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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. VECO Alaska, Inc. v. State, Dept. of Labor, Division of Worker's Compensation, Second Injury Fund (07/25/2008) sp-6291

VECO Alaska, Inc. v. State, Dept. of Labor, Division of Worker's Compensation, Second Injury Fund (07/25/2008) sp-6291, 189 P3d 983

     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

VECO ALASKA, INC. and )
ALASKA NATIONAL INSURANCE ) Supreme Court No. S- 12163
COMPANY, )
) Superior Court No. 3AN-05- 05765 CI
Appellants,)
) O P I N I O N
v. )
) No. 6291 July 25, 2008
STATE OF ALASKA, DEPARTMENT)
OF LABOR, DIVISION OF )
WORKERS COMPENSATION,)
SECOND INJURY FUND,)
)
Appellee.)
)
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, William F. Morse, Judge.

          Appearances:  Allan  E.  Tesche   and   Karen
          Russell,  Russell,  Tesche,  Wagg,  Cooper  &
          Gabbert,  P.C.,  Anchorage,  for  Appellants.
          Richard  W.  Postma, Jr., Assistant  Attorney
          General,  Anchorage, and  David  W.  M rquez,
          Attorney General, Juneau, for Appellee.

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

          FABE, Chief Justice.
          EASTAUGH, Justice, dissenting.



I.   INTRODUCTION
          Cornelius   Buck   Huizenga   worked   at   VECO    for
approximately  eleven  years in a number  of  positions.   Before
beginning  his VECO employment, he sustained a back injury  while
working for another employer.  He reinjured his back at his  VECO
job  while moving some timbers.  He then had three surgeries  and
ultimately  was confined to a wheelchair.  VECO paid his  workers
compensation benefits and petitioned the Second Injury  Fund  for
partial reimbursement.  The Fund denied both that Huizenga had  a
qualifying preexisting condition and that VECO had established by
a  written  record that it knew Huizenga had such  a  preexisting
condition.  The Alaska Workers Compensation Board found that VECO
had  not  produced written records from which it could reasonably
be inferred that VECO had prior knowledge of Huizengas qualifying
impairment.   Because the Board applied a standard that  was  too
restrictive  in  evaluating whether VECO  satisfied  the  written
record requirement, we reverse the Boards decision denying  VECOs
petition   and  remand  the  case  to  the  Board   for   further
proceedings.
II.  FACTS AND PROCEEDINGS
          Cornelius Huizenga has a congenital condition diagnosed
as  achondroplastic dwarfism.  The condition is characterized  by
defects  in bone formation and results in short stature.  Another
consequence  of  Huizengas achondroplasia is  his  narrow  spinal
canal,  which  means that arthritic changes occur  in  him  at  a
relatively early age.
          In  December  1988 Huizenga was working for  a  private
contractor  when he fell from a stepladder, landing on  his  back
and  left hip area.  He was diagnosed with lumbar spinal stenosis
diastematomyelia with bilateral radiculopathy.1  As a  result  of
this  injury,  he had L3, L4, and L5 laminectomies and  bilateral
neural  foraminotomies  at the S1, L5,  and  L4  nerve  roots  in
January  1989.2  Huizenga received a twenty-two percent permanent
partial impairment rating due to this injury.
          Huizenga  began  working for VECO the summer  following
this  back  surgery.   He worked for VECO at different  locations
over  the  next several years.  On April 30, 1996, and  again  on
October  1,  1997,  Huizenga completed health questionnaires  for
VECO.   His answers to both health questionnaires disclosed  that
he  had  a prior back injury and surgery, that he had never  been
advised  to limit his activities in any way, and that he did  not
have   arthritis.   His  response  to  the  second  questionnaire
provided  the  following  details about his  back  surgery:  Back
operation,  compression 5 lower vertebrae, Dec[.] 21,  1987,  Dr.
Voke.3
          In  January  1999 Huizenga began work for  VECO  as  an
equipment  operator  at the Port of Anchorage.   On  October  15,
2000,  he  reinjured his back at work.4  He was dragging  several
timbers that weighed about thirty pounds each when something  let
go  in  his  back,  and he began to experience  pain.   At  first
Huizenga simply took over-the-counter pain medication.  But about
a  week  following the accident, he was hospitalized  because  he
could not move his legs.  On October 24, 2000, Huizenga again had
back  surgery to relieve pressure on his nerves.  This  time  the
surgery involved laminectomies of T12, L1, L2, and L3, as well as
a  partial  L4 laminectomy, decompression of conus cauda  equina,
          and foraminotomies at L1-2, L2-3, and T12-L1.5  He was discharged
from  the  hospital about four weeks later in a wheelchair  after
having spent several weeks in rehabilitation therapy.
          Huizenga  remained unable to walk,  and  on  March  11,
2002,  he  underwent  a  spine fusion surgery  in  Colorado.   He
developed complications and was readmitted to the hospital for  a
fourth surgical procedure in late March 2002.
          On  June  24,  2003, Dr. Susan Klimow gave  Huizenga  a
permanent  partial impairment rating.  Huizenga  was  then  in  a
wheelchair  and could stand only by using a walker.   Dr.  Klimow
indicated  that  she  had  to take into account  Huizengas  prior
twenty-two  percent  permanent  partial  impairment   rating   in
determining  his  whole person impairment.  She stated,  His  new
whole person impairment rating is 57%.
          Dr.  Edward  Voke,  Huizengas  orthopedic  surgeon   in
Anchorage, stated in an affidavit submitted to the Alaska Workers
Compensation  Board that the combined effects of  Huizengas  2000
injury  and his preexisting arthritis produced a disability  that
was  substantially  greater  than  the  injury  that  would  have
resulted from the 2000 injury alone.  Dr. Klimow later signed  an
affidavit concurring with this assessment.
          On  May  11, 2004, VECO filed a Petition to Join Second
Injury  Fund  and Claim for Reimbursement with the Board.6   VECO
alleged   that   it  had  met  the  statutory  requirements   for
reimbursement.   Nichola  Lienhart, an  employee  in  VECOs  risk
management department, filed an affidavit averring that VECO  had
written  knowledge that Huizenga had arthritis before his October
2000  injury.   In support, she attached Huizengas two  completed
health questionnaires.  As additional support, VECO submitted Dr.
Vokes  affidavit, in which Dr. Voke stated that Huizengas answers
to the October 1, 1997 health questionnaire would have alerted  a
reasonable  employer to the presence of arthritis  in  his  lower
spine  on  October  1,  1997 because that  condition  is  closely
related to his post-operative condition ten years earlier.
          The  Second  Injury  Fund, through  its  administrator,
filed  an  answer that disputed whether VECO had  established  by
written  record  knowledge of a qualifying preexisting  condition
and  whether  Huizenga  in  fact  had  a  qualifying  preexisting
condition.
          On  August  19,  2004, Dr. Klimow signed  an  affidavit
stating that the information Huizenga provided on his October  1,
1997   health  questionnaire  would  have  alerted  a  reasonable
employer to arthritis in Huizengas lower spine.  Dr. Voke and Dr.
Klimow  both  testified via deposition at the  hearing  on  VECOs
petition  to  join  the Second Injury Fund.  Before  the  hearing
Huizenga  stated  in an affidavit that he did  not  know  he  had
arthritis before the litigation regarding the Second Injury Fund.
          The  Board held a hearing on VECOs petition on  January
6,  2005.   The only witness to testify in person at the  hearing
was Huizenga, who again affirmed that he did not know that he had
arthritis   when   he   answered  the  1996   and   1997   health
questionnaires.   The sole issue before the  Board  was,  as  the
Board   saw  it,  whether  VECOs  prior  knowledge  of  Huizengas
arthritis  could  fairly  and reasonably  be  inferred  from  the
          written records VECO had produced.7
          The  Board  decided  that Huizengas  answers  to  VECOs
health questionnaires were not a written record from which  prior
knowledge  of Huizengas arthritis could fairly and reasonably  be
inferred.  In so deciding, the Board found that Huizenga had  not
been  told  until  September  2004 that  he  had  arthritis.   It
concluded  that  Huizengas disclosure that he had  a  prior  back
injury  and  surgery  was an insufficient written  record,  as  a
matter  of  law,  to  establish that VECO  knew  about  Huizengas
arthritis.   The  Board  also found  that  the  two  doctors  who
testified for VECO had reached their conclusions based  on  their
knowledge   of   Huizengas  medical  records,  not   his   health
questionnaires; it further determined that VECO had not shown  by
a  preponderance  of  the evidence that it  had  knowledge  of  a
qualifying preexisting condition.
          VECO  appealed to the superior court, arguing that  the
Board  erred  as  a  matter  of  law  in  reaching  its  ultimate
conclusion;  after  independently  reviewing  the  evidence,  the
superior court affirmed the Boards ruling.
          VECO appeals.
III. DISCUSSION
     A.   Standard of Review
          When  the superior court acts as an intermediate  court
of appeals in a workers compensation case, we directly review the
Boards ruling.8  Whether VECO established by a written record its
knowledge of Huizengas preexisting impairment turns on a question
of  statutory interpretation involving no agency expertise.9   We
review  issues of statutory interpretation under the  independent
judgment  standard,  adopting  the  rule  of  law  that  is  most
persuasive in light of precedent, reason, and policy. 10
          The  dissent argues that the proper standard of  review
for  this  case  is the substantial evidence test.   If  we  were
reviewing only the Boards factual determinations, this  might  be
the  correct standard of review.  But we are reviewing the  legal
standard the Board used here to evaluate the evidence, not simply
its  determinations of weight or other factual  findings.   Also,
the Board decided as a matter of law the record was insufficient.
     B.   The Board Applied a Standard that Was Too Restrictive.
          
