on Dr. Ballards testimony and
would have denied Smiths claim because, in his opinion, Smith had
not proven his claim by a preponderance of the evidence.
          UAF appealed to the superior court.  Relying on Norcon,
Inc.  v.  Alaska Workers Compensation Board,6 the superior  court
decided  that  the board had improperly weighed the testimony  of
Dr.  Ballard  at the second stage and remanded the  case  to  the
board  for  a  redetermination of whether UAF  had  rebutted  the
presumption.   The superior court retained jurisdiction  in  case
either side wanted to appeal the boards decision on remand.
          On  remand  the  board heard the case  on  the  written
record  and issued its second decision on December 2,  2002.   It
evaluated  Dr.  Ballards testimony again, relying  this  time  on
Wollaston v. Schroeder Cutting, Inc.7 in its legal analysis.  The
board  decided  that Dr. Ballards testimony as a  whole  was  too
ambiguous  to meet any of the means of overcoming the presumption
of  compensability.  It again found that UAF had not overcome the
presumption  of  compensability and again  declared  that  Smiths
          condition was compensable.  One member again dissented.  He
acknowledged that Dr. Ballards testimony varied as to his opinion
of  the  cause of Smiths symptoms but concluded that Dr.  Ballard
had  been consistent in his opinion that Smiths 1999 back surgery
was  the  result of his preexisting back condition  and  not  the
result of the July injury.  As a result, the dissenter reiterated
his   opinion   that   UAF  had  rebutted  the   presumption   of
compensability  and  that Smith had not proven  his  claim  by  a
preponderance of the evidence.
          UAF again appealed to the superior court.  The superior
court  again reversed the board, determining this time  that  UAF
had rebutted the presumption of compensability as a matter of law
because its expert, Dr. Ballard, had given an opinion that Smiths
need  for  surgery  and his disability were not  related  to  his
injury  at  UAF on a more-probable-than-not basis.  The  superior
court  held that substantial evidence did not support the  boards
determination  that  UAF  had  not rebutted  the  presumption  of
compensability   because   [w]ithout   weighing   Dr.    Ballards
credibility,  a  reasonable mind reading the record  as  a  whole
could  not conclude that Dr. Ballards testimony failed  to  rebut
Smiths presumption.  The superior court determined that the board
had  improperly  weighed Dr. Ballards testimony at  the  rebuttal
stage  and remanded the case to the board so that the board could
determine  whether Smith had proven his claim by a  preponderance
of  the  evidence.  Its remand order stated that the board  could
reject  and  weigh any testimony of any witnesses in  determining
whether Smith satisfie[d] his burden of persuasion.
          On  the second remand, a new panel member replaced  one
of  the  previous panel members.  The board decided not  to  take
additional  evidence  and again heard the  case  on  the  written
          In  its decision and order of March 11, 2005, the board
denied Smiths claim for workers compensation benefits.  This time
the  board  determined that Smith had not  shown  that  his  work
caused his need for surgery and continuing treatment because [n]o
physician  has  stated,  on a more-probable-than-not  basis,  the
employees  work  caused  his  need  for  surgery  and  continuing
treatment.  The decision made no explicit findings about  witness
credibility or the weight the board gave to the testimony of  the
two  doctors.  The board did not consider the lay testimony Smith
offered, finding that the case involved highly technical  medical
issues so that the lay testimony had little probative value.  One
panel  member dissented.  He was in the majority in the two prior
decisions, and he wrote in dissent that the board had  found,  on
two  occasions,  that  UAF  had  failed  to  provide  substantial
evidence  to eliminate the employees injury as the cause  of  his
present  back condition.  Noting that the facts had  not  changed
and  reiterating  some  of the findings  from  the  previous  two
decisions  in Smiths case, the dissent stated that it would  find
that  Smith  had  proven  his claim by  a  preponderance  of  the
          Smith  appealed  to the superior court.   The  superior
court  affirmed  the boards decision, deciding  that  substantial
evidence supported the boards decision and that it was of  little
consequence that the board did not rely very heavily on  the  lay
testimony Smith presented.
          Smith appeals.
          When   the  superior  court  acts  as  an  intermediate
appellate  court,  we  independently review the  boards  ruling.8
Factual  findings by the board are reviewed under the substantial
evidence   standard.9   Substantial  evidence  is  such  relevant
evidence as a reasonable mind might accept as adequate to support
