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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. McGahuey v. Whitestone Logging, Inc. (10/21/2011) sp-6610

McGahuey v. Whitestone Logging, Inc. (10/21/2011) sp-6610, 262 P3d 613

        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, email 
        corrections@appellate.courts.state.ak.us. 

                THE SUPREME COURT OF THE STATE OF ALASKA 

CALVIN L. McGAHUEY,                            ) 
                                               )       Supreme Court No. S-13742 
                        Appellant,             ) 
                                               )       Alaska Workers' Compensation 
        v.                                     )       Appeals Commission No. 08-022 
                                               ) 
WHITESTONE LOGGING, INC.                       )       O P I N I O N 
and ALASKA TIMBER                              ) 
INSURANCE EXCHANGE,                            )       No. 6610 - October 21, 2011 
                                               ) 
                        Appellees.             ) 
                                               ) 

                Appeal   from   the   Alaska   Workers'   Compensation   Appeals 
                Commission, Kristin S. Knudsen, Commission Chair. 

                Appearances:      Calvin L. McGahuey, pro se, Crescent City, 
                California,   Appellant.     Patricia   L.   Zobel,   DeLisio   Moran 
                Geraghty & Zobel, P.C., Anchorage, for Appellees. 

                Before:   Carpeneti, Chief Justice, Fabe, Winfree, Christen, 
                and Stowers, Justices. 

                STOWERS, Justice. 

I.      INTRODUCTION 

                A worker was involved in a fight in a logging camp bunkhouse.  He did not 

file a report of injury related to the fight for over a year.      When he finally filed a report 

of injury, he alleged that he had injured his hip, lower back, and ear in the fight.              His 

employer controverted benefits because he did not give timely notice of the injury.  The 

----------------------- Page 2-----------------------

worker then alleged that he had verbally informed his supervisor of the injuries.               After 

a hearing, the Alaska Workers' Compensation Board determined that the worker's claim 

was barred because he did not give his employer timely notice of the injury.   The Board 

performed   an   alternative   analysis   assuming   the   worker   had   given   timely   notice   and 

decided   that   the   claim   was   not   compensable.   The   Alaska   Workers'   Compensation 

Appeals Commission affirmed the Board's decision. Because the Commission correctly 

determined that substantial evidence in the record supports the Board's decision on the 

compensability of the claim, we affirm the Commission's decision. 

II.     FACTS AND PROCEEDINGS 

                Calvin McGahuey worked for Whitestone Logging, Inc. on Afognak Island, 

near   Kodiak,   during   the   first   half   of   2004. He   worked   on   a   boom   boat   and   also 

performed general work around the camp.  In March 2004 he was involved in a fight in 

the bunkhouse.  According to McGahuey one or two of his co-workers attacked him in 

his room.   McGahuey said that one of them slammed him into a table, injuring his back, 

and that to escape he had to jump out of a window that was 14 feet off the ground, 

injuring his hip.    McGahuey went to the cook's house; the cook directed him to Mike 

Knudsen, one of the camp supervisors.  McGahuey said that he was limping visibly after 

the fight and that he reported the injury to several people in the camp, including John 

Rivers, another camp supervisor; Joe Bovee, an employee of a different company whom 

McGahuey considered a supervisor; and Knudsen. 

                Rivers investigated the fight for Whitestone. Rivers was the camp manager 

of Whitestone's Afognak logging camp from the beginning of 2004 to May 2004; he was 

also the only qualified EMT in the camp at the time of the fight.  Rivers's investigation 

showed that McGahuey had talked on a shared telephone for what his bunkmates thought 

was    too   long.   One     of  them   disconnected     the  phone     and   cut  off  McGahuey's 

conversation. After "words were exchanged" a fistfight began, during which McGahuey 

                                                 -2-                                            6610
 

----------------------- Page 3-----------------------

was pushed into another bunkhouse resident, who "joined the fray."  McGahuey "either 

exited through a window or claimed he exited by a window."                Rivers did not discipline 

McGahuey for the incident but gave written warnings to the other two men "for fighting 

in the bunkhouse and for being intoxicated." 

