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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Adamson v. Municipality of Anchorage (8/29/2014) sp-6947

Adamson v. Municipality of Anchorage (8/29/2014) sp-6947

         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  



JOHN E. ADAMSON,                                         )  

                                                         )    Supreme Court Nos. S-15006/15025  

                          Petitioner and                 )  

                          Cross-Respondent,              )   Alaska Workers' Compensation  

                                                         )   Appeals Commission No. 11-017  

         v.                                              )  

                                                         )    O P I N I O N  

MUNICIPALITY OF ANCHORAGE                                )  

and NOVAPRO RISK SOLUTIONS,                              )   No. 6947 - August 29, 2014  

                                                         )  

                          Respondents and                )  

                          Cross-Petitioners,             )  

                                                         )  

and                                                      )  

                                                         )  

STATE OF ALASKA,                                         )  

                                                         )  

                          Intervenor.                    )  

                                                         )  



                  Petition for Review from the Alaska Workers' Compensation  

                  Appeals Commission.  



                  Appearances:   Eric Croft and Debra Fitzgerald, The Croft  

                                       

                  Law  Office,  Anchorage,  for  Petitioner/Cross-Respondent.  

                  Trena     L.   Heikes,      Anchorage,        for   Respondents/Cross- 

                  Petitioners.  Janell M. Hafner, Assistant Attorney General,  

                  and  Michael  C.  Geraghty,  Attorney  General,  Juneau,  for  

                  Intervenor/Cross-Respondent.  



                  Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and  

                                                                                

                  Bolger, Justices.  


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

                     WINFREE, Justice.  



I.         INTRODUCTION  



                     A firefighter developed prostate cancer when he was in his mid-fifties, after       



working for nearly 30 years in this occupation.  He filed a workers' compensation claim  



                                                                           

under a new statute creating a presumption that certain diseases in firefighters, including  



                                            

prostate  cancer,  are  work  related  when  specific  conditions  are  met.    The  employer  



contended that the firefighter could not attach the presumption of compensability because  



he  had  not  strictly  complied  with  statutory  and  regulatory  medical  examination  



                                

requirements.  The employer also wanted to present expert testimony that the cause of  



                                                                                                                  

prostate cancer is unknown.  The Alaska Workers' Compensation Board heard the claim  



                         

and refused to consider parts of the expert's testimony.  The Board decided that the  



                                                                                          

firefighter  was  eligible  for  benefits  because  he  had  attached  the  presumption  of  



compensability  by  substantially  complying  with  the  statutory  requirements  and  the  



                                                                                

employer  had  not  rebutted  the  presumption.                                  On  appeal,  the  Alaska  Workers'  



                                                                                                                    

Compensation  Appeals  Commission  agreed  that  the  firefighter  had  attached  the  



presumption, but reversed the Board's decision disallowing the expert testimony; the  



                                                                                                                         

Commission decided that the employer could rebut the presumption through its expert's  



                                                                                                  

testimony that the cause of prostate cancer is unknown, and remanded the case to the  



Board for further proceedings.  We granted both parties' petitions for review.  Because  



                       

the employer also contended that the firefighter-presumption statute violated the Alaska  



                                                                                                                    

Constitution's equal protection guarantee, the State of Alaska intervened.  We affirm the  



Commission's decision that the firefighter attached the presumption by substantially  



complying with the applicable requirements.  We reverse the Commission's decision that  



the Municipality could rebut the presumption through expert testimony that there is no  



known cause of prostate cancer.  



                                                                  -2-                                                            6947
  


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

II.       FACTS AND PROCEEDINGS  



                   John  Adamson  retired  in  2011  after  working  as  a  firefighter  for  the  



                                                                                 

Municipality of Anchorage for over 30 years.  He was diagnosed with prostate cancer  



in August 2008, and he filed a report of occupational injury or illness with the Board in  



                                                   

October.    The  Municipality  filed  a  notice  of  controversion  on  the  basis  that  it  had  



                                                                                                           

received no evidence the cancer arose out of a work-related exposure; it also quoted a  



                                    

letter from Adamson's doctor that the doctor had no evidence the cancer was work  



related.  



                                                                                           

                   Adamson filed a written workers' compensation claim seeking temporary  



                                                                                                               

total  disability  (TTD)  and  medical  expenses.                          Adamson's  claim  was  based  on  



                                                                                     1  

AS  23.30.121,  a  new  statute  effective  August  19,  2008.     The  statute  establishes  a  



                                                                                    2 

                                                                                      are work related for certain  

presumption that listed diseases, including prostate cancer, 



                3                                                               4  

firefighters   when  they  meet  specific  requirements.     The  Municipality  initially  



controverted the claim on the basis that Adamson's cancer was diagnosed before the  



statute's effective date and that he had failed to file a timely report of injury.  



          1        Ch. 26, SLA 2008.  



          2        AS 23.30.121(b)(1)(C)(viii).  



          3        To qualify for coverage, firefighters must be "covered under AS 23.30.243"  



and must have at least a Firefighter I certificate as defined by the Department of Public  

                                                                                               

Safety.  AS 23.30.121(b), (c).  Adamson's qualification is undisputed.  



          4        The   firefighter   must:      (1)   have   been   "given   a   qualifying   medical  



examination"  that  did  not  show  evidence  of  the  disease  when  he  first  became  a  

                                                                                                               

firefighter; (2) have been "given an annual medical exam during each of the first seven  

years of employment that did not show evidence of the disease"; and (3) for cancers,  

show that during the course of employment the firefighter "was exposed to a known  

                                               

carcinogen,  as  defined  by  the  International  Agency  for  Research  on  Cancer  or  the  

                                                                                                                     

National Toxicology Program, and the carcinogen is associated with a disabling cancer."  

                                                                                           

AS 23.30.121(b)(3)(A)-(C).  



                                                             -3-                                                      6947
  


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

                    The Municipality asked Dr. Thomas Allems, a toxicology and occupational  



                                                                

and environmental medicine specialist, to review Adamson's records and "determine if  



his  job  as  a  firefighter  contributed  to  his  prostate  cancer."    Dr.  Allems's  report  



                                 

summarized medical records he reviewed and then discussed medical literature related  



                                                                                                    

to prostate cancer.  According to Dr. Allems, it was "indisputable" that firefighters "are  



                                                   

exposed to carcinogens in smoke and post-fire gasses."  He wrote, however, that "[t]he  



                                                                                    

toxicological literature has failed to identify a known or probable prostate carcinogen."  



He also stated, "The firefighter data are consistently not compelling as to an increased  



risk  of  prostate  cancer  in  this  occupational  group."    Dr.  Allems  indicated  that  the  



International Agency for Research on Cancer (IARC) had not "reported an association  



                                                                                                                       

between soots and prostate cancer," and he concluded that Adamson's exposure to soots  



"did not have any relationship to his prostate cancer."  He agreed that Adamson had "no  



                                                                                     

alternative basis for causation - lifestyle, heredity, etc." and said the diagnosis was "all  



too common in the general population."  



                    After  Dr.  Allems's  report,  the  Municipality  filed  another  notice  of  



                        

controversion.  This time the Municipality said that the Department of Labor had not yet  



defined "qualifying medical examination" for purposes of attaching the presumption and  



                                                                            5  

                                                                               The Municipality raised two other  

the statute had not yet been "activate[d]" as a result. 



defenses  related  to  the  examination  requirement,  and  it  also  relied  on  Dr.  Allems's  



                                                                          

opinion that Adamson's prostate cancer was not connected to his work as a firefighter.  



                                                   

                    In  early  2011  the  Board's  regulation  defining  a  qualifying  medical  



                                                                                                               

examination for purposes of the statute became effective.  The regulation requires that  



          5         Cf. note 4, supra .  AS 23.30.121(e) provides:  "The department shall, by  



                                                                                                                          

regulation, define (1) for purposes of (b)(1)-(3) of this section, the type and extent of the  

                                                                                           

medical examination that is needed to eliminate evidence of the disease in an active or  

former firefighter . . . ."  