a  conclusion.10   The  board  has  the  exclusive  authority  to
determine  witness  credibility.11  The boards  exercise  of  its
discretion  is reviewed for abuse; an abuse of discretion  occurs
if  this  court is left with a definite and firm conviction  that
the decision reviewed was a mistake.12
          The   Alaska   Workers  Compensation  Act   creates   a
presumption that an employees claims are compensable.13  Applying
this  presumption involves a three-step analysis.14   First,  the
employee  must  establish  a  link between  his  injury  and  his
employment.15   In  this  case the board  found  that  Smith  had
established a link between his injury at work and his  disability
through  his own testimony and that of Dr. Vrablik.  UAF did  not
contest this finding; the superior court stated that there was no
question Smith attached the presumption.
          Once  the presumption attaches, the employer may  rebut
the  presumption  by  presenting substantial  evidence  that  (1)
provides  an  alternative explanation which 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.16  An employer has always
been able to rebut the presumption by presenting the opinion of a
qualified expert who testifies that in her opinion, the claimants
work  was  probably not a substantial cause of the  disability.17
The superior court decided that UAF rebutted the presumption as a
matter  of  law.   Smith  does not contest  the  superior  courts
          If    an    employer   rebuts   the   presumption    of
compensability, the burden shifts to the employee  to  prove  his
claim by a preponderance of the evidence.18  Here, the board found
that  Smith had not shown by a preponderance of the evidence that
the  back injury he sustained at work in July led to the need for
surgery  in  August.   It therefore denied and  dismissed  Smiths
claim.  In reaching its conclusion, the board found that it could
not  rely  on the lay testimony to determine whether Smiths  work
injury was a substantial factor in his need for surgery and  also
noted  that  no  physician had stated on a more-probable-than-not
basis that Smiths work caused his need for surgery.
     A.    The Boards Findings Are Inadequate To Permit Appellate
Review.        Smith argues that the board made several errors in
evaluating  the  evidence  in  his  case.   Specifically,   Smith
contends  that the lay testimony he presented supports his  claim
and  that the board erred in not evaluating it.  He also  insists
that   Dr.   Ballards  testimony  cannot  constitute  substantial
evidence  because  it  is  contradictory  and  ambiguous.   Smith
asserts   that  Dr.  Vrabliks  testimony  should  be   considered
substantial  evidence  and that Dr. Vrabliks  testimony  supports
Smiths  claim  for benefits.  UAF responds that (1) Dr.  Vrabliks
testimony  was inadequate to prove Smiths case; (2) Dr.  Ballards
testimony  is  substantial  evidence  that  supports  the  boards
decision;  and  (3)  the board could properly disregard  the  lay
testimony Smith presented.
          1.    The  board  should make findings  about  the  lay
          In  arguing  that the board improperly disregarded  the
lay testimony, Smith maintains that the lay testimony in the case
undercut Dr. Ballards assumptions about Smiths recovery from  the
work-related injury and that these assumptions were important  to
Dr.  Ballards  opinion.  UAFs position is that the lay  testimony
had  little probative value because of the complex medical issues
in  the  case.  It also contends that the board weighed  the  lay
testimony and found it unreliable.
          The boards decision stated:
               Where  claims  involve highly  technical
          medical  considerations,  lay  testimony  has
          little probative value.  Tinker v. Veco,  913
          P.2d 488, 494-95, fn. 9-10 (Alaska 1996).  We
          find  this  case  involves  highly  technical
          medical    considerations,   and    that    a
          determination  of  causation   requires   the
          production  of  a greater weight  of  medical
          evidence.  As such, we find we cannot rely on
          the  testimony of the employee,  his  friends
          and   co-workers  to  determine  whether  the
          employees   industrial   incident    was    a
          substantial factor in causing the employee to
          need  his third back surgery in August  1999.
          See,  also, Brown v. Patriot Maintenance,  99
          P.3d 544, 553 (Alaska 2004).
Based  on  this statement and the boards failure to  mention  the
testimony  of any of the lay witnesses except Smith, we  are  not
able to determine whether the board correctly applied the law  to
Smiths case.
          Lay  testimony  may be insufficient taken  alone  in  a
complex  medical  case to satisfy the preliminary  link  that  an
injury   is   work  related  or  to  rebut  the  presumption   of