                Rivers talked to McGahuey as part of the investigation either the night of 

the fight or the next day.  At that time, Rivers observed that McGahuey's "face was red 

in places so it looked like he had been involved in a fist fight but nothing real severe." 

According to Rivers, McGahuey "complained about being sore" but did not tell him 

about any injuries to his back or hip.  Rivers stated that he observed McGahuey walking 

the day after the fight and McGahuey was not limping.   McGahuey returned to work the 

day after the fight; he missed no work after the altercation. 

                McGahuey went to a doctor in Kodiak on May 25 for an ear problem.  The 

medical record from the visit did not show that McGahuey reported the fight or any 

complaints related to it.   The doctor treated McGahuey for impacted earwax.   On June 4 

Whitestone laid McGahuey off work so he could attend to certain family obligations, and 

McGahuey returned to California.   He filed a report of injury for his earwax problem in 

August, and Whitestone paid for the May doctor visit because the doctor thought the 

problem could be work related. 

                The first medical chart note that recorded McGahuey mentioning low back 

pain from the fight at Whitestone was a medical history form for chiropractic care dated 

April   4,   2005.  On   this   form,   McGahuey   wrote   that   he   had   been   in   a   work-related 

accident and had reported the accident to his employer but not to workers' compensation. 

He described his condition as "lower back injury and hip after the fight on the job" and 

reported pain that got worse with bending and working. 

                McGahuey        filled   out  and    signed    a  report   of   injury   form,    dated 

April 6, 2005, regarding the fight.   Whitestone received the form in early May  and filed 

                                                  -3-                                            6610
 

----------------------- Page 4-----------------------

a notice of controversion on June 16; the controversion said that Whitestone had not 

received timely notice of the injury, that McGahuey was intoxicated at the time of injury, 

and that the fight did not occur in the course and scope of employment.  McGahuey did 

not submit other medical records showing he received continuing care for back pain. 

                McGahuey underwent a medical examination on October 12, 2005, before 

beginning to work for Simpson Timber Company in California.  In his medical history, 

McGahuey responded "not lat[ely]" to the question whether he was bothered by back 

pain.  He also reported that he had not sought medical treatment for back pain and did 

not have a medical history of "persistent back pain" or "significant back injury."  Notes 

from the evaluation indicated that McGahuey could lift 100 pounds and carry that weight 

20 feet. 

                On December 7, McGahuey was treated for lower back pain related to his 

work at Simpson; his doctor diagnosed a lumbar strain and ordered modified work for 

a week.     An x-ray of the lumbar spine dated December 10 showed mild degenerative 

changes   but   was   otherwise   normal.      McGahuey   also   sought   chiropractic   care;   the 

chiropractor released him to regular duty work on December 12.  Imaging studies from 

March 2006 of McGahuey's lower back, right hip, and brain were all normal. 

                McGahuey   filed   a   written   workers'   compensation   claim   in   Alaska   on 

February 1, 2006, seeking $10,000 in medical costs and $10,000 in transportation costs. 

Whitestone controverted benefits, raising the same defenses it raised before. McGahuey 

amended      his  workers'    compensation      claim   at  a  prehearing    conference     to  include 

temporary total disability (TTD) and unfair or frivolous controversion. 

                The Board held a hearing on McGahuey's claim on October 11, 2006.  The 

employer and insurer were represented by the department manager for the Alaska Timber 

Insurance Exchange, and McGahuey represented himself. McGahuey testified about the 

fight,   his   injuries,   and   his   verbal   report   of   the   injuries.  The   manager   summarized 

                                                  -4-                                            6610
 

----------------------- Page 5-----------------------

Whitestone's investigation of the   fight and testified that Whitestone did not receive 

timely     notice   of  injuries.   In    its  November      2006    decision,   the   Board    dismissed 

McGahuey's claim because he did not give the employer timely formal notice of the 

injury; it also found that none of the statutory excuses for a late-filed report applied. 