          1.   The Second Injury Fund
          The   Second  Injury  Fund  was  created  to  encourage
employers to hire and retain partially disabled employees.11  The
Second  Injury Fund reimburses qualifying employers  for  workers
compensation benefits paid to disabled employees after 104  weeks
if   an  employees  preexisting  permanent  physical  impairment,
combined  with  his  subsequent injury, results  in  compensation
liability  substantially greater than [what] would have  resulted
had  the preexisting condition not existed.12  To be eligible for
reimbursement  from  the  Fund,  the  employer  is  required   to
establish  by  written  records that  it  had  knowledge  of  the
employees  permanent  physical impairment before  the  subsequent
injury  occurred  and  that it retained  the  employee  after  it
acquired  that knowledge.13  The Alaska Workers Compensation  Act
contains  a  list of conditions that are presumptively disabling,
as  well  as  a  provision that covers conditions  that  are  not
listed.14  Although the employers written record need not contain
the  exact  medical terminology of the statute, it  must  contain
adequate  information to support a reasonable inference that  the
employee suffered from a qualifying impairment.15
          Not all causes of permanent physical impairment qualify
for  reimbursement from the Second Injury Fund.  To be considered
a  permanent physical impairment for Second Injury Fund purposes,
the  condition must be listed in the statute or fall  within  the
statutes general provision.16  An employer need not show  that  a
listed  condition  is  in fact a hindrance to  employment  for  a
specific employee; if the condition is one covered by the  Second
Injury Fund statute, a permanent physical impairment exists as  a
matter  of  law.17  Permanent impairment for purposes  of  Second
Injury  Fund reimbursement is different from permanent impairment
for  receipt  of  permanent  partial  impairment  benefits.18   A
qualifying condition for Second Injury Fund purposes need not  be
work  related;  in  fact,  some  qualifying  Second  Injury  Fund
conditions are congenital, such as muscular dystrophies.19   VECO
does  not  allege  that  Huizenga had any  condition  other  than
arthritis  that  might  qualify  as  a  physical  impairment  for
purposes of Second Injury Fund reimbursement.20
          2.   The written record requirement
          In  Sea-Land  Services, Inc. v.  State,  Second  Injury
Fund,  we  construed the written record requirement  as  follows:
[A]n employer is entitled to reimbursement from the Second Injury
Fund  if  it  produces  a written record  from  which  its  prior
knowledge  of the employees qualifying disability can fairly  and
reasonably  be  inferred.21  We identified two purposes  for  the
written  record  requirement: (1) it protects  the  Fund  against
spurious  or collusive claims by demonstrating that the  employer
actually knew of the preexisting condition, and (2) it eliminates
the  need to litigate whether the employer had knowledge  of  the
preexisting condition.22
          The  issue  presented in this appeal is  whether  VECOs
knowledge that Huizenga has a permanent impairment as defined  in
AS  23.30.205  can  fairly and reasonably be  inferred  from  the
          written record VECO presented to the Second Injury Fund and the
Board.   The Board held that it could not, based in part  on  its
interpretation of our prior cases.  VECO urges us to overturn the
Boards  findings and conclusions of law, arguing that  the  Board
applied an incorrect standard and misconstrued the evidence.  The
State  asks  us  to affirm the Board, asserting that  the  Boards
decision   is   legally  correct  and  supported  by  substantial
evidence.
          The  Board  construed our prior cases and the  relevant
statute as requiring VECO to show not only that his employer knew
that Huizenga suffered from a permanent physical impairment,  but
also  had  knowledge  of  the  specific  physical  impairment  he
suffered  from, i.e., arthritis.  Thus, the Board found that  the
employers  written  record  that  the  employee  had  prior  back
injuries  and  surgeries, and nothing more, does  not  reasonably
connote  a  preexisting  arthritic  condition  and  therefore  is
insufficient  as  a  matter  of law to  establish  the  employers
written  notice of a preexisting qualifying disability.  It  also
stated  that  Huizengas  denial that he  had  arthritis  and  his
description  of his back surgery negate[d] any argument  by  VECO
that  it had written notice of an arthritic condition.  This goes
beyond  what  we have previously held an employer  must  show  to
obtain  reimbursement from the Second Injury  Fund  and  what  we
believe the correct standard is.
          By  requiring  VECO  to  present evidence  that  showed
unequivocally that VECO knew Huizenga had arthritis  rather  than
simply  a  permanent impairment, the board imposed a  requirement
that  exceeds what we have previously held an employer must  show
to  obtain  reimbursement from the Second  Injury  Fund.23   This
strict  standard is one that most employers would likely  not  be
able   to   meet   based   on  information  from   employee-based
questionnaires.  Employees may not fully understand their medical
conditions  or  may  misconstrue a doctors  advice  or  opinions.
Here,  for example, Huizenga denied that he knew he had arthritis
before the Second Injury Fund litigation, even though the doctors
who  treated him testified that his medical records indicated the
presence of an arthritic condition.  As Huizenga told the  Board,
Im  just  not a doctor-type person.  I just dont know what  these
terms mean, you know, like the arthritis.  We are concerned  that
the  standard the Board used here creates the wrong incentive for
employers:  it  could discourage employment or retention  of  any
employee  who appears to have an impairment unless the impairment
can easily and explicitly be pinned to a specific cause listed in
AS  23.30.205(d)(1).  Because one of the purposes of  the  Second
Injury Fund is to encourage employment and retention of employees
with  physical impairments,24 the stringent standard used by  the
Board is contrary to the purpose of the Fund.
          VECO argues that the written record requirement is  met
when there is enough evidence in the written record to tempt  the
employer  to discriminate against an employee on the basis  of  a
qualifying condition under AS 23.30.205(d).  In looking  at  what
the  employer  needs  to show to qualify for Second  Injury  Fund
reimbursement,  we previously held that the written  record  does
not  need to contain the exact medical terminology describing the
          condition.25  As Larson notes in his treatise:
          It  is clear that the employer does not  have
          to  know  exactly  what the  employees  prior
          condition  is  in  medical  terms.   If   the
          employer, who was the claimants mother,  knew
          that  something  was troubling  the  employee
          about  his  bones, she did not need  to  know
          also that it was Pagets disease.  And if  the
          employer,   a   brewmaster,   knew   of   the
          permanency  of  claimants  previous  shoulder
          injury,  but  did not know what  the  trouble
          was,   the  employer  had  sufficient   prior
          knowledge.[26]
          