compensability.19   Norcon, Inc. v. Alaska  Workers  Compensation
Board,  which UAF cites for support, repeats the rule that expert
medical  testimony  may  be necessary  to  establish  a  claim.20
Nothing in Norcon suggests a general rule that lay testimony  can
be  disregarded  in a case with complex medical  facts,  however.
          Here, Smith did not rely on lay testimony alone in presenting his
case  to the board; Dr. Vrablik provided expert medical testimony
on  his  behalf, and the board determined that Smith had attached
the  presumption  in  part through Dr. Vrabliks  testimony.   The
question in Smiths case is the relevance of the lay testimony  to
his claim.
          In  some cases lay testimony has little probative value
because  it  supports  points  that  are  not  relevant  to   the
determinations of the experts.  We held in both Ayele v.  Unisea,
Inc.21  and  Brown v. Patriot Maintenance, Inc.22  that  the  lay
evidence presented was not material to the boards decision and as
a  result  the board was not required to make findings about  it.
In  Ayele,  the issue presented was whether exposure  to  ammonia
could trigger depression or related psychiatric disorders.23  The
lay testimony supported Ayeles claim that he had been exposed  to
ammonia, but the medical experts did not seriously question  this
fact.24   Likewise, in Brown, the lay witnesses  described  facts
that  the  experts had already received  and for  the  most  part
accepted.25  There the issue before the board was the  connection
between traumatic injury and the development of fibromyalgia; the
experts disagreed about whether any traumatic injury could  cause
fibromyalgia.26  Thus, the lay testimony about symptoms  and  the
injury itself had no bearing on the experts opinions; it did  not
materially  erode  the  medical  opinions  of  physicians   whose
testimony the board chose to accept.27
          At  other  times, though, lay evidence  may  be  highly
relevant,  as  when  it  tends  to  support  or  contradict   the
assumptions  as  to the facts of the claimants history  on  which
expert  medical  witnesses rely.  For example, we  determined  in
Stephens v. ITT/Felec Services that lay testimony was potentially
important  to the experts opinions about causation because  their
opinions   rested  on  assumptions  about  the   claimants   work
conditions, which the lay testimony addressed.28  In Stephens, the
board  decided  that a worker had not proven his claim  that  his
heart attack was work related.29  The employers experts testified
that  Stephens  heart  attack was not  work  related,  but  their
opinions  were  based on assumptions about his work conditions.30
They   also  testified  that  their  opinions  might  change   if
information  about work conditions was different from  what  they
assumed.31  Even though Stephens presented lay evidence about his
work conditions, the board did not evaluate it.32  We decided that
we  could not review the boards decision without knowing how  the
board  had evaluated the lay testimony and remanded the  case  to
the board.33
          Here,  we  are  unable  to determine  from  the  boards
decision  whether it applied an incorrect legal  rule   that  lay
testimony  should  be disregarded in complex  medical  cases   or
considered  the lay testimony and determined that in Smiths  case
it  had  little  probative  value.   Because  we  are  unable  to
determine  whether  the board considered the  lay  testimony,  on
remand  the  board should indicate whether it evaluated  the  lay
testimony and what weight, if any, the lay testimony should have.
          In  Smiths  case it is possible that the lay  testimony
could  undermine  Dr. Ballards assumptions about the  development
          and course of Smiths symptoms.  Smith argues here that the lay
testimony  undermines  Dr.  Ballards  statement  that  Smith  was
functioning  with  some low back pain after his  injury  and  had
temporarily aggravated his back when he injured it at work.
          Because neither doctor examined Smith between the  July
injury  and  the August visit to Dr. Vrablik, the  lay  testimony
here  may  have  more probative value than  in other  cases  with
uncertain  medical causation.  As Dr. Vrablik  indicated  in  his
deposition, he had to rely on the history Smith gave in assessing
his  condition and its causes because he did not see Smith  until
after  both  the July and August incidents.34  The lay  testimony
arguably  supported Smiths assertions about his  increasing  pain
following  the accident, which could be contrary to Dr.  Ballards
analysis  of the course of Smiths illness.  While UAF is  correct
that   the  board  alone  is  authorized  to  determine   witness
credibility,  there is a distinction between devaluing  testimony
because  it  has no probative value, even if true,  and  deciding
that  testimony  is not credible.35  The board made  no  explicit
findings  about  credibility, so we are unable to  say  that  the