                                                              -4-                                                            6947  


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

the initial examination required by AS 23.30.121(b)(3)(A) "occur no later than 30 days"   



after employment as a firefighter and mandates specific testing, including "an initial  



                                                                                   6  

                                                                                             

screening for the cancers listed in AS 23.30.121(b)(1)(C)."   The screening tests are not  



specified, but must include "blood chemistries, complete blood counts, . . . and other  



diagnostic tests as indicated to screen for these cancers, each documented on a form  

prescribed  by  the  department  and  completed  by  the  examining  physician."7                                     The  



                                                                                        

regulation requires that the annual examinations provided for in AS 23.30.121(b)(3)(B)  



include a medical history, a test for tobacco use, and heart and lung examinations, but  

there is no requirement that the annual exams include cancer screening.8  



                   The Board held a hearing on Adamson's claim in June 2011.  Adamson and  



                                                                                                              

Dr. Allems were the only witnesses.  Adamson testified about his firefighting career, his  



medical examinations, and his cancer diagnosis; he also described fires he had fought to  



demonstrate his exposure to carcinogens.  Dr. Allems's testimony was limited because  



                                                                                                         

the Board chair sustained multiple objections after ruling Dr. Allems was not permitted  



to testify that there is no causal relationship between firefighting and prostate cancer; as  



                                                                              

a consequence the Municipality made several offers of proof.  According to Dr. Allems,  



                                                                                                               

there are no known carcinogens for prostate cancer; he therefore would have given the  



                                    

opinion that Adamson's cancer was not related to his work as a firefighter.  Dr. Allems  



agreed that Adamson was exposed to carcinogens at work.  Dr. Allems also testified,  



consistently  with  his  report,  that  Adamson  had  no  personal  risk  factors,  in  effect  



                                                          

concluding that the cause of Adamson's cancer was unknown, which in his opinion was  



"the normal state of affairs."  



          6        8 Alaska Administrative Code (AAC) 45.093 (2012).  



          7        8 AAC 45.093(c).  



          8        8 AAC 45.093(b).  



                                                            -5-                                                        6947  


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

                   The Board panel majority decided that Adamson's cancer was compensable  



and ordered the Municipality to pay past and future medical benefits, some past TTD,  



and  costs  and  attorney's  fees.    One  panel  member  dissented  on  the  basis  that  the  



                                         

firefighter presumption did not apply, but that if it did, the Municipality had rebutted it  



and Adamson had not proved his case by a preponderance of the evidence.  



                   On appeal the Commission panel also was divided in deciding the case.  



The majority agreed with the Board that Adamson had attached the presumption of  



compensability; one panel member dissented from that part of the decision.  All panel  



                                                                                               

members agreed that the Municipality could rebut the presumption of compensability in  



                                        

AS 23.30.121 through Dr. Allems's testimony that there is no known carcinogen for  



                                                                                                 

prostate  cancer  and  that  the  Board  erred  in  refusing  to  consider  this  evidence;  the  



                                              

Commission remanded the case to the Board for evaluation of the evidence.  We granted  



                                                                    

both parties' petitions for review.  Because the Municipality also argued that the statute  



violated equal protection, the State intervened to defend the statute's constitutionality.  



III.      STANDARD OF REVIEW  



                              

                   In    an    appeal      from     the    Alaska       Workers'        Compensation           Appeals  

Commission, we review the Commission's decision rather than the Board's decision.9  



We apply our independent judgment to questions of law that do not involve agency  



              10  

expertise.          Interpretation  of  a  statute  is  a  question  of  law  to  which  we  apply  our  



independent judgment; we interpret the statute according to reason, practicality, and  

                                                                                                    



common sense, considering the meaning of the statute's language, its legislative history,  

                                              



          9        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)).  



          10       Id.  



                                                            -6-                                                        6947  


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

                        11  

and its purpose.    We do not mechanically apply the plain meaning rule, using instead  



a sliding scale approach to statutory interpretation, in which "the plainer the statutory  



                                                                                                        

language is, the more convincing the evidence of contrary legislative purpose or intent  

must be."12  



                                   

                    Whether  a  statute  requires  substantial  or  strict  compliance  is  a  legal  

question,13 but whether someone has substantially complied with a legal requirement is  



                                                     14  

                                                                                                   

a  mixed  question  of  fact  and  law.                   We  independently  review  the  Board's  factual  



                                                              

findings and the record when we review the Commission's conclusion that substantial  



                                                            15  

evidence supports the Board's decision.                         To the extent there is a question about the  



                                                                                                                        16 

                                                                                                                           but  

exclusion of evidence, we generally use an abuse of discretion standard of review, 



                                                                                                                   

when the evidentiary dispute rests on a question of statutory interpretation, we apply our  

independent judgment in interpreting the statute.17  



          11        Grimm v. Wagoner, 77 P.3d 423, 427 (Alaska 2003) (quoting                                  Native Vill.  



of Elim v. State, 990 P.2d 1, 5 (Alaska 1999)).  



          12        McDonnell v. State Farm Mut. Auto. Ins. Co. , 299 P.3d 715, 721 (Alaska  

                                                                                         

2013) (internal quotation marks, alterations, and citations omitted).  



          13        See S. Anchorage Concerned Coal., Inc. v. Municipality of Anchorage, 172  

                                                                                

P.3d 768, 771-72 (Alaska 2007) (applying independent judgment to question whether  

ordinance was directory or mandatory).  



          14        See  Grimm,  77  P.3d  at  434  (stating  that  decision  whether  candidate  



substantially         complied        with      disclosure        law     "requires       both      factual      and     legal  

                                                                                                                

determinations").  



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



          16        Municipality of Anchorage v. Devon , 124 P.3d 424, 429 (Alaska 2005)  

                                         

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



          17        Cf.  Pouzanova  v.  Morton,    327  P.3d  865,  867  (Alaska  2014)  (citing  

                                                                                

                                                                                                            (continued...)  



                                                              -7-                                                        6947
  


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

IV.       DISCUSSION  



          A.       We Do Not Decide Whether The Statute Violates Equal Protection.  



                   The Municipality raised the question of AS 23.30.121's constitutionality  



before both the Board and Commission; both declined to consider the question because  

                                        



it was beyond their jurisdiction.  The Municipality argued in its briefing to us that the  

                                                                                           



statute violates the equal protection rights of employees, such as garbage collectors, who  

                                                                                             



also are exposed to environmental toxins in their work.  Relying on previous decisions  

                                                              



from this court, Adamson responded that the Municipality lacked standing to assert an  

                                                                                                               



equal protection challenge, and that the statute did not violate equal protection.  



                   The State intervened on the question of the statute's constitutionality; it  



                                                                       

argued in its brief that the Municipality lacked standing to assert the equal protection  



                                     

rights of third parties.  It also agreed with Adamson and argued that the statute does not  



                                                                                                     

treat similarly situated groups differently.  The State also argued that the statute bears a  



fair and substantial relationship to a legitimate state interest.  



                    Shortly  before  oral  argument  the  Municipality  sought  to  withdraw  the  



constitutional issue from consideration; after Adamson objected, we instructed the parties  



                       

to address the issue at oral argument.  We have decided to honor the Municipality's  



                               

request to withdraw the issue from consideration, but we nonetheless observe that the  



State and Adamson made strong arguments that the Municipality lacked standing and  



that the statute is constitutional.  



          17        (...continued)  



ConocoPhillips  Alaska,  Inc.  v.  Williams  Alaska  Petroleum,  Inc.,  322  P.3d  114,  122  

                                                         

(2014)) (applying de novo standard of review to question that ordinarily is reviewed for  

abuse of discretion, when underlying ruling required statutory interpretation).  



                                                             -8-                                                          6947  


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

         B.	       The Commission Correctly Concluded That Adamson Attached The  

                   Presumption Of Compensability.  



                   The Municipality contends that the Commission erred in deciding Adamson  



                                                                                                           

attached the presumption of compensability in AS 23.30.121.  Its argument has several  



                                                   

components.    It  argues  first  that  Adamson  could  not  attach  the  presumption  of  



                                    

compensability  because  he  did  not  strictly  comply  with  statutory  and  regulatory  



requirements;  in  the  Municipality's  view,  strict  compliance  with  both  statutory  and  



regulatory requirements is a prerequisite to qualifying for the firefighter presumption.  