          The  written record requirement does not dispense  with
an employer knowledge requirement, as the dissent suggests.27  One
purpose  of  the written record standard  providing  evidence  of
employer  knowledge28  addresses the problems of litigation  time
and   cost  that  Larson  identifies  with  an  actual  knowledge
standard,29 but it does not waive employer knowledge.
          As we noted above, the underlying purpose of the Second
Injury  Fund  is to encourage employers to hire workers  who  are
known to suffer from a permanent physical impairment.30  In order
to  prevent  employers  from claiming knowledge  of  a  permanent
physical impairment opportunistically after a subsequent  injury,
the  legislature  imposed a written record  requirement.31   This
purpose  is  satisfied if the employers written  record  shows  a
preexisting permanent impairment that could reasonably be due  to
one  of the conditions listed in AS 23.30.205(d)(1), even if  the
employer   cannot   precisely  identify  the   specific   medical
condition.  In other words, if the written record shows  that  an
employee  had a permanent or chronic condition that  could  be  a
hindrance to employment, the written record requirement would  be
satisfied.   This construction of the written record  requirement
is  substantially  the  same  as  the  Arizona  appellate  courts
construction  of  a similar statute.32  If an employee  disclosed
that  she had knee problems and had undergone knee surgery and  a
laminectomy, the written record would be satisfied,  even  though
the employer did not know the specific reason for the laminectomy
or  knee problems.33  Or if an employee takes sick leave over the
years  for  back problems and this is recorded in  the  employers
files,   the  employer  shows  that  it  had  knowledge  of   the
impairment, even if the employer does not know that the  employee
had  degenerative disk disease.34  If an injury happens after the
employer  acquires  knowledge  of the  permanent  condition,  the
Second  Injury Fund should reimburse the employer so long as  the
underlying impairment is in fact one of the conditions listed  in
the statute and the other statutory requirements are met.35
          Although  the  dissent  cautions  that  the  term  back
problems lacks precision, this is the type of information that an
employee is likely to give to his employer.  We specifically held
in  Sea-Land Services that the written record did not need to use
exact  medical  terminology.36  If an employer  is  aware  of  an
employees medical problems and records them in everyday language,
          that employer still satisfies the written record requirement.37
          The  dissent may misunderstand our statement  that  the
purpose  of the written record requirement is satisfied when  the
record  shows an impairment that could reasonably  be  due  to  a
condition  listed in the statute.  Reasonableness  in  construing
the  employers written record is required by the test in Sea-Land
Services  and is not a foreign notion in determining the  meaning
of  a written record.38  The written record need not show that an
underlying  cause  of the impairment was, in  fact,  a  condition
listed  in  AS  23.30.205.  Whether such  a  causal  relationship
existed  may  be  demonstrated at the hearing by  any  acceptable
evidence.  Further, our statement is not concerned with a  causal
relationship between the preexisting condition and the subsequent
injury39  but  is meant to clarify the standard an employer  must
meet to qualify for Second Injury Fund reimbursement.
          Because  the health questionnaires are the only written
records  that VECO alleges it had before the October 2000 injury,
the  question  whether VECOs knowledge of a permanent  impairment
satisfies   the   written  record  requirement  turns   on   what
conclusions  can  be  drawn  from those health  questionnaires.40
Because  the  Board  is  charged  with  evaluating  evidence   in
compensation proceedings,41 we must remand the case to the Board.
Although  Huizenga  told VECO that he had back surgery  involving
compression and [five] lower vertebrae, he also checked  the  box
on the questionnaire showing that he had never been advised by  a
health  care  provider to limit his activities in any  way.   The
Board  will  need  to  decide in the first instance  whether  the
written record VECO relied on, showing that Huizenga had a  prior
back injury and surgery, supports a fair and reasonable inference
that  Huizenga  had  a  preexisting back  condition  that  was  a
permanent physical impairment.  If the Board determines that such
an  inference  can  be made, then the written record  requirement
should  be  considered met, and the Board can  determine  whether
VECO  has  satisfied the other statutory requirements for  Second
Injury Fund reimbursement.
          What  the  employee  or  his  doctors  understood   the
questionnaire  to mean is evidence that the Board may  choose  to
consider,  but the statutory standard is the employers knowledge,
not the knowledge of either the employee or his physicians.42  The
Board  may choose here to weigh the testimony of Drs. Klimow  and
Voke  in determining what inferences an employer could reasonably
draw  from  the answers to the health questionnaire,  but  expert
testimony  is  not  necessary to demonstrate  what  a  reasonable
inference  might  be.  Unless VECO can demonstrate  that  it  had
Huizengas medical records in its possession at some time prior to
the 2000 injury, the contents of the medical records discussed by
the doctors in their depositions cannot serve as a written record
showing VECOs pre-injury knowledge.
          We  disagree with the States argument that our previous
cases  interpreting  the  written record requirement  compel  the
result  that  the Board reached.  Both cases are consistent  with
our  holding today.  In Sea-Land Services, Inc. v. State,  Second
Injury Fund, the only record was a physical examination report.43
The  report  contained a box marked yes next to  head  or  spinal
          injuries but no other information about the nature and extent of
the  injuries.44  The report also indicated that the employee had
no  [p]ermanent defect from illness, disease, or injury and  that
his  spine  was OK.45  The parties agreed that the  employer  had
actual  knowledge of the employees previous back  surgery  for  a
herniated  disk.46  We concluded that it could not reasonably  be
inferred  from  the  written record that  Sea-Land  knew  of  the
employees  permanent  disability.47  In  Sea-Land  Services,  the
written  record contained no reference to surgery or to  anything
else  that might indicate that the employees previous injury  had
caused lasting damage.
          In  Alaska International Constructors v. State,  Second
Injury Fund, the employer had slightly more information.48  Alaska
International had a resume from the employee stating that he  had
been  injured  by a sheet of iron while working  for  a  previous
employer, that the injury had been corrected by surgery, and that
he  was released with no restrictions by his doctor to return  to
work.49   Besides  the  resume in the employers  possession,  the
employees  union had a written record showing that  the  employee
had   suffered  a  back  injury  and  had  undergone  three  back
surgeries.50   In  Alaska International, even  though  the  union
record did not mention arthritis, the State conceded that if  the
union  records  were imputed to the employer, the written  record
requirement would be satisfied.51  We determined that  the  union
record  could  not  be imputed to the employer.52   Although  our
opinion stated that the resumes reference to an injury failed  to
raise  the  inference  that  Alaska  International  knew  of  the
employees arthritis  and in this respect went too far  the  focus
of  the  inquiry  did  not  need to be  on  the  precise  medical
condition.53   The resumes reference to an injury  did  not  even
identify the body part that had been injured and did not  in  any
way  indicate that the employee might have suffered  a  permanent
impairment because of the injury.54  The resume failed to raise an
inference  that  the  employer knew of any  condition,  not  just
arthritis,  that  might  have  caused  the  employee  to  have  a
permanent impairment.  We noted, The reference to [the employees]
injury  could reflect any injury which is sufficiently severe  to
require surgery.  One can not infer, without further information,
that there will be a permanent impairment.55
          In  Huizengas  case, the employer had more  information
than  the  employers  in  either of our previous  written  record
cases.   Here, Huizenga told VECO that he had a back injury  that
required  surgery and that it involved compression and  the  five
lower   vertebrae.   The  Board  must  determine  whether   VECOs
knowledge  that Huizenga had a permanent physical impairment  can
fairly  and reasonably be inferred from this information and  his
other statements in the health questionnaires.