board made a determination that the lay witnesses in Smiths  case
were unreliable.36
          Dr.  Ballard  also  testified that differences  in  the
location and intensity of pain distinguished disk herniation from
stenosis; his testimony indicated that leg symptoms could suggest
a herniated disk.  He further testified about his experience with
patients with symptomatic scar tissue.  Smiths testimony and that
of his lay witnesses described Smiths pain and the limitations on
his activities.  Because in this case it is possible that the lay
testimony had some bearing on the experts assumptions, the  board
on  remand  should  consider  the lay  testimony  insofar  as  it
supports  or  detracts  from  the doctors  conclusions  and  make
appropriate findings.
          2.    The  board did not adequately analyze the medical
          Smith  argues  that Dr. Vrabliks testimony  constitutes
substantial evidence to support his claim and that the board  did
not  give  it  proper  weight.  UAF responds  that  Dr.  Vrabliks
testimony was not adequate to carry Smiths burden of proof.   The
board did not explicitly reject Dr. Vrabliks testimony; it stated
that Dr. Vrablik agreed that Smiths condition probably changed in
August,  when he sought medical attention, rather than  in  July.
The  board also noted that Dr. Vrablik testified it was  possible
that the July injury contributed to his need for surgery, but  he
would  not  say it was probable.  The board did not  discuss  Dr.
Vrabliks opinion, based on Smiths history, that the injury was  a
significant or substantial factor in causing the need for surgery
or  that  the  work  injury contributed  to  the  recurrent  disk
          The  board  stated  in its decision, No  physician  has
stated,  on  a  more probable than not basis, the employees  work
caused his need for surgery and continuing treatment.  Therefore,
we find the employee cannot prove his claim by a preponderance of
the  evidence.   A statement by a physician using  a  probability
formula  is  not  required  to establish  employer  liability  in
          workers compensation.  As Larson remarks:
               The  compensation process is not a  game
          of say the magic word, in which the rights of
          injured  workers should depend on  whether  a
          witness  happens to choose a  form  of  words
          prescribed  by a court or legislature.   What
          counts  is  the real substance  of  what  the
          witness  intended  to convey,  and  for  this
          purpose  there are more realistic  approaches
          than a mere appeal to the dictionary.[37]
          We  noted our agreement with Larson in Childs v. Copper
Valley  Electric  Assn, when we observed that  the  fact  that  a
doctor  did not state his opinion in absolute terms did not  mean
that  his testimony was inconclusive or that he failed to exclude
a  cause  of  the  claimants condition.38  We  have  also  upheld
compensation   awards  in  the  face  of  inconclusive    medical
testimony, particularly when lay testimony supported the award.39
          We  are  unable  to  determine here whether  the  board
applied an incorrect legal rule that would have required Smith to
provide a physicians statement which used a term like probability
in  order  to  prove  his  claim.  The absence  of  a  definitive
statement  from  a physician that the industrial accident  caused
Smiths  need for surgery, on a more-probable-than-not basis,  may
be  an  important  factor for the board in  making  its  ultimate
decision,  but lack of such a statement is not necessarily  fatal
to a workers compensation claim.
          Our  holding  here is distinct from Lindhag  v.  State,
Department of Natural Resources, where we rejected the  employees
argument  that the board had failed to make adequate  findings.40
In  Lindhag, the board explicitly accepted the testimony  of  the
second independent medical evaluation physician, finding that  he
had  more  relevant  training and had provided  a  more  complete
picture  of  the claimants illness.41  Here, the  board  did  not
credit the testimony of one doctor over the other and appears  to
have  relied  on the conclusions of both doctors in reaching  its
          Moreover,   the   board   may   have   overlooked    or
misinterpreted  Dr.  Vrabliks  testimony  about  causation.   Dr.
Vrablik  testified  that  both the work-related  injury  and  the
incident  of getting into the truck were significant  in  causing
Smiths  need  for back surgery in August 1999.   He  also  stated
that,  based  on  Smiths  history,  they  were  both  substantial
factors.   Although  Dr.  Vrablik  said  that  a  recurrent  disk
herniation  can  result from trivial things, he observed  that  a
person  cannot  ignore the patients prior history in  determining
causation either.  It is not clear that the board considered  Dr.