                                                 

The Municipality also argues that Adamson did not attach the presumption because he  



                                    

did not show that he was exposed to a known carcinogen for prostate cancer.  Adamson  



                                                                                          

counters that the standard for compliance should be substantial compliance rather than  



                                                    

strict compliance - particularly in his case, when there was no way he could strictly  



comply with a requirement that his initial 1980 medical examination be recorded on a  



form the Board did not develop until after he filed his written workers' compensation  



claim in 2010.  Adamson also maintains that he provided adequate evidence he had been  



exposed to known carcinogens associated with prostate cancer.  



                   1.	      Adamson only needed to show substantial compliance with the  

                            medical-examination requirements.  



                                                                                         

                   Both the Board and Commission panel majorities decided that substantial  



                                                                     

compliance was the applicable standard to  use in evaluating Adamson's claim; their  



analyses were based on the distinction we have recognized between mandatory and  

directory procedural statutes.18  Both agencies decided that the statute was procedural and  



directory; consequently they reasoned that substantial compliance was the applicable  



standard  for  cases  involving  AS  23.30.121.    The  Board  found  that  Adamson  had  

                                                                                              



         18        See, e.g., Kim v. Alyeska Seafoods, Inc. , 197 P.3d 193, 196-98 (Alaska  



2008) (holding that AS 23.30.110(c) is directory statute).  



                                                           -9-	                                                      6947  


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

                                                                                               

substantially complied with the statute because he had a medical examination when he  



was  hired  showing  no  evidence  of  prostate  cancer,  he  had  numerous  medical  



examinations in the ensuing years also showing no evidence of prostate cancer, and he  



showed he had been exposed to at least three known carcinogens associated with prostate  



                                                          

cancer.  A majority of the Commission agreed with the Board that Adamson complied  



with the medical-examination requirements of the statute and also decided that he had  



established a preliminary link between his cancer and his work.  



                   The Municipality first contends that the statute is substantive rather than  



procedural, rendering the cases upon which the Commission relied inapplicable.  The  



Municipality  then  argues  that  substantive  laws  require  strict  compliance  and  that  



Adamson  did  not  strictly  comply  with  the  regulatory  requirements  for  medical  



                                                                                

examinations. Adamson asks us to adopt the agencies' analyses and hold that the statute  



       

is  a  directory,  procedural  statute  requiring  only  substantial  compliance.    He  argues  



                                                

alternatively that the regulatory requirements cannot apply to him because regulations  



can only have prospective application and the regulation on which the Municipality relies  



was promulgated after he filed his claim.  



                   Although we agree with the Commission that Adamson could attach the  



                                                                   

presumption by substantially complying with the medical-examination requirements in  



                                                                                                    

AS 23.30.121, our legal analysis differs from the Commission's. We do not consider the  



substantive-procedural distinction critical in this case.  The question of substantial or  



                                        

strict compliance arises in Adamson's case because of the tension between legislative  



                                                                                                                  

intent and the Board's regulation defining a qualifying medical examination.  Here the  



legislature  made  plain  its  intention  that  firefighters  with  toxic  exposures  predating  



                                                                              

enactment of AS 23.30.121 would enjoy the benefit of the presumption established in the  



                                                                                

statute.  The uncodified portion of the statute  states, "The presumption of coverage  



                                                  

established by this Act applies to claims made on or after the effective date of this Act,  



                                                            -10-                                                      6947
  


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

even if the exposure leading to the occupational disease occurred before the effective  



                         19 

                                                                

date of this Act."           The Board, in defining a "qualifying medical examination," required  



                                                                                   20 

                                                                                       The Municipality argues here  

the use of a specific form that it did not create until 2011. 



that Adamson's 1980 pre-hire medical examination was not a "qualifying examination"  



because, among other reasons, it was not recorded on the 2011 form.  



                                                                                        

                    We have "adopted the doctrine of substantial compliance" in order to carry  



                                                                                

out legislative intent and give meaning to all parts of a statute "without producing harsh  



                                    21  

                                                                                                               

and unrealistic results."                Requiring Adamson to comply strictly with  statutory and  



regulatory requirements that did not exist when he was hired or when he was exposed  



to  toxins  earlier  in  his  career  as  a  firefighter,  as  the  Municipality  advocates,  would  



circumvent  the  legislature's  intent  that  Adamson's  prior  exposure  could  trigger  the  



                    22  

presumption.      Thus,  in  order  to  give  effect  to  the  legislature's  intent  that  prior  



exposures are covered by the presumption and to avoid an unrealistic result, we hold that  



          19        Ch. 26,  2, SLA 2008. We have previously construed similar language as    



indicating legislative intent to apply a statute retroactively.  See Catholic Bishop of N.  

Alaska v. Does 1-6 , 141 P.3d 719, 725 (Alaska 2006) (stating that AS 09.55.560 showed  

                                             

legislative intent to apply statute retroactively when statute provided that it applied "to  

                                                   

'all actions commenced on or after February 2, 1990 regardless of when the cause of  

                                                                                                                 

action may have arisen ' " (emphasis in original)).  We disagree with the Municipality's  

position - first explicitly articulated in its reply brief - that the statute was not meant  

                                                                                                   

to apply retroactively.  



          20        8 AAC 45.093.  



          21        Jones v. Short , 696 P.2d 665, 667 (Alaska 1985) (citations omitted).  



          22        We do not decide whether strict or substantial compliance is the appropriate  



                                                                      

standard for firefighters who began work after the statute was enacted or after the related  

regulations were promulgated.   Cf. Conitz v. Alaska State Comm'n for Human Rights,  

325 P.3d 501, 509 (Alaska 2014) (quoting Larson v. State , 254 P.3d 1073, 1078 (Alaska  

                                          

2011)) (declining to rule on legality of policy when doing so unnecessary).  



                                                              -11-                                                         6947
  


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

Adamson could attach the presumption through substantial compliance.23  



                                              

                   We  do  not  find  convincing  the  Municipality's  argument  that  strict  



compliance is always required when a statute is substantive.  Outside of the directory- 



mandatory context, we have not limited substantial compliance to procedural statutes.  



For example, in Grimm v. Wagoner we held that substantial compliance was the standard  



                                                                                                                        24  

                                                                                                

for measuring candidates' compliance with substantive disclosures for elected office. 



And in Nenana City School District v. Coghill we looked to the substantial compliance  

                                                                   



doctrine in deciding whether a teacher was in "substantial noncompliance" with legal  



                                        

requirements such that she was ineligible for tenure when her license lapsed during the  

                 25  The case upon which the Municipality relies, Pan Alaska Trucking, Inc.  

school year.                                         



v.  Crouch, examined whether a statute was procedural or substantive, but it did not  

                                                                                                             



mention substantial or strict compliance, considering instead whether the statute had  

retroactive application.26  



          23       Using  substantial  compliance  makes  unnecessary  our  resolution  of  the  



question whether the regulation applies to Adamson's claim.  We note, however, that  

AS  44.62.240  provides  that  "primarily  legislative"  regulations  have  prospective  

application only.  We also are not persuaded that the legislature's use of the word "only"  

                                                                                            

in AS 23.30.121(b)(3) means that the statute requires strict compliance with all statutory  

and regulatory requirements, as the Municipality contends.  As used in the statute, "only"  

                                              

limits the presumption to a specific group of firefighters but does not indicate what level  

                                                                                                 

of compliance is required.  



          24       77 P.3d 423, 429-30 (Alaska 2003).  



          25       898 P.2d 929, 932-33 (Alaska 1995).  



          26  

                                                    

                   773 P.2d 947, 948-49 (Alaska 1989).  We also are not persuaded by the  

Municipality's          argument       that    our     cases     discussing       compliance         with     statutory  

requirements for continuing and multiple treatments under AS 23.30.095(c) required  

Adamson  to  strictly  comply  with  regulatory  requirements.    E.g. ,  Burke  v.  Houston  

NANA, L.L.C. , 222 P.3d 851 (Alaska 2010).  We did not evaluate in those cases whether  

                                                                                

                                                                                                       (continued...)  