IV.  CONCLUSION
          For  the reasons above, we REVERSE the decision of  the
superior court affirming the Boards decision and REMAND this case
to  the  Board  for  further  proceedings  consistent  with  this
opinion.
EASTAUGH, Justice, dissenting.
          This is what the board said in the critical passage  of
the  dispositive  portion of the decision  denying  VECOs  Second
Injury Fund claim:
          The  Board  finds that the employers  written
          record  that  the  employee  had  prior  back
          injuries  and  surgeries, and  nothing  more,
          does  not  reasonably connote  a  preexisting
          arthritic   condition   and   therefore    is
          insufficient as a matter of law to  establish
          the   employers  written  notice  of  a  pre-
          existing qualifying disability.
          
(Emphasis   added.)    The   entire  paragraph   containing   the
dispositive  portion  of  the  boards  decision  is  attached  as
Appendix A.
          The  boards assessment of the employers written records
is  supported  by  substantial evidence  the records  themselves.
The  boards  decision is also consistent with the legal  standard
that  controls Second Injury Fund claims.  Because the board  did
not err, we should affirm.
          Todays  opinion instead reverses and remands.  I  think
it  does so erroneously.  But whatever the ultimate result may be
in  this case, we should not adopt a new and unjustified test for
determining  whether AS 23.30.205(c) is satisfied.   I  therefore
respectfully dissent.
          My  disagreement  starts with the standard  of  review.
The  courts opinion regards the case as turning on a question  of
statutory  interpretation,  freeing  this  court  to  apply   its
independent judgment.1
          But  this  case  does  not  really  turn  on  statutory
interpretation.  The critical question is whether  the  employers
prior  knowledge  of the employees qualifying disability  can  be
fairly   and  reasonably  inferred  from  the  employers  written
records.2   That  is  how  we  phrased  the  question  in  Alaska
International  Constructors  v. State,  Second  Injury  Fund,3  a
comparable case.  As so phrased, the question inherently asks the
board  to  weigh the written records to determine what  fair  and
reasonable  inferences may be drawn from  them.   In  theory,  an
employers written records could be so self-explanatory and  self-
evident  that  they would compel the board to conclude  that  the
employers  prior  imputed  knowledge of a  qualifying  disability
either  must  be, or may not be, fairly and reasonably  inferred.
If  the  written  records  do  not  compel  one  of  those  legal
conclusions,  they  necessarily raise a factual  question  to  be
decided by the board.  We apply the substantial evidence test  in
reviewing  the  boards factual findings.4  The board  here  found
that  the  written record showing only the employees  prior  back
injuries  and surgeries does not reasonably connote a preexisting
arthritic condition.  The boards decision is ultimately based  on
its  factual assessment of the adequacy of VECOs written records.
We  should review that assessment under the substantial  evidence
standard of review.
          The realities of this case confirm that the substantial
          evidence standard of review applies.  The board was in the best
position  to  evaluate VECOs records and determine  whether  they
permitted  an  inference  of  arthritis.   We  have  no  superior
information  or  training that allows us to make  a  finding  the
board  did  not, or to say that the board should have  reached  a
different  result.  We certainly cannot say that the  information
in  the  written  records was so clear that the  board  erred  in
making its factual finding.5
          Whether  the  board  applied the  correct  standard  in
weighing  the  evidence theoretically presents a threshold  legal
question.   I  say theoretically, because there is  no  plausible
indication   the  board  deviated  from  the  dictates   of   the
controlling statute or from what we have said about applying that
statute.   The  board  said two things   potentially  bearing  on
whether it was actually making a legal determination.  First,  it
noted  that the employee was not informed he had arthritis  until
long  after he filled out VECOs questionnaires.  The court  reads
this statement as reflecting the boards legal misunderstanding of
what  evidence is relevant.6  But the board did not  reason  that
Huizengas  ignorance  foreclosed VECOs claim.   After  mentioning
what Huizenga was told, the board looked at VECOs written records
in  deciding  whether  there was a fair and reasonable  inference
VECO  knew of a permanent impairment.7  Second, the board  stated
that  the employers record is insufficient as a matter of law  to
satisfy  the statute. But that conclusion depended on the  boards
review  of  the records and its determination that  they  do  not
reasonably connote a qualifying condition.
          The  courts  opinion  reads  the  boards  decision   as
requiring VECO to present evidence that showed unequivocally that
VECO  knew  Huizenga had arthritis rather than simply a permanent
impairment  .  .  .  .8   It  is unclear  what  error  the  court
perceives.  If the quoted passage is raising a question about the
standard of proof, the independent standard of review would apply
to  that  legal  issue.  But, as the plain  text  of  the  boards
dispositive paragraph reveals, the board did not apply the  wrong
unequivocal   standard  of  proof.   If  the  quoted  passage  is
raising  a  question  about  whether  the  board  misapplied  the
statutory  standard, whether the board did so is indeed  a  legal
question.   But  because  I think the board applied  the  correct
statutory  standard, the ultimate question is whether substantial
evidence  supported the boards factual assessment of the  written
records.
          My  second disagreement with the courts opinion is more
fundamental.   The  opinion  departs  from  both  the   statutory
standard  and from the approach we have said we (and  the  board)
should  follow in deciding such disputes.  The Alaska Legislature
adopted a Second Injury Fund scheme with two requirements germane
here:  first, that the employer, before it hired or retained  the
employee,  had knowledge (or, more accurately, imputed knowledge)
of the employees permanent physical impairment; second, that this
knowledge  be  established  by  the employers  written  records.9
Whether  the employers records establish the employers  knowledge
of  the  qualifying  condition  is  normally  for  the  board  to
decide.10   Whether  the  evidence is  sufficient  is  peculiarly
          within the boards province.11  In Sea-Land Services, Inc. v.
State, Second Injury Fund, we approvingly quoted as follows  from
a  Tennessee  Supreme  Court opinion  that  interpreted  what  we
described as a written record requirement substantially identical
to AS 23.30.205(c):
          when it can fairly and reasonably be inferred
          from such records as are produced in evidence
          that  the employer did have knowledge of  the
          physical  handicap  or  impairment   of   the
          employee  before  occurrence  of  the  injury
          which activates the Second Injury Fund claim,
          then  the [statutory] requirements . . .  are
          satisfied.[12]
          