Vrabliks  opinion that the industrial accident was a  significant
cause  of  the  need for surgery.  On remand,  the  board  should
clarify   the  weight  it  accorded  the  lack  of  a  definitive
     B.   The Board Did Not Abuse Its Discretion by Following the
          Superior Courts Remand Order.
          Smith  asserts that the board abused its discretion  in
          finding that his claim was not compensable.  His claim that the
board abused its discretion centers around the boards reversal of
course  in  its  assessment  of Dr. Ballards  testimony  and  its
reliance on what he terms Dr. Ballards insubstantial testimony.
          The board was free on remand to reconsider the issue of
Dr. Ballards credibility.  After the superior court determined as
a  matter  of  law  that  UAF  had rebutted  the  presumption  of
compensability,  it  remanded  the  case  to  the  board  for   a
determination  of  whether  Smith  had  proven  his  claim  by  a
preponderance of the evidence.  In its remand order, the superior
court  stated, [T]he AWCB may reject and weigh any  testimony  of
any  witnesses in determining whether Smith satisfies his  burden
of persuasion.
          When   a   reviewing  court  remands  a  case   to   an
administrative agency, the agency is bound to follow  the  courts
order and may correct or revisit issues that were not decided  by
the  reviewing court.42  Here, the superior court  made  a  legal
determination that Dr. Ballards testimony, without  weighing  it,
provided   adequate   evidence  to  rebut  the   presumption   of
compensability.   In so deciding, the superior court  found  that
the  board  had committed a legal error in weighing Dr.  Ballards
testimony at the rebuttal stage.  More importantly, the  superior
court  explicitly  told  the  board that  it  could  reweigh  the
evidence  on  remand.  Smiths argument asks us to hold  that  the
board  abused  its  discretion by following the  mandate  of  the
superior court.  We decline to do so.
          Smiths  other arguments lack merit.  He maintains  that
Dr.  Vrabliks  testimony is entitled to greater weight  than  Dr.
Ballards because of Dr. Vrabliks greater knowledge of Smiths case
and  longer  career as a physician.  The board did not explicitly
credit the testimony of one doctor over the other; it appears  to
have relied on both doctors in making its decision.  Nonetheless,
we  have  previously refused to adopt a general rule  in  workers
compensation cases that a treating physicians opinion is entitled
to greater weight than the opinion of an employers expert.43  The
board  alone is charged with determining the weight it will  give
to medical reports.44
          Smith  also argues that Dr. Ballards testimony  is  not
substantial  evidence on which the board could rely to  deny  his
claim.  He contends that Dr. Ballards testimony was contradictory
and ambiguous and asks us to determine that it was insubstantial.
Smiths  arguments are really directed at issues of  Dr.  Ballards
credibility,  which  is  a  question related  to  the  weight  of
evidence.    Whether  the  quantum  of  evidence   presented   is
substantial  is  a  question  of  law.45   This  is  akin  to   a
determination that there is sufficient evidence available for the
board  to  make  a  decision.   A legal  determination  that  the
evidence is sufficient to support a proposition is distinct  from
assigning  weight to a particular piece of evidence.46   Findings
related  to  weight are within the province of  the  fact-finder,
which is the board in workers compensation cases.47
          Our  rule that inconclusive and ambiguous testimony  is
construed  in  favor  of the applicant applies  at  the  rebuttal
stage,  when  the board is charged with determining  whether  the
          employer has presented sufficient evidence to rebut the
presumption  of  compensability.48   Here,  the  superior   court
determined  as a matter of law that UAF had presented  sufficient
evidence  to rebut the presumption of compensability.  Smith  did
not   attempt   to  have  this  determination  reviewed   in   an
interlocutory appeal, and he did not question the holding in  his
points on appeal in this case.  If the evidence UAF presented was
sufficient  to  rebut the presumption of compensability,  without
being  weighed,  it could be sufficient to support  a  denial  of
Smiths claim if the board accorded it weight.49
          This   is  a  case  with  medical  uncertainty  as   to
causation.  The boards decision is inadequate to permit appellate
review  because  we  are unable to determine whether  it  applied
incorrect  legal  rules  and whether it  considered  all  of  the
relevant  evidence.   We  therefore VACATE  the  boards  decision
denying Smiths claim and REMAND the case to the board for further
findings consistent with this opinion.
     1     The malfunctioning filter cooled and dehumidified  the
compressed air that operated the power plant controls.