                                                          -12-                                                     6947
  


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

                                        

                    In applying the substantial compliance doctrine, we consider the purpose  



served by the statutory requirements because "substantial compliance involves conduct  



                                                                                                   

which  falls  short  of  strict  compliance  .  .  .  but  which  affords  the  public  the  same  



                                                                     27  

protection that strict compliance would offer."                          Thus, for example, in Jones v. Short we  



held that substantial rather than strict compliance with a contractor-registration statute  



                                                                          28  

                                                                              We determined that the contractor- 

was adequate to permit a contractor to bring suit.  



registration  statute's  purpose  was  to  "protect[]  the  public  by  making  contractor's  



                                                                 

insurance information readily available . . . and by providing a fund against which claims  



                        29  

                                                  

may  be  made."                As  long  as  the  public  had  access  to  the  contractor's  insurance  



information,  the  legislative  purpose  was  fulfilled,  and  the  contractor's  suit  was  not  



           30  

barred.          Similarly,  in  Coghill  we  decided  that,  because  the  requirements  meant  to  



                                                                                                       

protect the public "were not in issue" during the time the teacher's license had lapsed,  



the  substantial  compliance  doctrine  prevented  the  teacher  from  losing  tenure  and  



                                  31  

                                                                                                     

receiving reduced pay.                And in Grimm we decided that substantial compliance provided  



the public with an accurate representation of a candidate's finances as well as sufficient  



          26        (...continued)  



strict or substantial compliance was the applicable standard.  Id. at 859-60; Bockness v.  

                                                        

Brown  Jug,  Inc.,  980  P.2d  462,  468-69  (Alaska  1999);  Grove  v.  Alaska  Constr.  &  

                                                                                                                    

Erectors , 948 P.2d 454, 457-58 (Alaska 1997).  



          27        Jones v. Short , 696 P.2d 665, 667 n.10 (Alaska 1985).  



          28        Id. at 668.  



          29        Id.  



          30  

                                  

                    Id.  We remanded that case to the superior court to determine whether in  

fact the information was available during the lapse in registration.  Id.  



          31        Nenana City Sch. Dist. v. Coghill , 898 P.2d 929, 934 (Alaska 1995).  



                                                              -13-                                                         6947
  


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

information to judge a candidate's credentials.32  



                    In the context of AS 23.30.121, substantial compliance is conduct that falls  

                                                                                                        



short of strict compliance but affords the employer protection from claims based on a  

              



firefighter's preexisting condition; the initial and subsequent medical examinations are  

                                                                   



required  by  statute  to  show  no  "evidence  of  the  disease."    We  do  not  interpret  the  



                                                                              

legislative history as indicating that a firefighter must strictly comply with any regulatory  



requirements the Board later adopted, as the Municipality contends.  On the contrary,  



legislative history indicates that legislators thought the examinations firefighters were  



                                                                             

already undergoing would satisfy the statute.  For example, Senator Hollis French, a  



                                     

sponsor of a similar bill in the Senate, stated that most fire departments require annual  

physical exams and 90 percent of those exams would satisfy the requirement.33  



                    As in  Grimm, Adamson's case involves more than a determination that  



                                                                  

substantial compliance is the legal standard; we also must consider whether the medical  



                                                                                    

examinations Adamson was given both at the time of hire and in the ensuing years in fact  



substantially complied with the applicable requirements.  The Commission concluded  



                                                                                               

that Adamson substantially complied with the requirements that the firefighter be given  



                                                                              

"a qualifying medical examination upon becoming a firefighter" and annual medical  



examinations in the first seven years of employment, none of which showed evidence of  



                                        

prostate  cancer,  because:    (1)  he  was  given  a  medical  examination  that  showed  no  



evidence of prostate cancer when he was first hired in 1980; (2) he was given annual  



                                                                                                               

physicals beginning in the 1990s that showed no evidence of prostate cancer until he was  



                                                                                     

diagnosed with the disease in 2008; and (3) he was given a number of prostate-specific  



          32        Grimm v. Wagoner, 77 P.3d 423, 431-32 (Alaska 2003).  



          33        Minutes, Sen. Health, Educ. & Soc. Servs. Comm. Hearing on S.B. 117,  



25th Leg., 2d Sess. 1:43:04-1:46:03 (Feb. 18, 2008) (comment of Sen. Hollis French,  

                                                                                                           

sponsor of S.B. 117).  



                                                             -14-                                                          6947  


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

antigen (PSA) blood screening tests after 1993 and all of the results were within normal  

                                                 



limits.  



                            

                     The Municipality argues on appeal that Adamson's medical examinations  



            

cannot in fact serve as a means to attach the presumption under AS 23.30.121 because  



                                                                                                                 

they "included none of the statutory and regulatory elements" and because "[n]one of the  



examinations  were  ever  undertaken  in  an  attempt  to  comply  with  AS  23.30.121."  



Adamson argues that he substantially complied with the applicable standards because the  



                                                                                    

examinations included prostate cancer screening and showed that he did not have the  



disease, fulfilling the purpose of the examinations.  



                     In determining whether Adamson's examinations substantially complied  



                                                                                                                          

with the statutory requirements here, we look at the purpose the examinations serve in  



                                                                                                                                   34  

                                                                                   

the presumption statute as well as the tests Adamson underwent as part of the exams. 



We agree with the Commission that the purpose of the medical examination requirement  

                             



is to establish with a reasonable degree of certainty that a firefighter does not have a  

                                                                                            35   This purpose is evident  

covered condition before his exposure to workplace toxins.     



from the legislature's delegating to the Board the task of defining "the type and extent  

                                                                                         

of the medical examination that is needed to eliminate evidence of the disease."36  We do  

                                                                                                                            



not consider relevant to our analysis the Municipality's purpose in giving the medical  

                                                                                        



examinations; they fulfill the requirement as long as they screened Adamson for prostate  



          34         Cf. Grimm, 77 P.3d at 431-32, 434 (looking at purpose of disclosure statute         



and omissions in disclosures to determine substantial compliance).  



          35        See Linnell v. City of St. Louis Park, 305 N.W.2d 599, 601 (Minn. 1981)  



(holding that purpose of preemployment physical exam in similar statute is to establish  

that "an employee is free of the diseases specified in the statute" when employment  

begins).  



          36        AS 23.30.121(e)(1).  



                                                               -15-                                                          6947
  


----------------------- Page 16-----------------------

cancer and showed he did not have the disease at the time of hire or for the requisite time  



period after he was employed as a firefighter.  



                                               

                   The  Municipality  conceded  at  oral  argument  before  us  that  Adamson  



showed no sign of prostate cancer at any of his medical examinations prior to 2008.  



                                                  

Adamson's testimony, which the Board found credible, showed that he had undergone  



screening  for  prostate  cancer  at  most,  if  not  all,  of  his  employment-related  medical  



                                                                       37  

                                                                                                              

examinations,  including  his  initial  examination.                         Medical  records  from  his  annual  



employment physicals beginning in the 1990s show that he had a PSA test at many  



                                                                    

examinations; the records reflect that the PSA test results at seven of his annual medical  



                                                                                                              

exams were normal before he was diagnosed with prostate cancer in 2008.  Because of  



                                                                                         

Adamson's extensive record of employment-related medical examinations showing no  



indication  of  prostate  cancer,  we  affirm  the  Commission's  decision  that  Adamson  



produced  sufficient  evidence  that  he  had  substantially  complied  with  the  statutory  

requirements for medical examinations.38  



                   2.	       Adamson           properly         attached         the     presumption             for     his  

                             occupational disease.  



                   Because Adamson's occupational disease was a listed cancer, in addition  



          37       The Commission's dissenting member expressed concern that Adamson's   



exam  in  1980   "did   not   involve  a  blood  chemistry  test  measuring  the  PSA  level  in  

Adamson's blood."  Dr. Allems testified that PSA testing only began to be used as a  

screening tool in the early 1990s.  Adamson testified that to the best of his recollection,  

                                                                                                   

his pre-hire examination included a digital rectal examination prostate cancer screening  

                                                                                                      

test, the same test that detected Adamson's prostate cancer in 2008.  The Board found  

        

that Adamson was credible.  