We  then  adopted for Alaska the test announced by the  Tennessee
Supreme  Court:  [A]n employer is entitled to reimbursement  from
the Second Injury Fund if it produces a written record from which
its  prior  knowledge of the employees qualifying disability  can
fairly  and  reasonably be inferred.13  We also stated  that  the
written  record  need  not contain the exact medical  terminology
employed in AS 23.30.205(d)(1).14
          Todays  opinion  seems to alter the  longstanding  test
announced   in   Sea-Land   Services  and   applied   in   Alaska
International.15  The opinion does so in apparent reliance  on  a
passage  the  court quotes from the Larson treatise.16   I  doubt
that  Larson  intended the quoted passage to  apply  to  written-
records states like Alaska.  The quoted passage is introduced  by
the  preceding  paragraph  of  the treatise.17  The  introductory
paragraph states: An obvious question in states requiring  actual
employer  knowledge  is: How much must the  employer  have  known
about the actual nature of the prior injury?18  As I read Larson,
the  passage  quoted by the court was not meant  to  apply  to  a
written-record  jurisdiction like Alaska,  and  only  applies  to
states   requiring  actual  knowledge  for  Second  Injury   Fund
claims.19  Alaska is not such a state.  The legislature adopted a
written-record  standard, not an actual-knowledge  standard,  for
Second Injury Fund claims in Alaska.  Written records are used in
Alaska to impute knowledge but neither AS 23.30.205 nor our  case
law  requires  that  the employer have actual  knowledge  of  the
contents  of  the  record  or the impairment.   Larsons  treatise
distinguishes  actual-knowledge jurisdictions from written-record
jurisdictions,  noting, among other things, that a  down-to-earth
reason  for disapproving the [actual-knowledge] rule is  that  it
involves  one  of  those  distinctions  that  consume  far   more
litigation time and cost than the policy at stake is worth.20
          After   revising  the  longstanding  test  in  Sea-Land
Services  and Alaska International, the opinion proposes  another
standard  that is potentially just as problematic.   The  opinion
asserts that the underlying purpose of the Second Injury Fund
          is  satisfied if the employers written record
          shows a preexisting permanent impairment that
          could  reasonably  be  due  to  one  of   the
          conditions listed in AS 23.30.205(d)(1), even
          if the employer cannot precisely identify the
          specific medical condition.  In other  words,
          if  the written record shows that an employee
          had  a  permanent or chronic  condition  that
          could  be  a  hindrance  to  employment,  the
          written    record   requirement   would    be
          satisfied.  .  .  . If an employee  disclosed
          that  she had knee problems and had undergone
          knee  surgery and a laminectomy, the  written
          record  would be satisfied, even  though  the
          employer did not know the specific reason for
          the  laminectomy or knee problems. Or  if  an
          employee takes sick leave over the years  for
          back  problems  and this is recorded  in  the
          employers files, the employer shows  that  it
          had  knowledge of the impairment, even if the
          employer does not know that the employee  had
          degenerative disk disease.[21]
          