     2     Smiths  normal  work  schedule was  three  twelve-hour
shifts  and  one four- hour shift per week.  At the time  of  his
injury,  his schedule was Wednesday from 11:00 a.m. to 3:00  p.m.
and then Thursday through Saturday from 7:00 a.m. to 7:00 p.m.

     3    Epidural fibrosis is scarring from back surgery.

     4     AS  23.30.005(a)  requires that each  board  panel  be
composed of a hearing officer, a representative of industry,  and
a  representative of labor.  Two members of a panel are a  quorum
for hearing cases.  AS 23.30.005(f).

     5     A board regulation permits a member who did not attend
the hearing to review the record and deliberate when a two-member
panel   is  deadlocked.   8  Alaska  Administrative  Code   (AAC)
45.070(k)(2)(A) (2006).

     6    Norcon, Inc. v. Alaska Workers Comp. Bd., 880 P.2d 1051
(Alaska 1994).

     7     Wollaston  v. Schroeder Cutting, Inc.,  42  P.3d  1065
(Alaska 2002).

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

     9     Circle  De Lumber Co. v. Humphrey, 130 P.3d  941,  946
(Alaska 2006).

     10    Id. (quoting Robertson v. Am. Mech., Inc., 54 P.3d 777,
779 (Alaska 2002)).

     11     Bradbury  v.  Chugach Elec. Assn, 71  P.3d  901,  905
(Alaska 2003).

     12     Thoeni v. Consumer Elec. Servs., 151 P.3d 1249,  1253
(Alaska  2007) (quoting Municipality of Anchorage v.  Devon,  124
P.3d 424, 429 (Alaska 2005)).

     13    Bradbury, 71 P.3d at 905.

     14     Id. (quoting Temple v. Denali Princess Lodge, 21 P.3d
813, 816 (Alaska 2001)).

     15    Id.

     16    Id. at 906.

     17    Id. (citing Big K Grocery v. Gibson, 836 P.2d 941, 942
(Alaska 1992)).

     18    Id.

     19     Burgess Constr. Co. v. Smallwood, 623 P.2d  312,  316
(Alaska  1981).  But cf. Veco, Inc. v. Wolfer, 693 P.2d 865,  870
(Alaska 1985) (noting that expert medical evidence is not  always
necessary to establish or rebut the presumption).

     20     Norcon,  Inc. v. Alaska Workers Comp. Bd.,  880  P.2d
1051, 1055 (Alaska 1994).

     21    Ayele v. Unisea, Inc., 980 P.2d 955, 957 (Alaska 1999).

     22     Brown  v.  Patriot Maint., Inc., 99 P.3d 544,  551-52
(Alaska 2004).

     23    Ayele, 980 P.2d at 958.

     24    Id.

     25    Brown, 99 P.3d at 553.

     26    Id. at 547.

     27    Id. at 553.

     28    Stephens v. ITT/Felec Servs., 915 P.2d 620, 627 (Alaska

     29    Id. at 627.

     30    Id.

     31    Id. at 625-26.

     32    Id. at 627.

     33    Id.

     34    Dr. Vrabliks reliance on Smith in determining causation
is  not unique.  The doctor whose opinion the board relied on  in
Employers Commercial Union Co. v. Libor indicated that  the  best
way  to establish a connection between two injuries would  be  to
ask  the patient how much back pain he had in the interim period.
Employers  Commercial  Union Co. v.  Libor,  536  P.2d  129,  131
(Alaska 1975).