          38       Because  we  decide  that  substantial  compliance  is  the  applicable  legal  



standard and that Adamson in fact substantially complied with AS 23.30.121's medical  

examination  requirements,  we  do  not  consider  the  Municipality's  argument  that  the  

                                                    

statute does not generally require it to give firefighters the medical examinations outlined  

in the statute and related regulation.  



                                                            -16-	                                                     6947
  


----------------------- Page 17-----------------------

to showing that he was given medical examinations substantially complying with the                                                



statute he also needed to show that "while in the course of employment as a firefighter,   



[he] was exposed to a known carcinogen, as defined by the [IARC] or the National  

Toxicology Program, and the carcinogen is associated with a disabling cancer."39  



                      The Board found that Adamson established through his testimony that "he  



was exposed to soots, containing cadmium and arsenic, to benzene, and to diesel exhaust  

                           



containing  benzene"  and  that  soots,  cadmium,  arsenic,  and  benzene  are  all  known  



carcinogens according to the National Toxicology Program (NTP).  The Commission  



                                                                                                                          

affirmed the finding that Adamson "produced evidence that in connection with his work  



                                                                                                  

as a firefighter, he was exposed to known carcinogens" as identified by the NTP.  The  



                                 

Municipality  does  not  contest  on  appeal  that  Adamson  was  exposed  to  known  



carcinogens  in  his  work  as  a  firefighter,  and  we  agree  with  the  Commission  that  



                                                        

substantial evidence supports the Board's finding that Adamson was exposed to known  



                                                                                          

carcinogens as defined in the NTP.  In addition to the information Adamson provided,  



Dr. Allems said in his report that it is "indisputable" that firefighters "are exposed to  



carcinogens in smoke and post-fire gasses."  At the hearing Adamson testified that he  



                                                                                      

had been exposed to soots in the course of fighting fires and that he had been involved  



                                                                                                   

in fighting several large fires, including a paint supply store in which paint was burning.  



Dr. Allems agreed that Adamson had been exposed to soots; Dr. Allems also testified  



that  arsenic  is  used  in  paint  pigments  and  cadmium  is  used  in  paints  and  batteries.  



Cadmium, arsenic, and soots are all listed as known carcinogens by the NTP.  



                                                                     

                      Adamson  additionally  had  to  show  that  a  carcinogen  to  which  he  was  



           39         AS 23.30.121(b)(3)(C).  



                                                                    -17-                                                                   6947  


----------------------- Page 18-----------------------

exposed is "associated with a disabling cancer."40  The Municipality vigorously contested  



                                                                  

this element at the hearing, contending that there is no known carcinogen for prostate  



                 

cancer  -  that  is,  that  no  causal  relationship  has  ever  been  established  between  a  



                                                                    

carcinogen and prostate cancer - and that as a result Adamson could not establish this  



                                                                    

element.  On appeal, the Municipality insists that the statute requires the firefighter to  



                        

show exposure to a known carcinogen for the specific cancer diagnosed and, because  



                                                          

Dr. Allems testified there is no known carcinogen for prostate cancer, that Adamson is  



                                            

unable to make a connection between his work and his cancer.  Adamson counters that  



he fulfilled the statutory requirements because causation (as the Municipality used the  



term) imposed a higher standard than "association," the standard set out in the statute.  



                                                                                                           

He disagrees with the Municipality's interpretation of the statute, arguing in essence that  



                                    

the statute has two steps and that he completed both because he presented evidence from  



       

the  NTP  and  the  IARC  that  (1)  substances  to  which  he  was  exposed  are  known  



carcinogens and (2) those carcinogens are associated with prostate cancer.  



                                                            

                    Resolution of this question requires us to interpret the statute.  We interpret  



statutes according to reason, practicality, and common sense, considering the meaning  

                                                                                   41  When we interpret a statute,  

of the statute's language, legislative history, and purpose. 



we presume that no words or provisions are superfluous and that the legislature intended  



                                                              

"every  word,  sentence,  or  provision  of  a  statute  to  have  some  purpose,  force,  and  



          40        Cf.  AS  23.30.121(b)(3)(C)  (requiring  an  association  "with  a  disabling  



cancer").  In their briefing before us, the parties do not dispute that Adamson had to  

show an association between known carcinogens and prostate cancer, rather than to any  

                                                                                            

cancer on the list.  



          41       Municipality of Anchorage v. Adamson , 301 P.3d 569, 573 (Alaska 2013)  



(quoting Parson v. State, Dep't of Revenue, Alaska Hous. Fin. Corp. , 189 P.3d 1032,  

1036 (Alaska 2008)).  



                                                             -18-                                                       6947
  


----------------------- Page 19-----------------------

effect."42  Alaska Statute 23.30.121(b)(3)(C) provides that when diagnosed with a cancer  



                                                                        

listed in the statute, a firefighter must show that "while in the course of employment as  



a  firefighter,  the  firefighter  was  exposed  to  a  known  carcinogen,  as  defined  by  the  



[IARC] or the [NTP], and the carcinogen is associated with a disabling cancer."  



                                                                                                       

                    We begin our interpretation of the statute by looking at its language.  Words  



                                                           

in  statutes  are  construed  according  to  their  common  meaning,  with  technical  words  

                                                                             43  Because there is no dispute that  

construed according to their "appropriate meaning."     



Adamson  was  exposed  to  a  "known  carcinogen,"  we  must  construe  the  phrase  "is  

                                                                                            



associated  with,"  focusing  on  "associated."    There  is  no  statutory  definition  of  

                                                 



"associated" in the workers' compensation act, so we consider its common meaning.  



                                            

Because the statute refers to the work of the NTP and the IARC, we also consider the  



manner in which "associated" and related terms are used by these agencies.  



                    Both the NTP and the IARC classify chemicals as carcinogenic, but the  



                                                                                                 

agencies use different categories in their classifications.  The NTP lists some substances  



                                                                           

as "known to be human carcinogens" and others as "reasonably anticipated to be human  

                    44   To be included on the "known to be human carcinogens" list there must  

carcinogens."                                       



be evidence "indicat[ing] a causal relationship between exposure to the agent, substance,  

                                                                                               



          42       Monzulla v. Voorhees Concrete Cutting                      , 254 P.3d 341, 345 (Alaska 2011)  



(quoting Mech. Contractors of Alaska, Inc. v. State, Dep't of Pub. Safety , 91 P.3d 240,   

248 (Alaska 2004)) (internal quotation marks omitted).  



          43        AS 01.10.040.  



          44        U.S.   DEP 'T  OF  HEALTH  &   HUMAN  SERVS .,   PUB .   HEALTH  SERV .,   NAT 'L  



                                                       

TOXICOLOGY PROGRAM , REPORT ON CARCINOGENS 15-19 (12th ed. 2011),                                             available at  

http://ntp.niehs.nih.gov/ntp/roc/twelfth/roc12.pdf.  



                                                             -19-                                                       6947
  


----------------------- Page 20-----------------------

                                             45  

or mixture, and human cancer."    Each substance on the list of known carcinogens has  



a  substance  profile,  which  "contain[s]  the  listing  status,  summarize[s]  the  scientific  



information  that  supports  the  recommendation,  and  provide[s]  information  on  use,  



                                       46  

exposure, and production."                 As Dr. Allems testified at the hearing, the NTP does not  



list target organs in conjunction with substances on its list of known carcinogens.  



                   The     IARC       has     four    classifications        of    carcinogenicity,         with     one  



classification having two subgroups; these classifications range from "carcinogenic to  



                                                          

humans," when a causal relationship has been established between the agent and cancer,  



                                                              47  

to "probably not carcinogenic to humans."                         Substances are classified as "probably  



carcinogenic to humans" - the level below "carcinogenic to humans" - if there is  

"limited evidence" of carcinogenicity;48 in humans, "limited evidence of carcinogenicity"  



                                                                                                              

means that "[a] positive association has been observed between exposure to the agent and  



                                                                                   

cancer for which a causal interpretation is considered . . . credible, but chance, bias, or  

                                                                                           49   Unlike the NTP, the  

                                                                                                               

confounding could not be ruled out with reasonable confidence."  