           This passage may seem unexceptional at first glance; a
legislature  might rationally choose to base Second  Injury  Fund
claims   on   just  such  a  standard.    But  this  passage   is
problematic, given the text of the statute and what we have  said
about the statute.
          First,  this  passage  seems  to  change  the  analysis
required  by  statute  and  case law.   Our  statute  requires  a
qualifying impairing condition and lists specific conditions that
qualify.22  It requires the employer to establish by its  written
records   that  it  had  knowledge  of  the  permanent   physical
impairment  before  the . . . injury and that  the  employee  was
retained after the employer acquired that knowledge.23  Likewise,
the  statute  defines permanent physical impairment to  mean  any
permanent  condition of such seriousness as to  hinder  obtaining
employment  or  reemployment;24 it also makes  it  clear  that  a
condition is not a permanent physical impairment unless it is one
of  the  following conditions listed in subsection  .205(d)(1).25
The  statute therefore requires that the employer have pre-injury
knowledge  of  one  of  the  qualifying  conditions,   and,   per
subsection  .205(a), that this condition be a cause  of  or  have
contributed  to  the  new  employment  injury.   Actual   advance
knowledge,  of  course, is not required.   Only  imputed  advance
knowledge  is  required; the imputation is to be  made  from  the
employers written records.  If knowledge of a condition listed in
the  statute   here,  arthritis  can  be  fairly  and  reasonably
inferred  from  the records,  the employer can recover  from  the
fund  if  that condition causes or contributes to the  subsequent
injury.   Before today, the issue in such a case was whether  the
written records could support an inference of an employers  prior
knowledge  of the qualifying condition that causes or contributes
to  the  new injury.26  But the courts opinion asserts  that  the
purpose  of the Second Injury Fund is satisfied if the  employers
written  record  shows  a preexisting permanent  impairment  that
could  reasonably be due to one of the conditions listed  in  the
statute.27    This  formulation  deviates  from  the  substantive
standard we adopted in Sea-Land Services, and is not obviously an
          equivalent paraphrase of that standard.  Assuming the opinions
formulation  is not intended to change the existing standard,  it
is  not  obvious  that the two formulations, rigorously  applied,
will  give identical results.  If they do not, todays formulation
will  create  confusion  and diminish  predictability  in  Second
Injury Fund disputes.
          Todays  formulation may simply be  intended  to  be  an
explanatory  paraphrase  of the existing  standard.   If  so,  it
nonetheless seems to alter how such disputes are to be  resolved.
It seems to assume that it is sufficient that the records show  a
permanent impairment that could reasonably be due to one  of  the
listed  conditions.  This formulation misdescribes  the  required
analysis.   It  implies that it is sufficient that the  permanent
impairment  itself  could reasonably be  due  to  the  qualifying
condition.   But under the standard we adopted in 1987  the  only
occasion for taking reasonable inferences is when knowledge about
the employees condition at the time of hire or retention is being
imputed to the employer; this inference does not aid the employer
in   establishing  that  the  qualifying  condition   caused   or
contributed  to  the new injury.  Also, subsection  .205(d)  uses
permanent   physical  impairment  and  permanent   condition   or
condition as equivalent terms.  The statute as written  makes  it
unnecessary  to  determine whether a permanent  impairment  could
reasonably be due to one of the listed conditions.28
          Second  Injury  Fund disputes arising  out  of  records
reflecting  knee  and back problems  the examples  given  by  the
courts  opinion   would be for the board to resolve.   Whether  a
given  circumstance satisfies the statute is highly  situational.
This  implies  that  it is uniquely for the board  to  weigh  the
evidence and determine whether the impairing condition listed  in
the  statute is revealed in the employers written records.   That
sort  of  situational dispute must be resolved on a  case-by-case
basis.   This  confirms  that  the ultimate  standard  of  review
(assuming  no  legal  error)  must be  the  substantial  evidence
standard.
          Second, the opinions use of the phrase back problem[]29
as  an  illustrative example seems contrary to what we have  said
about very general information concerning health conditions.   We
have said that a general reference to an injury utterly fails  to
raise  an  inference . . . [of a] preexisting permanent  physical
impairment.30   The  phrase back condition  lacks  precision  and
using  it as an example suggests that colloquial statements  will
support  (or will be deemed by this court to support) a fair  and
reasonable  inference  of a qualifying condition.   Because  back
problem  is  a common expression used to encompass a  variety  of
permanent and non-permanent disabilities, the example used by the
opinion  potentially encourages Second Injury  Fund  claims  that
would not previously have succeeded.
          The opinion states that the term back problems . . . is
the type of information that an employee is likely to give to his
employer  and  that  [i]f an employer is aware  of  an  employees
medical  problems  and  records them in everyday  language,  that
employer still satisfies the written record requirement.31    The
opinion is arguably correct when it states that employees are not
          likely to provide employers with information that is medically
precise  or  that exactly matches the statutes list of qualifying
conditions.   But the type of information employers  receive  and
record  is  not  necessarily germane to the boards determination.
Again,  the  written-record requirement can only be satisfied  if
the  board  determines that the written record could  support  an
inference  of  an  employers  prior  knowledge  of  a  qualifying
condition that causes or contributes to the new injury.
          The  court  faults  the  board for  requiring  VECO  to
present  evidence  that  showed  unequivocally  that  VECO   knew
Huizenga  had arthritis rather than simply a permanent impairment
.  .  .  .32   This passage can be interpreted several  different
ways.   It  is probably intended to say that the board  erred  by
requiring  VECO to prove that the records revealed  the  specific
condition  of arthritis, i.e., that the records named  arthritis.
But  the  board  imposed  no such requirement.  And  because  its
decision  approvingly summarized past board cases  in  which  the
records did not name the specific condition, it is fair to assume
the board did not depart from its past practice.
          This passage could be interpreted to say that the board
erred  by  requiring  VECO to prove that the records  revealed  a
permanent impairment that turned out to be arthritis.   But  that
is  what the statute and our past decisions require.  And that is
what  the  board  did, without error.  The board could  not  have
permitted  VECO  to  prove its claim with  evidence  the  records
revealed  a permanent impairment that was unrelated to arthritis.
That  would  be an incorrect interpretation of what  the  statute
requires.33   It  would have been error for  the  board  to  have
interpreted the statute in that fashion.34
          Finally,  the  courts  own remand instructions  confirm
that  the board did not err.  The court states that the board  on
remand must determine whether VECOs knowledge that Huizenga had a
permanent  physical  impairment  can  fairly  and  reasonably  be
inferred  from [what Huizenga told VECO].35  But as  I  read  the
boards decision, that is exactly the issue the board decided.  We
should therefore affirm.
          For these reasons, I respectfully dissent.
                           APPENDIX A

          The  Alaska Supreme Court has instructed the  Board  to
only  consider  whether a fair and reasonable  inference  can  be
drawn,  and  thereby imparted to the employer, from  the  written
records.  Based on the above, the Board finds the employer in the
instant case is not entitled to SIF reimbursement.  The employee,
in the instant case, was not informed that he had arthritis until
September 2004.  This was long after he had submitted hiring  and
employment  documents to the employer.  The Board  further  finds
that the employer has not provided written proof that it hired or
retained  the  employee  after it had  written  notice  that  the
employee had a qualifying pre-existing impairment before  he  was
injured  on  October  15,  2000.  The Alaska  Supreme  Court  has
determined  the  employer  must show  knowledge  of  a  permanent
impairment.   Alaska International Constructors.1  This  case  is
directly  on point as far as the instant case is concerned.   The
Board  finds that the employers written record that the  employee
had prior back injuries and surgeries, and nothing more, does not
reasonably   connote  a  preexisting  arthritic   condition   and
therefore  is  insufficient as a matter of law to  establish  the
employers written notice of a pre-existing qualifying disability.
Both Drs. Voke and Klimov reached their conclusions regarding the
employees  conditions based on their knowledge of  the  employees
medical   records  and  conditions  and  not  from   his   Health
Questionaires.   The  employees  written  description   of   back
operation, compression 5 lower vertebrae, Dec. 21, 1987, Dr. Voke
and his written disavowal on the same Health Questionaire that he
had  any arthritic condition negates any argument by the employer
that the employees 1996 and 1997 Health Questionaires put them on
written  notice  that  the employee had  a  qualifying  permanent
disability of arthritis before he was injured October  15,  2000.
The Board finds that the employer has not met its burden of proof
by a preponderance of the evidence2 with respect to the statutory
requirements of AS 23.30.205 by showing knowledge by the employer
of  the employees handicapping condition prior to his October 15,
2000  injury.   For  these  reasons, the  employers  request  for
reimbursement  under the SIF is denied.  Because  of  the  denial
based  on  the  employers  lack of  knowledge  of  the  employees
condition  prior to his October 15, 2000 injury is  upheld,  this
order  does  not address the other bases for denial addressed  in
the SIF denial letter of May 18, 2004.
_______________________________
     1     Spinal  stenosis is a narrowing of the spaces  in  the
spine;  stenosis is linked to arthritis.  Diastematomyelia  is  a
congenital anomaly in which the spinal cord is split into  halves
by  a  bony  body or fibrous band.  Dorlands Illustrated  Medical
Dictionary  461 (28th ed. 1994).  Radiculopathy is a  disease  of
the nerve roots.  Id. at 1404.

     2     A laminectomy is the excision of the posterior arch of
a  vertebra.   Id.  at 898.  A foraminotomy is an  operation  for
removing  the roof of the intervertebral foramina, done  for  the
relief  of nerve root compression.  Id. at 650-51.  The  foramina
are  the  holes where the nerves exit the spinal column  as  they
extend into the extremities.

     3    Huizenga gave the wrong date for his surgery.

     4    VECO uses October 17, 2000 for the date of injury.  The
Board used October 15, 2000 in its decision.

     5     The  conus medullaris is the cone-shaped lower end  of
the  spinal  cord  at  the level of the upper  lumbar  vertebrae.
Dorlands Illustrated Medical Dictionary 374 (28th ed. 1994).  The
cauda equina is the collection of spinal roots that descend  from
the  lower part of the spinal cord and occupy the vertebral canal
below the cord.  Id. at 280.

     6     The  Second Injury Fund partially reimburses employers
for  some  workers compensation benefits when they meet statutory
requirements.  AS 23.30.205.