                 McGahuey        appealed     to  the  Alaska    Workers'      Compensation       Appeals 

Commission.  The Commission determined that the Board failed to apply the necessary 

                           1 
presumption analysis   and failed to make adequate findings, so it reversed the Board's 

decision and remanded the case to the Board for rehearing. 

                 The Board held a second hearing on McGahuey's claim on April 24, 2008. 

At the second hearing, Whitestone was represented by counsel who presented several 

witnesses     who    testified   about   the  investigation     of  the  fight,   their  observations     of 

McGahuey   after   the   fight,   the   lack   of   notice   Whitestone   had   of   an   injury,   and   the 

prejudice Whitestone suffered as a result of the late-filed notice. McGahuey testified that 

he reported "the matters" to Bovee and Rivers.   McGahuey said he knew he was injured 

when he returned to California; he described his injury as "muscle tissue damage" to 

explain the lack of findings on imaging studies.  McGahuey stated that the first time he 

knew he could not work because of his Alaska injuries was after he aggravated the injury 

working for Simpson. 

                 Whitestone   presented   testimony   from   Rivers;   Ronald   Johnson,   a   camp 

manager   at   Afognak;   Janelle   Lepschat,   an   office   worker   at   the   Afognak   camp;   and 

Pamela Scott, the claims manager for its compensation carrier.                  Scott testified that she 

        1 
                 AS 23.30.120(a) creates a presumption that "sufficient notice of the claim 
has been given" as well as a presumption that a claim is compensable.                   See DeYonge v. 
NANA/Marriott, 1 P.3d 90, 94 (Alaska 2000) (citations omitted) (applying presumption 
analysis to compensability of claim).             In its first decision, the Board did not mention 
these presumptions. 

                                                    -5-                                              6610
 

----------------------- Page 6-----------------------

had not seen any medical reports taking McGahuey off work except for a note related to 

the Simpson injury.  She testified that Whitestone had been prejudiced by McGahuey's 

late-filed notice because it was "no longer a . . . viable company" and it could not get an 

accurate   medical   evaluation   because   so   much   time   had   elapsed   before   the   report   of 

injury. 

                Rivers testified about his investigation of the fight.  According to Rivers, 

McGahuey   did   not   report   injuring   his   hip   or   back;   Rivers   said   he   would   have   sent 

McGahuey to Kodiak "as soon as a plane was available" if McGahuey had reported a 

back injury.    Rivers did not "notice anything either verbal or non-verbal which would 

have indicated that [McGahuey had] sustained any kind of injury."                  Rivers said he was 

surprised when McGahuey filed the notice of injury because "generally when someone 

injures their back, it's an immediate pain or some indication that would cause them to say 

something to a supervisor." 

                Johnson   testified   that   he   was   the   camp   manager   for   Whitestone   from 

February to November 2004.  Johnson said McGahuey never reported that he had been 

injured in the bunkhouse fight and noted that McGahuey had not missed work as a result 

of the fight.   Johnson indicated that he had never seen McGahuey limping or showing 

physical signs of injury, nor did anyone report to him as camp manager that McGahuey 

had made an injury claim.         Lepschat, an office clerk at Whitestone's Afognak camp in 

2004, testified that one of her responsibilities was completing report of injury forms and 

that no one asked her to complete a report of injury form on behalf of McGahuey.  She 

also said that she drove McGahuey to retrieve some of his belongings before he left 

Afognak in June 2004 and that he never told her he was leaving because of an injury. 

                In its decision after rehearing,   the Board dismissed McGahuey's claim 

because he had not filed a timely written notice of injury and Whitestone "did not receive 

informal notice of the March 2004 injury."  The Board found that McGahuey was not a 

                                                  -6-                                             6610
 

----------------------- Page 7-----------------------

credible witness and that Whitestone's witnesses were credible. It applied a presumption 

analysis to the notice question.       The Board found that McGahuey "narrowly raised the 

presumption [concerning] sufficient notice as to injuries claimed from the March 2004 

altercation" and then concluded that he "failed to attach the presumption that he gave 

notice to the employer of his March, 2004 alleged injury." 