IARC does not compile a list of "known carcinogens."   Instead, the IARC publishes  

                                                                                  



         45        Id. at 4.  



         46        Id. at 9 n.1.  



         47        WORLD HEALTH ORG .,  INT 'L AGENCY FOR RESEARCH ON CANCER ,  IARC  



M 

                                                                                                   

   ONOGRAPHS ON EVALUATION OF CARCINOGENIC RISKS TO HUMANS , PREAMBLE 22-23  

(2006), available at http://monographs.iarc.fr/ENG/Preamble/CurrentPreamble.pdf.  



         48        Id. at 22 (emphasis omitted).  



         49        Id. at 19-20.  A positive association between exposure to an agent and a  



disease exists when the relative risk of developing the disease is greater in exposed  

                                                                                                           

individuals  than  in  unexposed  individuals;  a  positive  association  "could  be  causal."  

                                              

Michael D. Green, et al., Reference Guide on Epidemiology , in REFERENCE MANUAL ON  

SCIENTIFIC EVIDENCE 549, 566-67 (Fed. Judicial Ctr., 3d ed. 2011).  



                                                          -20-                                                     6947
  


----------------------- Page 21-----------------------

monographs about both substances and occupations reporting the data the agency has              

                                                                               50 it also has lists summarizing data  

reviewed in evaluating the subject of the monograph;                                         



in its monographs, including a list of classifications by cancer sites with sufficient or  

                               

limited evidence of carcinogenicity in humans.51  



                    In  his  hearing  testimony,  Dr.  Allems  referred  to  a  2006  epidemiology  

                                                                                                 52  The textbook listed  

textbook with tables summarizing information from the IARC.     



carcinogens from two IARC classifications:  "Group 1," which the textbook considered  

                                                                                 



definite human carcinogens and "Group 2A," which the textbook called probable human  



                   53  

                       The Municipality and Dr. Allems referred to the substances listed under  

carcinogens.                                                   



          50        The  IARC  has  monographs  about  firefighting  as  well  as  arsenic,  for  



example.    The  IARC  monograph  about  firefighting  concludes  that  there  is  "limited  

evidence in humans for the carcinogenicity of occupational exposure as a firefighter."  

(Emphasis  in  original).    WORLD  HEALTH  ORG .,   INT 'L  AGENCY  FOR  RESEARCH  ON  



                           

CANCER ,  IARC  MONOGRAPHS   ON   THE   EVALUATION   OF   CARCINOGENIC   RISKS   TO  



                                               

HUMANS : VOL . 98 PAINTING , FIREFIGHTING , AND  SHIFTWORK  559 (2010), available at  

http://monographs.iarc.fr/ENG/Monographs/vol98/mono98-1.pdf.  



          51        World  Health  Org.,  Int'l  Agency  for  Research  on  Cancer,  List  of  



Classifications by cancer sites with sufficient or limited evidence in humans, Volumes  

1      t o      1 1 0       ( l a s t     u p d a t e d       J u l y      2 5 ,      2 0 1 4 ) ,       a v a i l a b l e      a t   

                                                            

http://monographs.iarc.fr/ENG/Classification/Table4.pdf.    The  IARC  uses  the  term  

"sufficient evidence" when a causal relationship has been established.  IARC PREAMBLE ,  

supra note 47, at 22.  



          52        The textbook on which Dr. Allems relied stated that its tables "only include  

                                                              

agents and circumstances that were reviewed and published by the IARC Monograph  

Programme as of 2003."  



          53        In the IARC Preamble from 2006, Group 1 contains agents for which there  

                                        

is "sufficient evidence of carcinogenicity in humans," i.e. that "a causal relationship has  

                                                                                                            

been established between exposure to the agent and human cancer."  IARC P 

                                                                                                                    REAMBLE ,  

supra note 47, at 19.  Group 2A consists of agents that are "probably carcinogenic to  

humans."  Id. at 22.  



                                                              -21-                                                         6947
  


----------------------- Page 22-----------------------

Group 1 in the textbook as "known carcinogens" and those listed under Group 2A as  



                                                                                                                    

"probable carcinogens."  Under the Municipality's interpretation of the statute, then, a  



firefighter could attach the presumption only if a causal relationship had been established  



between a substance and the firefighter's cancer.  



                     From this information, we conclude that the agencies consider substances  



                                                                                                                  

to  be  known  carcinogens  when  the  agencies  have  decided  there  is  strong  enough  



evidence  to  show  a  causal  relationship,  but  that,  at  least  in  the  IARC  materials,  an  



                                                                                                                    

"association" supports a lower level of classification.  Dr. Allems agreed that "cause" is  



a higher standard than "associated."  The general dictionary definition of "associated"  



                                                                                                                            54  

                                                                                                                                A link  

accords with this contrast:  The general definition of "associated" is "link[ed]." 



                                                                                           

does not require causation; two ideas or properties can be linked without one causing the  



                                                                                                               

other.  We therefore hold that the statute does not require a firefighter to show exposure  



to a carcinogen that has been shown to cause a specific cancer.  Instead, the statute sets  



up a two-step process, in which the firefighter must first show exposure to a known  



                                                                      55  

                                                                                                                     

carcinogen as defined by the NTP or IARC.                                  The firefighter must then provide some  

                                                                        56 but does not have to show that the IARC  

                                                                                  

evidence linking the carcinogen to the cancer, 



           54        WEBSTER 'S II  NEW COLLEGE DICTIONARY 70 (3d ed. 2005).  



           55        Our review of the treatise on which Dr. Allems relied, which was based on   



the IARC, and of the NTP list of known carcinogens shows that the NTP list overlaps   

to a large extent with definite (Group 1) carcinogens in the treatise, at least with respect                    

to likely occupational exposures.  (The treatise lists only occupational carcinogens.)                                              The  

lists are not coextensive, however.  For example, 1,3-butadiene is listed as a known  

carcinogen by the NTP, see REPORT ON  CARCINOGENS , supra  note 44, at 15, but is only   

on the probable human carcinogen list in the treatise.  



           56        See City of Las Vegas v. Lawson, 245 P.3d 1175, 1179-80 (Nev. 2010)  

                                                                                                        

(construing  similarly  worded  statute  as  having  two  steps).    We  have  previously  

determined that "[o]pinions from other jurisdictions interpreting similar statutes can be  

                                                                                    

                                                                                                                     (continued...)  



                                                                  -22-                                                            6947
  


----------------------- Page 23-----------------------

or the NTP has determined that the carcinogen is a "known carcinogen" for the cancer.  



                   The Municipality's interpretation would limit the statute's application to  



                              

carcinogens shown to cause the enumerated cancers rather than applying it to chemicals  



linked to a cancer after those chemicals have been found to cause cancer at other sites.  



                                                                                    

As an example, the IARC monograph about arsenic and arsenic compounds, included  



                                                                   

as an appendix to Adamson's brief, states that certain arsenic compounds "cause cancer  



                                                                     

of the lung, urinary bladder, and skin" and "a positive association has been observed  



                            

between exposure to arsenic and inorganic arsenic compounds and cancer of the kidney,  



liver, and prostate."  The 2006 treatise upon which Dr. Allems relied in his testimony  



                                                                                                               

observed the evolving nature of knowledge about carcinogenicity, noting that "over 95%  



                

of today's probable and possible occupational carcinogens had not even been mentioned  



as of 1964, and about one-third were not mentioned as of 1987."  



                                    

                   We  reject  the  Municipality's  interpretation  because  that  interpretation  



would render parts of the statute meaningless.  Dr. Allems would have testified that there  



                                                        

is no known carcinogen for prostate  cancer because the prostate was not listed as a  



cancer site in the Group 1 table in the treatise.  Of the eight enumerated cancers in  



                                                                      

AS 23.30.121(b)(1)(C), only three - leukemia, non-Hodgkin's lymphoma, and bladder  



                                                                                           57  

                                                                                               Yet the most current  

cancer - are clearly listed in the Group 1 table in the treatise. 

IARC  classification  list,58  which  includes  agents  with  both  "sufficient"  (causal)  and  



"limited"  (associational)  evidence  of  carcinogenicity  in  humans  and  is  based  on  



          56       (...continued)  



persuasive."  City of Kenai v. Friends of Recreation Ctr., Inc., 129 P.3d 452, 458 (Alaska  

                                                                                         

2006) (citing Nicholson v. Sorenson , 517 P.2d 766, 770 n.9 (Alaska 1973)).  