     7     VECO  asserted at the hearing that the  Second  Injury
Fund  no  longer contested that Huizenga in fact had a qualifying
physical impairment.  The Board decision states that it does  not
address  the  other  issues raised in  the  Second  Injury  Funds
answer.

     8     Alyeska  Pipeline Serv. Co. v. DeShong, 77 P.3d  1227,
1231 (Alaska 2003).

     9    Sea-Land Servs., Inc. v. State, Second Injury Fund, 737
P.2d 793, 795 (Alaska 1987); see also Alaska Intl Constructors v.
State, Second Injury Fund, 755 P.2d 1090, 1091 (Alaska 1988).

     10     Bloom v. Tekton, Inc., 5 P.3d 235, 237 (Alaska  2000)
(quoting Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979)).

     11     Sea-Land  Servs.,  Inc.,  737  P.2d  at  795  (citing
Employers  Commercial Union Ins. Group v. Christ, 513 P.2d  1090,
1093 (Alaska 1973)).

     12    Alaska Intl Constructors, 755 P.2d at 1092.

     13    AS 23.30.205(c).

     14    AS 23.30.205(d).

     15    Sea-Land Servs., Inc., 737 P.2d at 795.

     16    AS 23.30.205(d).

     17    Christ, 513 P.2d at 1093-94.

     18    Compare AS 23.30.190(b) with AS 23.30.205(d).

     19    AS 23.30.205(d).

     20     As previously noted, Huizenga has achondroplasia.  At
oral   argument   before   us,   VECO   stated   that   Huizengas
achondroplasia  is legally irrelevant to its Second  Injury  Fund
claim.

     21    Sea-Land Servs., Inc., 737 P.2d at 795.

     22    Id.

     23    Id. (holding that [t]he written record need not contain
the exact medical terminology).

     24    Christ, 513 P.2d at 1093.

     25    Sea-Land Servs., Inc., 737 P.2d at 795.

     26     5  Arthur  Larson  & Lex K. Larson,  Larsons  Workers
Compensation   Law    91.03[3]   (2000)   (citations    omitted).
Notwithstanding the views of the dissent, Larsons  discussion  of
the  level  of  knowledge that an employer  must  have  logically
applies  both to jurisdictions where knowledge may be established
by  any form of proof and to jurisdictions, such as Alaska, where
knowledge may be established only by written records.   See  Sea-
Land  Servs., Inc., 737 P.2d at 795 (stating that written  record
requirement  provides  evidence that employer  actually  knew  of
preexisting impairment).

     27    AS 23.30.205(c).

     28    Sea-Land Servs., Inc., 737 P.2d at 795.

     29    Larson & Larson, supra note 26 at  91.03[5].  According
to  Larson,  a written record standard is a way to  cut  down  on
controversy about employer knowledge.  Id. at  91.03[6].

     30    Christ, 513 P.2d at 1093.

     31     Sea-Land  Servs., Inc., 737 P.2d at 795 (citing  U.S.
Pipe & Foundry Co. v. Caraway, 546 S.W.2d 215, 219 (Tenn. 1977)).

     32     Special Fund Div. v. Indus. Commn of Ariz., 897  P.2d
643,  649  (Ariz. App. 1994); Country Wide Truck Serv. v.  Indus.
Commn of Ariz., 891 P.2d 877, 879 (Ariz. App. 1994).

     33    Special Fund Div., 897 P.2d at 649.

     34    Denton v. Sunflower Elec. Coop., 740 P.2d 98, 103 (Kan.
App.  1987); see also Country Wide Truck Serv., 891 P.2d  at  879
(holding  that  written record showing that claimant  had  lumbar
laminectomy  and  posterior cervical fusion  sufficient  to  show
employer knew of employees preexisting disabling condition).

     35    AS 23.30.205.

     36    Sea-Land Servs., 737 P.2d at 795.

     37     See  Christ, 513 P.2d at 1092 (holding  that  written
record  requirement met by notation on personnel evaluation  that
employees loss of arm did not slow his work).

     38    Sea-Land Servs., 737 P.2d at 795 (holding that written
record requirement satisfied if prior knowledge of disability can
be inferred fairly and reasonably).

     39    The qualifying condition does not need to cause the new
injury.   The  qualifying  condition,  in  combination  with  the
subsequent injury, need only produce a disability that is greater
than  what would have resulted from the subsequent injury  alone.
AS 23.30.205(a).

     40      Huizengas  medical  records  indicate  that  he  was
diagnosed with arthritis before October 2000, but nothing in  the
appellate record suggests that VECO had those medical records  at
or before the time of Huizengas injury.

     41    AS 23.30.122.

     42    AS 23.30.205(c).

     43    737 P.2d at 795.

     44    Id. at 795-96.

     45    Id. at 796.

     46    Id. at 794.

     47    Id. at 796.

     48    755 P.2d 1090, 1091-92 (Alaska 1988).

     49    Id.

     50    Id. at 1091.

     51    Id. at 1092 n.6.

     52    Id. at 1093.

     53    Id. at 1094.

     54    Id.

     55    Id.

1    Slip Op. at 7.

     2    That is the standard the board applied here.  The board
first  correctly recognized that we have instructed the board  to
only  consider  whether a fair and reasonable  inference  can  be
drawn,  and  thereby imparted to the employer, from  the  written
records.  The board then permissibly used an equivalent phrase in
finding  that the written record does not reasonably connote  the
qualifying  condition  of  arthritis.  Everyone  recognizes  that
arthritis,   one  of  the  specific  conditions  listed   in   AS
23.30.205(d)(1),  is  the only qualifying condition  relevant  in
this case.

     3      The   only   question,  then,   is   whether   Alaska
Internationals  prior knowledge of Kinters qualifying  disability
can fairly and reasonably be inferred from his resume.
Alaska  Intl Constructors v. State, Second Injury Fund, 755  P.2d
1090, 1094 (Alaska 1988).

     4     Bloom  v. Tekton, Inc., 5 P.3d 235, 237 (Alaska  2000)
(citing  Bockness v. Brown Jug, Inc., 980 P.2d 462,  465  (Alaska
1999)); see also Brown v. State Workers Comp. Bd., 931 P.2d  421,
423    (Alaska   1997)   ([W]e   review   the   Boards    factual
determination[s]  .  .  . according to the  substantial  evidence
test.).

5     Because  the  board  must determine whether  the  employers
written  records permit an imputation of pre-injury knowledge  of
the   qualifying  condition  that  is  a  cause  of  the  present
disability,  it  is  significant that the records  contained  the
employees  denial  of  having  had or  having  been  treated  for
arthritis.   In  Sea-Land Services, Inc. v. State, Second  Injury
Fund,  we thought it significant that Sea-Lands knowledge of  the
employees disability cannot reasonably be inferred from a written
record  that  negated any possible inference  of  the  qualifying
condition.   Sea-Land Servs., Inc. v. State, Second Injury  Fund,
737 P.2d 793, 796 (Alaska 1987).