                The Board then assumed in the alternative that McGahuey had attached the 

presumption   that   he   had   given   notice   and   decided   that   Whitestone   had   rebutted   the 

presumption because McGahuey missed no work from the time of the fight until the time 

he left Afognak.      It also found that Whitestone rebutted the presumption "on the notice 

issue" through the testimony of Johnson and Lepschat.                  The Board then weighed the 

evidence and decided that McGahuey had not proved by a preponderance of the evidence 

that he had given timely notice of his injuries to Whitestone.                The Board decided that 

Whitestone   "ha[d]   established   by   a   preponderance   of   the   evidence   that   neither   the 

employer or its agent had knowledge of the injury."               It found that McGahuey did not 

show that his failure to give notice was excused and that Whitestone was prejudiced by 

the lack of timely notice. 

                The   Board   then   performed   a   second   alternative   analysis   assuming   that 

McGahuey had given timely notice and evaluated his claims on the merits, using its 

                                       2 
three-step presumption analysis.          The Board decided that McGahuey had not presented 

enough evidence to attach the presumption of compensability because of "his lack of 

credibility."  It then assumed in the alternative that he had attached the presumption and 

found that Whitestone had rebutted the presumption by pointing out gaps in the medical 

evidence   and   showing   that   McGahuey   had   a   back   condition   prior   to   working   for 

Whitestone.      Finally, the Board decided that McGahuey had not proved his claim by a 

        2 
                See DeYonge, 1 P.3d at 94 (summarizing presumption analysis). 

                                                   -7-                                                6610 

----------------------- Page 8-----------------------

preponderance of the evidence because he was not credible and because the doctors who 

thought the back and hip complaints were work related relied on McGahuey's self- 

reported history when making the connection. 

                McGahuey again appealed to the Commission; this time the Commission 

affirmed the Board's decision.  The Commission decided that the Board had again erred 

in applying the presumption analysis to the notice issue. But the Commission considered 

this error harmless because of the Board's alternative analysis.              The Commission first 

found   that   McGahuey   had   produced   enough   evidence   to   attach   the   presumption   of 

sufficient notice to Whitestone and that Whitestone adequately rebutted the presumption. 

The Commission then concluded that substantial evidence in the record supported the 

Board's finding that McGahuey had not proved by a preponderance of the evidence that 

he had provided timely notice to Whitestone or that he was excused from doing so.  The 

Commission also decided that substantial evidence in the record supported the Board's 

finding that, assuming timely notice was given, McGahuey had not proved his injuries 

were work related.      McGahuey appeals. 

III.    STANDARD OF REVIEW 

                In an appeal from the Workers' Compensation Appeals Commission, we 

                                          3 
review the Commission's decision.            We apply our independent judgment to questions 

                                                             4 
of    law   that  do   not   involve   agency     expertise.     We     independently      review    the 

Commission's conclusion that substantial evidence in the record supports the Board's 

        3 
                Shehata v. Salvation Army, 225 P.3d 1106, 1113 (Alaska 2010) (citing 
Barrington v. Alaska Commc'ns Sys. Grp., Inc., 198 P.3d 1122, 1125 (Alaska 2008)). 

        4 
                Id. 

                                                  -8-                                               6610 

----------------------- Page 9-----------------------

findings, which "requires us to independently review the record and the Board's factual 

            5 
findings." 

IV.     DISCUSSION 

                 The   Commission   affirmed   the   second   Board   decision,   concluding   that 

substantial evidence supported the Board's findings that: (1) McGahuey did not give 

Whitestone   timely   formal   notice   of   his   injuries;   (2)   Whitestone   did   not   have   actual 

knowledge   of   the   injuries   and   was   prejudiced   by   the   lack   of   formal   notice;   and   (3) 

McGahuey "did not suffer a disabling injury to his hip, back, and ear in March 2004." 

In reaching this conclusion, the Commission identified errors in the Board's application 

of the presumption analysis but decided the errors were harmless.                    We agree with the 

Commission that the Board erred in its application of the presumption analysis in this 

case; we also agree that the errors were harmless. 