     35     Cf.  Brown, 99 P.3d at 553 (noting that  experts  had
accepted  facts  described by lay witnesses, but facts  were  not

     36     Hoth v. Valley Constr., 671 P.2d 871, 874 n.3 (Alaska
1983)  (Absent specific findings by the Board that  it  chose  to
disbelieve a witnesss testimony, we will not assume that lack  of
credibility was a relevant factor in the Boards decision.).

     37     8  Arthur  Larson  & Lex K. Larson,  Larsons  Workers
Compensation Law  130.06[2][e] (2006).

     38    Childs v. Copper Valley Elec. Assn, 860 P.2d 1184, 1189
(Alaska  1993)   (citing 3 Arthur Larson,  The  Law  of  Workmens
Compensation  80.32, at 15-834 to -835 (1992)); see also Safeway,
Inc.  v.  Mackey,  965  P.2d 22, 27 (Alaska 1998)  (stating  that
merely reciting the proper words as an opinion is not necessarily
enough to rebut the presumption of compensability).

     39     Libor,  536 P.2d at 32; Beauchamp v. Employers  Liab.
Assurance Corp., 477 P.2d 993, 996-97 (Alaska 1970).

     40     Lindhag v. State, Dept of Natural Res., 123 P.3d 948,
953-55 (Alaska 2005).

     41    Id. at 954.

     42    Scott v. Mason Coal Co., 289 F.3d 263, 267-68 (4th Cir.
2002);  City  of Hampton v. Iowa Civil Rights Commn,  554  N.W.2d
532,  535 (Iowa 1996) (holding that unless the order to an agency
provides otherwise a remand is general and the agency is free  to
address  the  claim  anew); see also  Reier  v.  State,  Dept  of
Assessments  &  Taxation, 915 A.2d 970, 983-84  (Md.  App.  2007)
(upholding  agency findings on remand that differed from  initial
agency  findings); Armstrong v. Employment Div., 832  P.2d  1233,
1235  (Or.  App. 1992) (holding that administrative agency  could
change  its  findings on remand because appellate court  did  not
circumscribe agencys authority); 2 Am. Jur. 2d Administrative Law
576 (2004).

     43    Safeway, 965 P.2d at 29.

     44    AS 23.30.122.

     45     Veco, Inc. v. Wolfer, 693 P.2d 865, 869 (Alaska 1985)
(quoting  Firemans Fund Am. Ins. Cos. v. Gomes,  544  P.2d  1013,
1015 (Alaska 1976)).

     46    See Firemans Fund, 544 P.2d at 1015 n.6.

     47    AS 23.30.122.

     48     Bouse  v. Firemans Fund Ins. Co., 932 P.2d  222,  235
(Alaska  1997)  (When  medical testimony  offered  to  rebut  the
presumption  is  uncertain or inconclusive,  the  presumption  of
compensability  is not overcome.); Miller v. ITT  Arctic  Servs.,
577 P.2d 1044, 1048-49 (Alaska 1978).  But see Brown, 99 P.3d  at
548-50;  Fairbanks N. Star Borough v. Rogers & Babler,  747  P.2d
528,  534 (Alaska 1987); Beauchamp, 477 P.2d at 997. We also note
that  this  rule  does not apply if an expert gives  an  explicit
opinion  that the industrial accident is not a substantial  cause
of  the  disability.  See Stephens v. ITT/Felec Servs., 915  P.2d
620,  625-26  (Alaska 1996) (citing Big K Grocery v. Gibson,  836
P.2d 941, 942 (Alaska 1992)).

     49     See Cowen v. Wal-Mart, 93 P.3d 420, 426 (Alaska 2004)
(noting  that  the  evidence that was  sufficient  to  rebut  the
presumption of compensability was also sufficient to support  the
boards determination as to the preponderance of the evidence).

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