     6    Slip Op. at 10-11.

     7     An  employees  ignorance of the  qualifying  condition
cannot  foreclose the employers claim.  But his ignorance remains
relevant to whether the employers written records permit  a  fair
and  reasonable  inference of that condition.  Evidence  that  an
employees  own physicians have not told him he has  a  qualifying
condition  is  probative in deciding whether the records  can  be
fairly read to impute knowledge of the condition to the employer.
The  boards  mention of Huizengas ignorance therefore reveals  no
legal error that would justify independent review.

     8    Slip Op. at 11 (emphasis added).

     9     See  AS 23.30.205(c); see also Sea-Land Servs.,  Inc.,
737 P.2d at 795.

     10    See AS 23.30.110(a) ([A] claim for compensation may be
filed with the board in accordance with its regulations . . . and
the  board may hear and determine all questions in respect to the
claim.);  see  also DeNuptiis v. Unocal Corp., 63 P.3d  272,  277
(Alaska 2003) (noting board has broad powers to administer Alaska
Workers   Compensation  Act,  including  authority  to  formulate
policy,  interpret  statutes, and conduct  its  hearings  in  the
manner  by which it may best ascertain the rights of the parties.
(citing AS 23.30.135(a))).

11    See  Kessick  v.  Alyeska  Pipeline  Serv.  Co.,  617  P.2d
755, 757 (Alaska 1980) ([I]t is not the function of this court to
reweigh  the evidence but only to determine whether such evidence
exists.  (citing  Laborers & Hod Carriers  Union,  Local  341  v.
Groothuis,  494  P.2d 808, 811-12 (Alaska 1972)));  see  also  AS
23.30.122, which provides:

          Credibility of witnesses.

               The   board  has  the  sole   power   to
          determine  the credibility of a  witness.   A
          finding by the board concerning the weight to
          be  accorded a witnesss testimony,  including
          medical  testimony and reports, is conclusive
          even  if  the  evidence  is  conflicting   or
          susceptible  to  contrary  conclusions.   The
          findings of the board are subject to the same
          standard  of review as a jurys finding  in  a
          civil action.
          
     12   Sea-Land Servs., Inc. v. State, Second Injury Fund, 737
P.2d  793, 795 (Alaska 1987) (quoting U.S. Pipe & Foundry Co.  v.
Caraway, 546 S.W.2d 215, 219 (Tenn. 1977)).

     13   Id.

     14    Id. (citing Leiker v. Manor House, Inc., 457 P.2d 107,
113-14 (Kan. 1969)).

     15    See Slip Op. at 18 (stating Alaska International  went
too far because our opinion stated that [a] resumes reference  to
an injury failed to raise the inference that Alaska International
knew of the employees arthritis).

     16    Id.  at  12 (quoting 5 Arthur Larson & Lex K.  Larson,
Larsons Workers Compensation Law  91.03[3] (2000)).

     17   The footnotes omitted from the Larson passage quoted by
the  court state that [a]lthough the New York cases on this point
are  no longer operative since the 1987 deletion of the knowledge
requirement, they are retained for whatever value they  may  have
in  states  still having that requirement.  5 Larson, supra  note
16,   91.03[3].   Because the written-record  requirement  of  AS
23.30.205 implicitly rejects an actual-knowledge requirement, the
inoperative   New  York  case  law  has  no  relevance   in   our
jurisdiction.   See id.  91.03[5]-[6], D[6] (describing  Sea-Land
Servs.,  737  P.2d  at  793, and noting Alaska  requires  written
record).

     18   Id.  91.03[3] (emphasis added).

     19    5  Arthur  Larson  &  Lex K. Larson,  Larsons  Workers
Compensation  Law   91.03[3]  (2000).   Nebraska,  for   example,
provides  an  actual  knowledge exception to  the  written-record
requirement:  [I]n  the  case  of an  obvious  injury  inevitably
leading  to  undisputed actual  knowledge  on  the  part  of  the
employer of the employees preexisting permanent disability,  such
as  an  amputated  arm, the written records  requirement  may  be
dispensed  with.   Ashland-Greenwood Pub. Sch.  v.  Thorell,  723
N.W.2d 506, 513 (Neb. App. 2006).

     20   Id.  91.03[5].

21   Slip Op. at 13-14 (footnotes omitted).

     22   AS 23.30.205(d).

     23   AS 23.30.205(c) (emphasis added).

     24   AS 23.30.205(d).

     25    The  only  exception  is  a  condition  satisfying  AS
23.30.205(d)(2).  There is no contention that subsection  applies
here.

     26   Sea-Land Servs., 737 P.2d at 795.

     27   Slip Op. at 13 (emphasis added).

28     Our  function  is  not to re-draft  the  statute,  but  to
enforce it according to its plain meaning.  Sea-Land Servs.,  737
P.2d at 796 n.3.

     29    The  courts opinion derives the back problem[] example
from Denton v. Sunflower Elec. Coop., 740 P.2d 98, 103 (Kan. App.
1987).  Slip Op. at 14 n.34.  Because Kansas law allows employers
to  establish  knowledge of an employees pre-existing  impairment
through  either written records or actual knowledge, the  example
is  inapt and inapplicable to Alaskas statutory scheme.  See Kan.
Stat.  Ann.   44-567(b) (2006) (The employers  knowledge  of  the
preexisting  impairment  may  be  established  by  any   evidence
sufficient to maintain the employers burden of proof with  regard
thereto.);  Denton,  740 P.2d at 101-03 (employers  knowledge  of
employees  injury  was  established  by  witness  testimony   and
corroborated by business records).

     30    Alaska Intl Constructors v. State, Second Injury Fund,
755 P.2d 1090, 1094 (Alaska 1988) (written record insufficient to
support inference of permanent impairment where writing stated  I
was  injured on the job by a sheet of iron. . . . My  injury  has
been corrected by surgery and I was released with no restrictions
by  my  doctor to return to work.); see also Sea-Land  Servs.,737
P.2d at 795-96.

     31   Slip Op. at 14.

     32   Slip Op. at 11.

     33   Subsection .205(c) requires the written records to show
the  employer had knowledge of the permanent impairment . .  .  .
(Emphasis added.)

     34    Thus,  records  revealing a history  of  past  cardiac
problems  putting  an employer on notice of permanent  impairment
would  not satisfy subsection .205(c) if the disabling condition,
for example cerebral palsy, was unrelated to the conditions to be
inferred from the employers records.  Likewise, records revealing
impairment from knee problems would not satisfy the statute if  a
ruptured intervertebral disc causes the new disability.

     35    Slip Op. at 18.  Stated somewhat more accurately,  the
question  is  whether VECO had knowledge of a permanent  physical
impairment  based on fair and reasonable inferences to  be  drawn
from  what Huizenga told VECO.  The court, in phrasing the remand
instruction,  no doubt does not mean to assume that  VECO  indeed
had  knowledge of a permanent impairment; there was  no  evidence
VECO  had  that actual knowledge; the entire dispute was  and  is
whether  that  knowledge  is imputable to  it  from  its  written
records.

     1    Alaska International Constructors at 1090.

     2    In the instant dispute, the Alaska Workers Compensation
Act provides no specific standard of review.  In the absence of a
specific  standard,  we apply the general  preponderance  of  the
evidence standard provided by the Alaska Administrative Procedure
Act, AS 44.62.460(e).  See DeNuptiis v. Unocal Corp., 63 P.3d 272
(Alaska 2003).

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