        A.       Notice 

                 Alaska Statute 23.30.100(a) requires that written notice of an injury or 

death be given to the employer and the Board within 30 days of the date of injury or 

                                                                                       6 
death.   If written notice is not given as required, the claim is barred.                 Alaska Statute 

23.30.100(d) provides that failure to give notice can be excused when either: (1) the 

employer had actual notice of the injury and was not prejudiced by lack of written notice 

or (2) the Board determines that notice could not be given "for some satisfactory reason." 

The   Commission   affirmed   the   Board's   findings   that   McGahuey   did   not   give   timely 

formal notice and that Whitestone did not have actual notice and suffered prejudice as 

a result. 

        5 
                 Smith v. CSK Auto, Inc., 204 P.3d 1001, 1007 (Alaska 2009). 

        6 
                 See AS 23.30.100(d) (setting out circumstances when failure to give notice 
does not bar a claim). 

                                                    -9-                                                 6610 

----------------------- Page 10-----------------------

                We conclude that the Commission and the Board both erred in failing to 

identify when the 30-day period for giving written notice began, but that the error was 

           7 
harmless.      The    Board    and   the  Commission      both   analyzed    the  compensability      of 

McGahuey's claim, and because we decide that the ultimate resolution of the claim was 

                                                                                   8 
correct, any errors in consideration of the notice issue were harmless. 

                We held in  Cogger v. Anchor   House that the 30-day period for giving 

                                                                                                9 
written notice "can begin no earlier than when a compensable event first occurs."                  The 

date the 30-day period begins to run is important not only in determining whether formal 

notice was timely but also in assessing prejudice to the employer if notice was late.  For 

example, in Dafermo v. Municipality of Anchorage a worker first complained about eye 

problems in 1985 or 1986,   but   doctors did not link the symptoms to his work with 

                                        10                                                           11 
computers until September 1991.              He filed a report of injury in November 1991. 

Although we held that his notice of injury was late, we decided that the employer was 

not prejudiced by failure to give timely notice because prejudice could only be measured 

        7 
                We agree with the Commission that any informal notice McGahuey gave 
to   Bovee    of   his   injuries  was  not   notice  to  Whitestone.    Bovee     did  not   work   for 
Whitestone.  Even if he had, we have held that informal notice of an injury to a coworker 
does not give notice to an employer under AS 23.30.100.  Cogger v. Anchor House, 936 
P.2d 157, 161 (Alaska 1997). 

        8 
                Carlson   v.   Doyon   Univeral-Ogden   Servs.,   995   P.2d   224,   228   (Alaska 
2000). 

        9 
                936 P.2d at 160. 

        10 
                941 P.2d 114, 115-16 (Alaska 1997). 

        11 
                Id. at 116. 

                                                 -10-                                            6610
 

----------------------- Page 11-----------------------

from October 1991, and there was no evidence that the employer was prejudiced by a 30- 

                               12 
day delay in notification. 

                Neither the Commission nor the Board made a specific finding about when 

the 30-day period began to run in McGahuey's case. Without knowing when the 30-day 

limitations period began to run, we cannot assess whether the notice of injury was late 

or whether, if it was late, the employer suffered prejudice. But because the Commission 

correctly   evaluated   the   Board's   findings   and   conclusions   on   the   compensability   of 

McGahuey's claim, this error was harmless. 

        B.      Compensability Of McGahuey's Injuries 

                The Board performed an alternative analysis, assuming that McGahuey had 

given timely notice, and looked at the merits of his claim.             McGahuey's claim was for 

medical   treatment   for   his   back   and   hip,   in   2005   and   afterwards,   as   well   as   medical 

                                               13 
treatment     for   a  lump    near   his   ear.     The     Commission       reviewed     the  Board's 

compensability analysis and affirmed the Board's decision.   McGahuey asserts that the 

Board and Commission erred in finding that his claim was not compensable.  Whitestone 

argues that the Commission correctly concluded that substantial evidence in the record 

supported the Board's findings. 