          57       The  treatise  did  not  differentiate  among  types  of  skin  cancers,  so  its  



classification of malignant melanoma is unclear.  



          58       List of Classifications by cancer sites, supra note 51.  



                                                            -23-                                                      6947
  


----------------------- Page 24-----------------------

information through 2011, includes all of the eight enumerated cancer sites.  Because we           



assume that the legislature intended that firefighters would be able to avail themselves   



of the presumption established in AS 23.30.121, the Municipality's interpretation cannot  



be what the legislature intended.  



                                                     

                       Relying on cases about attaching the presumption under AS 23.30.120 in  

                                       59 the Municipality argues that Adamson was required to present  

complex medical cases,                            



expert testimony in order to attach the presumption because of the complex questions of  

                                                                                                               



causation presented by toxins and cancers.  We decline to adopt a general rule requiring  



a firefighter to present expert testimony in cases involving AS 23.30.121.  The purpose  



of the statute, as clearly demonstrated by the legislative history, was to make this type  



                                                                  60  

                                                                      By specifically referring to the IARC and the  

of claim easier for firefighters to prove. 



NTP and their work, the legislature provided a means by which a firefighter can attach  

                                                                                                                                  



the presumption without a retained expert.  A firefighter is free to retain and use an  

                              



expert if there is concern that the data available from the IARC or the NTP does not  



adequately support a claim, but is not required to do so.  



                       Considering the evidence available at the hearing, we conclude that the  



                                                                                                          

Commission  correctly  concluded  that  substantial  evidence  supported  the  Board's  



decision that Adamson attached the presumption in AS 23.30.121.  Adamson provided  



                                                                                        

the Board with substance profiles from the NTP for arsenic, benzene, and cadmium, all  



stating that these substances are "[k]nown to be human carcinogens" and cited studies  



           59         E.g. , Burgess Constr. Co. v. Smallwood , 623 P.2d 312 (Alaska 1981).  



           60          Minutes, House Labor & Commerce Comm. Hearing on H.B. 200, 25th  



Leg., 2d Sess. 4:43:53-5:02:03 (Apr. 27, 2007) (testimony of Paul Lisankie, Director,  

Div. of Workers' Comp.).  



                                                                     -24-                                                                     6947  


----------------------- Page 25-----------------------

                                                                                                                  61  

showing  an  association  between  the  substances  and   prostate  cancer.                                             The  IARC  



monograph about arsenic and arsenic compounds states that there is either sufficient or                      



limited evidence of carcinogenicity in humans (depending on the compound); it indicates  



                                                                                      

that "a positive association has been observed between exposure to arsenic and inorganic  



                                                                                62  

                                                                                     The IARC materials on cadmium  

arsenic compounds and cancer of the . . . prostate." 



state that "positive associations have been observed between exposure to cadmium and  



                                                                                      63  

                                                                                          The NTP substance profile on  

cadmium compounds and cancer . . . . of the prostate." 



                                                                               

cadmium from the Twelfth Edition of the Report on Carcinogens references the IARC  



                64  

materials.            The  NTP  substance  profile  for  arsenic  reports  that  studies  show  an  



                                                                                               65  

                                                                                                                      

association  between  arsenic  exposure  and  prostate  cancer.                                       The  NTP  also  reports  



                                                                                                                          66  

                                                                                                                              On the  

studies showing a connection between exposure to soots and prostate cancer.  



IARC's  list  of  classifications  by  cancer  site,  arsenic  and  cadmium  (and  compounds  



containing          these      elements)         are     included         as    agents       with      limited       evidence         of  



           61        REPORT ON  CARCINOGENS , supra note 44, at 50-52, 60-62, 80-82.  



           62  

                                                                                                                                 

                     WORLD HEALTH ORG ., INT 'L AGENCY FOR RESEARCH ON CANCER , IARC  

M                                                                                                                                

    ONOGRAPHS ON THE EVALUATION OF CARCINOGENIC RISKS TO HUMANS : VOL . 100C  



                                                                                           

A REVIEW OF HUMAN CARCINOGENS : ARSENIC , METALS , FIBRES , AND DUSTS 85 (2012),  

available at http://monographs.iarc.fr/ENG/Monographs/vol100C/mono100C-6.pdf.  



           63  

                                                                                                                                 

                     WORLD HEALTH ORG ., INT 'L AGENCY FOR RESEARCH ON CANCER , IARC  

M                                                                                                                                

    ONOGRAPHS ON THE EVALUATION OF CARCINOGENIC RISKS TO HUMANS : VOL . 100C  



                                                                                            

                                                                  

A  REVIEW  OF  HUMAN  CARCINOGENS :                              CADMIUM  AND  CADMIUM  COMPOUNDS  141  

(2012), available at http://monographs.iarc.fr/ENG/Monographs/vol100C/mono100C- 

6.pdf.  



           64  

                                         

                     REPORT ON CARCINOGENS , supra note 44, at 80-82.  



           65        Id. at 50-52.  



           66  

                                         

                     REPORT ON CARCINOGENS , supra note 44, at 379.  



                                                                 -25-                                                            6947
  


----------------------- Page 26-----------------------

                                                                 67  

carcinogenicity for prostate cancer in humans.                       As we noted earlier, limited evidence  



of carcinogenicity in the IARC means a positive association exists between the substance  



                           

and  the  cancer.         From  all  of  this  information,  we  conclude  that  the  Board  and  the  



                                                                       

Commission correctly determined that Adamson attached the presumption that he had  



been exposed to a known carcinogen associated with prostate cancer.  



                   In  sum,  we  hold  that  Adamson  was  required  to  (and  in  fact  did)  



                                                                                                   

substantially comply with the requirements for medical examinations in AS 23.30.121.  



Adamson fulfilled the other requirement for attaching the presumption by presenting  



evidence that in his work as a firefighter, he was exposed to known carcinogens as  



identified by the NTP and that the carcinogens are associated with prostate cancer.  



          C.	      It Was Error for The Commission To Decide That The Municipality  

                   Could Rebut The Presumption In AS 23.30.121 Through Testimony  

                   That There Is No Known Carcinogen For Prostate Cancer.  



                                          

                   Construing AS 23.30.121, the Commission decided that the Board erred in  



failing to admit or evaluate Dr. Allems's testimony.  In the Commission's view, the  



                                      

Board read the statute too narrowly in considering the scope of possible bases which an  



                                      

employer could assert to  rebut the presumption in AS 23.30.121.  The Commission  



thought Dr. Allems's testimony that there was no known carcinogen for prostate cancer  



                                                                                                                 

could be sufficient to rebut the presumption because, in its view, the legislature did not  



                                                                                       

intend to prevent an employer from presenting evidence that could undercut any of the  



                                                                                  

criteria for attaching the presumption, including evidence that occupational exposure to  



carcinogens can cause prostate cancer.  The Commission reversed the Board's exclusion  



                                                                                  

of Dr. Allems's testimony and remanded the case for the Board to consider and weigh  



his testimony against Adamson's evidence.  



         67        List of Classifications by cancer sites, supra note 51, at 7.  



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----------------------- Page 27-----------------------

                    Adamson argues that the legislature intended to limit the type of evidence  



an employer can use to rebut the presumption.  Relying in part on cases from other  



jurisdictions,  Adamson  contends  that  the  legislature  did  not  intend  a  firefighter's  



                                                                                                

employer to rebut the presumption with "[m]edical evidence that simply attacks the link  



established by the legislature between firefighter exposures and the particular listed  



disease."    The  Municipality  responds  that  the  legislature  did  not  determine  that  



                                                    

firefighting causes cancer and that the statutory language and legislative history support  



its position that it could rebut the presumption through Dr. Allems's testimony.  



                    To  resolve  this  dispute,  we  must  again  interpret  the  statute.    Alaska  



                                                                                                        

Statute 23.30.121(a) provides in pertinent part, "The evidence [to rebut the presumption]  



                                  

may include the use of tobacco products, physical fitness and weight, lifestyle, hereditary  



factors,  and  exposure  from  other  employment  or  nonemployment  activities."    The  



                                                                     

Commission thought the use of "may include" showed that the legislature did not intend  



                                                                             

to limit in any way the type of evidence an employer could use to rebut the presumption.  