                In a workers' compensation case, the Board uses a three-step presumption 

                                                                            14 
analysis to evaluate the compensability of a worker's claim.                    At the first step, the 

employee must attach the presumption of compensability by establishing a link between 

        12 
                Id. at 117-19. 

        13 
                McGahuey made a claim for TTD, but it is not clear during what period of 
time McGahuey thought he was eligible for TTD. 

        14 
                Smith v. Univ. of Alaska, Fairbanks, 172 P.3d 782, 788 (Alaska 2007) 
(citing Bradbury v. Chugach Elec. Ass'n, 71 P.3d 901, 905 (Alaska 2003)). 

                                                  -11-                                             6610
 

----------------------- Page 12-----------------------

                                    15 
his employment and the injury.         "For purposes of determining whether the claimant has 

established     the  preliminary    link,  only   evidence    that  tends   to  establish  the  link  is 

                                                            16 
considered - competing evidence is disregarded."               The Board "need not concern itself 

                                                                                                   17 
with the witnesses' credibility" when "making its preliminary link determination." 

                In this case, the Board improperly considered McGahuey's credibility when 

it examined the evidence at the first stage of the analysis.          Relying on dicta in Osborne 

                                   18 
Construction   Co.   v.   Jordan,      the   Commission   wrote   that   it   was   "a   close   question 

whether the [B]oard erred in determining that McGahuey failed to raise the presumption 

of    compensability      because    of   'his  lack   of   credibility   to  effectively    raise   the 

presumption.' "  To the extent the Commission suggested that the Board could consider 

credibility at the first stage, it was mistaken.      We have repeatedly stated that the Board 

                                                                                   19 
cannot consider credibility at the first stage of the presumption analysis.           We agree with 

the Commission, however, that any error the Board made was harmless because the 

Board     did   an   alternative   analysis,    assuming     that  McGahuey       had    attached    the 

presumption. 

                If the presumption attaches, the second step of the presumption analysis 

provides that an employer may rebut the presumption by presenting substantial evidence 

        15 
                Id. 

        16 
                Tolbert v. Alascom, Inc., 973 P.2d 603, 610 (Alaska 1999). 

        17 
                Resler v. Universal Servs., Inc., 778 P.2d 1146, 1148-49 (Alaska 1989). 

        18 
                904 P.2d 386, 392 (Alaska 1995). 

        19 
                Excursion Inlet Packing Co. v. Ugale, 92 P.3d 413, 417 (Alaska 2004); 
DeYonge v. NANA/Marriott, 1 P.3d 90, 95 (Alaska 2000); Carlson v. Doyon Universal- 
Ogden Servs., 995 P.2d 224, 228 (Alaska 2000); Tolbert, 973 P.2d at 610; Resler, 778 
P.2d at 1148-49. 

                                                 -12-                                            6610
 

----------------------- Page 13-----------------------

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 

                                                                                 20 
possibility that employment was a factor in causing the disability.                  The Board looks at 

                                                                                         21 
the evidence to rebut the presumption in isolation, without weighing it. 

                 The     Board     found     that   Whitestone       rebutted     the   presumption        of 

compensability by showing that: (1) McGahuey "did not complain about his back and 

relate his back condition to the March 2004 altercation until he saw doctors in late 2005 

and 2006"; (2) McGahuey "had a back condition during the four years prior to the March 

2004 injury"; (3) McGahuey failed to report an injury to his hip and back in May 2004, 

                                            22 
when he saw the doctor in Kodiak;              and (4) no physician "independently" connected 

his work and his back pain, relying instead on McGahuey's reports. 

                 The Commission correctly decided that the Board's conclusion - that 

Whitestone   rebutted   the   presumption   -   was   supported   by   evidence   in   the   record. 

Whitestone presented evidence that McGahuey had been treated for low back pain in 

2002 and possibly earlier.  A preexisting back condition alone might not eliminate any 

reasonable possibility that his employment with Whitestone was a factor in causing later 

        20 
                 Smith v. Univ. of Alaska, Fairbanks, 172 P.3d   782, 788 (Alaska 2007) 
(citing Bradbury v. Chugach Elec. Ass'n, 71 P.3d 901, 906 (Alaska 2003)). 

        21 
                 Stephens v. ITT/Felec Servs., 915 P.2d 620, 624 (Alaska 1996) (citing Veco, 
Inc. v. Wolfer, 693 P.2d 865, 869 (Alaska 1985)). 

        22 
                 We   recognize   that   McGahuey   indicated   that   he   reported   fight-related 
injuries   to   the   Kodiak   doctor.   But   the   medical   record   from   the   visit   did   not   show 
complaints related to any fight-related injuries.             Examining the chart notes in isolation 
supports   Whitestone's   contention   that   McGahuey   did   not   discuss   any   fight-related 
injuries with the doctor in May 2004. 

                                                    -13-                                              6610
 

----------------------- Page 14-----------------------

            23 
back pain.     But a preexisting back condition together with the lack of contemporaneous 

complaints of back pain or evidence of a home-treatment regimen is adequate evidence 

to support a conclusion that the back pain McGahuey reported in April 2005 - more 

than a year after the fight - was not caused by the fight, particularly when the imaging 

studies from 2005 and 2006 were normal. 

               As to the hip condition, Whitestone presented evidence that McGahuey was 

not limping in the days following the injury and that he did not report hip pain near the 

time of the fight.   A March 2006 MRI of McGahuey's hip was normal.  This evidence 

supports the conclusion that any need for medical treatment of McGahuey's hip in 2005 

and later was not related to his employment at Whitestone.           Finally, with respect to the 

lump near McGahuey's ear, at least two doctors indicated in their chart notes that it was 

not work related.    These opinions were adequate evidence to rebut the presumption of 

                  24 
compensability. 

               If an employer rebuts the presumption of compensability, at the third step 

of the analysis the burden shifts to the employee to prove his claim by a preponderance 

                  25 
of the evidence.     At the third stage, the Board was permitted to weigh the evidence and 

                                      26                                                         27 
consider McGahuey's credibility.         The Board alone can determine witness credibility. 

        23 
               See Burgess Constr. Co. v. Smallwood, 623 P.2d 312, 315 (Alaska 1981) 
(holding that a preexisting condition does not disqualify a claim if the employment 
aggravated the condition to produce injury or disability). 

        24 
               Smith, 172 P.3d at 788 (citing Bradbury, 71 P.3d at 906). 

        25 
               Id. 

        26 
               Steffey v. Municipality of Anchorage, 1 P.3d 685, 691 (Alaska 2000) (citing 
Stephens v. ITT/Felec Servs., 915 P.2d 620, 627 (Alaska 1996)). 

        27 
               AS 23.30.122. 

                                               -14-                                           6610
 

----------------------- Page 15-----------------------

                Because the Board found that McGahuey was not credible, the Commission 

correctly   concluded   that   substantial   evidence   in    the  record   supported   the   Board's 

decision.    The only links between McGahuey's back and hip pain and the Whitestone 

fight were his testimony and his statements to doctors that the back and hip pain arose 

after the fight.    After the Board determined that his account of the   injuries was not 

credible, there was no evidence to establish the compensability of any of his injuries. 

The normal imaging studies of his back and hip likewise provided evidence that he did 

not suffer a compensable injury. 

                The same analysis applies to the lump near McGahuey's ear, which was 

                                     28 
later determined to be a lipoma.        Although at least one doctor indicated that the lipoma 

could be associated with trauma, the link between trauma and the fight at the Afognak 

camp   depended   on   the   Board's   believing   McGahuey's   account   of   the   fight   and   his 

resulting injuries.   The Board's finding that McGahuey was not credible removed any 

causal link between his employment and the lipoma.               The Commission did not err in 

concluding that substantial evidence supported the Board's finding that McGahuey did 

not prove his claim by a preponderance of the evidence. 

V.      CONCLUSION 

                For the foregoing reasons, we AFFIRM the Commission's decision. 

        28 
                A lipoma is a "benign tumor of chiefly fatty cells."           WEBSTER 'S II NEW 
COLLEGE DICTIONARY 654 (3d ed. 2005). 

                                                 -15-                                             6610 
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