                    We disagree with the Commission's interpretation of the statute.  The words  



"may  include"  certainly  indicate  that  the  list  in  the  statute  was  not  meant  to  be  



                 68 

                                                                                                                 

exhaustive.          But in interpreting statutes, we can look at the type of object on a list to see  



                                                                                                                             69  

                                                                    

whether the legislature intended to describe a class that includes those things on the list. 



The items on the statutory list are all personal to the claimant, including habits and other  

                                                                    



possible sources of toxic exposures; we therefore conclude that the statutory language  



                                                      

indicates that rebuttal evidence must be personal to the claimant, not evidence attempting  



to   undermine   the   legislature's   determination   that   the   enumerated   diseases   are  



          68        AS 01.10.040(b).  



          69        This is similar to the doctrine of ejusdem generis.  See Cable v. Shefchik,  



985 P.2d 474, 480 (Alaska 1999) (explaining application of doctrine).  



                                                             -27-                                                          6947  


----------------------- Page 28-----------------------

occupational diseases of firefighters.  



                                                                              

                     The Municipality contends that the legislative history supports its reading  



                                                                                                

of the statute. The little legislative history about rebutting the presumption is ambiguous  



at  best.    The  Municipality  cites  as  "[m]ost  telling"  a  Senate  Finance  Committee  



                                                                                                                 

discussion in which senators questioned inclusion of prostate cancer in the bill because  



of  concerns  that  it  is  common  among  older  men.    We  do  not  interpret  the  ensuing  



                                                                 

discussion as showing a legislative intent to permit an employer to rebut the presumption  



by  attempting  to  negate  a  causal  connection  between  occupational  exposures  to  



carcinogens in firefighters and the listed cancers.  The discussion focused on age -  



                                                                                                         

another factor personal to a claimant - and the time limit on the presumption, which  



                                                   70  

could limit the age of claimants.                      



                     Dr. Allems would have testified that there is no known carcinogen for  



prostate cancer; he also gave the opinion in his report that "[t]he firefighter data are  



                                                                                                           

consistently not compelling as to an increased risk of prostate cancer in this occupational  



                                                                         

group."  Essentially, the Municipality sought to rebut the presumption that Adamson's  



                                                                                             

cancer was due to exposure to toxins by demonstrating that the legislative determination  



- that firefighters' occupational exposures to carcinogens are significant enough that  



                                                                                                                       

they should be afforded a presumption that certain cancers are occupational diseases -  



                                                 

was  wrong.    We  previously  have  refused  to  permit  litigants  to  attack  legislative  

findings,71 and we similarly reject the Municipality's attempt to do so here.  



                                                                                       

                     We also find persuasive the construction of similar statutes by other state  



           70        AS 23.30.121(b)(2) limits the presumption's availablity after terminating     



service as a firefighter; the absolute limit is five years, but the time limit may be shorter.  

Id.  



           71  

                            

                     See  Evans  ex  rel.  Kutch  v.  State,  56  P.3d  1046,  1053  (Alaska  2002)  

(refusing to second guess legislative fact-finding about tort reform).  



                                                                 -28-                                                           6947
  


----------------------- Page 29-----------------------

                                                                                           

courts.      As  Adamson  points  out, courts  in  other  states  have uniformly  held  that  an  



employer may not rebut similar presumptions by attempting to show that there is no  



                                     

relationship between the occupation and the disease.  For example, in City of Frederick  



                                                                                         

v. Shankle, the Maryland Court of Appeals stated that to rebut the presumption that heart  



disease  or  hypertension  was  a  compensable  occupational  disease  for  certain  police  



officers  and  firefighters,  the  employer  had  to  present  evidence  "particular  to  the  



                                                                                                    72  

                                                                                                        The Maryland  

claimant . . . and not a total and absolute denial of the presumption." 



                                                                                                                 

court upheld the exclusion of expert testimony when the employer's expert held the  

opinion "that there was utterly no correlation between job stress and heart disease."73  



                                                                

Under a slightly different statutory scheme, the California Court of Appeal rejected an  



employer's attempt to rebut a statutory presumption that a police officer's kidney cancer  



        

was work related by introducing evidence "that no studies exist showing a positive link  

between the exposure and the particular form of cancer."74  



                                                                                                       

                   Cases from other courts cited by the Municipality are not to the contrary.  



                                                  75  

                                                                                                           

In  Worden  v.  County  of  Houston                   the  court  agreed  an  employer  had  rebutted  the  



presumption  that  a  police  officer's  heart  attack  was  work  related,  but  the  rebuttal  



evidence included medical reports attributing his heart attack "to his heavy cigarette  



          72       785 A.2d 749, 755 (Md. App. 2001).  



          73       Id. at 752-53.  Other states have reached similar conclusions.  Linnell v.  



City of St. Louis Park, 305 N.W.2d 599, 601 (Minn. 1981); Byous v. Mo. Local Gov't  

Emps.  Ret.  Sys.  Bd.  of  Trs. ,  157  S.W.3d  740  (Mo.  App.  2005);  Robertson  v.  N.D.  

                         

 Workers Comp. Bureau, 616 N.W.2d 844, 855 (N. D. 2000); Sperbeck v. Dep't of Indus.,  

                                                                   

Labor & Human Relations , 174 N.W.2d 546, 549 (Wis. 1970).  



          74       City of Long Beach v. Workers' Comp. Appeals Bd., 23 Cal. Rptr. 3d 782,  



794 (Cal. App. 2005).  



          75       356 N.W.2d 693 (Minn. 1984).  



                                                           -29-                                                      6947
  


----------------------- Page 30-----------------------

smoking, his positive family history of coronary artery disease, and his hypertension  



                                                                                                       76  

which was documented before [he] ever began law enforcement work."                                         And the other   



case   cited   by  the  Municipality,  Wanstrom  v.  North  Dakota  Workers  Compensation  



            77  

Bureau ,       also supports Adamson's position.  There the North Dakota Supreme Court  



stated that it had "further clarified the strength of the presumption when [it] held the  



                    

presumption was not successfully rebutted by expert opinion that merely denied the  



                                                                                                                       78  

premise that served as the basis for the legislative enactment of the presumption."                                         



                   We agree with these cases and hold that the evidence used to rebut the  



                                                                                     

legislatively created presumption in AS 23.30.121 must be personal to the claimant.  The  



                                                                                                                 

Municipality's  argument  that  rejecting  this  type  of  rebuttal  evidence  will  create  an  



                                                                                                  

irrebuttable  presumption  is  meritless.    The  legislature  provided  a  means  by  which  



employers  could  rebut  the  presumption:    presentation  of  evidence  personal  to  the  



claimant showing that the specific disease in a particular firefighter could have been  



caused  by  another  mechanism  personal  to  that  firefighter,  such  as  smoking.                                       In  



Adamson's case, that evidence was absent, as the Municipality's expert recognized.  



Because  the  only  evidence  the  Municipality  attempted  to  introduce  to  rebut  the  



                                                                                                    

presumption was not relevant under our interpretation of the statute, we reverse the part  



                                             

of the Commission's decision about rebuttal evidence.  The Board correctly determined  



                                                                                                 

that Dr. Allems's causation opinion was inadmissible and properly excluded it.  Because  



                                                                                                             

the Municipality failed to offer any relevant, admissible evidence to rebut the statutory  



presumption here, it failed to rebut the presumption of compensability.  



          76       Id. at 696.  



          77        621 N.W.2d 864 (N.D. 2001).  



          78       Id. at 869 (citing Robertson 616 N.W.2d at 844).  



                                                            -30-                                                          6947  


----------------------- Page 31-----------------------

V.      CONCLUSION  



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



                                                                                      

Adamson attached the presumption of compensability in AS 23.30.121.  We REVERSE  



the Commission's decision that the Municipality could rebut the presumption through  



the opinion evidence it offered, and we REMAND this case to the Commission with  



instructions to reinstate the Board's decision.  



                                                 -31-                                            6947
  

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